Opposition to Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017


February 07, 2018

I also rise to speak on the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017. I join my Labor colleagues in opposing this bill in its current form. Let’s be clear: of course Labor supports the concept that security and safety of detainees, staff and visitors is an important issue, and that contraband must be kept out of these facilities. However, Labor does not support that this minister, Minister Dutton, should have broadly defined powers that do not have any safeguards, other than the minister himself. While we are willing to work with the government in order to ensure the safety of detainees, staff and visitors, we will not, on this side of the House, be a rubber stamp to give Minister Dutton unchecked power, as is proposed in this bill.

The bill in its current form gives Minister Dutton way too much power. It enables, for example, the minister to determine a prohibited thing by a legislative instrument that is not disallowable by the Senate. These concerns that have been raised are not limited to me and my Labor colleagues on this side of the House. In fact, there have been a number of third-party stakeholders who have raised significant concerns, and they’ve raised these concerns around unchecked ministerial power. One example is in the foreword of a report, released in 2017, by Liberty Victoria’s Rights Advocacy Project that specifically examined the discretionary powers of the immigration minister.

The Hon. Ian Macphee—you will be familiar with him, Mr Deputy Speaker; he’s a former immigration minister in the Fraser Liberal government—has expressed that he has serious reservations with regard to the unchecked ministerial power under this minister. He said:

… ministers now exercise power that is mostly beyond the review of judges. Such power should be exercised humanely and in accordance with morality, not absolute law … The law and its practice is now unjust. It is un-Australian.

The report itself went on to say that these powers would further allow an immigration minister to play God. The report said:

Those decisions are not made in a transparent way in accordance with fair processes; rather, the Minister is empowered to an alarming degree to make decisions based upon his whim, with scant regard for due process.

The report examined the number of acts administered by each minister, and the number of public interest or national interest powers that conferred largely undefined ministerial discretion. It found the Attorney-General, Australia’s highest law officer, held 38 powers within 152 acts. The immigration minister, however, far exceeded all other ministers with 47 powers within 20 acts. No other minister, not even the Prime Minister, is given anywhere near as much unchecked power. And of course we know that Minister Dutton has successfully merged some of these powers even further, under the title of home affairs minister and within his new department.

If we are to genuinely hold fast to the fundamental and most basic principles of democracy and the rule of law, we cannot abide one minister having such broad personal power, the power to make such important decisions affecting people’s most basic of rights, devoid of any transparency and accountability. In short, this is overreach; a continuation, if you will, of the empire building that we’ve seen by the Minister for Home Affairs, to use his new job title.

Let them call themselves what they will—he can call himself whatever he wants—but, regardless of whichever title they wish to give themselves, it is incumbent on this government to ensure the safety of detainees, staff and visitors in immigration detention and transit facilities whilst adhering to the rule of law. The Turnbull government has to take seriously their duty of care for people detained in, working in or visiting Australia’s onshore immigration detention and transit facilities. But it is important that the Turnbull government gets the balance right and makes a fair and reasonable case for any items they wish to have prohibited. In ensuring the safety of these detainees, staff and visitors, Labor agrees, of course, that drugs, weapons and child exploitation material should not be allowed in immigration detention and transit centres. This is painfully obvious. But we know that drugs have, in fact, gotten through the security checks.

The tragic death of Robert Elan Peihopa in 2016 inside Villawood Immigration Detention Centre shows that allowing contraband into detention facilities has dire consequences. The coronial inquest into the death of Mr Peihopa found that he passed away from fatal cardiac arrhythmia and triggers of ingestion of methamphetamine in the hours before his death. He had been in detention for more than 10 months. These drugs—these things—should never be allowed in immigration detention facilities in the first place. The Minister for Home Affairs has serious questions to answer. If he’s been sitting on his hands allowing this type of thing to occur unchecked for the three years in which he’s been immigration minister, what has he been doing? Only one of the nine recommendations of the coronial inquest into the death of Mr Peihopa relates to enhanced search and seizure powers in immigration detention facilities. I specifically refer to recommendation 4, which states:

Search and seizure powers available at immigration detention facilities should be enhanced to (a) prevent the entry of illegal drugs into immigration detention centres and (b) detect illegal drugs which have entered immigration detention centres.

The other eight recommendations of the coronial inquest into Mr Peihopa’s death relate to required improvements in the relationship, processes and information-sharing protocols between the department and its providers—Serco and International Health and Medical Services, IHMS—and other state bodies, including improvements to treatment and rehabilitation programs made available to detainees while in immigration detention centres. As I said earlier, Labor is willing to work with the government, in the national interest, of course, to strengthen search and seizure powers. However, measures must be proportionate to the risk, appropriate to the circumstances and necessary as proven by the evidence.

Serious concern about this bill has been raised by the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights. After Labor referred the bill to the Legal and Constitutional Affairs Legislation Committee for a Senate inquiry, the committee received submissions opposing the bill. Labor referred the bill to a Senate inquiry to give space to the government to make a case for why certain items should be prohibited, to allow stakeholders to consider and explain the impact of the changes on detainees and to ensure the legislation is appropriate and that there would be no unintended consequences. Of the 82 submissions to the Senate inquiry, 80 raised concerns about the bill as it is currently drafted. Only one raised conditional support for one aspect of the bill. The 82nd submission, if you like, from the Department of Immigration and Border Protection, now the Department of Home Affairs, supported the bill. Surprise, surprise.

The submissions to the Senate inquiry raised significant concerns, and they came from a vast array of stakeholders: the Law Council of Australia, the Australian Human Rights Commission, Legal Aid New South Wales, the Refugee Council of Australia, Rural Australians for Refugees, Australian Lawyers for Human Rights, Immigration Advice and Rights Centre, the Australian Association of Social Workers, Amnesty International Australia, Refugee Legal, Monash University Castan Centre for Human Rights Law, the Asylum Seeker Resource Centre—that’s just to name a few. The concerns raised by these organisations have been further exacerbated by the disturbing lack of transparency about the rules and guidelines visitors must follow when visiting immigration detention facilities. Some stakeholders have reported they have been prevented from taking pens and documents for detainees to sign into the visiting areas. It should be noted that neither Serco nor IHMS—the two providers for the department—made a submission to the Senate inquiry on this bill. They didn’t even take the opportunity to make a case for why these broad powers are supposedly required for the good and orderly management of the immigration detention centres for which they are responsible.

Labor has listened and considered many of the concerns that have been raised. I’ve said that we’ve worked with the government, and we’ll work with them if they are willing to consider restricting some of the provisions in this bill—for instance, the definition of ‘prohibited thing’. It’s too broad. Labor believes that the bill should be amended to narrowly confine the definition of ‘prohibited thing’ and that ‘prohibited thing’ should be defined in statute to enable appropriate parliamentary oversight.

Detainees should also not be prevented from possessing or using electronic devices, such as mobile phones, unless there is clear evidence that their removal is both necessary and proportionate. We should ensure that all people in immigration detention have adequate opportunity to communicate with people outside the centres.

Furthermore, medications obtained under prescription or supplements recommended by health practitioners should not be caught up by these provisions. The provisions should be directed only at narcotic or restricted substances. I think that’s common sense.

The bill must also limit searches of detainees’ personal effects and the rooms that they reside in to cases where there is reasonable suspicion that contraband is in the detainee’s possession, along with expressly referring to the principle that detainees not be searched unless there is a reasonable suspicion that an illegal substance or items are in their possession and that strip searches be conducted only in exceptional circumstances.

We’ve heard some debate around the issue of sniffer dogs. They can be of valuable assistance in keeping contraband out of those centres, but there are concerns about the impact that the use of sniffer dogs will have on some vulnerable asylum seeker detainees in these centres, as dogs may have been used as an intimidation tool during persecution that they may have suffered in their country of origin. Labor believes the bill should ensure that detector dogs are able to be used in immigration detention and transit centres but are not permitted to be used directly on detainees.

If the government listens to these concerns and recommendations, Labor will, of course, consider supporting the government in passing the bill. But only with the aforementioned restrictions and amended provisions can we feel secure that these centres can properly keep detainees, staff and visitors safe rather than subjecting them to the government’s or the minister’s failures on the management of these centres. They don’t like talking about these failures in managing these immigration detention centres. If Peter Dutton, the minister, wants to have these broad powers to ban certain items then he should have used the Senate inquiry to make a case as to why certain items need to be banned.

We have seen the minister’s incompetence writ large—failures through the lens of his politicised narrative on this issue. Just last week an independent review of the Department of Immigration and Border Protection, looking at the circumstances of the detention of two Australian citizens, was released under freedom of information laws. The review has revealed systematic problems in Minister Dutton’s management of onshore detention centres, resulting in two Australian citizens being wrongly detained in immigration detention. Between 2016 and 2017 the then Department of Immigration and Border Protection wrongfully held two Australian citizens in immigration detention for 97 and 13 days respectively. I repeat: this government wrongfully held Australian citizens in immigration detention. For all Minister Dutton’s arrogant swagger and bluster about management of these centres, border security and how strong he is on all of these matters, the incompetence is absolutely staggering.

This investigation exposed the failures by the minister to manage Australia’s onshore immigration detention centres, and it included ignorance of critical information and a failure by a number of senior department officers to recognise that the individuals were Australian citizens. Staff involved did not have the fundamental level of knowledge required to perform their duties, and officers did not consistently demonstrate the requisite knowledge, understanding and skills to fairly and lawfully exercise their power to detain.

Evidence from this review found that resourcing issues and management’s focus to address timeliness in delays, rather than ensuring the quality and lawfulness of the decisions, were at the root of these problems. Findings like these are why we need more transparency in the accountability of the Department of Home Affairs, not less. It’s exactly why we need the government to fully explain and justify why Minister Dutton needs such unfettered and ill-defined powers. The incompetence, the failures and the lack of transparency are part of a broader and alarming pattern. The creation of the Department of Home Affairs further neglects responsibilities with regard to immigration. The fear-mongering and the securitisation of immigration policy disregard that this is fundamentally a social and economic area of policy about the management and facilitation of new migrants coming to our country and contributing economically, socially and culturally.