Labor Senators recognise that the risks associated with the changing profile of detainees in migration detention may require new management policies and practices. However, the bill indicates that the Government has made no real attempt to address problems in a more focussed and effective manner.
In his Second Reading Speech on 14 May 2020, Hon Alan Tudge MP, Minister for Population, Cities and Urban Infrastructure, claimed:
The current version of the Bill includes amendments that specifically address feedback from the committees to ensure amendments do not trespass on personal rights and liberties of detainees.
The written submission from the Department of Home Affairs argues similarly, that the current bill has addressed '…concerns raised about the 2017 version.'
However, Labor Senators are not convinced that theirs and stakeholders’ major concerns have been resolved or addressed adequately. Many submissions and witnesses hold the same concerns:
We are dismayed that this bill is being presented again, three years after it was introduced, with no real change to the content of the bill.
Importantly, the current bill still applies all measures to all residents in detention facilities, rather than differentiating between different types of detainees. Labor Senators ask why the bill’s provisions cover all detainees, rather than be targeted at the high-risk detainees.
The Explanatory Memorandum describes the purpose of the bill as:
…to strengthen the Department of Home Affairs’ ability to regulate the possession of particular items in immigration detention facilities in order to ensure that the Department can provide a safe and secure environment for staff, detainees and visitors in an immigration detention facility.
At the committee's hearing on 3 July 2020, the department stated:
the bill would allow the minister to determine prohibited things and strengthen the power of authorised officers to search for and seize those prohibited things from detainees held in immigration detention.
How will this be done?
There are several aspects of the bill that relate to implementation of the bill’s purpose. Of particular note, is the Minister for Home Affairs' ability to define a ‘prohibited thing’ as:
possession of the thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained, or in which the facility is located; and
the thing is determined by the Minister by legislative instrument under paragraph 251A(2)(a); or
the thing is determined by the Minister by legislative instrument under paragraph 251A(2)(b).
In Minister Tudge’s own words:
The bill amends the Migration Act to enable the minister, by disallowable legislative instrument, to determine things to be prohibited things… The bill will also give the minister the power to issue binding written directions to officers that require them to exercise their seizure powers in relation to weapons, escape aids or prohibited things.
Labor Senators have a range of concerns about this bill.
The status of people in immigration detention
In considering how to manage people in migration detention centres the Australian Government must bear in mind that people in these centres are subject of an administrative action, not a criminal measure. Labor Senators note that the UNHCR Convention, to which Australia is a party, seeks the “…non-penalisation of refugees.”
In appearing before the Committee, the Law Council of Australia observed:
It must be remembered that people in immigration detention are not prisoners, and their rights should not be curtailed as though they were.
This line of argument was reiterated by several submissions and witnesses, including the United Nations High Commissioner for Refugees who wrote:
…detention arrangements should not be punitive nor should facilities accommodating asylum-seekers and refugees operate like prisons or jails.
Legal Aid NSW argued that:
…immigration detention is administrative detention that must be distinguished from court ordered detention. Measures which are appropriate in the context of court ordered detentions are not appropriate in the context of administrative detention.
Is this legislation needed to handle the situations described by the Government?
Labor Senators consider that the Government should have been able to produce stronger evidence to support their claims that detention centres are becoming more dangerous.
Labor Senators recognise that the ‘types’ of detainees have changed over recent years, thus a different approach is likely required. The Labor Party supports prohibiting items that are already illegal under state, territory, or Commonwealth law, particularly narcotic drugs, child exploitation material or weapons as these items present a demonstrable risk within the detainee population and to detention centre staff.
However, the Government has failed to make a case for why this situation cannot be handled on a case by case basis or through existing legislation.
Like several submissions and witnesses, the Refugee Council of Australia argues:
We believe there is no need for this Bill, as the current powers, laws and policies can and do deal with the issues that the Government seeks to address via the Bill.
The Kaldor Centre for International Refugee Law made a similar argument:
It is important to remember that ordinary criminal laws apply to those in detention.
The department argued it does not have adequate statutory powers to undertake the actions required, but it makes limited mention of common law powers it has to remove items that pose a danger to health and safety in detention.
The Serco ‘Pat Searching’ manual released by the department in 2017 includes specific instructions for staff on how to search for drugs including:
Items such as drugs, child pornography and alcohol fall under common law duty of care, by which the department must ensure the safety and well-being of detainees and others in the IDF.
The department told the committee that:
Currently in relation to common areas in other parts of the detention centre, any search and seizure powers are really based on our common law responsibilities as the occupier and owner and our duty of care.
The department did not elaborate on whether or how these common law powers are insufficient.
If expert legal witnesses are correct in arguing that existing laws are adequate to deal with the types of situations described by the Government, the bill is a strong indication of the failure of the Government, the minister, and the Department of Home Affairs to manage complex issues in the detention centres.
Is the sweeping nature of this Bill required or should measures be more targeted to certain categories of detainees?
Labor Senators note the concerns expressed across the range of submissions and witnesses that the current Bill is a disproportionate response to the situation described by the Government:
This is an extremely broad power, exercisable once a very low and poorly defined risk threshold risk is met.
The measures in the bill appear to be disproportionate to the stated risks. In particular, the bill enables blanket prohibitions on all detainees regardless of their needs, vulnerabilities, or risk profile.
Labor Senators are concerned that the Bill applies to all detainees in migration detention centres, without differentiation.
This is despite evidence from the Government on the change in the composition of detainees. Appearing before the committee, the Department of Home Affairs advised:
An increasing number of high-risk individuals with criminal histories are being accommodated in immigration detention facilities pending their removal from Australia. These include child sex offenders and members of outlaw motorcycle gangs and other organised crime groups who have had visas cancelled or refused on character grounds. Many of these individuals have entered immigration detention directly from a correctional facility at the end of their criminal sentence. The changing nature of the immigration detention population has seen an increase in behaviour of concern in immigration detention facilities across Australia.
Labor Senators appreciate and share concerns that there are high risk individuals in immigration detention, just as there are high risk individuals in the wider community.
In immigration detention, high risk individuals pose a danger to other groups of detainees and staff.
Labor Senators agree with the points raised by many submitters that the bill fails to differentiate between the very different groups of people in immigration detention and that differentiated arrangements are required.
Labor Senators’ concerns were supported by the Australian Human Rights Commission:
Under international law, the Australian government must take great care to ensure that any action it takes to achieve that aim is carefully targeted to achieving that aim while upholding the basic rights of people who are detained. Extra care must be taken to immigration detention. Under international law and under the Australian Constitution, immigration detention can never be imposed as punishment.
It would be of grave concern to Labor Senators if the opinion of the Immigration Advice and Rights Centre is correct:
It is our view that the proposed ban amounts to collective punishment for the misdeed of a few…
Labor Senators recommend that the Government either withdraw the bill, or significantly amend the Bill to address these concerns and ensure that the bill is focussed on the specific risks and does not impose broad sweeping measures that punish detainees who themselves may be at risk from other, high risk detainees.
Labor Senators also recommend that, if the Government revises the legislation to be more targeted, it also implements measures which provide extra protections for staff working in immigration facilities, especially those health and medical professionals in immigration facilities.
Labor Senators are concerned that the positive benefits of mobile phones to detainees and their welfare are being lost in the generalised accusations of misuse.
Labor Senators note that the current legal frameworks permit the confiscation of a mobile phone from a detainee if there is a reasonable cause. The Government has not made a convincing case as to why the broad, sweeping powers for confiscation and search and seizure from any detainee in any circumstance, as proposed in the bill, are necessary.
Labor Senators consider that submissions and witnesses have made convincing arguments both for the benefits of mobile phones to detainees and against the blanket ban on mobile phones for all detainees that this bill would permit.
Detainees use mobile phones to maintain close contact with friends and family and to maintain effective and timely communication with legal advisers. As the Law Council of Australia observed:
...detainees are working within the administrative law system and the Migration Act, which is subject to very strict deadlines.
The Department of Home Affairs argues that if mobile phones are confiscated detainees will have access to other forms of communications, including fixed line phones and fax machines. This response is unsatisfactory. It ignores questions of urgency, 24-hour access to these fixed lines, the relative inadequacy of faxes, and a range of issues relating to the privacy of contacts between lawyers and their clients. It also ignores the fact that detainees are often moved between facilities at short notice.
The Commonwealth Ombudsman Mr Michael Manthorpe PSM, described the value of mobile phones:
I think the availability of mobile phones for detainees certainly makes it easier for them to approach our office. I accept, in good faith, the assurances from the department that, in all of the facilities, there are landlines and internet and so on available. But they are typically available in common areas where issues of privacy and other considerations apply. I think mobile phones provide an advantage to detainees and an opportunity to detainees that they would otherwise not have that may be important if they've got an issue that they want to raise with us.
Labor Senators note that mobile phones can also play a vital accountability role in detention facilities. Filming of incidents and behaviours may serve to make the facilities safer for both detainees and staff. The Commonwealth Ombudsman observed:
I think it’s very important – fundamentally important – that people who are detained have access to recourse if they feel they are being mistreated, and there might be instances where mobile phone footage assists them in that regard.
Labor Senators note the concerns raised in relation to staff privacy and security, and restate their recommendation that when the Government takes the opportunity to revise this legislation to make it more targeted and focussed on high risk individuals, it also implements additional measures to protect staff working in immigration facilities.
Opportunities for Parliamentary oversight.
Effective parliamentary oversight is an essential element of democracy. This is especially so with this bill. This bill is an incomplete and unsatisfactory response to concerns raised about earlier versions of this bill, and the concerns raised by submissions and witnesses about the bill as a whole and about specific elements, notably concerning mobile phones.
Labor Senators acknowledge some improvement in opportunities for Parliamentary oversight. That change from earlier legislation means that the minister’s declaration of a ‘prohibited thing’ will be via a disallowable instrument. However, that is not enough improvement.
Some witnesses and submissions argue that ‘prohibited things’ should be defined in legislation, rather than in regulations, as is proposed by the government.
A further unresolved issue is whether the parliament can disallow a single ‘thing’ on the list of ‘prohibited things’ or whether it must disallow the entire list of ‘prohibited things.’ The committee heard conflicting advice on this issue.
The Department of Home Affairs advised that single ‘things’ could be disallowed:
Ms de Veau: You can you disallow what is a prohibited item—
Senator KIM CARR: One item?
Ms de Veau: There's provision to make a partial disallowance in the law.
Senator KIM CARR: I see. That's good. So, your advice is that you could disallow one item off the list?
Ms de Veau: Yes, you can make a partial disallowance.
Senator KIM CARR: Thank you. I'm pleased to hear that.
Other parties directly dispute the Department of Home Affairs' evidence.
The Human Rights Law Centre wrote:
The Senate will only be able to disallow an instrument in full. It could not disallow the designation of a single item listed in an instrument, […] The Minister could group multiple serious items relating to exploitation and illegal activity with more innocuous items like mobile phones in a single instrument.
Advice from the Parliamentary Library takes a position between the two opinions quoted above.
Following a request for client advice from a committee member, the Parliamentary Library advised, inter alia:
The Human Rights Law Centre’s (HRLC) claim that the Senate will only be able to disallow in full an instrument made under proposed section 251A does not appear to be correct. It is possible for an instrument to be partially disallowed, and there are a number of previous examples of this occurring.
However, depending on how an instrument is drafted, Parliament may still face difficulty in voiding an instrument’s application to certain prohibited objects and not others.
Further, the Parliamentary Library observed:
[According to] … statements by the Regulations and Ordinances Committee, the disallowance process cannot generally be used to ‘amend’ an instrument. As such, if an instrument was drafted in such a way that ‘innocuous items’ were grouped with ‘serious items’ (to use the language of the HRLC) within a single item or section (and without the use of subsections), then it could be fair to say that Parliament will find it difficult to disallow the designation of a single object as prohibited.
Labor Senators’ second concern relating to parliamentary accountability involves the fact that the minister’s written directions on actions involving this bill’s list of ‘prohibited things’ is not a disallowable instrument.
This was confirmed by the Department of Home Affairs at the committee’s hearing:
Mr Kefford: …The intention, as is clearly set out in the legislation and the second reading speech, is that the overarching framework is set through a disallowable instrument, which we've just touched on. The second layer of that is a written instruction from the minister to officers in the detention centres about the circumstances in which those searches and seizures, if necessary, could take place. So, it's through those vehicles—supported by, as Ms de Veau has already alluded to, more detailed operational guidance by the department to its officers and to Serco staff as to how that's to be carried out. All of that becomes formally documented, but, ultimately, it's under the supervision of the parliament and the minister's direction.
Senator KIM CARR: They wouldn't be disallowable. Ministerial directions are not disallowable, are they?
Mr Kefford: The drafting of those instructions in the bill—that's not a disallowable instrument; it's one that's notified on the register. But the disallowable instrument is the one establishing the prohibited items.
Senator KIM CARR: I understand that. I just wanted to be clear about it. That's my reading of it as well.
Mr Kefford: Your reading is correct.
The Government’s inconsistent approach to risky behaviour
The Government and its representatives have argued that the current bill, and its predecessors, are required to:
…ensure that the Department [of Home Affairs] can provide a safe and secure environment for staff, detainees and visitors to an immigration detention facility.
The provisions in this bill are aimed at detainees. Labor Senators ask what is the Government doing to respond to reports and allegations of dangerous behaviour and allegedly illegal behaviour by some detention facility staff?
Over recent years there have been several allegations of illegal activities or misbehaviour by detention facilities staff. When asked about "…breaches of the Public Service code and breaches of the law by officers acting on behalf of the Commonwealth", the Commonwealth Ombudsman advised:
I'm not sure I'd go so far as to say we've seen breaches of the law. We do, at times, see activities around things like use of force, searches of various kinds et cetera that we think go too far. We've highlighted some of that sort of thing in our reports and we'll continue to do so.
Responding to a question on notice, the Department of Home Affairs provided the following advice:
“Between 1 January 2019 and 31 March 2020 there were eight investigations into allegations that staff of detention facilities were bringing in contraband including drugs. Of these:
none related to Department or Australian Border Force staff;
eight related to Serco officers; and
five related to the bringing of illicit drugs or drug paraphernalia into immigration detention centres.
In response to queries about a News Corp Australia report on 18 July 2017, alleging contraband smuggling by a Serco officer on Christmas Island, the Department of Home Affairs also confirmed that:
Operation ELEKTRA … an ongoing joint investigation between the Australian Commission for Law Enforcement Integrity (ACLEI) and the Department of Home Affairs … remains ongoing, the Department has not received a final report of investigation from ACLEI in accordance with section 54 of the Law Enforcement Integrity Commissioner Act 2006.
The Commonwealth Ombudsman provided further general information about these issues in a written answer to a question on notice from Senator Hon Kim Carr:
The Office of the Commonwealth Ombudsman (the Office) receives complaints about the administrative actions of the Department of Home Affairs (the Department) and service providers contracted to work in immigration detention facilities. The Office also monitors the administration and operation of immigration detention facilities.
Through both processes, the Office is aware of allegations of conduct by department staff and/or Serco officers that could constitute unlawful behaviour. These allegations include:
Misuse of mechanical restraints
In some instances, we have made suggestions or recommendations to the Department about areas where our investigations have identified improvements could be made, but we have not made any definitive findings of unlawful conduct.
Labor Senators consider that this evidence reinforces their argument that the Government needs a balanced and consistent approach to threatening, or allegedly illegal or ‘bad’ behaviour by detention facilities staff, as well as detainees.
Labor Senators call on the Government to move quickly to establish a more transparent public reporting mechanism for breaches of the law or codes of conduct by Serco staff, as well as other private contractors.
Secondly, the Government is requested to provide a public answer as to why the ACLEI investigation is still not completed (or, if completed, unpublished) three years after the media report.
Reliable and Consistent Data
It appears that different data is being used by different organisations involved in the administration of detention arrangements. One excerpt from the 3 July 2020 hearings highlights this problem:
“Mrs Rees: I've got a range of statistics—
Senator KIM CARR: How many people have you got in detention?
Mrs Rees: As at 31 March, there were 1,373 detainees in held detention.
Senator KIM CARR: How many of those were noncitizens with a criminal record?
Mrs Rees: Of those detainees, 862, being 63 per cent, have a criminal history. Of the detainees with a criminal history, 362, or 42 per cent, have a criminal history that includes drug related offences.
Senator KIM CARR: The Human Rights Commission put some statistics to us today, using the same number, 1,373. They say 623 people were subject to visa cancellation under section 501; 512 were asylum seekers who arrived by boat; and 238 were from other categories, including people whose visa was cancelled under other provisions and those who overstayed their visas, and unauthorised air and seaport arrivals and illegal fishers. Would you agree with those statistics?
Mrs Rees: Yes. I've got 623 detained following visa cancellation under 501, and 512 illegal maritime arrivals detained for a number of reasons.
Senator KIM CARR: They are very different from the numbers in the Serco submission—this is a public submission I'm referring to—which asserts that 74 per cent were in a high-risk category. Would that be your statistic?
Mrs Rees: That would be Serco's derived statistic.
Senator KIM CARR: But it's not yours?
Mrs Rees: No.
Ms de Veau: But it might also be a case of apples and oranges.
Mrs Rees: That's right.
Labor Senators note that there is dispute between different parties about if and how guards in detention centres should display their identities to the people with whom they are dealing.
APODs – Alternative Places of Detention
Labor Senators note that the provisions of this bill relate to APODs as well as established detention centres. As at 31 March 2020, APODs accommodated 213 people.
However, Labor Senators are not convinced about how the search and seizure powers can be conducted properly in APODs which are not Departmental property:
It [an APOD] could be a hotel. It could be a hospital. It could be a nursing home.
Cost of SERCO services
It was confirmed by the Department of Home Affairs in written answers to questions on notice, that, between 11 December 2014 and 10 December 2021, the value of the Serco contract is $2.5 billion.
The Government ignores Parliament’s concerns
Labor Party Senators note that the Senate Standing Committee for the Scrutiny of Bills considered the bill in Scrutiny Digest No. 7/20 which was tabled in June 2020. The committee raised concerns about the limited reasoning offered in the explanatory memorandum to justify the various expansions of powers suggested under the Act.
The committee sought further advice from the minister on 11 June 2020 and requested a response by 20 July 2020. The minister still had not responded at the time of tabling on 5 August 2020.
Labor Senators recommend that the Government either withdraw the bill, or significantly amend the Bill to address these concerns and ensure that the bill is focused on the specific risks and does not impose broad sweeping measures that punish detainees who themselves may be at risk from other, high risk detainees.
Labor Party Senators recommend that the bill be amended to define 'prohibited thing' more clearly and that it be defined in legislation to enable appropriate parliamentary oversight.
Labor Party Senators recommend that the Department of Home Affairs’ instructions to their staff and Serco staff on how to implement the minister’s written directions concerning ‘prohibited things’ be contained in disallowable instruments.
Labor Party Senators recommend that the bill be amended to ensure that detainees are not prevented from possessing or using electronic devices such as mobile phones unless there is evidence that removal is necessary and proportionate.
Labor Senators recommend that, if the Government revises the legislation to be more targeted, it also implements measures which provide extra protections for staff working in immigration facilities, especially those health and medical professionals in immigration facilities.
Labor Party Senators recommend that all parties to migration detention matters agree to use the same published data to avoid confusion in debate and in policy development.
If the preceding recommendations are not made to the legislation, Labor Party Senators recommend that the bill not be passed.
Senator the Hon Kim CarrSenator Anthony Chisholm
Deputy ChairLabor Senator for Queensland
Labor Senator for Victoria