Feb 7, 2018

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

Mr ALBANESE (Grayndler) (13:15): I rise to oppose the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, and I do so consistent with my view over a long period of time that you can be tough on people smugglers without being weak on humanity. This piece of legislation seeks to impose draconian measures. It seeks to give the minister too much power and it undermines Australia’s proud record as a nation of compassion, as a nation that respects human rights and as a nation that is prepared to treat people in a fundamentally decent way—to treat them with respect. That is what we all expect of every human being in the way that they relate to other human beings. That is what we teach our young people. It is what I got taught growing up as a young person in this country, both at home and in school.

This legislation seeks to amend the Migration Act to allow the immigration minister to determine a ‘thing’ as prohibited in relation to immigration detention facilities and detainees. What a ‘thing’ is is not given any serious definition. The bill would provide for a minister, on a whim, to determine that something was a ‘thing’ and therefore to be excluded, without any recourse to review or sensible action after the event. Were legislation to come before this chamber outlawing the presence of ‘things’ that should not be in detention centres or anywhere else for that matter, like weapons, drugs and child pornography—things that are either dangerous to detainees or to other people, or abhorrent to all—the opposition would be very sympathetic to the fact that the government is suggesting that these things have been available while this government has been in office.

I am reminded that the time they have been in office is approaching five years now. They’ve had a term and a half in office, but, from their rhetoric, you would think they were much more comfortable on this side of the House. They behave each and every day like an opposition in exile on the government benches rather than a government that actually has the capacity to govern truly in the national interest, that has the capacity to bring Australians together and that has the capacity to forge a common path to support national unity. They are a government that is always looking for division, always looking for a wedge and always looking, with great hyperbole, for a way to present itself as being the only thing standing between order and chaos in this country. Well, in fact, this bill would advance chaos. It would undermine our respect for proper legal processes.

The bill amends search and seizure powers, including the use of detector or sniffer dogs, for screening of detainees and visitors. It would apply a new statutory power to search facilities operated by or for the Commonwealth in order to enforce both existing and new prohibitions. It is an example of legislative overreach—not the first one we’ve seen from the former immigration minister and now Minister for Home Affairs. The products that were identified in the minister’s introductory speech—as I said, drugs, weapons and child exploitation material—should never be found in detention centres or anywhere else. The people working to protect our borders should have the proper powers to search for and remove contraband.

The fact is that, whilst Labor is certainly willing to work with the government to strengthen search and seizure powers, measures must be proportionate to the risk, appropriate to the circumstances and necessary as proven by the evidence. That’s one of the reasons why we supported the referral of this legislation for inquiry. That inquiry found that overwhelmingly the submissions, which came forward from a whole range of organisations, opposed the bill as it is currently drafted. Indeed, there were 82 submissions made to the Senate inquiry and, of those, 80 submissions raised concerns about the bill as it is currently drafted.

The organisations include the Law Council of Australia, the Australian Human Rights Commission, Legal Aid New South Wales, FECCA, the Refugee Advice and Casework Service, the UNSW Kaldor Centre for International Refugee Law, the Refugee Council of Australia, Rural Australians for Refugees, the Australian Lawyers for Human Rights, the Immigration Advice and Rights Centre, the National Justice Project, the Australian Association of Social Workers, Amnesty International Australia, Refugee Legal, Monash University Castan Centre for Human Rights Law and the Asylum Seeker Resource Centre. All of these organisations, diverse as they are, were united in identifying weaknesses in this legislation.

The evidence from the Senate inquiry found that this bill is an overreach by the minister, who wants to grant himself unchecked power by being able to prohibit any items, without making a case for it and in a way that avoids parliamentary scrutiny. This is really sloppy legislation. As someone who has had experience in the area of transport security, with regard to aviation in particular, I know that you must always be accountable for what you’re doing. This bill seeks to remove that and would allow the minister virtually unfettered power to determine that something was literally a thing that should be prohibited and without proper review. The bill, indeed, would allow the minister to determine a thing as prohibited without discrimination. It then seeks to amend the search and seizure powers of authorised border protection officers and their assistants to search for, confiscate and destroy those things deemed to be prohibited by the minister. The definition of a prohibited item under this legislation may include anything if it might—not that it will—be considered a risk to the health, safety or security of persons in a detention facility or to the order of the facility itself. Examples include mobile phones, SIM cards, computer tablets, medications, healthcare supplements, food and literature.

There are a range of people in detention here. As of 31 October last year, there were 1,264 people in onshore immigration detention. Of those, 462 related to character cancellations under section 501; 324 were irregular maritime arrivals; and 478 were the other detention group, including visa overstayers, noncitizens who have breached visa conditions and travellers who didn’t get through the immigration clearance system. Currently, visitors to immigration detention and transit facilities must pass through a metal detector or be ‘wanded’ with a metal detector, but officers don’t have the power to ask visitors to empty their pockets or deploy a sniffer dog or search a visitor if they have a reasonable suspicion that the visitor is carrying contraband.

In February 2017, the government banned mobile phones in immigration detention centres, but a detainee was successful in obtaining an injunction from the Federal Court. They were successful because the court found that officers didn’t have that authority. The department appealed the injunction to the Federal Court in August, and they lost. This is a government that has lost, because at times they haven’t sought to change the law before they have tried to act as if the law had been changed. On this occasion, they are trying to change the law but they are doing so in a way which is so sloppy, and it goes to the politics of this issue.

For reasons that are perhaps beyond my own comprehension, I agreed to do an interview with the Daily Telegraph yesterday, with Miranda Devine, who is someone with very strong views across a range of issues. One of the things that she put to me in that interview was: ‘It’s actually putting out a very tough line that seems not to be very kind or human in order to stop the people smugglers having a product to sell, in order to stop the boats.’ What that is doing, be it the advocates for the government or the government itself—sometimes the advocates are a bit more up-front than the government—is not really about sending a message to the people smugglers or to asylum seekers; it is about sending a domestic message. It is about sending a domestic message for political purposes in order to be, as Miranda Devine put to me, not very human, essentially, towards fellow human beings. That was the question put to me. I think we are a better country than that. I think we can do much better than that. I think we can be very tough on people smugglers, without resorting to, as a conscious decision, treating people as less than human; that should be our objective. In response to that, I said: ‘What you seem to be suggesting is that we would consciously mistreat people in order to send a message. I hope it is not the government’s policy. They certainly say it isn’t.’ The amendments in this message, in my view, are aimed at sending that domestic political message. It is clouded by pretending that it is about sending a message somewhere else. It is really about a domestic political message, putting up something that no-one with any sense of compassion or decency, no-one who has been raised with a view that we have a responsibility to be kind to others and to treat others as we ourselves would like to be treated—as a philosopher who many on the other side say they follow said most famously—would do. That is why this legislation is, frankly, unsupportable. We are quite happy to support measures that are appropriate. We have no problem with that whatsoever, but this legislation simply goes too far, and that is why it is not worthy of support.