House debates

Monday, 31 August 2020


Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020; Second Reading

5:25 pm

Photo of Andrew GilesAndrew Giles (Scullin, Australian Labor Party, Shadow Minister for Cities and Urban Infrastructure) Share this | | Hansard source

This bill, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, would very significantly increase powers over people held in administrative forms of detention under the Migration Act, and—I make this point very clear at the outset—all of those people in immigration detention. This includes powers to enable the minister to ban almost any item for use in an immigration detention facility, with very limited safeguards—almost any item, but particularly mobile phones, detainees' means of maintaining contact with the outside world, with friends and family, and also, critically, their means of obtaining advice and alerting the broader public to the conditions in those centres.

This bill, accordingly, requires us to think about human rights and to think about the operation of our democracy. We should be doing so, of course, after the minister had clearly set out exactly why these powers were required and appropriate checks and balances around their use. He's not done so, and this is not good enough. To simply assert the changed composition of the cohort of people now in immigration detention is no justification for an across-the-board approach without any differentiation. The minister says that these powers are required because, in his words, 'a large proportion of people in detention have criminal histories,' but that can be no justification for blanket prohibitions—for not treating people as individuals on their own terms and for not recognising the particular circumstances of medical transferees, asylum seekers and people who've overstayed their visas, for example.

But this bill would amend the Migration Act to enable the minister to determine, by legislative instrument, prohibited things, in relation to immigration detention facilities and detainees. It would also enable the minister to issue binding written directives to authorised officers in relation to the exercise of these seizure powers. In other words, this is a renewed attempt by the government to amend the Migration Act to allow for the banning of almost any item, but principally mobile phones, from use within immigration detention facilities, including alternative places of detention such as hotels like the Preston Mantra and the Kangaroo Point hotel.

The government already has broad powers under the Migration Act and has failed to make the case as to why illegal activities in detention centres cannot be handled on a case-by-case basis or through existing state, territory and Commonwealth laws. The government has not established that existing laws and common law powers are insufficient in addressing such activities.

This bill, fundamentally, is a solution in search of a problem. It has been on the government's Notice Paper in one form or another for the past three years. But the fact is this: the government already has the powers it needs. The government already has the powers to remove prohibited items from people in immigration detention facilities. So Labor believes that if this bill were to be passed in its current form then it would result in serious, adverse and unwarranted consequences in respect of individuals in those facilities and more broadly.

Many of these concerns have previously been raised by stakeholders at the Senate inquiry into this bill and, indeed, in the context of the earlier bill. Of the 135 submissions to the inquiry of the Senate Legal and Constitutional Affairs Legislation Committee, only three support the legislation: those of the Department of Home Affairs—no particular surprise there—and its two contractors, Serco and IHMS. Stakeholders and experts more broadly, on the other hand, have made it very clear that there would be undesirable consequences for some of the most vulnerable people in immigration detention facilities if this legislation passed as presented to the House. That's because—on the aspect of the bill that has attracted the most interest in the community, and understandably so—mobile phones generally provide a positive benefit to detainees and their welfare, particularly when you take into account the fact that some 42 per cent of the total immigration detention cohort have been in detention for over a year and the Refugee Council have stated in their submission that the average number of days spent in detention is 553. That's the average time in detention. If we think about the need for any human being to be in contact with their peers, as well as the necessary contacts required for medical purposes, for legal advice and otherwise, that is an extraordinarily long period, especially in the context of the pandemic, when other means of contact are obviously very limited in these facilities. Of course, access to mobile phones also provides an important wide benefit in enabling the scrutiny of conditions and conduct at immigration detention facilities. It is concerning that this is not an issue of any significant interest to the government.

During the Senate inquiry, the Department of Home Affairs failed to elaborate on whether or how the common law powers and existing powers are insufficient. This is a fundamental point, because the current legal frameworks permit the confiscation of a mobile phone from a detainee if there is reasonable cause, which seems to me to be a pretty reasonable requirement. Fundamentally, the government have not made the case as to why the broad sweeping powers for the confiscation of mobile phones and search and seizure from any detainee in any circumstance are warranted.

A substantially similar bill to this was introduced into this House in 2017, but it did not pass the Senate and lapsed on the dissolution of the parliament last year. Labor had serious concerns in respect of a number of provisions of that bill. The concerns were shared by every organisation that contributed to the Senate Legal and Constitutional Affairs Committee's consideration, other than the Department of Home Affairs. Our concerns were then set out in seven recommendations made by the Labor senators on that committee. We made it clear that if these recommendations were positively responded to by the government and agreed as amendments we would enable the passage of that bill. But the government did not engage with that constructive proposal, and that bill lapsed. With this government, this issue and, indeed, pretty much any issue it's always about the politics, not about substantive decision-making. Even now, those issues have not been properly dealt with by the minister. They remain very serious concerns to Labor and to almost every organisation that engaged with the Senate inquiry into this bill.

Once again, the bill is before the House in the migration area that is almost friendless, although the department has now been joined by Serco and IHMS—hardly disinterested observers. I note that some changes have been made to the 2017 provisions. I will discuss these, and they are very important, but let me be very clear: as of now, the provisions of the bill before the House do not adequately address the concerns that we have raised. The minister has not adequately set out the basis for this power grab on his behalf. The powers this bill would confer are significant and they are coercive.

The bill raises some very important questions. Some are technical questions going to the detail of how to achieve an objective, but others are more fundamental: how we treat people, including vulnerable people who are in detention, which is administrative, not punitive, in nature under the migration act; whether we recognise their individual circumstances or regard them as part of a uniform class, regardless of the reasons of their detention, their particular needs and their particular vulnerabilities; and about how democracy should work, about the checks and balances that we should apply to executive power, including coercive powers like strip searches and denying people access to phones and to communication with the outside world.

Labor will always act constructively and seek to advance our national interests in this area of policymaking, but it's clear to us and it should be clear to members opposite that we can secure our borders without abandoning our humanity and that we can uphold the law and keep people—detainees, staff and others—safe in immigration detention facilities without executive overreach that is unnecessary and unchecked. We can and we must uphold human rights. This cannot be an optional extra in our decision-making and our lawmaking. Australia must be a leader and an exemplar in this regard. This requires us in this place to be satisfied that the proposed measures are necessary and proportionate. As of now, we in Labor are not satisfied. We have listened to the government and listened to the evidence and we have found it wanting. We will continue to engage constructively, however, and hope the minister and the government will reciprocate.

Mr Hawke interjecting

The minister at the table says this has been going on forever. It has, but the government's response has not shown any evidence of that. You are doing the same thing over and over again and expecting a different outcome. A different outcome is possible if you have regard to the evidence and, indeed, if you properly state the case you wish to make. My colleague Senator Keneally has written to the minister, setting out a basis upon which we could progress this legislation. We await a response. We await serious engagement with the serious issues we have raised. This bill and its history tell a story about this government and its attitude to immigration policy—about cynicism, about a willingness to treat people in our care in ways that they should not be treated and about a deep aversion to scrutiny.

In the minister's second reading speech, he sets great store by changes to the cohort of people presently detained and the consequences that, he asserts, flow from this. In its essence, this is the rationale for the bill before the House today. In the media and on social media the minister has pressed this case, heavy on rhetoric, light on facts—which is his style and the style of the Minister for Home Affairs, a role that he may be interested in—a critical fact being that prohibited items are already a vehicle under existing state, territory and Commonwealth laws, particularly narcotic drugs, child exploitation material and weapons. These items present a demonstrable risk to people in facilities, both detainees and staff.

The minister is of course entitled to carry on his audition for the Home Affairs portfolio, but legislation such as this should be treated with the utmost seriousness. It's an odd thing for a Liberal to seem so blase about treating people as members of a group rather than as individuals, especially so when, as he's fond of reminding us, some in that group are people with significant criminal histories, while others are not. While his department has stated that this legislation 'seeks to strike a balance between the individual rights of detainees and the protection of the community, facility staff, visitors and other detainees'—a reasonable objective, one with which I concur—there is little evidence of a search for balance between these considerations when it comes to the words of the minister. But it is this balance that we must be working to achieve, and this is Labor's approach to the bill. The second reading amendment I will move goes directly to this, as does Senator Keneally's letter to the minister.

The current bill does differ in several respects from the bill introduced in 2017. These represent improvements, but not sufficient improvements to support passage of the legislation in its present form. In particular, it's now proposed that the declaration by the minister that items are prohibited items is a disallowable instrument. This was not previously the case. However, as the Kaldor Centre seem to have made clear—and I will touch on this further—in the circumstances this concession is not as significant as it might appear. Medications and treatments provided for use by detainees cannot be declared prohibited items in respect of such use. Detector dogs may be used now only, it is proposed, to search facilities and not people, detainees or others present in a facility. Unlike in the former bill, the powers provided for will not be applicable to people in community detention. There is now a power, though, through which the minister would be able to make a legislative instrument in effect directing the seizure of a thing. Some of these changes address some concerns raised by others in respect of the previous bill—I do acknowledge this—but they do not resolve our concerns. This is why, having carefully considered the Senate committee's work and the submissions to it, Senator Keneally has written to the minister. There can be no doubt about Labor's position on this bill or, substantively, on the issues it seeks to put before the parliament.

I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House notes that:

(1) illegal activity is illegal—even in detention centres;

(2) the Government already has the powers to address the concerns raised in the bill;

(3) Labor has written to the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs with a proposal to improve the bill, which, in its current form, will have adverse and unwarranted consequences; and

(4) as of the resumption of debate today, Labor has not received a response from the Acting Minister".

To address these four broad areas of concern, we have sought agreement from the government to withdraw and rewrite the bill or to amend the bill to ensure it doesn't impose broad and sweeping measures which would punish all detainees. As with the former bill, Labor now seeks to be constructive. We have listened to the government. We have listened to the experts and others who are concerned, including many constituents of mine, and put forward some proposals which we believe balance those considerations that need to be balanced. We await a response. But, without engagement from the government, we cannot support the bill that is presently before the House.

Members would be aware—and I hope they have carefully considered this—that this bill has been the subject of an inquiry by the Senate Legal and Constitutional Affairs Committee. Some 135 individuals and organisations made submissions to this inquiry. I take this opportunity to thank them for their engagement and acknowledge the work of the senators on the committee, in particular my Labor colleagues. Before I get to that, I will observe that the majority committee view, as expressed at paragraphs 2.70 to 2.73, is telling and quite extraordinary. In this, government members baldly state that they believe:

… 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.

It is hard to imagine a less convincing attempt at justification for the provisions in this bill, which do in fact just that. But perhaps that's because the evidence to the committee didn't give government members much to work with. It is deeply troubling that lawmakers could rely on trusting the executive to facilitate access to phones in the face of all the evidence put before them. As the government members put it:

… the committee expects the department will continue to ensure reasonable access to telephones …

Expects! The powers contained in this bill are far-reaching. Before we grant such powers to the executive, particularly in respect of some vulnerable people, we must surely be satisfied that they are necessary, proportionate and adequately circumscribed. That's our job. We can't do it by simply stating how we expect it should be done, not in any context and particularly not knowing what we now know about this government and the issues that took place in immigration detention under its watch.

The dissenting report of the Labor senators recognises the challenge the bill is intending to respond to but finds that 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. That's a conclusion that is almost impossible to disagree with. In terms of those existing powers, in the face of considerable evidence to the effect that they meet the needs of the case stated by the government, it is significant that the department failed to elaborate on whether or how such powers should be regarded as insufficient. The concern of Labor senators that the bill applies, without differentiation, to all detainees is a critical one. Of course high-risk individuals in detention should be treated accordingly, through targeted interventions, which could also provide further protections for staff in these facilities, if the government were serious about that issue.

The Labor senators' report raises additional issues that are worthy of mention. Firstly, the inconsistent approach on the part of this government to managing safety and risks in immigration detention. This is a serious matter, as the ombudsman has too often had to report to this parliament and to the community. We should be determined to keep everyone in our care, and indeed in our custody, safe.

Serious concerns are also raised when it comes to data, where considerable confusion has arisen, including in the course of the Senate inquiry process. To say the least, this is unhelpful, particularly when such store is placed in the composition of the detainee cohort. Lawmakers and others in the broader community should be able to engage in this debate on the basis of facts that are certain.

Further issues arise in relation to the failure of the government to engage with the concerns of the Senate Scrutiny of Bills Committee and also about the application of powers in this bill to alternative places of detention, a very significant issue in the present circumstances when there are, I believe, more than 200 people presently detained in APODs. So, I urge government members to carefully consider the report of the Legal and Constitutional Affairs Committee and perhaps to address that report in the course of their remarks in the debate in this place and in the other place as well, if it gets there.

Most of the debate in relation to this bill has been in relation to the issue of mobile phones. The policy of seeking to deny access to phones has been much criticised, and for good reason. Many submissions to the Senate inquiry set this out effectively. This is of particular importance in the context of the present pandemic, as the Bills Digest makes clear. Requirements of social distancing have denied detainees the capacity to have face-to-face meetings for some time now. Importantly, personal phones not only provide for privacy but reduce the risk of transmission through the use of shared devices. We should not overlook the anxiety of detainees, having regard to the physical nature of the facilities they are detained in and the evidence of community transmission in similarly confined environments.

Access to advice is important to detainees for practical and personal reasons. This is a matter of wellbeing and also of rights—the right to privacy, the right to freedom of expression and the right to representation, as well as, potentially, the constitutionally implied right to freedom of political communication. It is also noteworthy that the Australian Human Rights Commission has found that staff, as well as detainees themselves, have referred to the benefits of mobile phone use.

Statements to the effect that the intent is not to introduce a blanket ban are contradicted by the terms of the bill, which do not limit the powers of the minister. As the Human Rights Law Centre observed, contrary to statements in the explanatory memorandum that the amendments will provide for a targeted, intelligence-led, risk-based approach to the seizure of items, the proposed powers are designed to allow for a blanket ban on items that apply, regardless of circumstances. Once again, we simply cannot take the assurances of this government at face value. The minister could, and should, ensure that his proposed law matches these statements. He should also address directly the issue raised by the Kaldor Centre going to the implied freedom of communication and the potential inconsistency there.

The proposed powers that would enable searches of detainees and premises raise concerns too. Strip searches raise particular concerns about human dignity and privacy. It's one thing for the minister to recognise that the changed nature of the immigration detention population raises new issues; this is a reasonable point. But it does not, and cannot, follow that this provides a warrant for all those powers contained in the bill. Again, the proper approach is to clearly state the problem and match the solution to it, and to explain why it has to be that a case-by-case approach is not appropriate—recognising, of course, that our criminal laws apply to people in detention. The department has had no answer to this proposition, and the minister seems to want to wish it away. The Labor senators' report makes a telling point here:

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.


I now turn to the question of oversight. Oversight—or, rather, its absence—was a feature of expert submissions to the Senate inquiry. Effective parliamentary oversight is an essential element of our democracy, but it's not something the present government is committed to with its fondness for delegated legislation. I've already acknowledged certain improvements in this bill from its predecessor, notably in providing that the declaration of a prohibited thing will now be disallowable, but it remains unsatisfactory from any perspective concerned with democratic accountability. Uncertainty compounds this too, with disagreement as to whether a single thing can be disallowed or whether the disallowance must apply to the entire list. This is a huge concern. The advice of the Parliamentary Library in this regard should give all members pause for thought. According to statements to the regulations and ordinances committee, this disallowance process cannot be generally used to amend an instrument. It follows that the utility of disallowance may be very limited in these circumstances. Again, we would have to take the government and the minister on trust. Further, as the Labor senators' dissenting report makes clear, the minister's written direction on actions going to prohibited things is not a disallowable instrument. On examination, the amendment to the previous bill seems rather more cosmetic than substantive.

Finally, it is important that we make clear that immigration detention facilities, including alternative places of detention, are not prisons. They are places of administrative detention. This distinction matters, even if this truth is inconvenient for the minister. We on the side of the House are anxious about the warnings that experts have given about the increasing securitisation of immigration detention. These warnings can't be ignored and the evidence of the Law Council of Australia should be heeded. It must be remembered that people in immigration detention are not prisoners, and their rights should not be curtailed as if they were. That's Labor's strong view too.

This bill is unnecessary. While it has had a long journey back to this place, in the form in which it has arrived today it cannot be supported. The minister needs to go back to the drawing board. He needs to clearly state his case, the problem he needs to solve and why present powers are insufficient for that purpose. He needs to have regard to the evidence, to state the facts and to listen to the experts.

He also needs to think about the values that we need to apply to this area of policymaking, not just the instrumental side but the values, the state of our democracy, our obligation to people who are in immigration detention and our obligation to the broader community. For these reasons, I encourage members opposite to think clearly about the issues this bill raises and to support the second reading amendment or, otherwise, to join us in voting down this bill and asking the government to come back with a better bill.

Photo of Ross VastaRoss Vasta (Bonner, Liberal Party) Share this | | Hansard source

Is the amendment seconded?

Photo of Terri ButlerTerri Butler (Griffith, Australian Labor Party, Shadow Minister for the Environment and Water) Share this | | Hansard source

I second the amendment and reserve my right to speak.

(Quorum formed)

5:53 pm

Photo of Julian SimmondsJulian Simmonds (Ryan, Liberal National Party) Share this | | Hansard source

I rise to speak on the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020. What does it take for Labor to support Australian families in this chamber? That is my question. Time after time, I find their position completely baffling. We have consistently given Labor MPs and those on that side of the chamber the opportunity to do the right thing and, every time, they squib it. We have introduced mandatory sentences for federal sex offenders, we have introduced a public sex offenders register and we have introduced strong legislation to cancel visas on character grounds. Labor has failed to support mandatory sentences until their political games were called out on the front pages of national papers; they're still playing games with the public sex offenders register, to try to prevent that; and Labor MPs have failed to protect Australians through regularly cancelling visas on character grounds, as this government has done. Now they have the chance to stand up for Australian families by supporting this legislation, and they've failed to do it.

Here's the problem: currently the Migration Act provides that an authorised officer in a detention centre may search for only three things—weapons, escape aids or a document that may be evidence for grounds of cancelling that person's visa. Authorised officers do not have the power under the current act to search for or seize illegal drugs or other illegal items such as child exploitation material. In what world is that acceptable?

Under Labor in 2011-12, there were 14,438 illegal boats arrivals in detention as well as 2,216 visa overstayers and just 480 people whose visas had been cancelled on character grounds. So the majority of those in detention under Labor were people who had travelled illegally by boat to Australia because of the lax border policies of the Labor members opposite. We all remember those terrible images of the bodies of women and children having to be fished out of the water. But, of course, once this government came to office, we ensured that the borders were strong and that illegal arrivals under Labor were resettled.

As of 31 July 2020, there were just 1,558 people remaining in immigration detention facilities compared to 17,000 under Labor. And the make-up is now very different as well. The government has strengthened section 501 of the Migration Act to better protect the Australian community from non-citizen nationals who commit serious crimes. The changes have allowed us to cancel the visas of 4,600 individuals who have committed serious criminal offences in Australia. Of those detainees currently, 70 per cent, 1,120, have a criminal record, including those whose visas have been cancelled or refused under character grounds of section 501. That means two-thirds of the people in detention facilities today have criminal records. These are people with a history of child sex offences, violent crimes, murder, domestic violence, rape. Others have come to immigration detention with significant histories of drug-related offences and proven links to criminal organisations—to bikie gangs.

Many have been placed in immigration detention directly from correctional facilities. Unsurprisingly, some of these individuals seek to continue criminal activities and associations, but the law hasn't kept up with this fact—for example, there have been almost 600 reports of phone misuse in the last four years. Detainees are using mobile phones to conduct criminal activities such as fraud, drug deals, the grooming of children and other child exploitation offences.

Sensibly, this bill will give the minister the power to ensure there is a disallowable legislative instrument to prohibit an item. Prohibited items, for example, will be mobile phones and SIM cards, internet cable devices and illegal drugs—this is what we're talking about. The bill will also allow authorised officers to search immigration detention facilities on behalf of the Commonwealth, including using detector dogs, and to ensure that they are able to look at this material.

The member for Gellibrand said we hadn't made our case for this bill. Here are some cases for him; I hope he is listening. This month alone two detainees in Brisbane, at the Kangaroo Point facility where they are being held in our home town, Mr Deputy Speaker Vasta, have been charged with the possession and distribution of child exploitation material in two separate incidents. In one, the detainee actually held up his phone to a Serco officer to show him a video of a child being abused, and under the current act the Serco officer couldn't just take that phone off him. In what kind of world is this acceptable to the Labor members opposite?

In another incident, a Finnish national who was in the detention centre downloaded and distributed over 5,855 child exploitation images and 222 videos. Before he came to immigration detention, he was a known offender and yet he still had a mobile phone—absolutely appalling. These kinds of cases clearly demonstrate the need for new powers for Australian Border Force officers to seize mobile phones in immigration detention facilities to prevent these kinds of activities by detainees where they are contributing and participating in child exploitation material.

Under current laws, officers are not legally able to search for or seize mobile phones, even if they know they are being misused. The current laws also prevent officers searching for and seizing items that are clearly illegal, such as illicit drugs. For example, at Villawood Immigration Detention Centre four people were arrested as part of a criminal syndicate that New South Wales police had uncovered. When the police searched the detainees' room, they found white powder and several mobile phones that aided in this criminal conspiracy—a search that ABF officers could not undertake themselves. Another example is of a detainee in detention who was a known extremist sympathiser who downloaded extremist material onto his iPad and then proceeded to show all the other detainees the extremist material. This iPad could not, under current laws, be confiscated by ABF officers. In another example, a detainee uploaded a photo to social media of a contracted medical officer, falsely accusing her of criminal acts, and comments on the post included abusive and violent messages towards the medical officer. A medical officer, an Australian who has gone into immigration detention to help people, on behalf of all Australians, is the victim of this vile abuse by detainees. Even once a detainee has done this, ABF officers can't take their phone away from them.

That Labor won't wholeheartedly support this bill is absolutely mind-blowing. It's crazy stuff, frankly. Thankfully the new powers in this bill will enable ABF officers to search for drugs and confiscate mobile phones. It will enable sniffer dogs to go in and search detention facilities for illegal drugs, and other protections apply. The member for Gellibrand also spoke about what protections are in place. Labor would have you believe that this bill is some kind of terrible infringement on rights, when what we are trying to do is prevent people from engaging in criminal activities inside an Australian funded and operated detention centre. The fact is, let's remember, that, in the event that a detainee has their mobile phone removed, they still have access to a 24/7 landline and computers with internet access. Detainees have contact with their families and friends, which supports their resilience and mental health. Migration agents and legal representatives are also able to contact their clients using audiovisual equipment, and detainees have access to private rooms for phone calls. There are other existing protections that are in place to ensure detainees' dignity—that officers should not make greater use of force or subject the detainee to greater indignity than is reasonably necessary during a search; that, in the case of a search, the authorised officer must be of the same sex as the detainee; and that all persons in immigration detention have the right to lodge complaints while they are in detention. So the protections are absolutely in place for detainees if they feel that that is required.

What's important to remember is that mobile phones, as well as illicit drugs, cause an unacceptable risk, particularly to those Australians who are working in immigration detention centres. I was drawn to the submission by Serco to the inquiry into this bill. Serco states that the bill 'will help achieve the health and safety outcomes that Serco aims to provide'. What are they talking about here? They're talking about the safety of their staff. The submission cites cases in which detainees have collected information about staff members. They're taking photos of them and posting them on social media and saying, 'This is the person who is currently detaining me.' These people have links to criminal bikie gangs, so they're posting it to their associates. Can you just imagine, as an Australian, if somebody with known criminal links to bikie gangs was posting about you as you did your job, having a go at you, the fear that you would feel and the fear that you would feel for your family? But in these cases, when we absolutely know it's happening—we've got examples of it; we can see it—we can't currently take the mobile phone. This bill will ensure that we can so that these people who are working on behalf of all Australians to run these detention immigration centres can do so in safety without fear of retribution to them or their families.

What about the examples where Australian Border Force officers have seen people throwing illegal drugs over the fence? They've seen it. They've seen the drugs get thrown over the fence. They then see the detainee pick up said drugs but the current powers are such that they can't then go and search the detainee or the room where the detainee is residing, even though they know it has occurred. It's very clear the law has not kept up as it should. There has been a change from people who are in detention from illegal boat arrivals; now, over 70 per cent are criminals.

Since 2013 the government has significantly reduced the number of people held in detention—from over 17,000 to less than 2,000 today. In doing so the government has closed 17 detention facilities across Australia, saving taxpayers more than $500 million. There is a lot of compassion in that, in ensuring that people are not kept in detention. But, of those who are, over 70 per cent are now convicted criminals. It is important that, if Australians are going to pay for detention, if Australians are going to run these facilities, the detainees then not be involved in the illegal drug trade, not be involved in organised crime and not be involved in soliciting child exploitation material in these facilities. This bill will make that happen. (Time expired)

(Quorum formed)

6:09 pm

Photo of Terri ButlerTerri Butler (Griffith, Australian Labor Party, Shadow Minister for the Environment and Water) Share this | | Hansard source

The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 is a bill that, if passed in its current form, would allow the government to prohibit items such as mobile phones in detention centres. But there's a particular place of detention that I wanted to mention, and that's the one in my electorate, at the Kangaroo Point motel. That motel houses a number of people at the moment and has done now for many, many months. The government decided to establish what they call an 'alternative place of detention' at Kangaroo Point—but it is what most people would think of as a makeshift detention facility in a motel—some time ago. Regrettably, they didn't consult with me before establishing that facility, but nonetheless it's been established in my electorate. There have been a number of people in that APOD, as they call it, for a long time now.

The facility has been controversial, but I will say that, regardless of what people think about the protests that have been mounted in relation to that facility, I've yet to find anyone who thinks it's a good thing that people—people who are here because they are in need of medical attention—are being held there for a very long time. People are concerned—my constituents are concerned—about the health and wellbeing of those who are being housed in the APOD, and they're concerned about what the future might hold for those people as well. Many of my constituents have called for the government to allow the people in the APOD to live in the community rather than in a makeshift detention centre in a hotel, and many of those same constituents are concerned about the effect that this bill, if it were passed in its current form, would have on the health and wellbeing of people who are being housed in the APOD.

My constituents have had significant concerns about this, and so have I—in fact, even before the COVID epidemic. Of course, once I found out that this APOD had been established in my electorate I insisted on being able to go inside, which I have done once. What I saw inside, and this was, as I said, well before the COVID epidemic, was very cramped living conditions for a lot of people who were not in great shape to begin with. In fact, that's what they're here for, to get medical attention. To not have certainty, to not have a clear way forward into the future is very difficult for them. Many of them have families outside the detention centre, and they are very concerned. Once the COVID pandemic hit, people were even more concerned about the conditions within that centre. So a lifeline to the outside world has been really important. We've been calling on the government repeatedly to make sure that they are doing everything they possibly can to protect the health and wellbeing of people within that centre. We've also been calling on the government to allow people to go into the community, where it's safe—for that to occur and not to be housed in the hotel.

I am very concerned that, if this bill was passed in its current form, the removal of people's mobile phones from them would cause a further diminution in the health and wellbeing of the people who are living in the APOD. It's been very difficult to bring the government to supporting in a meaningful way the people who are living in the APOD. For example, I've been trying to get an electric guitar into the APOD for a resident in there for whom music is a release. Music is a release for a lot of people. It is for me. I can only imagine what it would be like to not have an instrument after being cooped up in a hotel for months on end. But trying to get this government to enable even that to occur, so that a resident in the APOD can at least play some music to blow off a bit of steam, has been incredibly difficult. I say this not because I think it is the biggest issue in the world. Of course, it's not. It's an example of how even minor things seem to be just too much trouble for this government. So I am quite concerned about what it would be like if the government had the right to just put an outright prohibition on mobile phones for people who are living in this place of detention. I know that my constituents are concerned about that as well.

I wanted to speak on this bill really to say that I do encourage the government to look very closely at Senator Keneally's correspondence. I do encourage the government not to politicise this bill. I have to say I've lost hope in that a bit after hearing the member for Ryan's contribution in this debate. He seems to think that this is just an opportunity for partisanship and bashing the Labor Party. This is an opportunity to remember that in my electorate there is a hotel in which there are living a number of people who don't know what the future holds for them and who for seven years haven't known what the future holds for them. Refugees are refugees because they have fled persecution. That is what a refugee is. So we've got people who have already had terrible experiences in their home country who then sought protection and have then had quite a feeling of hopelessness as they've waited and waited and waited to find somewhere to live permanently, settle and start their new lives. And now, with this hanging over their heads, I can only imagine the anxiety that it's causing for them.

So I do encourage the government, as I said, to do the right thing—to take into account, in good faith, the issues put forward by the Labor Party; to take into account the correspondence that Senator Kristina Keneally has sent to the minister; to see what can be done in relation to dealing with some of the issues that have been raised in support of this bill while, at the same time, not contributing to further distress, anxiety and hopelessness on the part of people who are living in an APOD because they have come seeking help. That's what I encourage. I hope that that is taken up in good faith. I hope that we don't see partisanship and the politicisation of this issue with an eye on the electoral consequences but that instead we treat people with the dignity that they deserve, because they are human beings. They're not a means to an end. They deserve to be treated with dignity and with respect and as an end in themselves. And this government, I hope, will take heed, do the right thing and see what can be done to resolve some of the very important issues that have been raised.

Madam Deputy Speaker, I might also, in closing, draw your attention to the condition of the House.

(Quorum formed)

6:19 pm

Photo of Ged KearneyGed Kearney (Cooper, Australian Labor Party, Shadow Assistant Minister for Skills) Share this | | Hansard source

I take no joy in speaking to this bill, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, because this bill really shouldn't exist. I'll say at the outset: Labor does not support it, and we made it very clear to the minister why. The intent of this bill is to allow the minister to prohibit or ban almost any item from use within an immigration detention facility, including alternative forms of detention.

The bill applies to visa holders who have had their visas cancelled due to committing a crime or who are in detention, waiting to be deported home—despite having served their sentences here—and also to people who are seeking asylum and refugees. These are people who have sought Australia's protection and who have been detained indefinitely by the Morrison government. It is not a crime to seek asylum, so let's unpack the Orwellian language contained in the bill and break down what it really means.

It gives police-like powers to so-called 'authorised officers' and to unnamed 'other' persons—for example, Serco guards—to unilaterally decide to ban any object. It gives them powers to conduct personal searches without any reason of suspicion. It allows them to use strip searches and police dogs to look for these items. It allows this to happen in places like the Mantra hotel in my seat of Cooper, where people seeking asylum are being detained after being medevacked here due to their deteriorating mental and physical health.

The bill is just so typical of this Liberal government: an overreach designed to try to convince Australians that refugees who arrive in Australia by boat are bad and dangerous. The crux of this bill is actually the confiscation of mobile phones, which are currently used appropriately by the vast majority of detainees to keep themselves connected to their families, lawyers, doctors and community supporters, and to information about the outside world. Labor has been very clear about its opposition to this bill since 2017, when the government first tried to introduce it. Both times, Labor have issued a dissenting report to the committee set up to investigate it. We have outlined seven recommendations, including that the government withdraw and rewrite the bill or significantly amend the bill to ensure that it doesn't impose broad, sweeping measures that punish detainees. Labor unequivocally do not support phones being removed from detainees who have done nothing wrong. Labor have written to the acting minister, outlining our concerns and noting that if government refuses to accept all our recommendations and properly amend the legislation then the bill should not be passed.

My colleagues have noted that the government already has broad powers under the Migration Act and has failed to make the case as to why illegal activities in detention centres cannot be handled on a case-by-case basis or through existing state, territory and Commonwealth laws, so I want to focus on the real intent behind this bill.

As the Asylum Seeker Resource Centre stated in their submission, this bill only exists to:

… remove detainees' access to devices with internet connectivity, which are their 'life-line' to family, community support, lawyers and medical assistance; and—

Most significantly—

to prevent public scrutiny and accountability for what is occurring within our detention centres.

As I said earlier, my seat of Cooper takes in the Mantra hotel where around 50 people seeking asylum have been detained since coming to Australia under the medevac process. Every person in this group of transferees was prescreened for character or security issues before they were allowed to enter Australia. This cohort presents no risk to the Australian community.

They are my constituents. Some are my friends. I have met the men and have been fighting to have them released into the community. I speak to a number of them on their mobile phones. I will not support a bill which takes away their phones. Their phones are their lifelines. The refugees at the Mantra and in other places of detention have children. They have wives, families and friends. They are not singular entities defined by their decision to seek asylum.

This passage from the ASRC's submission should make any reasonable person want to dump this bill and never let it see the light of day:

I have a son who I talk to every day and my partner and my family that is everything that I ever cared about. If they take our phone away from us, it's going to break us. The bond that I have with my kid is the main thing. Everything about it will break us if they take our phone away. The phone is the only good thing that we have. I can talk to my son on video and feel like I'm there with him even though I'm not there. This gives me confidence in life that all these things that are happening to me are not too bad after all.

We have witnessed the mental and physical deterioration of people in long-term detention as their spirits break and hope disappears. Their connections to family and friends through their mobile phones are the last threads which hold them together. Their phones are also their connections to legal representation. Again, as submitted by the ASRC:

… in recent years all physical visits to detention centres, including professional visits, have become much more cumbersome and difficult to obtain approval for, and to arrange. In this context of isolating detainees from visitors, there is now much greater reliance by lawyers and others on contacting detainees' via their personal phones.

This concern was shared by the Law Council in their submission:

… the Bill … and … its explicit focus on mobile phones, has the potential make access to legal representation and support significantly more difficult, and will unjustifiably exacerbate what is already a challenging environment that must operate within strict procedural time limitations.

66. Mobile phones … are critical to ensuring that the detainee is aware of their right to legal advice in the first place—a right which is not made sufficiently clear.

Refugees have also used their mobile phones to speak out on the cruelty of their situation. The images beamed out from inside the facilities put names to faces. In the media now we regularly see Moz and Farhad, including on ABC's Q+A. The mobile phones give us a glimpse of life behind the locked gates and fences—and, you know, Australians don't like what they see. They don't believe in locking up people who've committed no crime. They don't support denying people medical treatment. They think it's crazy to lock up a family with two young kids on Christmas Island when their community of Biloela wants them home. My community of Cooper regularly tell me how sickened and saddened they are to be governed by a party who continues with the cruel policy of indefinite detention. I don't doubt the desire to silence these brave refugees also lies at the heart of this bill. I don't doubt that there is a desire to silence these brave refugees.

No-one is capable of enduring the torture of indefinite detention. Again, the ASRC:

Continued detention of these refugees, many with histories of trauma, is used as collective punishment for them having attempted to exercise their right to seek Australia's protection more than seven years ago.

After up to seven years on Manus or Nauru, the men at the Mantra have been confined to cramped hotel rooms for more than 12 months. They're unable to go outside except for sparse rostered visits to closed detention facilities to exercise. The COVID outbreak has been extremely stressful, and many are rapidly deteriorating in terms of mental and physical health. I wrote to the minister back in April requesting that he consider community detention as a way to minimise the risk of a COVID outbreak. The UNHCR, lawyers and public health officials made similar requests. The government's response to the risk of a COVID outbreak is to threaten the men with a move to over 3,000 kilometres away, to Yongah Hill, where they will lose access to their caseworkers, legal representation and community supports. All the while, they are facing the prospect of losing access to their phones—their one connection to the outside world.

I genuinely fear what the passing of this legislation will do to the refugees. So I end with a plea to those who sit opposite. The people affected by this bill have been through enough. Many have escaped war, famine and other horrors and have spent much of the last seven years detained by this government. This government has the power to drop this bill. It has the power to release refugees, where appropriate, into community detention. It can make sure that refugees and people seeking asylum have access to medical treatment, and, most importantly, it has the power to resettle these people in safe, permanent homes. They must do this. They must act justly and with humanity.

(Quorum formed)

6:32 pm

Photo of Graham PerrettGraham Perrett (Moreton, Australian Labor Party, Shadow Assistant Minister for Education and Training) Share this | | Hansard source

Deputy Speaker, I'm speaking to you from the electorate of Moreton, a very multicultural electorate, on the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020. Next week the coalition government enters its eighth year of government—eight years with the Liberal and National Parties having somebody in the Lodge, even though that's rotated a bit. Let me repeat that: its eighth year of government. This bill is about people currently held in immigration detention facilities—either people who this coalition government put into immigration detention or those who have been its responsibility for what is now going into the eighth year. So forget Home Affairs Minister Dutton bleating on about what happened in the past. Anyone who's currently in immigration detention is the coalition's responsibility, and the fact that they've brought a bill before the parliament that includes such outrageously nebulous and sweeping powers is proof that the current and former ministers can't effectively manage those in their care.

There is some history to the introduction of this bill. The National Justice Project, on behalf of around 80 detainees, launched legal action in 2017 against the department for confiscating detainees' mobile phones. The legal action of the detainees was successful. They obtained an injunction from the Federal Court on the grounds that the officers involved did not have any authority to arbitrarily confiscate phones. The Department of Home Affairs appealed the decision, and they lost. In response to that humiliating loss, the government introduced the Migration Amendment (Clarification of Jurisdiction) Bill 2018. That bill sought to override the jurisdiction of the Federal Court to hear some immigration cases in the first instance. However, that bill did not progress through the House and ultimately lapsed at the last election.

The current bill before the House is a complete overreach. It attempts to ban almost any item from use within immigration detention facilities, including alternative places of detention, such as hotels just down the road, like the Kangaroo Point hotel in Brisbane. The government already has broad powers under the Migration Act. If there are illegal activities occurring in detention centres, they should be handled on a case-by-case basis, something the member for Ryan doesn't seem to understand. We do have sworn officers in the Queensland Police Service and Australian Federal Police who can respond to crimes. There are state, territory and Commonwealth laws already at the disposal of the government to investigate and halt any illegal activity. The design of this legislation is such that a 'prohibited thing' is not defined in the legislation; rather, Minister Dutton will have the ability to prohibit or ban almost any item for use within an immigration detention facility through the use of a disallowable instrument.

It is my view that a 'prohibited thing' should be defined in the legislation and brought before the parliament rather than snuck in via regulation. I'd also point out that people in immigration detention are held in administrative, not punitive, detention. As 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.

They should not be punished by taking away their ability to contact their family or friends.

As deputy chair of the Parliamentary Joint Committee on Human Rights, which has already scrutinised this piece of legislation, I'm aware of the possible detrimental effect on detainees from prohibiting access to mobile phones or other electronic devices. As at 31 May this year, over 42 per cent of the total immigration detention cohort had been in detention for over a year, and more than a quarter had been in detention for over two years. Prohibiting access to mobile phones would severely restrict the ability of detainees to maintain contact with their family, their loved ones and their friends. Although the minister advised the human rights committee that detainees would have access to landline phones and the internet, that would not allow detainees to have sufficiently private conversations with their loved ones. Where the family of a detainee is located overseas, that may pose difficulties for detainees without mobile phones. Time differences may mean their calls can't be made or received during the night, which wouldn't allow the use of a landline provided in a common area, to be heard by all. The international human rights advice provided to the committee was:

… it does not appear that the alternative means of communication available to detainees who would no longer be able to access mobile phones and internet capable devices would sufficiently protect their right not to have their private and family life arbitrarily or unlawfully interfered with …

This bill also has enormous powers of search and seizure. It would allow for searches without a warrant for a prohibited thing. A detainee could be searched personally, along with their clothing and any property under the detainee's immediate control. This search could occur even if the officer conducting the search had no suspicion at all that the detainee had any such item. The bill also provides the ability to conduct strip searches for a prohibited thing. The explanatory memorandum states that the bill's purpose is to:

… seek 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.

However, an officer does not need to have formed a reasonable suspicion before they conduct a search for prohibited things, and without assessing any specific risk. The bill also empowers the minister to direct officers to seize any prohibited thing from all detainees. As pointed out in report 9 of 2020: Human rights scrutiny report, the lack of limitations on these powers in the bill risk being an arbitrary interference with the right to privacy, including the right to bodily integrity, and with the rights of the child. The explanatory memorandum to the bill states:

Evidence indicates that detainees are using mobile phones and other internet-capable devices to organise criminal activities inside and outside immigration detention facilities, to coordinate and assist escape efforts, as a commodity of exchange, to aid the movement of contraband, and to convey threats to other detainees and staff.

If that's the case and there is evidence of the criminal activity alleged, the current legal framework already permits the confiscation of mobile phones from detainees if there is reasonable cause. But the minister has just not made the case for why these broad, sweeping powers for confiscation of mobile phones from detainees in any circumstances, even without reasonable cause, are necessary.

The government claims this bill is all about providing a safe and secure environment for staff, detainees and visitors to an immigration detention facility, but if they really wanted to achieve that they would respond to the allegedly illegal behaviour by some detention facilities staff. The Department of Home Affairs, in response to a question on notice, provided the following information:

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:

        In an answer to question on notice to Senator Carr, the Office of the Commonwealth Ombudsman confirmed that it was:

        … aware of allegations of conduct by department staff and/or Serco officers that could constitute unlawful behaviour. These allegations include:

                The government's approach to safety in immigration detention facilities should be consistent, not some ad hoc approach which just targets those who are most vulnerable.

                Labor has tried to work with the government to ensure that this legislation is targeted to achieve the stated outcome but unfortunately, the minister, surprisingly, is just not listening. This bill has already been considered by the Senate Standing Committee for the Scrutiny of Bills, which tabled its report in June 2020. That committee raised concerns about the limited reasoning offered in the explanatory memorandum to justify the various expansions of powers suggested in the bill. The Senate Standing Committee on Legal and Constitutional Affairs considered this bill. Labor senators tabled a dissenting report on the bill, recommending that the government either withdraw it 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 might be at risk from high-risk detainees. The senators made other recommendations to limit the powers of the bill.

                As I've already said, the Parliamentary Joint Committee on Human Rights, of which I'm the deputy chair, also scrutinised this bill. That report was tabled last week along with a dissenting report from all of the Labor members and Greens member, so half of the membership of the Human Rights Committee. In relation to this bill, the dissenting report recommended amendments, including that an officer may only search a detainee where they have first formed a reasonable suspicion that the detainee has in their possession the thing being searched for and that it can reasonably be demonstrated that the prohibited thing would pose a risk to the health, safety or security of persons in the facility.

                Further to those parliamentary committee reports, the shadow minister for home affairs has written to the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to try to work with the government to improve this legislation in line with the concerns that have already been raised by stakeholders and the aforementioned inquiries. The conditions that Labor would support this legislation include: that the government withdraw and rewrite the bill, or significantly amend the bill, to ensure that it doesn't impose broad, sweeping measures that punish all detainees, many of whom themselves may be at risk from high-risk detainees; that a 'prohibited thing' be clearly defined in legislation, not in a legislative instrument, and this would enable appropriate parliamentary oversight; that instructions to all staff, including contractors, be issued on how to implement the minister's directions and be contained in a disallowable instrument; that any amendments ensure detainees are not prevented from possessing or using electronic devices, such as mobile phones, unless there is evidence that removal is necessary and proportionate; that any amendments implement measures that provide extra protections for staff working in immigration detention facilities, especially health and medical professionals—that's a very good thing; and that all parties to migration detention matters use the same publicly published data regarding detention statistics.

                Sadly, so far, the shadow minister has received no response to these reasonable requests. Labor opposes this bill in its current form, and I support the amendment put forward by the member for Scullin.

                6:44 pm

                Photo of Adam BandtAdam Bandt (Melbourne, Australian Greens) Share this | | Hansard source

                The utter hypocrisy of the 'freedom brigade' in the government is on show yet again. They're always the first ones to swear that they'll be going to the barricades to defend an individual's right to freedom and to say that government should not act to take away people's liberties. And then, the first chance they get, when they've got people under their control who they have a duty of care towards and who have committed absolutely no crime, what does the government do? It acts to take away their basic liberties.

                The right to communicate with other people, for someone who has not committed a crime and is not in detention for having done anything wrong, ought to be fundamental. But what does the government do? The government says: 'Well, we've got these people that we lock up in hellholes, in detention facilities. We know that indefinite mandatory detention is unnecessary, but we do it anyway. We know that that causes people to get to the point where they harm themselves. It causes mental health problems. It causes people to despair.' The government knows all of this. It creates these systems of torture in this completely unnecessary system of mandatory detention—a system of mandatory detention that, of course, is supported by the Labor Party as well. And then what does it do, having created this system that it says it's so proud of? When the people who are in detention, not having done anything wrong—and I stress that point: not having done anything wrong—have the temerity, in the government's eyes, to then contact someone on the outside or perhaps try to broadcast what the conditions inside are like, what does the government do? The government moves to take away their individual liberties.

                This bill, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, gives extraordinarily wide-ranging powers to the government to say that people who are in immigration detention, people who have come here seeking our help, may no longer have the right to effectively communicate with the outside world. The government is so fond of saying to everyone else—everyone who is on welfare or is subject to their other laws—that, if you've done nothing wrong, you've got nothing to hide. So, as the government says all the time, why wouldn't you be willing to have some sunlight shone on you? Why wouldn't you allow some intrusion into your life? But, when you try and do the same to the government and say to the government, 'If you've got nothing wrong, why are you trying to hide it?' the government crack down with the strong arm of the state. This is an assault on individual liberties by a government that is high on power. When it struggles in the polls, what does it do? It pulls out the old conservative playbook and says, 'How can we attack refugees and asylum seekers any further?' Having locked them up to the point where people, in some tragic instances, threaten to or actually do take their own lives, and having driven Australian asylum seeker policy to the point of cruelty where it's applauded by people like Donald Trump, the government now wants to hide from any exposure of what is happening and wants to restrict the rights of people who are doing nothing more than seeking freedom and seeking help.

                What do we know? We know that people who are in immigration detention have done nothing wrong. They have committed no crime. They have been convicted of no crime. The people who are in immigration detention are entitled to the due process of law. The government routinely denies them that. We saw that especially with children, where the government has had to be dragged kicking and screaming. Every time the government has released a child from detention, it was preceded by court action. Eventually they realised that that was unsustainable and they turned around and changed their policies. But, every time an individual's breach of liberties is exposed, the government has had to be dragged kicking and screaming.

                The ability of people to record and talk to people in the outside world about what is happening is vital. These people, who've done nothing wrong, should have the right to be able to communicate with people who can help them—not only help them advance their case, as they are entitled to with the due process of law which the government continues to deny them, but connect them with their friends and support networks as well, because being in indefinite mandatory detention can break people, and that's why it's so utterly wrong that Labor and Liberal continue to support it. This policy is a policy of cruelty that breaks people. One lifeline that people have is the ability to maintain connections with the outside world, and that relies on devices like phones and on other devices as well, and now the government is saying that the minister should have the right to take those away. Well, on what basis? Have these people been convicted of any crime? No, they haven't; the minister should just have the power to take any item that's deemed to be prohibited away.

                Not only is there going to be a capacity to remove those but there are going to be capacities to come in and search people—to search people's property and also their persons—in order to determine whether they've got any of these prohibited items. And it's not sworn police officers who are going to be doing this. It'll be people who are often untrained. It'll be security guards, coming in and exercising greater powers than police have, in many instances, and persecuting these people even further. This will diminish not only the empowerment but also the rights and the mental health of people in our immigration detention facilities. It is no wonder that the bill has been criticised for contravening a large number of internationally recognised basic human rights. But that is the government's intention.

                The government does not care about individual liberties, except when it thinks there are a few votes in it. But, when it comes to actually upholding human rights, when it comes to actually upholding the rule of law, this government is the first to throw individual liberties on the scrap heap, and we are seeing it here yet again. Just imagine if they tried to say, with respect to other people in the country on the mainland, 'You haven't done anything wrong, but I am going to give an untrained security guard the right to come in and search your home and take away your phone.' That is basically what the government is doing here, to someone who has done nothing wrong but is under the government's care. And these are people to whom we owe a duty of care, not this kind of assault on their liberties, on their health and on their rights that we are seeing.

                So this bill is not amendable and should be rejected. It is a continuation of the bipartisan policy of cruelty towards refugees and asylum seekers. We should be debating how we could end mandatory detention and hold people for the smallest amount of time possible that you need to, to perform health and security checks, and then allow them to live in the community while their claims are processed, which would be increasing our humanitarian intake. We know that there are so many assaults on rights and liberties going on around the world that Australia, as a democracy—albeit a democracy that gets threatened every time one of these bills gets passed—is a place that people seek to come to, and we've got the capacity to take more people, to lift our humanitarian intake. That's what we should be debating.

                Instead, as is always the case, we see this anytime the government is struggling for an agenda or struggling for a recovery plan or looking for a diversion from the fact that it has overseen absolute tragedies in aged care or that it has got no plan to get young people back to work or that we're seeing women losing hours of work at incredible rates and the government has then gone and attacked child care. The government has got no plan to deal with the recession and certainly no plan that's not going to make the climate crisis worse. The only plan they've come up with at the moment is one that involves extracting more gas, when we know that we're in the middle of a climate emergency and that gas is as dirty as coal. When the government have got no plan, what do they do? They pull out the playbook and turn around and attack people who need our help. This government is expert at punching down. And this is another move from the government, a government bereft of any agenda, to just punch down because they have got no positive alternative for the people of this country.

                There comes a point where there is only so much hurt that you can do to people, and that is the case for people who are in immigration detention, in mandatory detention, at the moment. They have already been put in a legal limbo that means that they don't know when their case is going to be resolved, and, even though they might have a perfectly legitimate claim, they could end up waiting here for an extraordinarily long time indeed. And now the government is turning around and saying, 'We're going to deny you the right to even contact people in the outside world.'

                The government, through this bill, admits that it is so ashamed of what it is doing to people in immigration detention that it will now no longer let them tell the rest of the world what is happening inside immigration detention. Well, government, if you've done nothing wrong, you should have nothing to hide and you should have nothing to fear from people who are in immigration detention having the right to possess the same kinds of items that the rest of us in the outside world have, including items that allow them to communicate and connect with people in the outside world and that, in many instances, may be the difference between having a healthy life and being extraordinarily unhealthy, to the point where they may tragically choose to attempt to take their own life, as we have seen in too many instances in immigration detention. This is a matter of people's health. For many people, it will be a matter of life and death. It's a matter of fundamental human rights and liberties. This bill should be opposed.

                6:55 pm

                Photo of Andrew WilkieAndrew Wilkie (Clark, Independent) Share this | | Hansard source

                Yesterday morning, I walked out to the point at Cornelian Bay here in Hobart, just behind the Cornelian Bay cemetery, and had a chance to look again at the modest memorial that has been erected there to all of the people that perished in the SIEV X disaster in 2001. Honourable members would remember that some 353 men, women and children—I think there were an estimated 146 children on SIEV X—drowned that terrible night. They drowned alone. It wasn't until the next day, we understand, that civilian Indonesian vessels that were in the area, fishing boats, were able to save a small number of people. What a chilling reminder of the horror of Australia's asylum seeker history. And it's not that SIEV X was the only horror to recount. In fact, our history is peppered with numerous instances of horrors and scandals.

                For example, also in 2001, the merchant ship the Tampa picked up some 433 men, women and children from an asylum seeker boat that was also sinking. There was the scandal when the then Prime Minister, John Howard, dispatched almost 50 Special Air Service soldiers by boat to board the Tampa to ensure it would not bring those unfortunate souls to Australia. Also that year there was the children overboard scandal, when the then Howard government made a point of telling the Australian community that asylum seekers would stoop so low as to throw their children overboard in an attempt to facilitate them being rescued by Australian authorities.

                But we don't have to just focus on 2001 and the Howard government. What about just last year, when the government repealed the medevac legislation—legislation that mandated nothing more than sick asylum seekers in offshore detention being brought to Australia for critical medical help? But, just when you thought the government had stooped as low as it could get, it stooped even lower by repealing that very sensible law that just ensured that sick asylum seekers could get medical attention.

                I regret to say that neither major party has clean hands here. I've just rattled off a number of episodes involving coalition governments, but let's not forget it was the Keating Labor government in 1992 that actually invented mandatory detention—a creation of the Labor Party—and it's the Labor Party these days that is in lock step with the coalition government when it comes to continuing support for mandatory detention, continuing preparedness to use offshore processing and full support for measures like tow-backs, as dangerous and as inhumane as they are. So no-one's got clean hands here when it comes to Australia's response to asylum seekers.

                Turning my mind to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 that's before the House, numerous organisations have lodged complaints about this bill. Numerous organisations have made it very, very clear what's wrong with this bill. In fact, I would refer honourable members to, if they read nothing more, at least read the summary of the Bills Digest, which notes:

                The Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 5 August 2020.

                It said:

                Submissions to the inquiry raised numerous concerns with the Bill. Common themes identified in submissions were: that the measures contained in the Bill are unnecessary and disproportionate in relation to the security risks posed in immigration detention; that the Minister’s power to prohibit items is unreasonably broad; and, specifically, that prohibiting mobile phones in immigration detention will unreasonably limit detainees' rights to privacy and political communication, and contact with family members and legal representatives. Stakeholders also expressed concern about the expansion of coercive powers such as strip searches.

                The Bills Digest also notes:

                The Senate Standing Committee for the Scrutiny of Bills raised concerns that the amendments unduly infringe detainees' personal rights and liberties because the powers will apply to the entire detention population, not just high-risk detainees. It also raised concerns about: prohibited things being determined by the Minister instead of specified in the Act; broad discretionary powers being provided to the Minister; and the delegation of administrative powers.

                The Parliamentary Joint Committee on Human Rights noted that the Bill's measures were likely to engage, and could limit, a range of rights, including the right to privacy; right to humane treatment in detention; right to protection of the family; right to freedom of expression; children's rights; and the prohibition against torture, cruel, inhuman and degrading treatment or punishment.

                I could go on. The point I'm making is that a number of parliamentary inquiries have looked at this bill in detail and have taken evidence and submissions from numerous highly regarded organisations, and there has been an almost universal condemnation of this bill, and agreement that this bill must not be supported. I want to put on the public record absolutely clearly here that it does not have my support. It didn't have my support in 2017, when the coalition government first tried to progress these matters; it doesn't have my support tonight; and it never will have my support.

                To my mind, the problem here is that this bill continues the practice of treating asylum seekers as criminals and the practice of treating detention centres as jails. That's where it just completely loses all touch with reality. The fact is that it is not illegal to seek asylum in another country. The people who are coming to Australia seeking our protection have committed no crime and are committing a crime; they are not convicted of any crime. So why on earth would a succession of governments remain committed to treating them like criminals and continue their determination to turn these detention centres—which, frankly, should be open centres; these people should be in community detention—into jails? I would remind members, through you, Mr Deputy Speaker Goodenough, that article 14 of the Universal Declaration of Human Rights from 1948 states very clearly that everyone has a right to seek and to enjoy asylum from persecution in other countries. I will say that again. The Universal Declaration of Human Rights in 1948 clearly states:

                Everyone has the right to seek and to enjoy in other countries asylum from persecution.

                But that's not the only place to find such sentiments. Obviously, the right has developed and it's enshrined in the refugee convention of 1951.

                The fact is that Australia is morally obliged, and obliged through international agreements which we've signed up to in good faith in years gone by in international law—morally and legally obliged—that when someone comes to our shores by whatever means, boat or aeroplane, we give them immediate protection and then, as quickly and effectively as we can, we hear their claims and determine the accuracy or otherwise of those claims. Of course, we have found that the claims of most asylum seekers who have made it to Australia have been absolutely accurate; and, when they are absolutely accurate, we are morally and legally obliged to give them permanent refuge in our 'lucky country'. That's what we should be doing. We have no right under any convention or international law or agreement to treat these unfortunate souls as criminals and to lean on policies of deterrence and punishment.

                At this point I'll echo the comments of the member for Melbourne, who spoke just before me. He elaborated on these points very effectively. The fact is that our response to asylum seekers is a policy that has long been based on deterrence and punishment. There is no humanity in it. There is no humanity in taking someone's mobile phone away from them so they can't keep in touch with their family, so they can't keep in touch with legal representatives when they want to or need to and so they can't even go to the media when they are being mistreated in these detention centres.

                Moreover, our governments have got to stop acting illegally themselves. All too often, the criminal in this whole sorry saga is the government of the day. I would remind members of this House that, as a signatory to the Rome Statute, we are committing crimes against humanity every time we detain someone indefinitely without conviction for any offence. I will make that point again. According to the Rome Statute, the Australian government is committing a crime against humanity every time we lock up an asylum seeker in inhumane conditions indefinitely without conviction for any offence.

                I did not support this bill in 2017 and I don't support it tonight. I do not believe that the changes that have been made around the margins of this bill from the 2017 version have made it even remotely acceptable. I agree with the member for Melbourne: it's not amendable, it's trashable; it's a garbage bill; there is no way this bill could be amended to make it supportable. I urge the government and the opposition to think afresh about alternative responses to asylum seekers.

                In recent years I moved a private member's bill that proposed a legislative framework for an alternative response to asylum seekers—one that was consistent with international law and relied on a genuine regional approach, overseen by the UNHCR, with quotas for countries to accept people from regional processing centres. That bill received no support from the coalition government at the time and no support from the Labor opposition at the time. But the point is that, until the government and the opposition start to genuinely consider alternative approaches, we will continue with this immoral and illegal policy framework based on deterrence and punishment.

                There are so many better ways we could be doing this. To start with, we should stop regarding asylum seekers as a security challenge, a matter for Border Force, and understand that this is a global humanitarian challenge. As one of the richest, luckiest and most fortunate countries in the world, there is no country better placed than Australia to be a global leader in this space, a global leader in developing alternative responses to asylum seekers—responses that are consistent with the 1948 Universal Declaration of Human Rights, the 1951 Refugee Convention and our obligations under the Rome statute.

                Every time we trash these international agreements, we dishonour the men and women who occupied these benches before us and signed up in good faith to these international agreements. We are an international pariah when it comes to our nation's response to asylum seekers. Indeed, it is a dark stain in this country's history book—a dark stain that will take a long time to erase, if it ever can be erased. But we could start in one small way tonight by voting down this bill. I call out to the Labor Party. Your supporters are expecting you to vote down this bill and, from the speeches, it sounds like you will. And I say to the government: why on earth are you progressing this unless you want to be cruel by design to the people who were coming to our country in good faith thinking that we are a rich, lucky and law-abiding country and we will give them refuge? And what do we do instead? We lock them up indefinitely. We take their phones away. We don't care about their mental health. If they're unfortunate enough to be on Manus Island or in Nauru in those camps—you call them open camps; I call them gulags—and to be sick, we are so cruel we won't even bring them to Australia for medical treatment.

                I will end my remarks there. This bill does not have my support. It didn't in 2017, it doesn't tonight, and it never will.

                (Quorum formed)

                7:12 pm

                Photo of Josh BurnsJosh Burns (Macnamara, Australian Labor Party) Share this | | Hansard source

                I rise tonight to contribute to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020. I start my remarks tonight by thanking the people in my electorate who have written to me about this bill, who have raised their voices and, by extension, requested me to raise mine in this place and say for them that they can't understand the logic behind this bill. They can't understand why Australia is pursuing such a draconian overreach in regard to the management of people in our control and in our care. They have rightly pointed out the cruel nature of this bill.

                Migration policy in this country over the last decade is a familiar story of this government overreaching and playing political games with our detention facilities and our migration system. But when we saw this bill rehashed—an old version of Peter Dutton's bill from 2017—we thought we would work constructively with the government. We thought as the Labor opposition that there are pretty extraordinary powers sought by the government and therefore we would seek to get an explanation and find out why these powers are necessary. Often there could be reasons and cases as to why the government's sought these pretty extraordinary powers. But, of course, there was no answer. There was no response from the government that justified the extraordinary powers that they sought to have as a result of this migration bill. The only logical conclusion to that is that this bill is not about a proportionate response from government but about cruelty and politics. Cruelty and politics are what are governing this bill and its creation.

                I listened intently to the contributions of the member for Melbourne and the member for Clark. While I know that they in their lonesome offices really enjoy taking swipes at the Labor Party, I remind them that the Labor Party is opposing this bill and that the Labor Party took to the last election a record of reform that would have dramatically changed the way in which Australia treats people in care and treats those seeking asylum in this country. We would have removed indefinite detention and gotten people out of detention. We would have worked with New Zealand and other countries to set up regional processes to make sure that people weren't left languishing by themselves for years. We also would have got rid of temporary protection visas, improved the processing time for visas, increased our humanitarian intake and played a bigger role on the international stage. We would have completely transformed the way in which Australia handles these migration cases, so I really resent the politics from the Greens and the Independents, who are constantly trying to undermine Labor's reform in this place. We would have taken a very different approach, just like we did in the last parliament, when we introduced and worked with the crossbench on the medevac bill.

                The story of the medevac bill is much like this one. The standards that Labor sought to enforce were not remarkable. We wanted to make sure that there was basic medical care for those in our power. With this bill, all we are saying is that detention centres are not prisons, that people in the care of Australia as a nation are not prisoners. If they commit a crime or there is a suspicion that they have committed a crime, do what you need to do with the powers that already exist, but that's not what this bill is about. This bill is a punitive measure to deny people the most basic of accessories, such as a mobile phone. What is this government afraid of—vulnerable people writing nasty things about them, texting nasty things about the Prime Minister or about the minister for immigration? It's hardly a sign of strength that a government would seek to take away such a basic human right as the right to communication and connection to the outside world from people who have not committed a crime, from people who have come to this country seeking our help.

                As with the medevac bill, with this bill the government is simply seeking to play politics and to introduce cruel and unnecessary overreaching measures. To deny someone a mobile phone in detention seems heartless and cruel, but to deny medical attention to someone in this country—the Australia I have grown up with—seems foreign to all the things I hold dear about this country. It seems foreign to all the things I know as an Australian, where health care is a universal right, not something the government plays games with, depending on whether or not it feels like it needs to flex its political muscles on the day.

                It's hardly surprising—as with this bill, where the government has no reason and no justification for these extraordinary powers—we heard after the medevac bill the mother of all scare campaigns unravelling. They said they needed to open up the Christmas Island detention centre. We all remember that. The government wasted $185 million to open up the Christmas Island detention centre. It was in the budget. What a waste of money. What a waste of resources. What a waste. To prove that there was no justification for the government to have opened the Christmas Island detention centre, who did the government send there? For the majority of time it has been a sad family of four, with a three-year-old girl and her five-year-old sister sitting in there by themselves with their parents, defenceless.

                It is not a sign or a show of strength to take a family out of a community in regional Queensland and put them in the Christmas Island detention centre by themselves. It doesn't matter that the government wasted millions of dollars in setting up an unnecessary detention centre after the medevac bill embarrassment in the House of Representatives. It matters that they used it for a $185 million political exercise where the Prime Minister was seen doing press conferences, charging taxpayers thousands of dollars per minute to get photo ops near this empty detention centre on Christmas Island. We are better as a country and as a people than wasting millions of dollars on defenceless people. I think that we as Australians are better than spending millions of dollars during a pandemic to lock up people unnecessarily. In the middle of a pandemic, wasting millions of dollars locking up a family—surely we are better than taking away their mobile phones when they haven't committed a crime.

                This bill isn't about the extraordinary powers that the government wants; this bill is about the government seeking extraordinary powers for no reason. This government had no reason to want to take away the mobile phones of people, who have committed no crime, other than to flex its muscles and play the politics of cruelty, which is its default game. It's hardly surprising, because the Minister for Home Affairs has form on this. He leads the department and the acting minister, who has been an acting minister for quite some time, in this reform. Maybe the Minister for Home Affairs is bored. Maybe he is looking forward to the November reshuffle when he will be moving over to Defence, as reported by many of the mainstream media outlets. Maybe he is looking to pack up the home affairs department and be shifted sideways. I don't know what's driving this. Maybe he wants one last hurrah in his role in charge of the immigration and detention centre before the Prime Minister shuffles him aside.

                All I can say is that we in the Labor Party are not going to be governed by the politics of fear. We need to be bigger than that. We need to be bigger than that as a country, and we need a government that is bigger than that. We need a government who can stomach having things written about them by people in detention, people who have been left there unnecessarily for seven years—indefinite detention—and who don't have any idea of what the future holds for them. Surely we can say that (a) they deserve medical care and (b) while they are in our care they can have things like a mobile phone. I don't think that that's too much to ask. In fact I think these people should be taken out of detention as quickly as possible.

                I will finish my contribution today by saying that at every single stage we have sought to work collaboratively and cooperatively, and sought to find answers as to why the government would want to introduce such draconian measures. But at every single stage the government hasn't provided answers. The only answer that really exists is that the government wants to play with people's lives and play cruel political games in order to make its political points. It's shameful, and I join my colleagues in the Labor Party in saying that we don't support this bill and that we hope for a day when a bit more decency and humanity comes to immigration detention and immigration policy in this country. I hope to work towards them in my time in this place.

                7:24 pm

                Photo of Tony ZappiaTony Zappia (Makin, Australian Labor Party) Share this | | Hansard source

                I am pleased to follow the member for Macnamara, and I commend him on his contribution to this debate. This bill, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, allows the minister to prohibit or ban almost any item from use within an immigration detention facility. The things to be prohibited are not spelt out in the bill but will be listed in what is now a disallowable legislative instrument. Being a disallowable legislative instrument is in itself a backflip by the government and in particular by the minister, who, in the first bill that was introduced on this matter, wanted it to be a non-disallowable legislative instrument. That immediately implies that what the government wanted was to be able to make decisions in respect of these matters without ever being accountable to this parliament. It's a role of this parliament to have some oversight of matters as important as this. At least on that matter, I note that the government has now backflipped.

                The Minister for Home Affairs and the minister for immigration already have extraordinary powers that exceed the powers of most other ministers in this place. The only reason the backflip occurred in terms of the instrument being disallowable was the scrutiny of this parliament and the scrutiny of a committee of this parliament. It is a fundamental role of the parliament which should never ever be diminished. To now know that the minister would have liked to have had even more powers than they currently have is something that concerns me deeply.

                Concerns with the original bill had been raised by numerous bodies, including the Parliamentary Joint Committee on Human Rights, the Senate Standing Committee for the Scrutiny of Bills, the Federation of Ethnic Communities Councils of Australia, the Settlement Council of Australia, the Kaldor Centre, Liberty Victoria, the Australian Human Rights Commission, the Law Council of Australia, the Australian Lawyers for Human Rights and the Refugee Council of Australia—just to name some. All of those bodies expressing concerns about this legislation immediately sends up red flags for me. I cannot for a moment believe that such bodies would raise concerns that are flippant and not worthy of the consideration of this parliament. Indeed, my understanding is that, of the 135 submissions that went to the Senate committee on this matter, only two were in support of this legislation. One was from the minister's own department and the other was from Serco, the operator of one of the facilities that we would be referring to. Notwithstanding the changes made to this legislation, which I accept are an improvement on the original bill, there are still serious concerns with what is proposed in this legislation. That is why I will be speaking and voting in support of the amendment moved by Labor.

                The government's justification for the bill is the changing profile of the people in detention. At 31 March this year, my understanding is that, of the 1,373 people in closed immigration detention centres, 625, or 45 per cent, were detained due to section 501 character related visa cancellations; 512, or 37 per cent, were classed as illegal maritime rivals—in other words, refugees or asylum seekers; and, 238, or 17 per cent, were detained for other reasons, mainly related to non-criminal visa issue breaches—people who perhaps have overstayed their visas or have arrived illegally in other ways but who have not committed any criminal act against the laws of this country other than being here beyond their visa conditions. We are told that amongst the 45 per cent of the section 501 character related visa cancellations there are child sex offenders; perpetrators of violent crime, including domestic violence; murderers; and even drug offenders. There would be little or no public sympathy for that cohort. Any measures considered necessary to manage their behaviour and ensure public safety would have not only widespread public support but also my support. However, the measures in this bill are not limited to the worst of the section 501 visa cancellations. They apply to all persons in detention, including asylum seekers—

                Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

                I'll just ask the member for Makin to resume his seat. He'll have leave to continue his remarks when the debate is resumed. On indulgence, I'm going to call the Manager of Opposition Business before we go to the adjournment debate.

                7:29 pm

                Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Shadow Minister for the Arts) Share this | | Hansard source

                As we've recorded on previous occasions, which way the members of the major political parties would have voted if they were absent because of the pandemic is clear because of the pairing arrangements. I was contacted this morning and neglected to rise at the time to inform you that for the suspension motions and the related gag motions the member for Melbourne indicated and wanted it placed on the record that he would have voted with the opposition on those relative divisions.

                Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

                I thank the Manager of Opposition Business. It's important that all of that be recorded.