MOBILE PHONES IN DETENTION
This explainer sets out the key issues surrounding the use of mobile phones in immigration detention.
Do asylum seekers and refugees have access to their mobile phones whilst in immigration detention?
Currently, people in detention are allowed to use mobile phones. If they are suspected of engaging in criminal activity with their phones, the police will investigate.
The use of mobile phones in Australia’s immigration detention centres has not always been allowed. Bans on mobile phones have been relaxed, only to be later reinstated. The rules have often differed depending on whether the person in detention arrived by boat or by plane. In 2017, the Australian Government lost an appeal over a court ruling which affirmed that detention centres do not have the right to confiscate the mobile phones of people in immigration detention. On 22 of June 2018, the Full Court of the Federal Court handed down its ruling overturning the policy.
2017 and 2020 Bills
The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 was introduced in response to the Government’s failed appeal to confiscate mobile phones. The 2017 Bill passed the House of Representatives in 2018, but lapsed in the Senate in 2019.
The Government has since launched a new bid to seize mobile phones from those in immigration detention. The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 was introduced to the House of Representatives on 14 May 2020.
The 2020 Bill seeks to allow the Minister to determine that an item is a ‘prohibited thing’ in detention. It also allows authorised officers to search immigration facilities without a warrant, expands search and seizure powers, and allows the Minister to direct that an officer must exercise seizure powers in certain circumstances.
The Department of Home Affairs argues that the 2020 Bill is needed to ‘enable departmental officers to effectively combat the incursion, distribution and use of contraband, including controlled drugs, which has proven to pose a significant risk to the safety and security of the immigration detention environment … [where] existing legislative arrangements are inadequate’.
Reactions to the 2020 Bill
The major debate surrounding the 2020 Bill is the banning of mobile phones, considered to be a ‘lifeline’ for those in detention. The Australian Human Rights Commission has also raised concerns. The Human Rights Commissioner, Edward Santow, says that “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”.
The Refugee Council of Australia argues that the 2020 Bill grants ‘broad and unchecked power to the Minister and detention service providers’, especially given current laws can and do already deal effectively with such issues.
Pauline Wright, the Law Council President, says that a major flaw of the 2020 Bill is the failure to differentiate between people in immigration detention generally, and individuals who pose a genuine risk to safety and security.
Jacqui Lambie
Despite being voted against by Labor and the Greens, the 2020 Bill has passed the House of Representatives. The Senate is expected to vote on the bill in October 2020, where Jacqui Lambie has the deciding vote. After initially supporting the ban, Lambie softened her position in the face of speculative evidence. Unsure of how to vote, she asked her supporters to tell her what she should do though a poll on her website.
Lambie eventually decided to block the 2020 Bill after receiving over 75,000 responses, 80% of which gave ‘impassioned, well-reasoned arguments for why they didn’t want the bill to pass’. Ultimately, Lambie recognised that the ‘Government already has the power to stop people in detention from preying on kids. It’s on the Minister if he isn’t already doing it’.
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Last updated 29 September 2020