Explainer: Commission does not support the Migration Amendment Bill

The Australian Government has introduced new migration laws into Parliament to expand search and seizure powers in immigration detention centres.

In part, these proposals are based on recommendations made in the Yongah Hill Immigration Detention Centre Inspection Report (Yongah Hill Report) that the Commission published earlier this year. This report highlighted concerns about the widespread use of drugs within the Immigration Detention Centre, and the significant risk that drug infiltration poses to the health and safety of both detainees and staff.

The Commission recommended expanding search powers to allow for targeted personal searches and room searches to be conducted where there is a reasonable suspicion that drugs are being concealed. However, we also emphasised the importance of ensuring that searches are only conducted for justified security reasons and at reasonable times, respect the privacy and dignity of those detained, and are subjected to strict scrutiny requirements.

We did not recommend a more general expansion of search powers, nor did we recommend the introduction of broad powers to seize mobile phones from detainees. The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024 (the Bill) goes beyond our recommendations in doing both of these things.

The Commission has previously stated that it considers any blanket prohibition on mobile phones in immigration detention would not be a necessary, reasonable or proportionate response to the risks arising from their use. The Minister emphasised in his Second Reading Speech that the current Bill ‘does not establish a blanket prohibition against the possession or use or mobile phones in immigration detention’.

We are concerned that the current Bill allows for precisely that, at least at the facility-level.

The wording of the Bill appears to allow for a blanket ban to be imposed across the entirety of a specified immigration detention centre. The relevant sections establish an extremely low threshold requirement, and refer to considerations including ‘the order of an immigration detention facility’ and it being necessary ‘to prevent or lessen an immigration detention facility risk’. The risk assessment is not limited to an individual detainee, but allows for a facility-level assessment to be applied. 

This is contrary to the Commission’s Human Rights Standards for Immigration Detention, and our previously stated position that any restriction or removal of mobile phones in immigration detention should only be done on an individual basis.

If the laws are intended to only provide for the seizure of individual mobile phones in circumstances where an individualised risk assessment warrants this action, then that is what the laws should clearly state. The Bill as presently drafted is not limited in this way, and does not protect against arbitrary and punitive application.

The low threshold is also applied to expanded powers to search, screen and strip search individuals or search an entire immigration detention centre, including with detector dogs. The Bill makes clear that searches and screenings can occur even without suspicion that there are prohibited items at the detention centre or held by any individual detainees.

The Bill attempts to address the presence of illicit substances and orchestration of criminal activity with mobile phones in detention centres through broad and sweeping powers which create risks of misuse. The moderating provisions, such as access to alternative means of communication, and the low threshold for exercise of the powers are not sufficient to curb this risk. We note that the Minister suggested in his Second Reading Speech that this Bill responds to calls for action from ‘external parties including the Australian Human Rights Commission’. The Bill goes far beyond the recommendations made by the Commission in its Yongah Hill Report and has been introduced into Parliament without consulting the Commission about the scope of the proposed powers.

This Bill should be referred to a parliamentary committee so that the significant expansion of search and seizure powers being proposed can be carefully scrutinised before the Parliament is asked to vote on the Bill. In its current form, the Commission does not support the Bill given the significant impact it will likely have on individual human rights.