In early October the Senate will vote on a bill that allows the Minister for Home Affairs to ban any items that he prohibits within immigration detention centres. His judgment will not be reviewable. The items that have caused most controversy have been mobile phones.
The objections to the legislation focus correctly on the infringement of human rights. That phrase, however, is bloodless. It might suggest that rights form a list to be ticked off. Human rights are better conceived as a way of speaking about the conditions necessary for people to live decent human lives. The proper place from which to reflect on them is the actual lives of the people who are affected.
When considering the legislation we should begin by asking what place phones have in the life of people seeking protection. Phones connect people with their family members both in Australia and overseas, allowing parents and children, sisters and brothers, friends and acquaintances to maintain their relationships. The phone is the medium by which they can see the mountains and lakes of the lands they were forced to flee, the flowers, the streets and the towns. For some people who have been detained for seven years or more, it is a lifeline. It allows them to hear news of their local areas and perspectives on its conflicts that they could never find in Australian media. It allows them to consult friends and agencies about the arcane and forbidding language of Government communications and to seek resources in their all-important claim for asylum.
The phone has also been a medium for creativity. Behrouz Bouchani, the author of the prize-winning book No Friend but the Mountains, composed his work by texting. In the time of COVID when no visitors have been allowed into the centres, the phone has been their only contact with relatives and people whom they trust. In the enforced absence of chaplains, too, the phone has allowed them to join others at online services, some of them celebrated by chaplains. In short, the phone has been an artery in the distinctively human life that distinguishes human beings from animals. Once it is cut, the lives of people detained can begin to die away. As would your life and mine wither were we placed in a similar situation.
The amendments to the Migration Act substantially follow an earlier policy that banned mobile phones, later found unlawful by the Federal Court. In the legislation the Minister has the power to declare prohibited items in detention centres and for detainees. It also allows officers to search premises and people without a warrant. These broad powers include no requirement for a well-founded suspicion that individuals who possess items declared prohibited or searched pose a threat.
The confiscation of phones, searching of personal belongings and strip searches are highly intrusive and humiliating actions with potential to injure the mental health of those exposed to them. The reasons offered in justification are sketchy and general — to respond to criminal behaviour and prevent plans to escape and create disorder. They also point out that detention centres house both people seeking protection and people subject to deportation after serving sentences for crimes.
None of these reasons are convincing. There are already adequate powers to respond to disorder and criminal acts by individuals. Nor, in the case of a captive population, is there the urgent need to act without seeking a warrant for the action. A general power to confiscate phones, strip search people and search their possessions would be regarded as an overreach of power and an invitation to abuse when directed against any other group in society. In a detention centre where people are locked up with officers, the powers create an atmosphere of fear and intimidation that increases tension and harm to mental health.
'How this system works is explored in its appalling and heartbreaking detail in Behrouz Bouchani’s book, itself ironically made possible only through the medium of text messages sent by phone. It diminishes the humanity not only of its intended victims but also of the people who administer it.'
The Government itself is responsible for housing together people seeking protection and those facing deportation. The practice is not ideal. Many refugees, who have broken no law in seeking protection, feel uncomfortable in the company of people who have committed crimes. They fear with good reason that they will be seen as criminals, rightly imprisoned. The only legal justification for Immigration detention is administrative need. It is not punitive. That they should be made subject to such punitive measures as strip searching and the confiscation of their phones on the grounds of a forced association with people detained on other grounds is outrageous. It might be said in passing, too, that the people brought to detention centres from prison, many of whom have been jailed for relatively minor offences, have already served their sentence, only to find themselves again locked up. Any resentment they may feel is understandable.
The apologists for the legislation, of course, say that these powers will be used only selectively, in which case they should legislatively be limited to people who can be demonstrated to pose a risk. Experience, however, suggests scepticism about the good faith of such promises when made by governments. We need to think only of the assurances, made after enquiries into the treatment of children in correction facilities, that solitary confinement, hoods and other punishments will be exceptional. The next enquiry commonly reveals them to have become routine.
In assessing any assurance by governments about the treatment of defenceless people we need to consider whether the assurance is consistent with the attitudes ingrained in policy. In Australia the attitudes to people seeking protection are controlled by the logic of deterrence in which the sufferings of those held detention centres in Australia and its off-shore dependencies are designed to warn off others who might be tempted to come. This logic involves treating people as things, as means to other ends. It inevitably creates an authoritarian and brutal system in which officials must be unquestioningly complicit. Its nature is to remove from people the rights which are grounded in a shared humanity and hunger for a decent life, and to restore them arbitrarily and unreliably as privileges. Legislation then acts to allay any ethical doubts that those who execute it will have. We may be sure that the practices it allows will be used and abused.
How this system works is explored in its appalling and heartbreaking detail in Behrouz Bouchani’s book, itself ironically made possible only through the medium of text messages sent by phone. It diminishes the humanity not only of its intended victims but also of the people who administer it. It corrodes the ethical sensibility of those involved in searching and depredating as surely as it diminishes the lives of those searched and disconnected. Though disguised in beige words this legislation is a knife held at the throat of Australian decency as well as of the humanity of people who seek protection.
Andrew Hamilton is consulting editor of Eureka Street, and writer at Jesuit Social Services.
Main image: Person holding phone (Erik Hersman/Flickr)