Blanket ban on mobile phones would be unacceptable

The Australian Human Rights Commission has raised concerns about new proposals to amend the Migration Act 1958 (Cth), which would unreasonably limit a range of human rights for all people in immigration detention.

The Commission has made a submission to the Senate Standing Committee on Legal and Constitutional Affairs, on the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020.

In its submission, the Commission highlights that the Bill would enable a blanket ban on the possession of mobile phones in immigration detention facilities, not only for specific high-risk individuals but for all people in such facilities.

The Commission has recommended that the Bill not be passed in its current form.

“For many people in immigration detention, mobile phones are a lifeline. They have been particularly vital during the COVID-19 pandemic when asylum seekers and others in immigration detention have not been able to receive outside visitors,” said Human Rights Commissioner Edward Santow.

“We must always strive to uphold the human rights of every person held in immigration detention. Immigration detention cannot be used as punishment. Our laws need to respond proportionately to serious risks, but they must also protect the human rights of all people held in immigration detention.

“The Home Affairs Minister has indicated that the Government does not intend to introduce a blanket ban on mobile phones, but this Bill would enable that power. We believe the Bill should be amended to remove the power to impose a blanket ban on ‘prohibited items’ such as mobile phones.”

The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 would amend the Migration Act to allow the Minister to determine that an item is a ‘prohibited thing’ in relation to immigration detention facilities.

Under the Bill, a ‘prohibited thing’ need not be an illegal item, such as illegal drugs, and could include things such as mobile phones, SIM cards and internet-capable devices.

The Bill would also:

• allow authorised officers to search, without a warrant and regardless of whether officers suspect the presence of a prohibited thing, immigration detention facilities, including detainees’ rooms and detainees’ personal effects
• expand existing search and seizure powers, including strip searches, to be used in relation to prohibited things
• allow the Minister to issue binding written directions to officers in relation to the exercise of their seizure powers.

The Commission considers that an authorised officer should have a reasonable suspicion that a detainee is in possession of a prohibited item before conducting a search of the detainee themselves, or their personal effects or room.

The Commission also considers that strip searches should only occur as a measure of last resort, and never for items that are not unlawful.

The Commission previously made a submission to the Committee in its Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017. The current bill contains most of the same provisions as the 2017 version of the bill.