This chapter outlines key issues raised during the course of the inquiry, as follows:
the role of ministerial discretion;
mobile phones in immigration detention facilities;
expanded search and seizure powers;
constitutional concerns; and
protections and oversight.
The chapter concludes by outlining the committee's view.
The need for the bill
During the course of the inquiry the Department of Home Affairs (the department) and Serco argued that the bill is necessary due to the changing face of the immigration detention cohort and the nature and adequacy of the existing powers available to staff in immigration detention facilities. These issues are considered in the following sections.
The changing cohort and risk profile of immigration detainees
In his second reading speech, the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alan Tudge MP stated that the strengthening of section 501 of the Migration Act has resulted in a 'significant increase in the number of detainees with criminal histories in…immigration detention facilities. Today, a large proportion of the detention population are unlawful noncitizens who have criminal histories'.
The department advised the committee that as of 31 March 2020, there were 1,373 people in immigration detention. Of that number, 862 (63 per cent) have a criminal history and 362 (42 per cent) have histories of drug-related offences. Other detainees' criminal histories include convictions relating to outlaw motorcycle gangs, organised crime groups and child paedophilia.
Serco highlighted the change in the immigration detention cohort in the last five years, stating:
Approximately 14 per cent of people in detention were categorised as high or extreme risk in January 2015, today 74 per cent per cent of the detainee population are categorised as high or extreme-risk individuals (April 2020). A significant number of the detention population have been transferred from a correctional facility.
The changing cohort of immigration detainees was acknowledged by the Australian Human Rights Commission (AHRC). The AHRC noted, however, that the immigration detention cohort 'includes people with a range of risk profiles', from individuals with 'a long history of serious criminal convictions', to others who 'have committed low-level offences', and those who 'have never been convicted or even accused of any offence'.
The AHRC and the Commonwealth Ombudsman raised concerns about how risk is assessed in immigration detention. The AHRC, referring to its report entitled Use of force in immigration detention, questioned the rigour and categorisation of conduct in the data used by the department. Similar findings were echoed in the Commonwealth Ombudsman's report Immigration Detention Oversight: Review of the Ombudsman's Activities in Overseeing Immigration Detention January to June 2019.
However, both agencies identified that the risk assessment process is subject to review and oversight. The AHRC noted that the department had commissioned an independent review by an external consultant into the risk assessment mechanism, and in its Use of force in immigration detention report, the AHRC made a number of recommendations relating to it. Further, the Commonwealth Ombudsman explained to the committee in an answer to a question on notice that it has some oversight of these risk assessments:
…we review approximately 10 – 15 per cent of the risk assessments during each inspection and make an assessment of the validity of the risk rating based on the evidence available to the analyst at the time. On occasions, we identify ratings that we consider are too high, and we make recommendations or suggestions to review or change those ratings to more accurately reflect detainee behaviour.
The department stated that the changing nature of the cohort within immigration detention facilities has resulted in 'an increase in behaviour of concern'. The department observed that controlled drugs are being introduced to detention facilities by visitors, through mail or in person. The department referred to an occasion where controlled drugs were thrown into a facility. Officers were able to recover part, but not all of those drugs. It further stated that it has knowledge of drug use (including supply) in two facilities. The department informed the committee that:
The current limitations mean that, when we believe detainees may have drugs, we're unable to source and search and find those drugs and take them out of circulation within the facility. That remains an ongoing occurrence that presents a significant concern.
The department referred to a number of other activities occurring in immigration detention facilities that have raised concerns, including:
the abuse of prescription medication;
the use of mobile phones to coordinate escape efforts, bring drugs into facilities and organise criminal activities; and
the filming or photographing of staff in detention facilities, which has subsequently been transmitted outside of facilities and uploaded onto social media.
Serco echoed the department's position and noted the impact that the nefarious use of items that are the subject of the bill has on detainees and staff. Serco submitted that a more recent development in immigration detention centres is the collection of information about staff members and the dissemination of it across social media platforms. Serco stated that this can result in intimidation of staff by detainees, and referred to a number of incidents where staff members' families have been subjected to harassment. Serco reported that in 2019, four workers compensation claims and 60 reports arose out of incidents of this kind. There have also been a number of proceedings brought before Victorian and New South Wales courts arising out of the posting of prejudicial and often slanderous material on social media websites via mobile phones.
The department and Serco both emphasised that the changing cohort of immigration detainees and the resultant increase in disruptive behaviours warrant the introduction of the broadened search and seizure framework as proposed by the bill.
The adequacy of current measures
A number of submitters, including the Law Council of Australia (the Law Council), Legal Aid NSW, the Visa Cancellations Working Group and the Refugee Council of Australia refuted the arguments by the department and Serco that the bill is necessary. Instead, they argued that the existing powers available to the department, in conjunction with those available to local law enforcement agencies, are adequate to address the concerns raised by the change in the cohort and the associated risk profile of detainees.
The Law Council submitted that the Migration Act already provides authorised officers the power to search, screen and strip search detainees, without a warrant, for items which may constitute a weapon or escape aid (including a thing capable of being used as a weapon or escape aid). These powers, the Law Council stated, permit authorised officers to use such force as is reasonably necessary, and to seize such items. The Law Council suggested that where criminal activity occurs in immigration detention centres, the police should be notified and standard criminal law processes followed:
The Law Council suggests that police should be appropriately resourced to carry out their normal law enforcement functions. These include searching for and seizing evidential material which may be used to commit a criminal offence. Police are well trained to carry out this role.
The department informed the committee that current legislative framework for undertaking search and seizure operations is both incomplete and inadequate to address the types of threats to security and safety currently experienced in immigration detention facilities. It stated that the present legislative regime does not empower officers to search for and seize items in common areas. To do so, officers must rely on common law responsibilities as the occupier and owner and under duty of care. The Commonwealth Ombudsman expressed support for a clear legislative framework for the operation of immigration detention centres, and cautioned against the reliance on common law powers in these contexts.
The department outlined the powers currently available under section 252 of the Migration Act. The department described these powers as 'inadequate' and 'a real risk to good order and the safety and security of immigration detention facilities, detainees and staff', identifying four examples of incidents that might occur where, under the current provisions, officers would be unable to act:
A detainee downloads extremist material on his iPad and is showing it to other detainees. The ABF is powerless to confiscate the detainee’s iPad.
ABF officers see a visitor hand over a bag containing a white substance to a detainee. The detainee places the bag in his pocket. The ABF is powerless to search the detainee for the suspected drugs.
A convicted child sex offender who is looking at child abuse material on his phone in plain sight cannot have his phone removed.
A detainee uploads a photo to social media of a contracted medical officer falsely accusing her of criminal acts. The comments on the post include abusive and violent messages towards the medical officer. The ABF is powerless to remove the detainee’s internet enabled devices.
At the public hearing, the department further described circumstances in which the current powers do not permit officers to undertake action to preserve the safety and good order of immigration detention facilities:
The current provisions only allowed search and seizure for limited things like something that can be used for a weapon—so contraband doesn't fall into that category; something that can be used to aid an escape—so it doesn't fall into that category—; or for a document that might be used for cancellation of a visa— and it doesn't fall into that category. Does that mean you can't deal with drugs at all? No, but what you're actually doing is dealing with an offence once you know it's been committed. That doesn't actually assist you with the management of the security and safety of the detention centre.
The department explained that while it maintains good relationships with law enforcement partners, reliance on law enforcement 'continues to put detainees, staff and a range of other people at particular risk in terms of their safety and security'. It stated that the power (or lack thereof) to search for and seize prohibited items directly impacts upon its responsibility to 'maintain the good order and safe and secure operations of…detention facilities'. Ms Pip de Veau, General Counsel for the Department of Home Affairs, outlined the basis for this position:
At the moment, because you can only deal with drugs once an offence has been found to have been committed, because you accidentally come across the contraband and you know it's unlawful to possess it, you would need to call the police and they would arrange for whatever search or seizure powers they have to come and collect that and then deal with it in whatever way they can. The problem is that, by not being able to proactively manage those items in allowing you to search and seize, you can't prevent the crime from being committed. And it would be the same for other illegal things, like finding someone accessing child pornography on the internet or other things. You would have to have evidence that it has actually occurred before you come and mop it up in terms of the search and seizure, as opposed to being able to manage things in a way that prevents those things from happening.
The role of ministerial discretion
A significant difference between the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) 2017 Bill (the 2017 bill) and the bill presently being considered pertains to the role of ministerial discretion. Under the 2017 bill, the legislative instrument by which the minister could declare an item a ‘prohibited thing’ could not be the subject of a disallowance motion in the Senate. Proposed subsection 251A(4) reverses that position in the current bill. Proposed subsection 251B(6) inserts a new head of power for ministerial discretion, to direct authorised officers to exercise their seizure powers with respect to certain things.
Breadth of ministerial discretion to determine a 'prohibited thing'
Some submitters raised concerns about the breadth of the ministerial discretion in declaring an item a 'prohibited thing'. The Law Council posited that as currently drafted, the 'definition of a "prohibited item" is far too loosely framed and delegates to the minister the power to determine what falls within its scope'. It continued, 'it is parliament's role to determine through primary legislation the precise scope of coercive powers'. The Law Council acknowledged that subjecting this discretion to a disallowance motion is 'a positive change', but raised concerns that 'the bill, as drafted, simply allows things to be listed. It's a list simpliciter; it is not for things to be prohibited in certain circumstances'. The Law Council suggested an alternative approach in which the definition of a 'prohibited thing' is amended to be 'an exhaustive list of specific items which reasonably present a risk'.
The potential for these determinations to become a 'blanket ban', particularly on mobile phones, was raised in a number of submissions. It was clearly rejected in the evidence of the department.
The AHRC acknowledged that items may have a dual use, in that the same item may be used for both threatening and benevolent purposes, stating:
Where there is clear evidence that items have been used in such a manner, prohibiting their possession on an individualised basis may be a reasonable measure. However, blanket restrictions on the possession of items that do not present an inherent risk to safety or security may not be reasonable, particularly when many of the individuals affected have never used these items in a manner that threatens safety or security.
The AHRC recommended that the bill be amended 'to stipulate that items that do not present inherent risks to safety and security may be prohibited in immigration detention' only in the following three circumstances:
on the basis of rigorous individual risk assessments
where the decision maker forms a view, on reasonable grounds, that the person is likely to use the item in a manner that presents a clear and significant risk to safety or security, and
where those risks cannot be managed in a less restrictive way.
A number of submitters argued that certain categories of people in immigration detention should not be subject to the provisions, such as those who have not been convicted of a criminal offence, or those who are identified as being particularly vulnerable. The Centre for Asylum seekers, Refugees and Detainees argued that while the bill is directed at a small cohort of detainees, it 'has the potential to have a seriously detrimental effect on all detainees including many vulnerable asylum seekers and refugees'.
On the exercise of discretion, the Commonwealth Ombudsman, Mr Michael Manthorpe PSM stated that he envisaged that this bill may generate complaints to him, and it may generate a desire from his office to observe how the framework operates in practice. He observed:
I've seen from some of the submissions a concern that what could occur is some sort of blanket ban on phones. If that were to occur, that would generate a considerable number of complaints and quite a focus for my office, but, if a more targeted approach were taken and built into the framework, then some of those concerns might be alleviated. Nevertheless, I would want to look at all of that.
Mr Andrew Kefford PSM of the Department of Home Affairs asserted that 'the bill seeks to strike a balance between the individual rights of detainees and the protection of the community, facility staff, visitors and other detainees'. He continued:
The bill does not propose a blanket ban on mobile phones in detention facilities. It does, by disallowable instrument, allow the minister to direct officers to seize mobile phones from certain categories of people in certain circumstances. These circumstances include where the phone is being used to conduct activities that would be illegal in the community—for example, accessing child abuse material. Detainees who do not use their mobile phones for criminal activities or activities that endanger the health, safety and security of staff, other detainees or the facility itself would be able to retain their mobile phones.
The department informed the committee that the purpose of providing the minister with discretion to determine a 'prohibited thing', as opposed to outlining an exhaustive list of items in primary legislation, is to allow the department to identify items for which it is then able to exercise its search and seizure powers. Listing items in legislation, the department asserted, reduces the 'flexibility to deal with circumstances as they arise and threats that emerge'. The mechanism proposed in the bill allows for flexibility while also providing an oversight mechanism (via disallowance). Ms de Veau posited that:
just because a thing is listed doesn't mean that it is automatically unlawful to hold onto that or have it; it provides the ability, in certain circumstances, when that discretion is exercised to be able to search for it and seize it.
Ms de Veau provided the example of someone who might be subject to the provisions, should the minister choose to list mobile phones as a prohibited thing. She stated:
There was a person who was in the Villawood Immigration Detention Centre and had been caught conducting, using a mobile phone, a fraudulent scam in relation to credit cards. In the bail application, there were two things that were observed: firstly, that he had a history of this type of offending behaviour and, secondly, as I think the judge said, that all he had to do to continue that offending behaviour was to have access to a phone.
The department was questioned as to how it could guarantee that a blanket ban would not occur if the legislation was passed. Ms de Veau responded:
Having a legislative framework, how you use it is perhaps the point of distinction. What is envisaged and intended by the provisions is that, if a thing is a prohibited thing, they then enable a person to search for and seize it as a matter of discretion...If we take, more broadly, how you exercise that discretion and the considerations you have in relation to that, it would be a matter of robust procedural instructions, which would be made public. They would obviously also be part of the consideration the Ombudsman has as part of his responsibilities in relation to detention centres and how those are applied. It's about how you then exercise the discretion to search for and seize things that are on the list.
Ministerial direction to exercise seizure powers
The bill proposes a second ministerial discretion, that being to direct authorised officers to exercise their seizure powers with regard to certain items. This discretion would not be subject to disallowance.
The Law Council argued against the implementation of this measure, stating:
this should not be left to the executive, nor should it be able to mandate, through a non-disallowable legislative instrument, the blanket exercise of seizure powers. Such powers should be framed tightly and exercised sparingly based on the careful and reasonable use of discretion and the relevant circumstances.
The Law Council expressed concern that under this provision, the minister 'is being granted an unjustifiably broad discretion to make blanket decisions affecting the lives of persons in immigration detention, without sufficient oversight'. It continued, stating 'that the provisions as they are currently drafted may operate to enforce prohibitions differently for different cohorts on an arbitrary or even discriminatory basis'.
The explanatory memorandum states that the purpose of this power is to:
allow the Department to implement, for example, a targeted, intelligence-led, risk-based approach in relation to the seizure of mobile phones, SIM cards and other prohibited things from detainees in facilities specified in a binding Ministerial direction, based on risk assessments and operational security.
Mobile phones in immigration detention facilities
A significant number of submitters raised concerns about the impact the prohibition of mobile phones might have on detainees should that item be declared a 'prohibited thing'. Submitters noted that mobile phones assist detainees in maintaining access to legal services, communication with friends and family, for education, for entertainment purposes and to promote transparency.
Several submitters raised concerns that the deprivation of access to a mobile phone may amount to an infringement of a number of human rights. Maurice Blackburn submitted that the bill may infringe:
the right to privacy, the right to freedom of expression and the right for an individual to not have unlawful interference with their family or correspondence.
Serco suggested that it may be the rights of its staff that are currently being infringed upon when it submitted that the privacy of its staff was being violated by the misuse of mobile phones within immigration detention facilities to intimidate staff.
The AHRC noted the importance of mobile phones in maintaining connections to family and loved ones, particularly in relation to detainees with children, and noted the difficulty in doing so using a landline in a communal area of an immigration detention facility.
The Australian Medical Association (AMA) stated that as a result of the removal of mobile phones, detainees 'will encounter difficulties in maintaining crucial contact with those who support their mental health and wellbeing'. It suggested that mobile phones provide detainees with access to applications, information and contacts that assist detainees' mental health and wellbeing. The AMA's concern about the impact on detainees' mental health was shared by others, including the Royal Australian College of General Practitioners, the Australian Association of Social Workers and Human Rights Watch. Doctors for Refugees referred to the current conditions in immigration detention facilities, where visitors have been prevented from attending immigration detention facilities to limit the spread of COVID-19 and raised concerns about the mental health ramifications of removing mobile phones from detainees 'who can no longer rely on social supports in physical proximity to them'.
The Commonwealth Ombudsman explained the complexities that might arise in making complaints if a detainee did not have access to a mobile phone. Mr Manthorpe stated that he 'accepts in good faith, the assurances from the department that in all of the facilities, there are landlines and internet and so on available'. However, he noted that mobile phones have an advantage in facilitating privacy in these conversations. Other submitters noted the broader transparency benefits of detainees' access to mobile phones.
Issues around privacy and practicality were also raised concerning access to legal representation. Refugee Legal stated that it has 'directly experienced the impossibility and impracticality of contact with detainees using only the facilities provided in the detention centres'. Refugee Legal continued, that in its, 'access to a mobile phone can be the difference between a detainee successfully seeking asylum in Australia and a detainee being deported without realising that right'. The Law Council echoed this position, noting that mobile phones assist in meeting strict procedural time limitations.
Ms Katie Wrigley from Legal Aid NSW informed the committee that:
Many of my clients decline pre-booked appointments, asking if our lawyers can call them instead on their mobile phones. They report not feeling comfortable discussing confidential aspects of their case with other people around, including Serco staff. Then there are practical problems associated with the phones that are used there, where our clients have been transferred without notice to a different detention centre after the time of our booking. There is no centralised system, like there is with our clients who are in court ordered detention, whereby a solicitor can look up where a person in immigration detention is located.
Legal Aid NSW also highlighted the benefit of mobile phones in the use of interpreters, stating:
the telephone interpreter service works very quickly and easily where a client has a mobile telephone, whereas calling the telephone interpreter service through a switchboard is logistically difficult and time consuming and inhibits important communication between a client and their representative.
Other submitters raised broader concerns about access to fixed phones in immigration detention facilities. Amnesty International submitted that in its experience of visiting immigration detention centres over the past 20 years, it has 'found the availability of fixed phones and computers to be woefully inadequate'. It also noted that the variability in the cost for international calls may allow some detainees to have longer phone calls than others.
Particular concerns relating to the current COVID-19 pandemic were raised by the Kaldor Centre for International Refugee Law, which stated that the requirement to use fixed facilities may:
exacerbate the already high risk posed by detention in the context of the COVID-19 pandemic, by requiring detainees to use shared phone and computer facilities for essential communications.
In response to these concerns, the department highlighted that the legislation would not automatically result in mobile phones being listed as a prohibited thing. It stated, however, that should mobile phones be listed, it would not automatically follow that 'everyone, particularly those who seek asylum, would necessarily not have access to their mobile phone'. Having specific regard to concerns about access to legal representation, the department stated that it is 'very conscious' of its obligations under section 256 of the Migration Act to enable detainees to obtain legal advice. Ms de Veau explained:
I would highlight that section 256 has been in the Migration Act, is adhered to, is a positive obligation that is already on the books and continues to be on the books, and it must be applied even if a mobile phone or a communication device were at issue in a particular instance. It says that, if a person is in immigration detention, then those responsible for that detention—which is us—must, at the request of the person, give them the ability to apply for a visa, with forms and the like, and all reasonable facilities for obtaining legal advice and taking legal proceedings be afforded him or her.
In terms of how that obligation might translate into practice, Ms de Veau continued:
If you get to the situation where [mobile phones are] on the list and they are not within the category of those who can continue to access their phone, there are any number of mechanisms by which they can continue to have access to legal services, including the availability of landlines and the availability of interview rooms and the internet. Of course, the internet would include the ability to do videoconferencing.
Mr Kefford echoed these statements in regards to access to communication devices more generally:
Detainees will retain access to various means of communication within detention facilities. Landline phone, internet and facsimile services are widely available, including in private settings, for people to contact and be contacted by family members, legal representatives, migration agents and health professionals.
Expanded search and seizure powers
A number of submitters raised concerns about the proposed powers to conduct searches of detainees and immigration detention facilities without a warrant or reasonable suspicion that a detainee may have a prohibited item in their possession. The Law Council stated that these powers, 'unlike comparable police powers, lack safeguards such as the requirement for a warrant, and this underlines their already extraordinary nature'. It recommended that, should the bill be passed, 'any power to search a detainee’s room or personal effects should be limited to situations where there is a reasonable suspicion that a weapon, escape aid or unlawful thing'.
Similarly, the AHRC stated that it would 'oppose any provision that would allow an officer to search a detainee's property, unless the officer reasonably suspects that the detainee is in possession of a prohibited item'. It recommended that the search powers be amended to require an authorised officer to have a reasonable suspicion that a prohibited item is within a detainee's possession before conducting a search.
The Immigration Advice and Rights Centre (IARC) questioned the use of dogs in searches of immigration detention facilities. In IARC's view, 'the use of dogs for searches is ineffective and can be intimidating and culturally insensitive for some detainees'. It pointed to a review of the Police Powers (Drug Detection Dogs) Act 2001 (NSW) by the NSW Ombudsman which raised concerns about the accuracy and, consequently, the legitimacy of using detection dogs. In the IARC's opinion, 'the same concerns exist for using dogs in detention centre facilities'.
The Law Council shared this view, arguing that the provisions do not appropriately address potential cultural sensitivities, or the risk that dogs may be used to harass or intimidate detainees. The Law Council argued that the use of dogs 'should be restricted to rare and exceptional circumstances, such as where there is a reasonable suspicion of narcotics, a bomb threat etc'.
Particular concerns were also raised with respect to the impact of strip searches. For instance, Legal Aid NSW gave evidence that '[t]he impact of allowing the strip searches…will be particularly traumatic to those who have been subject to torture from the authorities in their home countries'.
The AHRC stated that the expansion of strip search powers engages articles 7 and 10 of the International Covenant on Civil and Political Rights (ICCPR) and other United Nations instruments, including the United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) and the Body of Principles for the Protection of all Persons under Any Form of Detention (Body of Principles). It recommended that the bill be amended to 'only extend search powers to prohibited things that are unlawful and that the Bill explicitly state that strip searches only be conducted as a measure of last resort'. Alternatively, the AHRC recommended:
if the strip search provisions are introduced, the Commission recommends that Bill be amended to provide that:
The Department must maintain a log of the conduct of strip searches including details about the compliance with each of the requirements of ss 252A and 252B of the Migration Act.
The Department must notify the Commonwealth Ombudsman when it receives a complaint about the conduct of a strip search.
The Commonwealth Ombudsman must conduct an annual review and prepare a report about the comprehensiveness and adequacy of the Department’s internal processes relating to strip searches to be tabled in Parliament.
The department told the committee that 'operational policy will provide guidance on when it is appropriate for detainees to be searched', and indicated five circumstances in which the use of search and screening powers will be primarily focussed:
a detainee is moving in and out of a facility or visitor’s area,
a detainee is moving between secure sections of an IDF,
during movements outside of an [immigration detention facility],
in response to a detainee’s behaviour, an occurrence or incident, or
a targeted, intelligence led operation is being undertaken to locate prohibited things.
The department advised the committee that the bill does not seek to amend any of the existing provisions with respect to strip searches except to include the search for a prohibited thing amongst the bases for which one may take place. The department confirmed that strip searches are conducted very rarely–'one to two strip searches per year at most'–and that the current safeguards and circumstances would continue to apply:
Reasonable suspicion that a detainee has a prohibited thing and that a strip search is necessary to recover the thing, and authority from the Secretary, ABF Commissioner or an SES Band 3 officer (or from a magistrate for detainees over 10 but under 18) is still required for a strip search to be conducted. A child less than 10 years must not be strip searched.
The Kaldor Centre for Refugee Law and the Law Council suggested that the bill as currently constructed may be open to constitutional challenge on a number of grounds.
The Kaldor Centre stated that, in its view, the bill if passed would infringe upon the implied freedom of political communication, and that a challenge to it would have reasonable prospects of success. The Law Council stated that that the bill may also be challenged on the grounds that it is punitive in nature and may restrict detainees' 'communication with legal representatives and family members and take away access to information, communication and entertainment on the internet and social media'.
The department was asked to respond to each of these concerns. In regards to the first, the department outlined the threefold test for the freedom of political expression. Ms de Veau informed the committee:
The first part is: would the prohibition burden the freedom of political communication? Again, the provisions don't say anything about access to communications means, so that only gets enlivened if something is added to the list that would be otherwise used for political communication.
The second part of the test is: is the legal framework compatible with the maintenance of the systems of government? Another way of paraphrasing that is: is there a legitimate purpose? We would point to the need to ensure safety, security and good order in detention centres as being that legitimate purpose. And the third part is: is the legislation reasonably appropriate and adapted to advancing that purpose?
So, in order to avoid that constitutional issue, we'd be very mindful about ensuring that communication devices, were they to be included, have a strong and evidence based connection to the risk and the harm we're trying to alleviate. There would be some safeguards in place; I've mentioned a number of them, including that it's a disallowable instrument. We would need to make sure that the way any discretion is exercised to deal with those communication lines is, once again, done on a proper evidence based risk assessment that demonstrates that the way, as a matter of fact and degree, that those provisions are being applied doesn't inappropriately trespass on the freedom of political expression.
In regards to the second concern, as to whether the measures would constitute punitive action and therefore infringe upon the punitive power of the judiciary under Chapter III of the Constitution, Ms de Veau stated:
We say that these measures do not take it to a place where it becomes punitive in nature. I think it's a question of fact and degree, but we say that it is not punitive in nature and does not make it punitive in nature, particularly in the way that it's proposed to be limited to search by way of discretion. We say that it also is balanced with the need for security, good order and safety, so it's proportional in that way. We say that it's not punitive in nature and, therefore, does not give rise to a chapter III argument in that regard.
In regards to the third ground–the ability of detainees to communicate with legal representatives–the department responded that it is aware of and adheres to the obligations arising under section 256 of the Migration Act, which puts a positive obligation on the department to provide access to legal assistance. Adherence to this section, the department stated, acts as a 'handbrake on the suggested interference with access to legal representatives that might enliven an argument in relation to chapter III interference'.
Protections and oversight
A number of submitters raised concerns that the provisions would afford the department and the operators of immigration facilities broad powers without proportionate accountability and oversight. For instance, the Australian Lawyers Alliance expressed reservations about the 'extraordinary discretionary powers to conduct body searches of people who are being held in immigration detention centres, and to remove personal items including mobile phones and electronic devices'. The Blue Mountains Refugee Support Group submitted that 'the discretionary powers given to "authorised officers" is lacking in clarity, is too extensive and open to abuse and lack of accountability'.
Internal standards and protections
The department outlined the proposed operational policy should the bill pass. It stated that implementation of the legislation would occur in accordance with the APS Code of Conduct, the Secretary's Professional Standards Direction and key guiding principles in detention, which include:
detainees will be treated fairly and reasonably within the law and conditions of detention will ensure the inherent dignity of the human person,
such actions must be conducted for a lawful purpose,
only officers who have completed relevant training and are lawfully authorised are permitted to exercise search, screening and seizure powers.
The department noted that operational policy instructions would be developed to guide officers in implementing the powers which will be made public on the department's website. It also noted that the existing avenues for complaint would continue to be available under the new framework, including to external agencies such as the Australian Human Rights Commission, the Commonwealth Ombudsman and the Australian Red Cross.
Further, Serco outlined its responsibilities, noting that:
Serco employees working in immigration detention are bound by the APS code of conduct and Serco’s own code of conduct.
Serco is required to handle records and documents in accordance with the Archives Act 1983 (Cth) as though Serco was a Commonwealth body. All records produced by Serco pursuant to the deliver [sic] of services under its contract(s) with the Commonwealth become, upon their creation, and continue to be in perpetuity, Commonwealth records.
The contract(s) between Serco and the Commonwealth contain significant performance management mechanisms for any shortfalls in practice or process, ranging from financial abatement to potential loss of contract.
The Commonwealth Ombudsman, Australian Human Rights Commission, United National High Commission for Refugees and other statutory bodies regularly and continuously assess, scrutinise and investigate operations generally and in response to alleged incidents. Serco is required to fully cooperate with those agencies in those matters.
Both the department and Serco noted the function of external bodies, such as the Commonwealth Ombudsman, the AHRC and the Red Cross in receiving and investigating complaints as well as conducting regular assessments of and reporting on the operations of immigration detention facilities.
The Commonwealth Ombudsman outlined the way in which it provides oversight of the department's administration of immigration detention as follows:
Handling complaints, under the Ombudsman Act 1976 (the Ombudsman Act) about the Department's administrative actions and decisions
Conducting proactive inspections, and preparing reports into the operations of immigration detention facilities under the Ombudsman Act, including in my capacity as the National Preventative Mechanism for places of detention under the control of the Commonwealth, under the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), and
Preparing assessments of the circumstances of individuals' immigration detention under s 486O of the Migration Act 1958, which are tabled in Parliament.
The AHRC has similarly conducted inspections of immigration detention facilities since the mid-1990s. It stated that its work so far has:
included periodic monitoring of detention facilities…and three major national inquiries into immigration detention…to ensure that Australia’s immigration detention system complies with this country’s obligations under international human rights law.
The AHRC undertook inspections of all immigration detention facilities on the Australian mainland in 2019, and is due to report later in 2020.
The committee strongly supports efforts to make immigration detention facilities safe and secure for detainees, staff and visitors alike, and commends the Commonwealth government for seeking to implement a framework that will uphold its obligations to provide a safe working and living environment for all within immigration detention facilities.
The committee has considered arguments that the bill may result in a "blanket ban" on certain items and rejects assertions that the bill is a one-size-fits-all approach to restricting particular items from being available in detention. In the committee's opinion, the framework established by the bill would provide the Department of Home Affairs with the flexibility and the authority to ensure the ongoing safety and security of immigration detention facilities, in a way that would not have the effect of 'blanket banning' items.
The committee agrees that immigration detainees must have access to telecommunication services. However, it also recognises that mobile phones may be used by detainees to organise criminal activities both inside and outside immigration detention facilities, and may also be used to threaten or harass other detainees and staff.
With regard to detainees' access to telecommunication services, the committee expects the department will continue to ensure reasonable access to telephones, fax machines, the internet, postal services and face-to-face visits in order to ensure that detainees are able to maintain contact with their support networks and their legal representatives.
The committee recommends that the government make administrative arrangements that ensure detainees have access to communication facilities that will reasonably meet their needs, and enable timely, and where appropriate, private contact with friends, family, and legal services.
The committee recommends that the Senate pass the bill.
Senator Amanda Stoker