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

1 Introduction

1. The Australian Human Rights Commission makes this submission to the Senate Standing Committee on Legal and Constitutional Affairs in its Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 (the Bill).

2 Summary

2. The Commission welcomes the opportunity to make a submission to this inquiry.

3. The Bill proposes to insert a new s 251A into the Migration Act 1958 (Cth) (Migration Act) to enable the Minister to determine, by legislative instrument, things to be prohibited in immigration detention facilities. The Minister will have discretion to prohibit not only things that are already illegal to possess (such as narcotic drugs) but also anything the possession of which 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 in the legislation expressly states that things that might be considered to pose such a risk include everyday items such as mobile phones, SIM cards, computers and other electronic devices.

4. The Bill also proposes to provide a legislative basis to conduct searches for prohibited things (including searching a person’s clothing and property under their immediate control, searching their room and searching their personal effects); and provides for additional search powers including the use of detector dogs. The Bill would extend the power to conduct strip searches to include strip searches for items determined to be prohibited things.

5. The Commission acknowledges that the increase in the number of people in immigration detention due to visa cancellations under s 501 of the Migration Act has created significant challenges for the Department of Immigration and Border Protection and staff of immigration detention facilities, including in relation to safety and security.

6. However, the Commission considers that the broad application of restrictive measures such as those proposed in the Bill may lead to unreasonable limitations on human rights in some circumstances. In particular, the proposed power for the Minister to declare items prohibited in immigration detention facilities may lead to restrictions on the possession of items that do not present a significant risk to safety and security.

7. The Commission considers that prohibiting the possession of mobile phones in immigration detention facilities engages and limits a range of human rights. While efforts have been made to provide people in detention with access to alternative communication channels, access remains inconsistent across the detention network and these channels may not provide an equivalent substitute for mobile phones.

8. The Commission also considers that an expansion of the scope of the power to conduct strip searches should be accompanied by the introduction of effective external oversight of the use of this power.

3 Recommendations

Recommendation 1: That the Bill not be passed in its current form.

Recommendation 2: That the Bill be amended to stipulate that items that do not present inherent risks to safety and security may only be prohibited in immigration detention:

• on the basis of individual risk assessments
• where there is evidence that the person has used or is reasonably likely to use the item in a manner that presents clear risks to safety or security; and
• where those risks cannot be managed in a less restrictive way.

Recommendation 3: The Australian Government should ensure that all people in immigration detention have adequate opportunities to communicate with people outside detention.

Recommendation 4: That the Australian Government reconsider its policy regarding the use of mobile phones in immigration detention facilities, with a view to restricting mobile phone usage only in response to unacceptable risks determined through an individualised assessment process.

Recommendation 5: The Commission recommends that Bill be amended to provide that:

• the Department must maintain a log of the conduct of strip searches including details about the compliance with each of the requirements of ss 252A and 252B of the Migration Act
• the Department must notify the Commonwealth Ombudsman when it receives a complaint about the conduct of a strip search
• the Commonwealth Ombudsman have the power to inspect the records of the Department in relation to the conduct of strip searches for the purpose of reviewing the Department’s processes for conducting strip searches and dealing with complaints
• the Commonwealth Ombudsman must conduct an annual review and prepare a report about the comprehensiveness and adequacy of the Department’s internal processes relating to strip searches to be tabled in Parliament
• the Commonwealth Ombudsman have the power to conduct ad hoc reviews into the way in which strip searches are conducted at any time.