A law to deprive immigration detainees of their only contact: Australia's shame before the world

A few months from now, Australia’s human rights track record will be assessed by the rest of the world. The Universal Periodic Review takes place on a five-year cycle and is an opportunity for members of the UN to assess a country’s achievements in protecting its citizens and others under its care. This year it is Australia’s turn.

As a liberal democracy, Australia will fare well compared with more autocratic, intolerant regimes. Protesters, journalists, political opponents don’t disappear here, the police aren't shooting at unarmed people in the street, our democratic process – give or take the odd raid on the media – is intact.

The majority of people in immigration detention are not accused or guilty of any crime at all.Credit: Joe Armao

But there are areas where Australia has been found wanting and one of those areas is our ongoing appalling treatment of people who are currently held in immigration detention.

At the last periodic review in 2015, 25 states from around the world asked Australia to do more to protect the rights of refugees. The recommendations included making every effort “to guarantee the rights of asylum seekers” and “to review immigration laws and policies to ensure they met international standards and in accordance with the UN Refugee Convention”.

Responding to these recommendations at the time, the Australian government said it was “committed to a managed and equitable system of migration, consistent with our international obligations and respectful of the human rights of migrants, refugees and asylum seekers”.

Amnesty International believes the government is utterly failing in this regard. This week the government will attempt to amend the Migration Act to allow immigration detainees to be searched without a warrant and to give security officers the power to take away the only means of contact many of these people have with the outside: their mobile phones.

This is a clear breach of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) which stress the need for people in detention to be able to communicate with family and friends at regular intervals, stay connected with their community and have access to legal representation.

The effect this amendment will have on those detained cannot be emphasised enough. The anguish these people endure is huge. Many have been locked up for years and have severe mental health issues as a consequence. The reason is lack of hope that their detention will ever end and they believe they will never be able to reunite with their families.

Adding to their trauma is the significant curtailment of all visiting schedules due to COVID-19. The only way to communicate with loved ones and lawyers is through the use of mobile phones.

Immigration detainees are, in theory, being held only for administrative purposes and yet they have fewer rights than those brought and found guilty before a court, including the most violent offenders. According to the Refugee Council of Australia, the average number of days spent in detention is 553. More than 370 of the 1458 people currently in detention have been held for more than 730 days.

The Brisbane Immigration Transit Accommodation centre at Pinkenba, near the airport.Credit: Michelle Smith

The acting Immigration Minister, Alan Tudge, has said this bill is aimed at the “large proportion” of people held in detention who have criminal histories and are still conducting criminal activity via their phones. While it is correct to say some detainees are convicted criminals now awaiting deportation, the majority are not accused or guilty of any crime at all. They are people who have overstayed their visas, or are refugees or asylum seekers waiting for their applications to stay in Australia to be processed. Or they are people who were transferred for medical reasons from Papua New Guinea or Nauru, where they have been stuck for more than seven years, and are now in limbo following the repeal of the medevac legislation last year.

And this is the problem with the bill. There is nothing in the wording that protects the majority of detainees who are not criminals from being stripped searched if a security guard thinks that person “might” be carrying out illegal activity on their phones. No search warrant is needed; that phone can be confiscated without proof of any wrongdoing. That leaves people powerless to contact their loved ones and lawyers. It also leaves them powerless to remind the outside world that they are still locked up, some for years, despite having committed no crime.

The Commonwealth Ombudsman, Michael Manthorpe, has recommended many times to let those detainees who pose no risk to Australia to be allowed into community detention while their cases are assessed. Instead, this government is looking to increase punitive measures against these detainees who have committed no crime.

One reason for this could be that mobile phones are the only way detainees can record acts of violence or undue force carried out against them by those officers who are meant to be caring for them. The most recent Ombudsman's report, released a couple of weeks ago, noted such incidents were ongoing despite raising it as concern in the past. “There appears to be an increasing tendency across the immigration detention network for force to be used to resolve conflict or non-compliant behaviour as the first rather than last choice,” the report found.

This bill is being proposed at a time when, due to COVID, independent monitoring bodies such as the Ombudsman are no longer able to access the centres and haven't since March. Mobile phones are the only way detainees can continue to prove and show the world any ongoing mistreatment by guards.

The findings in this report and the introduction of this bill to Parliament make a mockery of the government’s commitment at the last periodic review to be “respectful of the human rights of migrants, refugees and asylum seekers”.

Australia is better than this. Our government should be standing in front of the United Nations in a few months with its head held high. Instead, this obstinate, cruel approach, where we refuse to properly care for those stuck in our immigration detentions for years, will see us hang our heads in shame.

It is critically important that this bill, aimed at taking the only lifeline left to detainees in our immigration centres, is voted down.

Dr Graham Thom is Amnesty International's refugee co-ordinator.

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