Australian Immigration Daily News

Does the Department have the authority to confiscate mobile phones from people who are being held in immigration detention?

This question is prompted by a change in the government’s policies that were announced in late May 2016, and which began to be implemented in February of this year. 

Prior to this policy change, a “two-tiered” approach to the possession and use of mobile phones by persons in detention had been in place since 2010.  Under that two-tiered approach,  persons  who were being held in detention because they were “illegal maritime arrivals” were not allowed to have or use mobile phones, but otherwise, persons who were in detention because their visa had been cancelled on character grounds were allowed to have and use mobiles.

The policy change, which was approved on 27 May 2016, provided for a blanket ban on the possession and use of mobile phones by all detainees, not just “illegal maritime arrivals”.

In November 2017, the Department adopted a plan for implementing the mobile phone ban, which it called “Operation Ramentum” (aren’t governments superb at inventing ludicrous names for “operations”?  “Ramentum” are defined by the dictionary as “thin brown scales that cover the stems and leaves of young ferns”.  One may therefore wonder what “ramentum” has to do with confiscating mobile phones. Why not “Operation Unplug” or something a bit closer to the mark? Whatever!). 

The plan was to give detainees a 3-month amnesty period to hand in their mobiles to “Serco”, the contractor that operates the detention centres for the government, and then for search operations to be carried out by the Australian Border Force.

So on 21 November 2016, the policy was announced by means of distribution of a document to detainees. This document advised that after 20 February 2017, “mobile phones and SIM cards will be confiscated as part of routine searches for contraband items in the facility”.

The government’s new policy has been challenged in both the Federal Circuit Court (SZSZM v Minister for Immigration & Ors (2017) FCCA 819 (3 May 2017) and in the Federal Court (ARJ17 v Minister for Immigration and Border Protection).

Both the Federal Circuit Court in SZSZM and the Federal Court in AJR17 issued interlocutory injunctions which restrained the confiscation of mobile phones from detainees (with the interlocutory injunction in the Federal Court being broader than the injunction in the FCC, with the Federal Court injunction applying only to the detainee who was the applicant, while the Federal Court injunction prevents the confiscation of phones and SIM cards from persons in detention who currently possess them.

A final decision on the merits of the case has now been made in SZSZM, while the other case, AJR17¸ is still awaiting determination in the Federal Court.

As noted by Judge Smith of the Federal Circuit Court in SZSZM, the ultimate decision in the Federal Court case, AJR17, will control determination of the issue by reason of the fact that the Federal Court sits higher in the hierarchy of the federal court system than the Federal Circuit Court. Therefore the decision that is made in the Federal Court in AJR17 will take precedence over Judge Smith’s judgment in SZSZM.

Nonetheless, Judge Smith’s decision in SZSZM may provide some indication of what is likely to happen when the AJR17 matter is decided in the Federal Court (where it is pending before Justice Rares).

So what did happen in SZSZM?

Judge Smith decided that the government does have the legal authority to confiscate mobile phones and SIM cards from all persons in immigration detention.

Judge Smith found that there are 2 separate bases for this power:

1. Section 252 of the Migration Act. This section gives the Department the authority to conduct a warrantless each of the clothing and any property in the immediate control of a person who is in immigration detention for anything which may be used to “help the person to escape from immigration detention” and to retain the item for as long as necessary for the purposes of the Act.

There was some evidence before Judge Smith that suggested that mobile phones had been used in connection with some previous escapes and attempted escapes from immigration detention. Judge Smith considered that mobile phones might be a “thing” which could be used to help a person to escape from detention, and thus found that section 252 does empower the Department to confiscate and retain mobile phones.

2.  Judge Smith also accepted a submission made by the Minister that section 273 of the Migration Act, which confers upon the Minister the power to cause detention centres to be “established and maintained” gives the Minister the power to maintain the order and security of staff and detainees at a detention centre, and thus, implicitly, empowers the Department to confiscate mobile phones from detainees.

What do you think of this decision? Apparently, under the new government policy, persons held in detention have access to land telephone lines and can book time to use the Internet. 

But the policy clearly further reduces the ability of detainees to communicate with the “outside world”, to be in communication with their migration agents, lawyers and family and friends.

One has to wonder – does the possession of mobile phones by detainees really increase the risk of scape or escape attempts?

And should there ever have been a differential policy based on the manner in which a person was taken into detention?  Should “illegal maritime arrivals” have their ability to communicate with people in the outside world more restricted than persons who had their visas cancelled on character grounds?

If it is upheld by the Federal Court – which it may or may not be – is the policy on mobile phone use by detainees overly harsh?

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