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The Kaldor Centre for International Refugee Law made a submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 (the Bill).

The Bill seeks to insert a new s 251A into the Migration Act 1958 (Cth) that would allow the Minister for Immigration and Border Protection to determine by legislative instrument, a ‘prohibited thing’ in relation to immigration detention facilities and detainees. As elaborated on in the proposed subsection 251A(2), a ‘prohibited thing’ includes the possession of things already prohibited by Australian law (such as narcotic drugs), as well the possession of a thing that the Minister is satisfied ‘might be a risk to the health, safety or security of persons in the facility, or to the order of the facility’. A note to the the proposed section provides further explains that a ‘prohibited thing’ may include “mobile phones, Subscriber Identity Module (SIM cards), computers and other electronic devices, such as tablets, medications or health care supplements, in specified circumstances, or publications or other material that could incite violence, racism or hatred”.

In addition, the Bill seeks to provide new search powers to authorised officers, who would be able to search persons in immigration detention for possession of a prohibited thing, including a person’s clothing and property under their immediate control (proposed s 252(2)).It also provides for an extension of powers to use detector dogs as well as the power to conduct strip searches for items determined to be a prohibited thing (proposed s 252G and 252A).

We acknowledge that these proposed amendments are sought in light of the fact that the ‘profile of the detainee caseload across the immigration detention network has changed significantly over the past two years’. This appears to be a reference to the fact that the detainee caseload has changed as a result of a substantial increase in s 501 visa ‘character cancellations’ since passing of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), resulting in detainees who have committed serious crimes being transferred from prison and correctional facilities to immigration detention. We also acknowledge that there is a legitimate need to ensure the safety and welfare of detainees in immigration detention.

However, for the reasons outlined in Part 2, we are of the view that the Bill is a disproportionate response to the problem, and we urge the Committee to consider the proposed measures against less restrictive, and we believe, more suitable alternatives.

A prohibition on communication items such as mobile phones not only risks a breach of the implied freedom of political communication, but would also disproportionately affect asylum seekers and refugees who need access to legal assistance and representation. We are also concerned that the measures run contrary to Australia’s international obligations both under international human rights law and the Refugee Convention.

As a result of our concerns, we suggest that the Committee reject the Bill on the basis that there are more proportionate, less restrictive measures, that could be implemented to achieve the intended policy outcomes. Such measures may include confiscating or revoking access to items on an individual basis, where it has been shown that possession of an item by an individual represents an unacceptable risk.

Read the full submission.

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