“Help!” trumpets the elephant, “I’m being bullied by a mouse.”

The ‘elephant’ is Peter Dutton’s mega Department of Home Affairs; the ‘mouse’ is the mobile phone of an immigration detainee.

The ‘help’ that might come is the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 which, if passed into law by the Senate, will permit the confiscation of detainees’ mobiles and other “internet-capable devices”, such as SIM cards, computers, laptops and tablets. The Bill, which replaces a very similar but now lapsed 2017 version, would also legalise strip searches and room searches with detector dogs.

The Department of Home Affairs operates immigration detention facilities (IDFs) via its Australian Border Force (ABF) unit, which in turn directs the guards working for Serco.

The Full Court of the Federal Court of Australia, in ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98, ruled that the then Department of Home Affairs policy, prohibiting detainees in immigration detention facilities (IDF) from having mobile phones, was legally invalid. So, detainees obtained phones. Occasionally, some took footage of unlawful or cruel treatment that was then posted on social media, thus informing the public of Australia and, sometimes, the world.

Such footage was to reveal, for example, the use of excessive force (“Mobile phone footage reveals abuse by Villawood guards”, Refugee Action Collective Sydney video, 11/8/18); the attempted deportation of the Biloela family (“Tamil Family’s deportation from Australia halted in mid-air”, BBC, 30/8/19); and breaches of Covid-19 rules (“Photographs taken inside the … [facility] appear to show a lack of social distancing”, ABC, 2/8/20).

Such footage deeply embarrassed Minister Dutton and the government. But they could not lawfully prevent detainees from taking it, or stop its dissemination by social and mainstream media. So, a way had to be found to lawfully confiscate as many detainee mobiles as possible. And that way, in both versions of the Bill, was to give the minister the power to declare anything that might constitute a “risk” at an IDF to be a “prohibited item” that could then be confiscated.

The official case for the Bill (not the realpolitik case) was stated in Parliament on May 14, 2020, via the Second Reading speech of Alan Tudge MP, Minister for Immigration (and other related matters). It basically consisted of three claims; namely, that:

(1) the changing detainee population mix means that “a large proportion” of detainees now have “criminal histories”, having served time for “child sex offences, … murder, or domestic violence”, while “others have … significant histories of drug-related offences”;

(2) “some” of them “organise criminal activity inside and outside [IDFs]”, as “highlighted by a significant number of incidents in the last 12 months” involving “misuse” of internet capable devices; and

(3) “the legislation” does not empower ABF (or Serco) to “remove dangerous or illegal items”.

Minister Tudge cited the following examples of claim No. 2. “Mobile phones and internet-capable devices … have been used to coordinate and facilitate escape efforts, … facilitate the movement of drugs and other contraband into detention facilities, [and] access child exploitation material. … They have also been used by detainees to intimidate and threaten … staff [i.e., Serco guards] … [via] social media … [footage that is] causing significant fear and stress for staff and their families.”

But Minister Tudge did not quantify any claim or example: he spoke only of “a large proportion”, “some”, “others”, “a significant number”; and did not say how many times each example had occurred.

A Senate committee examining the Bill invited submissions. Among the 135 received, only those from Home Affairs and Serco supported the Bill. On July 3, the committee held a public hearing at which a number of major submitters argued, compellingly, that mobiles were vital, enabling detainees to contact, 24/7, family (overseas or local), friends and lawyers; to access news, information and entertainment; and to record abuse. During that hearing, the Law Council of Australia’s David Prince had stern words about the lack of data.

“I sat before this same committee on the previous form of this bill two years ago and … [asked]: where is the data and … the evidence from the Commonwealth … ? [We only] had … emotive examples … Where is the material …? Is this one case a year? … three cases a day? … where is the data to show that existing powers are not satisfactory? … the prevalence of the problem? [or] … that existing law enforcement agencies cannot address these matters?”

The House of Representatives passed the current Bill on September 2. The Senate is likely to further debate it when the Parliament resumes in early October. But unless those 2018 data questions are re-asked (in updated form) and publicly answered before then, senators will have only unquantified atmospherics and anecdotes to inform their vote, not hard evidence.

So, what are the questions that need to be asked?

One question, about a claim in Minister Tudge’s second example, has already been put, and answered in writing. At the hearing, senators asked whether any staff had been investigated for smuggling in drugs or contraband. The Home Affairs answer was: “Between 1 January 2019 and 31 March 2020 there were eight [such] investigations, … none related to Department or [ABF] staff; eight related to Serco officers; [of which] five [concerned] illicit drugs or drug paraphernalia …”.

But that answer, suggesting that “drug incursions” are not rife, also requires this follow-up question to Home Affairs/ABF: “Why then do you still allow Serco guards to check other Serco guards (including their clothing, bags, etc.) at IDF entrances? Will you have all guards checked by an independent body (e.g. ABF, Police)? If not, why not? If so, starting when?”

Claim No. 3 is disingenuous. True, “the legislation” – the Migration Act 1958 (Cth) – does not authorise the confiscation of dangerous items. But another Act does – the Work Health and Safety Act 2011 (Cth) (WHS Act), which applies to all Commonwealth workplaces, including IDFs. Sections 17–19 impose on workplace operators (such as Home Affairs/ABF) a duty to eliminate risks to health and safety, if practicable. So the question for Home Affairs/ABF is, “Have you (via Serco) obeyed your WHS Act duty by removing such items? If not, why not?”

The above questions, by asking what, if anything, Home Affairs/ABF/Serco themselves have done to prevent or control criminal activity in IDFs, go to their credibility and bona fides. Do they want to curb criminality, or do they just want to get a phone confiscation power?

As to claim No. 1 about detainees’ “criminal character”, Minister Tudge, in closing the House debate on September 2, defined “a large proportion” and “criminal histories” as follows:

“More than 70 per cent of the 1,558 [detainees] are in detention centres today because they are being evicted from the country under section 501 [of the Migration Act], and that only occurs when … foreigners … have very serious criminal records. … They’ve … [been] in prison in Australia for a year or more, and hence we … cancel their visa and [deport] them.”

Mr Tudge’s “1,558” was out by 100. Table 2 of the monthly Home Affairs/ABF Immigration and Community Detention Statistics Summary, dated May 31, 2020, shows a total of 1,458. But Mr Tudge’s “over 70%” assertion seems more gross exaggeration than minor slip. Table 2 says only 675 detainees of the 1,458 total were “Section 501 visa cancellations”. Thus, only 46.3% (at most) faced deportation for “serious criminal records”. (Was Mr Tudge misleading the Parliament? That’s an offence for which, decades ago, minsters were routinely sacked.)

Home Affairs/ABF must be asked to clarify thus: “As at May 31, 2020, how many (and what percentage of) IDF detainees had been found guilty in Australia of any criminal offence/s for which they’ve served a total of 12 months or more of imprisonment (the 501 benchmark)?” But the fact that X number and percentage of detainees have spent 12 months or more in jail does not prove that any is a permanent criminal. Claim No. 1 is just a gratuitous smear.

As to claim No. 2’s various examples, David Prince’s demands for data need actioning, via a generic sequence of questions such as:

“(1) Within the past financial year, how many instances of egregious activity X [as specified] have occurred, involving misuse of an internet-capable device by (a) a detainee, (b) an ABF or Serco staff member, or (c) another category of person or party (please specify)?

(2) What, if any, legislative offence provision was apparently contravened by each instance?

(3) In relation to each instance: (a) what did ABF itself do (or direct/allow Serco to do) to deal with it? (b) Did ABF seek to involve any law enforcement body/ies? (c) If not, why not? (d) If so, which law enforcement body/ies, and with what outcome/s?”

I add two provisos in relation to allegedly threatening and intimidating social media posts. First, a new question (3) should be inserted:

“(3) What percentage of posts were associated with guard behaviour that appeared to involve a breach of the Home Affairs code of conduct?”

Secondly, existing question (3) should be replaced by a new question (4):

“(4) Since ‘using a mobile phone or an internet capable device in a way that a reasonable person would regard as being menacing, harassing or offensive’ is an offence under section 474.17 of the Criminal Code Act 1995 (Cth), (a) were the Australian Federal Police asked to investigate and, if apt, prosecute? (b) if so, with what outcome/s? (c) if not, why not?”

(If not, and if no good reason is given: ‘methinks thou doth protest too much.’)

If Mr Dutton genuinely wants to stamp out all allegedly unlawful intimidation, he can slash the rate of inter-IDF transfers: 8,000 forced movements (some being deportations) occurred between July 2017 and May 2019 (SMH, 7/9/19). Most such transfers put detainees’ psychological health at serious risk – a prima facie criminal offence by Home Affairs/ABF against the WHS Act. More precisely, there seems to have been a pattern of apparently industrial-scale breaches of the section 19(2) duty to pro-actively and preventatively safeguard each detainee’s health.

Dutton’s trampling elephant can’t credibly squeal about intimidation by a detainee mouse.

In conclusion, I invite readers to look again at Tudge’s three claims, then ask: “Do I detect the nub of an authentic, reasoned case – or a beat-up ‘justifying’ a Bill that could prevent footage of apparent Serco guard law-breaking from reaching the people of Australia and the world?”

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Max Costello LLM, now retired, is a former prosecuting solicitor with WorkSafe Victoria. He is the author of “Offshore Crimes”, The Monthly online, 22 September 2017; and co-author, with Robert Richter QC, of submissions 75 and 75.1 to the Senate’s 2019 ‘Medevac repeal’ Committee. He co-authored, with Margaret Sinclair & Eleanor Davey, the Refugee Action Collective (Victoria) submission (no. 68) to the Senate Committee examining the ‘Prohibiting Items’ Bill – a submission posing several of the above-suggested questions.

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