Enabling Australia’s Border Force and Immigration Minister to ban mobile phones for people in detention would have dangerous consequences, the Kaldor Centre told a Senate committee today, urging the Senate to reject a proposal that would damage individual wellbeing and decrease public accountability.
Kaldor Centre Senior Research Associate Dr Sangeetha Pillai appeared before the Senate Standing Committee on Legal and Constitutional Affairs at a public hearing as part of its inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020. This is an edited version of her prepared opening statement.
The Kaldor Centre recommends that this Bill should not be passed. As we have outlined in our written submission to this inquiry, this Bill is maladapted to its stated purpose of mitigating risk to detainees and immigration detention staff. This is reflected in the fact that of the 66 submissions to this inquiry that have been made publicly available, 62 express serious concerns or recommend that the Bill be rejected. Only two submissions – those of Serco and the Department of Home Affairs, argue in favour of the Bill.
The measures proposed in the Bill would have a very significant impact on individual rights and liberties. In this context, the government bears the onus of clearly justifying why the Bill is needed, and that it is proportionate. To do so, the government needs to precisely identify the risks that the Bill targets. It also needs to establish that these risks cannot be addressed using the wide range of existing powers that may already be exerted over people in detention.
None of this has been done. The risks identified in the Explanatory Memorandum and Second Reading Speech are vague and imprecise. Next to no evidence has been presented outlining how the Bill targets gaps in the existing law.
On Thursday 2 July, the Department of Home Affairs’ submission to this inquiry was made public. This submission listed, for the first time, four hypothetical scenarios, in which it said Australian Border Force officials would have no power to seize mobile phones and other items used to commit crimes.
Importantly, this does not reveal any gap in the law that needs to be filled. Commonwealth, State and Territory police have a large arsenal of tools to investigate criminal conduct, which would be available in each of the hypotheticals the Department outlines. These tools include powers to conduct searches and seize evidence, where thresholds of reasonable suspicion are met. There is no reason why these powers should additionally be given to Australian Border Force officials, at the much lower thresholds provided for in the Bill.
While it isn’t clear that the Bill is needed to protect against the risks it purports to target, it is clear that the measures proposed would produce new risks. Restricting access to mobile phones and other personal communication devices would impair detainees’ access to personal, psychological and legal support, and restrict their privacy. It would also reduce the transparency of Australia’s already very opaque immigration detention regime.
These are dangerous consequences that will damage individual wellbeing and decrease public accountability. The fact that the Bill is being proposed in the midst of a global pandemic gives rise to additional health risks for detainees, staff and the public. It is widely recognised, including by the Department of Health, that detention is one of the highest risk environments for COVID-19. Just yesterday the Commonwealth Ombudsman noted that a single mishap can lead to a serious outbreak in closed facilities, and recommended that steps should be taken to reduce the number of people in immigration detention. Requiring large numbers of detainees to share a small number of phones and computers, and expanding strip-search powers which run the risk of breaching social distancing guidelines increases the risk of an outbreak that may have devastating consequences.
The net effect of all this is that the Bill is an entirely disproportionate response to the problem it seeks to target. It undermines a number of international law obligations, and would face a real risk of constitutional challenge. For these reasons, and others detailed in our submission, it should not be passed.