The legacy of the asylum seeker phone ban

19th Nov 2020

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 the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the Bill), a proposed law that recently went before the 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 Bill 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 everyday items including things like pens, pencils, paper, clothes and bedsheets. As the Full Federal Court noted in ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98 (ARJ17), ‘[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’ (at [79]).

The fact that the Bill would have allowed 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 would have been if the legislation had been passed.

Declaring an item to be prohibited would open up an extremely broad suite of powers which could be exercised by detention staff. For example, staff would be able to search a detainee’s body, clothing and property for the item. Extraordinarily, a staff member would be able to conduct such a search even if they had no suspicion that the detainee was carrying any prohibited items. This makes the powers proposed by the Bill significantly greater than the search powers typically exercisable by police during criminal investigations.

If detention staff did reasonably suspect that a detainee was in possession of a prohibited item, the powers proposed would be broader still. Detention staff would be able to perform a strip search and they would not need to obtain a warrant before doing so.

If a prohibited item was found as a result of a search, detention staff would 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 be used only 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 was 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’.

Further, the Explanatory Memorandum states that the Bill ‘addresses the Full Federal Court decision in ARJ17 v Minister for Immigration and Border Protection’. In ARJ17, the Court unanimously held 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 1958 (Cth). Prior to this, the government had unsuccessfully attempted to expand its powers through a bill very similar to the one recently rejected by Parliament.

Why the sustained effort to restrict access to mobile phones and internet-capable devices in detention? The argument put forward is that such devices are used to conduct criminal activity. However, there has been a lack of evidence that such activity occurs with significant frequency. On the contrary, a 2019 Australian Human Rights Commission report noted 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 and, in addition, 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 WhatsApp 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 could have contravened the constitutionally protected freedom of political communication.

Mobile phones also serve as a personal lifeline for people in detention. They enable access to 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-reaching detrimental impact’ on mental health. Mobile phones are also critical for facilitating contact between people in detention and their legal representatives.

While the government stressed that access to shared phone and computer facilities would 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 (for instance, where there is a risk of self-harm, or where a legal claim needs to be made within a 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 was disproportionate and maladapted to its stated objectives.

Although the Bill did not gain enough support to pass in the Senate, 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.

This is an edited version of an article first published at Right Now.

Dr Sangeetha Pillai is a constitutional lawyer and a senior research associate at the UNSW Kaldor Centre for International Refugee Law.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Asylum seekers and refugees Detention Immigration