Phone ban push gives Border Force new powers, treats detainees as criminals

According to the government, 60% of the 1400 people currently held in immigration detention centres in Australia have a criminal history (which could include unpaid parking fines). So, 40% of immigration detainees have no criminal history at all.

The government is keen that these people not have access to mobile phones. It has been trying to achieve that since 2017, when it first introduced proposed amendments to the Migration Act accordingly but failed to get them through the Senate.

In 2018, they tried a different tack, imposing an administrative ban on mobile phones in detention centres, however that was declared illegal by the Federal Court.

That’s where things rested until last week, when the government decided that the mobile phone ban was one of the critical priorities it should pursue in that four short days of parliamentary sittings.

So, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 was launched by the Acting Immigration Minister Alan Tudge, declaring it an essential piece of law reform.

The need for this amendment, according to Tudge, is that there were 332 cases of weapons and illegal drugs being detected in immigration detention facilities in the past four months alone. Under the current law, Australian Border Force (ABF) officers don’t have power to seize these items and have to call the police.

The response is a law that will give the ABF broad new powers of search and seizure, including strip searches and using sniffer dogs in detention centres.

These powers are to be constrained to cover only “prohibited things”, which are either illegal (like weapons or drugs), or have been declared by the minister to be prohibited because “possession or use of the thing in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility”.

The draft bill includes a helpful explanatory note, which says that such a thing could include a mobile phone, SIM card or computer.

This is not a law prohibiting mobile phones in detention facilities. It’s a law giving the minister power to decide that anything, including a phone, is to be prohibited. 

The words “health”, “safety”, “security” and “order” are critical, because they are the limiting terms in the objects provision of the Migration Act. The government has extremely broad powers (as the courts have decided) to manage immigration detention, but they are constrained by those words because immigration detention is, in theory, not a punishment. The centres, in theory, are not prisons.

It is also important to appreciate the definition of an “immigration detention facility”. This includes Villawood, MITA and all the other obvious barbed-wire places where detainees are held; however, it also includes any other place which the minister declares. This can and does include hotels and private residences from time to time.

So, what is the danger presented by an electronic device, to health, safety, security or good order? Tudge had an answer to that too. For example, he said, what if a detainee is using their mobile phone to access child pornography or terrorism material? What if they’re running a criminal enterprise by phone from behind the wire?

To deal with that threat, which he assures us is real, ABF officers need “the discretion to be able to remove mobile phones from individuals … and they’ll exercise that discretion judiciously”.

Even the most casual observer of our treatment of asylum seekers might raise an eyebrow at the definitive statement that we can rely on our ABF to exercise its discretion judiciously. For those with more detailed knowledge of what goes on in detention centres, well, we know that that is bullshit.

Actually the whole thing is bullshit, let’s be real. This is a classic strawman play: yes there are real criminals in immigration detention centres, mostly awaiting deportation. Yes there’s a likelihood they will pursue criminality while they’re there, like they will do wherever they might be. If they are committing crimes, then that is the domain of the actual police, not Peter Dutton’s play force.

Most of the people in immigration detention present no physical threat to anyone. There is no evidence that detention centres have become hot beds of radicalised or deviously criminal activity. More importantly, there is no evidence whatsoever that the availability of mobile phones or computers to detainees has presented or will present a threat to the health, safety or security of anyone in the centres, or to the centres’ good order.

If these people were prisoners of the state serving sentences for crimes committed, then there would be ample justification for denying them access to electronic communication without much debate, whether on security, order or just punitive grounds.

These people are not prisoners, not criminals serving a sentence. They are free of taint, but subject to our immigration law. They are entitled to be treated as what they are: humans of dignity. Taking away their phones is just another way of telling them that they are beneath our contempt.

This is a bad law. It should not be passed.