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Law Council of Australia


Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020

17 July 2020

The Law Council made a written submission on 29 June 2020 to the Senate Legal and Constitutional Affairs Legislation Committee recommending that the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 not be passed as it has not been demonstrated that it is necessary, reasonable or proportionate.

The Law Council raised many strong concerns. This included the expansion of the current warrantless search, screening and strip search powers within the Migration Act 1958 (Cth) to apply to a ‘prohibited thing’. This is broadly defined as anything the Minister determines ‘might be a risk to the health, safety or security of persons in the facility or to the order of the facility’ and is anticipated to include mobile phones. It similarly opposed the introduction of new powers to search immigration detention facilities controlled by the Commonwealth and for the Minister, via a non-disallowable legislative instrument, to direct that immigration detention officers must exercise their seizure powers.

The submission also responded strongly to the claims that the Bill is necessary to deal with ‘an increasing number of higher risk detainees awaiting removal, often having entered immigration detention directly from a correctional facility, including members of outlaw motorcycle gangs and other organised crime groups’. It noted that no data on the quantity, frequency or severity of criminal activity occurring in immigration detention facilities had been provided by the government and that the purpose of immigration detention must remain administrative, not punitive.

The Law Council suggested that if there is criminal activity taking place in immigration detention facilities, police should be notified, and standard criminal law processes should be followed. Should the government decide to pass the Bill, the Law Council also suggested a number of amendments, including that the definition of a ‘prohibited thing’ be carefully, narrowly and exhaustively defined in the primary legislation, and the potential for a blanket ban on mobile phones be removed.

On Friday 3 July 2020, Law Council President, Ms Pauline Wright, attended (via videoconference) the public hearing on the Bill along with Mr David Prince and Ms Leah Perkins, members of the Migration Law Committee of the Law Council’s Federal Litigation and Dispute Resolution Section. Ms Leonie Campbell, Deputy Director of Policy also provided assistance.

In her opening statement, Ms Wright emphasised that ‘mobile phones play a fundamental role in facilitating access for immigration detainees to legal advice and representation’. The Law Council took two general questions on notice and is currently finalising a short supplementary submission to provide further assistance to the Senate Committee. The Law Council’s media release following the hearing is also available here.

The Senate Committee is due to report on the Bill on 5 August 2020.



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