Migration Amendment (Prohibiting Items in Immigration Detention Facilities)
Bill 2017 [Provisions]
1.1
The Australian Greens believe that the Migration Amendment (Prohibiting
Items in Immigration Detention Facilities) Bill 2017 [Provisions] further
erodes the human rights of detainees in Australia's immigration detention centres.
1.2
The bill inserts a new section 251A to enable the Minister to determine,
by legislative instrument, prohibited things in relation to immigration detention
facilities. Further new sections relate to search and seizure powers.[1]
1.3
The Australian Greens have concerns that the provisions contained in
this bill are more applicable to a prison environment than immigration
detention. Persons held in immigration detention have committed no offence. A
person needs only to fall within the statutory description of 'an unlawful
non-citizen' to be detained.
1.4
In his second reading speech, the minister stated:
...more than half of the detainee population consists of high-risk
cohorts. These cohorts have significant criminal histories, like child sex
offences or links to criminal gangs, such as outlaw motorcycle gangs and other
organised crime groups, or represent an unacceptable risk to the Australian
community otherwise.[2]
1.5
While policy decisions made by the government have led to an increase in
the number of persons with criminal histories in immigration detention there
are a significant number of people with no criminal record who are currently
detained. People in Australia's immigration detention centres are incredibly
diverse, in both background and personal circumstances. Many detainees are 'low
risk', thus providing no genuine basis for punitive measures to be implemented.
1.6
Mr Prince, in evidence stated:
...this cohort also includes a significant number of people
with no criminal record who are, firstly, refugee applicants, for instance; a
percentage of people who have come by boat many, many years ago and have been
living in their community for a very long time, quite appropriately and safely,
but now for various reasons find themselves in detention. That cohort is also
brought up in this bill, and to treat them in a way because of, "There is
a murderer in detention" is completely inappropriate.[3]
1.7
The Australian Greens share the view of the Human Rights Commission that
a 'blanket application of restrictive measures' by the designation of
'prohibited items' by the Minister 'to all people in detention, regardless of
their individual circumstances, may not be a necessary, reasonable or
proportionate response to the identified risks.'[4]
1.8
This bill is indicative of an alarming trend to increase the
discretionary powers of the Immigration Minister. The Refugee Advice &
Casework Service and Asylum Seeker Resource Centre submitted:
It is significant that legislative instruments made by the
Minister for the purposes of determining new prohibited things would not be
disallowable by the Senate. This limit on parliamentary oversight of the
Minister's open‑ended power to ban and confiscate classes of objects
should be of concern to the Committee.[5]
...Minister's already broad discretionary powers are proposed
to be expanded in such a broad and vague manner.[6]
1.9
Many submitters are concerned that this bill will result in a blanket
prohibition on mobile phones and sim cards in immigration detention centres.
The Explanatory Memorandum suggests that landlines could be used by detainees
in the place of mobile phones. However, the evidence provided by a majority of
submitters makes it clear landlines are not a satisfactory substitute for
mobile phones.
1.10
The Refugee Advice and Casework Service submitted their ability to
provide legal advice to detainees was frustrated when those detainees did not
have mobile phones, they noted that:
-
Access to communication facilities is inconsistent and often
subject to interruptions and delays.
-
Landline phones available to people in detention are often
located in public areas, undermining the privacy of communications.
-
Access to facilities for sending copies of forms or other
documents to legal representative (such as fax machines or scanners) is
inconsistent.
-
Detention facility staff are at times indifferent to facilitating
access to legal services or communication facilities.
-
Access to computer facilities and internet is used as a
behavioural control and is subject to time restrictions in some facilities.[7]
1.11
The Law Council of Australia noted that there are inadequate protections
in place for detainees in relation to the bill's expansion of search powers.
There is no requirement for a warrant, nor is there a
requirement for the authorised officer to hold a reasonable suspicion that a
detainee might be harbouring a prohibited thing. The Bill contains no
limitations on how searches are to be carried out, including in respect of how
often they are conducted, what time of day they can be carried out, or how many
times individuals can be searched.[8]
1.12
The Australian Greens agree with the Combined Refugee Action Group's submission
that:
Refugees, and people who are seeking asylum, held currently
in Australia's immigration detention centres should be treated with dignity and
respect, rather than as dangerous criminals.[9]
Conclusion:
1.13
The amendments proposed by this bill are disproportionate and may be
contrary to Australia's international human rights obligations.
Recommendation 1
1.14
The Australian Greens recommend that this bill be opposed by the
Senate.
Senator Nick McKim
Australian Greens
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