The recent law that would have banned asylum seekers from having mobile phones failed to pass by the narrowest of margins, however, the true scope and impact of the law was broad and has lasting ramifications.
How would you have coped without your mobile phone during COVID-19? I know mine has felt essential. It’s allowed me to maintain a connection with loved ones when restrictions have forced us apart. It’s given me access to much needed mental health support. It’s made it possible for me to continue to do my job.
Yet a proposed law that recently went before the Australian Federal Parliament would have given the Department of Home Affairs the power to ban access to mobile phones and other communication devices for some of the most vulnerable and isolated people in Australia: the refugees, asylum seekers and other non-citizens who are held in immigration detention.
The proposed law was called the Prohibiting Items in Immigration Detention Bill. It would have allowed the Minister to declare any item to be ‘prohibited’ in immigration detention if possessing or using it ‘might be a risk’ to health, safety, security or order.
This would have potentially allowed the prohibition of not only mobile phones but an incredibly broad range of routine, everyday items including things like pens, pencils, paper, clothes and bedsheets. While nobody would think of these things as inherently dangerous, like most things, it is possible for them to be used in harmful ways.
As the Full Federal Court noted in a recent case:
“[h]uman ingenuity can convert most everyday objects that have innocent uses into ones capable of inflicting bodily injury or being used to escape from detention.”
The fact that the bill would allow an item to be prohibited simply because it ‘might’ be a risk – rather than because it ‘is’ or ‘is likely to be’ a risk – is a threshold indicator of just how broad the Minister’s control over people in detention will be if the legislation had passed.
Declaring an item to be prohibited opens up an extremely broad suite of powers which may be exercised by detention staff. For example, staff will be able to search a detainee’s body, clothing and property for the item. Extraordinarily, a staff member may conduct such a search even if they have no suspicion that the detainee is carrying any prohibited items. This makes the power significantly greater than the search powers typically exercisable by police during criminal investigations, despite the fact that there may be no reason to suspect that the detainee being searched even has a prohibited item, let alone that they have used one in a harmful way.
Where detention staff do reasonably suspect that a detainee is in possession of a prohibited item, the powers proposed are broader still. Detention staff would be able to perform a strip search. They would not need to obtain a warrant before doing so.
Where a prohibited item is found as a result of a search, detention staff will have discretion to seize it. However, the Minister would have the ability to direct detention staff to exercise this seizure power in particular ways. For instance, the Minister could direct that seizure powers should only be used against a subset of detainees, or that certain items – such as mobile phones – should always be seized.
Despite the fact that mobile phones aren’t mentioned directly in the bill itself, it’s clear that restricting access to phones and other personal communications devices is one of its immediate purposes. In his second reading speech introducing the bill, Minister Alan Tudge said that “[m]obile phones and internet capable devices present an unacceptable risk”
In that case, the Court found, by unanimous decision, that a prior attempt by the government to adopt and implement a ‘blanket policy’ banning mobile phones and SIM cards was invalid under the Migration Act in its present form. Prior to this, the government had attempted to expand its powers through a bill very similar to the one currently under consideration but was ultimately unsuccessful in doing so.
But why does the government say that mobile phones, laptops, tablets and the like are unacceptably dangerous? Why the sustained effort to restrict access to these items in detention? The argument put forward by the government and its contractors is that such devices are used to conduct criminal activity. However, there has been a lack of evidence put forward that such activity occurs with significant frequency. On the contrary, in a 2019 report into risk management practices in immigration detention, the Australian Human Rights Commission noted that detention staff had provided information suggesting that “only a small proportion of people in immigration detention are using mobile phones inappropriately, and that incidents of a serious nature involving mobile phone use are exceptional rather than commonplace.”
Additionally, there is already a process in place that allows for any criminal activity occurring in detention to be efficiently dealt with.
Where detention staff suspect criminal conduct, they may contact State, Territory or Federal police, who possess ample, well-established powers to search for and seize evidence as part of a criminal investigation.
This suggests that the measures proposed in the bill are unnecessary. In addition to this, they would be actively harmful. While evidence of mobile phones being used by detainees to commit crimes and other harmful activity is low, there are numerous examples of mobile phones and internet capable devices being used to document the treatment and conditions of detainees in immigration detention in a way that improves public visibility and, by extension, accountability.
This has enabled media coverage of topics like the alleged use of excessive force in immigration detention by Serco employees and attempts to deport the Biloela family. Mobile phones have also given detainees an important voice in public debate. For example, phone access enabled asylum seekers in detention to take part in the public conversation about this very bill, via a WhatsApp chat with journalist Hannah Ryan. It is arguable that, by minimising detainees’ capacity to engage in political discussions in a way that promotes accountability, the bill may contravene the constitutionally protected freedom of political communication.
Mobile phones also serve as a personal lifeline for people in detention. They enable them to access confidential psychological and trauma support, both from family and friends and from mental health professionals. This is especially important given recent findings that Australia’s detention regime detains people for far longer than in comparable countries and has a ‘far-ranging detrimental impact’ on mental health. Mobile phones are also critical for facilitating contact between people in detention and their legal representatives.
While the government has stressed that access to shared phone and computer facilities will remain available, this is an inadequate substitute. Being forced to use shared facilities reduces detainees’ privacy when accessing the support they need. Large detainee numbers relative to the facilities available also creates a real risk that people will not be able to access timely support that is urgently needed, such as where there is a risk of self-harm, or where a legal claim needs to be made within a very tight timeframe.
The extent of the mismatch between the questionable practical utility of the bill and the significant harm it would produce suggests that it is disproportionate and maladapted to its stated objectives. It also brings the bill into conflict with a number of fundamental human rights obligations that Australia is bound by under international law. International human rights law requires that people in detention be treated fairly and in a manner that upholds their dignity. Their rights to freedom of expression, free association with others and participation in cultural life must be preserved. They must also be free from arbitrary interference with privacy, family or correspondence.
Although the bill did not gain support in the Senate to pass, with Tasmanian Senator Jacqui Lambie crucially declining to provide her support, the persistent attempts by government to secure the power to deprive detainees of mobile phones suggest that this may be an ongoing conversation.