A Bill currently before the Australian Federal Parliament seeks to grant sweeping new powers to prohibit and seize items within immigration detention centres. The effect of such legislation could impose a blanket ban on mobile phones and broaden the power of security officers to search detainees without a warrant.
Human rights organisations have called for rejection of the proposed legislation, remarking that such powers will contravene asylum seekers’ and other detainees’ rights to privacy and freedom of expression, further restricting already limited civil liberties for detainees.
A UNHCR report published in 2016 found that for refugees, mobile phones are a “lifeline” and essential for the receipt of information and fostering connection with family members. With the average period of immigration detention in Australia reaching 500 days, access to mobile phones has proved vital in facilitating detainees’ contact with family, legal practitioners and mental health services.
Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020
The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (‘the Bill’) has been introduced for Parliamentary consideration to amend the Migration Act 1958: the Commonwealth legislation that governs migration in Australia.
In the Bill’s explanatory memorandum the stated purpose is to strengthen the Minister of Immigration and Border Protection’s (‘the Minister’) role in regulating detention centres to ensure a “safe and secure environment for staff, detainees and visitors in an immigration detention facility.” In his second reading speech the Minister for Population, Cities and Urban Infrastructure Alan Tudge points to allegations of criminal activity within immigration detention, and the role of mobile phones in facilitating crime.
Minister Tudge alleges these items are being used by detainees to facilitate escapes from detention, the supply of illicit drugs and to threaten the safety of security officers. However, such evidence of criminal activity within immigration detention is not made publicly available, and thus the Department’s claims remain unchecked.
The proposed legislation grants the Minister the power to determine an item a ‘prohibited thing’ if it poses a “risk to the health, safety or security of persons in the facility, or to the order of the facility.”[1] The Bill does not mandate any criteria to be established in determining an item as prohibited, giving the Minister full discretion over this categorisation.
Once an item is deemed a ‘prohibited thing’, the legislation intends to expand the powers of security officers to search detainees and their rooms for such items, without requiring an officer to form a reasonable suspicion that a detainee has a ‘prohibited thing’ in their possession.[2] The effect of such powers are that security officers would have broader powers than that of Police.
Restricting freedom of expression and political communication
In the lead up to the hearing of the Bill, human rights groups are targeting the Bill’s impairment of transparency and government accountability through the removal of mobile phones. A major source of the Australian public’s knowledge of detention centres has originated from detainees themselves, with some asylum seekers using social media to expose truths of the otherwise opaque immigration detention system.
Alongside exposing the use of excessive force by officers and the conditions of detention, this path of communication also facilitates journalistic coverage of topics that are otherwise shielded by the government. In the current context of the COVID-19 pandemic, mobile phones have proved integral in facilitating access to information during a ban on centre visits, and even allowed detainees to virtually participate in protests targeted at their removal from arbitrary detention.
The Kaldor Centre has argued that the proposed ban on mobile phones could invite a constitutional challenge; without the privacy of individual mobile phones detainees will be reluctant to discuss detention conditions or other issues out of fear of being monitored, therefore impeding the right to freedom of political communication. Amnesty International goes further to suggest that prohibition of mobile phones in immigration detention centres could breach the Mandela Rules.
While Minister Tudge claims that the ban on mobile phones will only apply to those detainees using devices to engage in criminal activity, the Bill provides no requirement for transparency in the Minister’s decisions and thus there is no guarantee that the legislation will not result in a blanket ban. The Bill comes after a Federal Court decision in 2018 that found a blanket policy banning possession of mobile phones and SIM cards in detention was invalid.
In this case the full Federal Court found that the policy implemented by the Secretary of the Department of Home Affairs lacked statutory authority and could invite tortious action by detainees. The Australian Human Rights Commission’s 2019 report found that the reintroduction of mobile phones after this decision produced a positive impact on detainees’ mental health and increased access to appropriate trauma support. The proposed legislation is intended to override this Court decision.
As detainees await the Bill’s hearing in early July, many have voiced concerns over the possible removal of this right, citing access to mobile phones as a vital tool to surviving their lengthy detention.
[1] Section 251A(2)(b) of Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020.
[2] Subsection 252AA(1A) and section 252BA of Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020.
Alysha is an Australian criminal defence lawyer, advocating on behalf of disadvantaged adults and children in accessing justice. She is undertaking a Masters of Public and International Law at the University of Melbourne, with interests in refugee law, criminal justice and children in international law.