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Migration Legislation Amendment (Immigration Detainees) Bill (No. 2) 2001

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1998 - 1999 - 2000 - 2001

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

SENATE

 

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (IMMIGRATION DETAINEES)

BILL (No. 2) 2001

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

The Hon. Philip Ruddock MP)

 

 

 

 

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED

 



MIGRATION LEGISLATION AMENDMENT (IMMIGRATION DETAINEES) BILL (No. 2) 2001

 

OUTLINE

 

1.                        The Migration Legislation Amendment (Immigration Detainees) Bill (No. 2) 2001 (“the Bill”) amends the Migration Act 1958 (“the Act”) to:

 

·         introduce a power to conduct a screening procedure in relation to a detainee;

 

·         introduce a power to strip search immigration detainees; and

 

·         apply search powers in State and Territory legislation to immigration detainees held in a State or Territory prison or remand centre.

 

2.           These amendments were prompted by instances of inappropriate behaviour by immigration detainees during 2000.  Outbreaks of violence at the Curtin, Port Hedland and Woomera Immigration Reception and Processing Centres in January, April and June of this year, and continued escapes from immigration detention centres, further highlight the need for these new powers.  

 

3.           Detainees have also   also been known to hide on their person weapons or things which can be used for self-harm, to injure others, or to assist in escape.  These items may be concealed by the detainees themselves or at the instigation of other detainees.

 

POLICY:  We have omitted your paragraph 3 as we think that it is probably best placed in the Second Reading Speech.  Please let us know if you disagree.   Angela, I’ve re-introduced that last sentence to give specific context to the strip search power; ‘outbreaks of violence’ sets only a general scene for strip search but a specific scene for escapes and manufacture etc of weapons (i.e. stuff for the other Bill).

 

3 4 .         The measures in this Bill address the increasing incidence of weapons and other things being found in immigration detention facilities centres .  The new powers in the Bill seek to deter inappropriate behaviour by immigration detainees, provide a safe environment for all those in immigration detention facilities centres and preserve a detainee’s dignity and right to privacy.

 

POLICY: We think that the words:

· “such as razor blades melted into toothbrushes, a shard of mirror attached to a piece of wood to make a cutting implement, and a ball point pen with a needle fastened to its centre” can be omitted here because again they are probably better suited to the Second Reading speech; and

· “deter inappropriate behaviour by immigration detainees” should be omitted because that relates more to the 1 st Bill rather than this 2 nd Bill.

Please let us know if you disagree with these changes.

Angela, we think it important to include the ‘deter’ reference since introducing a power to strip search should, like most other bits of legislation, serve as a deterrent to those who wish to hide weapons etc on themselves, and such action is, after all, inappropriate. I’ve also included reference to ‘facilities’ since we are aiming at ensuring a safe environment within the facilities. The rest of the material can be put into the SRS.

 

FINANCIAL IMPACT STATEMENT

 

5.           These amendments will have minimal financial impact.  The new powers additional con trol s and their deterrent effect should help to curb the kind of inappropriate behaviour by detainees that can lead to personal injuries and damage to property.

 



MIGRATION LEGISLATION AMENDMENT (IMMIGRATION DETAINEES) BILL (No. 2) 2001

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1               Short title

 

1.                        The short title by which this Act may be cited is the Migration Legislation Amendment (Immigration Detainees) Act (No. 2) 2001 .

 

Clause 2               Commencement

 

2.                        Subclause 2(1) provides that this section and section 1 commence on the day on which this Act receives the Royal Assent. 

 

3.                        Subclause 2(2) provides that, subject to subsection 2(3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

 

4.                        Subclause 2(3) provides that if a provision of this Act is not proclaimed within 6 months of receiving the Royal Assent, then it will commence on the first day immediately after the end of that period.

 

Clause 3              Schedule(s)

 

5.                        This clause provides that , subject to section 2, each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.

 



SCHEDULE 1 - Migration Act 1958

 

 

Item 1                  At the end of section 252

 

6.                        This item inserts a new subsection (9) at the end of section 252 of the Act.

 

7.                        New subsection 252(9) clarifies that a search of a person detainee may be conducted under section 252 of the Act whether or not irrespective of whether a search of the person is conducted screening procedure is conducted in relation to the person under new section 252A A or a strip search is conducted of the person under new section 252A .  New section 252A is inserted into the Act by item 2 2 of this Schedule.

 

8.                        A complimentary provision is contained in new section s 252AA and 252A.  This puts it beyond doubt that the exercise of powers in section 252 of the Act and new sections 252AA and 252A are separate and autonomous.

 

Item 2                  After section 252

 

8. 9.                        This item inserts new section s 252AA to 252F after section 252 of the Act.

 

Section 252AA    Power to conduct a screening procedure

 

10.                    New section 252AA introduces a power to conduct a screening procedure in relation to a detainee.  It does not apply to a detainee to whom new section 252F applies, that is, a detainee held in a State or Territory prison or remand centre.

 

8. 11.                    The power in new section 252AA is required for the good order and security of immigration detention centres as well as the safety of detainees, staff and other persons located there.

 

8. 12.                    New subsection 252AA(1) specifies the purposes for which a screening procedure in relation to a detainee may be conducted.  These purposes are the same purposes for which a strip search under new section 252A may be conducted.

 

8. 13.                    A screening procedure may be conducted by an authorised officer, without a warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used to:

 

·         inflict bodily injury; or

·         help the detainee, or any other detainee, to escape from immigration detention.

 

8. 14.                    Under subsection 5(1) of the Act, “authorised officer” means an officer authorised in writing by the Minister or Secretary for the purposes of conducting a screening procedure under new section 252AA.

 

8. 15.                    “Conducting a screening procedure”, in relation to a detainee, is defined in new subsection 252AA(5) to mean:

 

·         causing the detainee to walk, or to be moved, through screening equipment; or

·         passing hand-held screening equipment over or around the detainee or around things in the detainee’s possession; or

·         passing things in the detainee’s possession through screening equipment or examining such things by X-ray.

 

8. 16.                    “Screening equipment” is also defined in new subsection 252AA(5) and means a metal detector or similar device for detecting objects or particular substances.  

 

17.                    These definitions are similar to those contained in section 252G of the Act which provides a power to request persons about to enter an immigration detention centre to be subject to screening.

 

8. 18.                    New subsections 252AA(2) and 252AA (3) provide safeguards for the exercise of the power to conduct a screening procedure in relation to a detainee.  These safeguards mirror those currently contained in section 252 of the Act which, among other things, allows for the frisk search of detainees in certain circumstances. 

 

8. 19.                    New subsection 252AA(2) prohibits an authorised officer from using greater force, or subjecting a detainee to greater indignity, than is reasonably necessary in order to conduct the screening procedure.

 

8. 20.                    New subsection 252AA(3) makes it clear that nothing in new section 252AA permits an authorised officer to remove any of the detainee’s clothing or to require a detainee to remove any of his or her clothing.

 

8. 21.                    New subsection 252AA(4) clarifies that a screening procedure may be conducted in relation to a detainee under new section 252AA irrespective of whether a search of the detainee is conducted under section 252 of the Act or new section 252A.  This puts it beyond doubt that the exercise of powers in section 252 and new section s 252AA and 252A are separate and autonomous.

 

Item 2                    After section 252

 

8. This item inserts new sections 252A to 252F after section 252 of the Act.

 

Section 252A       Power to conduct a strip search

 

9. 22.                    New section 252A introduces a power to conduct a strip search of a detainee.  It does not allow the strip search of a detainee to whom new section 252F applies, that is, a detainee held in a State or Territory prison or remand centre.

 

10. 23.                    The power in new section 252A is required for the good order and security of detention centres as well as the safety of detainees, staff and other persons located there. 

             

11. 24.                    This power to conduct a strip search must be exercised in accordance with the rules for conducting a strip search set out in new section 252B.

 

12. 25.                    New subsection 252A(1) specifies the purposes for which a strip search may be conducted.  It provides that a strip search of a detainee may be conducted by an authorised officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used:

 

·         to inflict bodily injury; or

·         to help the detainee, or any other detainee, to escape from immigration detention.

 

14. 26.                    “Strip search” of a detainee is defined in new subsection 252A(2) to mean a search of the detainee, of his or her clothing or of a thing in his or her possession.  It may include:

 

·         requiring the detainee to remove some or all of his or her clothing; and

·         an examination of that clothing and of the detainee’s body.

 

However, a “strip search” does not include an examination of the detainee’s body cavities.

 

15. 27.                    New subsection 252A(3) provides that an authorised officer may conduct a strip search of a detainee only if certain requirements are met.

 

16. 28.                    Firstly, under new paragraphs 252A(3)(a) and 252A(3)(b), an officer must suspect on reasonable grounds that:

 

·         there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in new subsection 252A(1); and

·         it is necessary to conduct a strip search of the detainee to recover that weapon or thing.

 

17. 29.                    The same officer must have both these suspicions.

 

18. 30.                    Under subsection 5(1) of the Act, an “officer” means:

 

·         an officer of the Department, other than an officer specified by the Minister in writing; or

·         a person, other than an officer specified by the Minister in writing, who is:

-          an officer for the purposes of the Customs Act 1901 ; or

-          a protective service officer for the purposes of the Australian Protective Service Act 1987 ; or

·         a member of the Australian Federal Police or of the police force of a State or Territory; or

·         any other person authorised by the Minister, by notice published in the Gazette , to be an officer for the purposes of this Act.

 

19. 31.                    New subsection 252A(3A) sets out what may cause an officer to form a suspicion on reasonable grounds for the purposes of new paragraph 252A(3)(a).  It provides that a reasonable suspicion may be formed by an officer on the basis of:

 

·         a frisk search conducted under section 252 of the Act (whether by that officer or another officer); or

·         a screening procedure conducted under new section 252AA (whether by that officer of by another officer); or

·         any information that is available to the officer.

 

19. 32.                    Secondly, under new new paragraph paragraph 252A(3)(c), the strip search must be authorised by a person in accordance with new subparagraph 252A(3)(c)( i ) or 252A(3)(c)(ii), the Secretary, or an SES Band 3 employee in the Department with a classification of SES Band 3 , because he or she is satisfied that there are reasonable grounds for the officer’s suspicions.

 

33.                    In addition, new subsection 252A(6) provides that the power to authorise a strip search under new paragraph 252A(3)(c) cannot be delegated to any other person.

 

34.                    Under new subparagraph 252A(3)(c)(i), the strip search of a detainee who is at least 18 years old must be authorised by the Secretary or an SES Band 3 employee in the Department.   The Secretary or SES Band 3 employee must not be the officer who formed the suspicions in new paragraphs 252A(3)(a) and 252A(3)(b) and must not conduct the strip search.

 

20. 35.                    Under subsection 5(1) of the Act, “Secretary” means the Secretary to the Department of Immigration and Multicultural Affairs.  Pursuant to the Public Service Act 1999 and the Acts Interpretation Act 1901 , “Secretary” also includes a person appointed to act as “Secretary”.

 

21. 36.                    New subsection 252A(8) provides that “SES Band 3 employee” means an SES employee with a classification of Senior Executive Band 3.  It also include s an “SES employee” who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3.

 

21. 37.                    New subsection 252A(8) also provides that “SES employee” has the meaning given by the Public Service Act 1999 .   Section 34 of th at Act provides SES employees are those APS employees who are classified as SES employees under the Public Service Classification Rules 2000.

 

22. 38.                    An example of an SES Band 3 employee in the Department who can authorise a strip search is the Deputy Secretary.

 

23. 39.                    A Department business manager at a detention centre established under the Act will not be able to authorise a strip search under new section 252A.

 

1.                              Under new subparagraph 252A(3)(c)(ii), a strip search of a detainee who is at least 10 years old but under 18 years old must be authorised by an order of a magistrate.

40.                     

 

41.                    New subsection 252A(6A) provides that the power to order a strip search under new sub paragraph 252A(3)(c)(ii) is conferred on a magistrate in a personal capacity and not as a court or a member of a court.

 

42.                    Under new subsection 252A(6B), a magistrate does not need to accept the power conferred by new subparagraph 252A(3)(c)(ii).  This makes it clear that the exercise of the power conferred by this new provision must be voluntary.

 

43.                    New subsection 252A(6C) provides that the magistrate has the same protection and immunity as if he or she were exercising that power as a court, or a member of a court, of which he or she is a member.

 

44.                    It is necessary, for constitutional reasons, for new subsections 252A(6A) to 252A(6C) to clarify that the power conferred on a magistrate by new subparagraph 252A(3)(c)(ii) is conferred in a personal and voluntary capacity.

 

45.                    This is because an order authorising a strip search involves the exercise of a function or power that is neither judicial nor incidental to a judicial function or power.  In essence, non-judicial functions or powers must be conferred in a personal capacity because judicial office holders (for example, magistrates) must only exercise Commonwealth judicial functions or powers in their official capacity.

 

46.                    Failure to adhere to this may undermine the fundamental separation of powers doctrine enshrined in Chapter III of the Commonwealth Constitution (see for example, Grollo v Commissioner of the Australian Federal Police (1995) 131 ALR 225 and Hilton v Wells (1985) 157 CLR 57).

 

47.                    New subsection 252A(4) provides that an authorisation of a strip search given for the purposes of new paragraph 252A(3)(c):

 

·         may be given by telephone, fax or other electronic means; and

·         must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.

 

27. 48.                    “Business day” is defined in new subsection 252A(8) to mean a day that is not a Saturday, Sunday or public holiday in the place where the authorisation is given.

 

28. 49.                    Under new subsection 252A(5), a failure by the authorising person to record the authorisation in writing and sign it, within one business day, does not affect the validity of a strip search conducted on the basis of that authorisation.

 

 

 

 

29. 50.                    New subsection 252A(7) clarifies that a strip search of a detainee may be conducted under new section 252A whether or not irrespective of whether a search of the detainee is conducted under section 252 of the Act or a screening procedure is conducted in relation to the detainee under new section 252AA.  This puts it beyond doubt that the exercise of the powers in section 252 and new sections 252AA and 252A are separate and autonomous.

 

Section 252B       Rules for conducting a strip search

 

30. 51.                    New section 252B sets out a number of rules for conducting a strip search of a detainee under new section 252A.  These rules are based on those contained in section 3ZI of the Crimes Act 1914 (“the Crimes Act”).

 

31. 52.                     New paragraph 252B(1)(a) provides that a detainee must not be subjected to greater indignity than is reasonably necessary to conduct the strip search.

 

32. 53.                     New paragraph 252B(1)(b) provides that a strip search of a detainee must be conducted in a private area.  

 

33. 54.                    New paragraph 252B(1)(c) introduces the same-sex rule.  It provides that a strip search must only be conducted by an authorised officer of the same sex as the detainee.

 

 

34. 55.                    New paragraph 252B(1)(d) adds to the same-sex rule contained in new paragraph 252B(1)(c).  It provides that a strip search must not be conducted in the presence or view of a person who is of the opposite sex to the detainee.  This requirement is subject to the exceptions in new subsections 252B(2), 252B(3) and 252B(5). 

 

35. 56.                    New paragraph 252B(1)(e) provides that a strip search must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the strip search.  This requirement is subject to the exceptions in new subsections 252B(2), 252B(3) and 252B(5).

 

36. 57.                    New paragraph 252B(1)(f) prohibits a strip search of a detainee who is under 10 years of age.

 

37. 58.                    New paragraph 252B(1)(g) introduces an additional requirement where the detainee is between the age of ten and eighteen or is incapable of managing his or her affairs.  A strip search of such a detainee must be conducted in the presence of:

 

·         the detainee’s parent or guardian if that person is in immigration detention with the detainee and is readily available at the same place; or

·         if that is not acceptable to the detainee, or the first dot point above does not apply - another person (other than an authorised officer) who is capable of representing the detainee’s interests and who, as far as is practicable in the circumstances, is acceptable to the detainee.

 

37. 1. New paragraph 252B(1)(h) introduces an additional requirement where the detainee is at least eighteen and is not incapable of managing his or her affairs.  

37. 59.                      A strip search of such a detainee must be conducted in the presence of another person (if any) nominated by the detainee if that person is:

 

·         readily available at the same place as the detainee; and

·         willing to attend the strip search within a reasonable time. 

 

 

Nothing in new paragraph 252B(1)(h ) obliges a detainee t o nominate a person referred to above to attend a strip search.

 

37. 1. The requirement in new paragraph 252B(1)(h) is subject to new subsection 252B(4).  However, this requirement is subject to new subsection 252B(4).

37. 60.                     

40.                               

 

37. 61.                    New paragraph 252B(1)(i) provides that the power to strip search a detainee does not extend to a search of the detainee’s body cavities.  This is consistent with the definition of “strip search” contained in new subsection 252A(2).



 

40. 62.                    New paragraph 252B(1)(j) provides that a strip search must not involve:

 

·         the removal of more items of clothing; or

·         more visual inspection;

 

than the authorised officer conducting the strip search believes on reasonable grounds to be necessary to determine whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession, a weapon or other thing described in new subsection 252A(1).

 

41. 63.                    New paragraph 252B(1)(k) restricts the use of force by an authorised officer conducting a strip search to that which is reasonably necessary to conduct the strip search.

 

42. 64.                    New subsection 252B(2) provides that new paragraphs 252B(1)(d) and 252B(1)(e) do not apply to a parent or guardian, or a person present because of new subparagraph 252B(1)(g)(ii), so long as the detainee has no objection to that person being present.

 

43. 65.                    New subsection 252B(3) provides that new paragraphs 252B(1)(d) and 252B(1)(e) do not apply to a person nominated by the detainee to attend a strip search under paragraph 252B(1)(h).

 

44. 66.                    Under new subsection 252B(4), the conduct of a strip search will not be prevented by a detainee’s:

 

·         refusal or failure to nominate a person under paragraph 252B(1)(ga) within a reasonable time; or

·         inability to nominate a person under that paragraph who is readily available at the same place as the detainee and willing to attend the strip search within a reasonable time.

 

45. 67.                    Under new subsection 252B(5), a strip search of a detainee may be conducted with the assistance of another person if the authorised officer conducting the strip search considers it necessary for the purposes of conducting the strip search.  However, this person must not be of the opposite sex to the detainee unless:

 

·         the person is a medical practitioner; and

·         a medical practitioner of the same sex as the detainee is not available within a reasonable time.

 

46. 68.                    New subsection 252B(6) protects a person who assists in conducting a strip search from an action or proceeding, whether civil or criminal, if that person acts in good faith and does not contravene the rules set out in new section 252B.



 

47. 69.                    New subsection 252B(7) provides that a detainee must be given adequate clothing if, during or as a result of a strip search, any of his or her clothing is:

 

·          damaged or destroyed;

·          retained under new section 252C.

 

Section 252C      Possession and retention of certain things obtained during a screening procedure or strip search

 

48. 70.                    New section 252C provides for the retention of certain things found during a screening procedure under new section 252AA or a strip search under new section 252A.  It is based on section 3ZV of the Crimes Act and complies with Commonwealth criminal law policy.

 

49. 71.                    New subsection 252C(1) allows an authorised officer to take possession of and retain a thing found in the course of conducting a screening procedure or a strip search, if the thing:

 

·         might provide evidence of the commission of an offence against this Act; or

·         is forfeited or forfeitable to the Commonwealth.

 

50. 72.                    Under new subsection 252C(2), a weapon or other thing described in new subsection 252AA(1) and 252A(1) is forfeited to the Commonwealth if it is found in the course of conducting a screening procedure under new section 252AA or a strip search under new section 252A

 

51. 73.                    New subsection 252C(3) prohibits an authorised officer from returning a thing that is forfeited or forfeitable to the Commonwealth.  Instead, the authorised officer must, as soon as practicable, give the thing to a constable.

 

 

 

52. 74.                    Under subsection 3(1) of the Crimes Act, “constable” is defined to mean a member or special member of the Australian Federal Police, or a member of the police force or police service of a State or Territory.

 

52. 75.                    New subsection 252C(4) requires an authorised officer to take reasonable steps to return any other thing retained under new subsection 252C(1) to the person from whom it was taken or to the owner if that person is not entitled to possess it.  This must be done if:

 

·         it is decided that the thing is not to be used in evidence; or

·         the period of 60 days after the authorised officer takes possession of the thing ends.

 



52. 1. 56.         

52. 1.  

52. 76.                    However, new subsection 252C(5) sets out a number of exceptions to the requirement in new subsection 252C(4).  It provides that an authorised officer does not have to take reasonable steps to return a thing if:

 

·         proceedings in respect of which the thing might provide evidence have been instituted before the end of the 60 day period and have not been completed (including an appeal to a court in relation to those proceedings); or

·         an order under new section 252E has been made permitting an authorised officer to retain the thing for a further period; or

·         the authorised officer is otherwise authorised (by a law, or an order of a court or tribunal, of the Commonwealth or a State or a Territory) to retain, destroy or dispose of the thing.

 

Section 252D      Authorised officer may apply for a thing to be retained for a further period

 

55. 77.                    New section 252D provides for the extension of the period that a thing, found in the course of conducting a screening procedure under new section 252AA or a strip search under new section 252A, may be retained.  It is based on section 3ZW of the Crimes Act and complies with Commonwealth criminal law policy

 

56. 78.                     Under new subsections 252D(1) and 252D(2), an authorised officer may apply to a magistrate for an order that a thing retained under new subsection 252C(4) may be retained for a further period.  Such an application may be made if proceedings in respect of which the thing might provide evidence have not commenced before the end of:

 

·         60 days after the authorised officer takes possession of the thing; or

·         a period previously specified in an order of a magistrate under new section 252E.

 

 

 

 

57. 79.                    However, before applying for an extension of the retention period, new subsection 252D(3) requires the authorised officer to:

 

·         take reasonable steps to discover which persons’ interests would be affected by the retention of the thing; and

·         if it is practicable to do so, notify all such persons of the proposed application.

 

Section 252E       Magistrate may order that thing be retained

 

58. 80.                    Under new subsection 252E(1), a magistrate may order that the authorised officer, who made an application under new section 252D, may retain the thing.  A magistrate may make such an order if he or she is satisfied that it is necessary for the authorised officer to retain the thing:

 

·         for the purposes of an investigation as to whether an offence has been committed; or

·         to enable evidence of an offence to be secured for the purposes of a prosecution.

 

59. 81.                    New subsection 252E(2) provides that the order must specify the period for which the authorised officer may retain the thing.

 

60. 82.                    New subsections 252E(1) and 252E(2) are based on section 3ZW of the Crimes Act and comply with Commonwealth criminal law policy.

 

61. 83.                    New subsection 252E(3) provides that a power conferred on a magistrate by new section 252E is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

 

62. 84.                    However, new subsection 252E(4) provides that a magistrate need not accept the power conferred by new section 252E.  This makes it clear that the exercise of the power conferred by new section 252E must be voluntary.

 

63. 85.                    Under new subsection 252E(5), a magistrate who exercises a power under new section 252E will have the same protection and immunity as if he or she were exercising that power as a court, or as a member of the court, of which he or she is a member.  This ensures that the same protection enjoyed by a State or Territory magistrate as a judicial office holder extends to the exercise of the power conferred by new section 252E.

 

64. 86.                    It is necessary, for constitutional reasons, for new subsections 252E(3) to 252E(5) to clarify that the power conferred on a magistrate by new section 252E is conferred in a personal and voluntary capacity. 

 

 

 

 

65. 87.                    This is because an order extending the retention period involves the exercise of a function or power that is neither judicial nor incidental to a judicial function or power.  In essence, non-judicial functions or powers must be conferred in a personal capacity because judicial office holders (for example, a magistrate) must only exercise Commonwealth judicial functions or powers in their official capacity. 

 

66. 88.                    Failure to adhere to this may undermine the fundamental separation of powers doctrine enshrined in Chapter III of the Commonwealth Constitution (see for example, Grollo v Commissioner of the Australian Federal Police (1995) 131 ALR 225 and Hilton v Wells (1985) 157 CLR 57).

 

Section 252F       Detainees held in State or Territory prisons or remand centres

 

67. 89.                    New section 252F makes specific provision for the “search” of a detainee held in immigration detention in a prison or remand centre of a State or Territory. 



 

68. 90.                    New subsection 252F(1) provides that section 252F applies to a detainee if:

 

·         he or she is held in immigration detention in a prison or remand centre of a State or Territory; and

·         a law of that State or Territory confers a power to search persons, or things in the possession of persons, serving sentences or being held in the prison or remand centre.

 

69. 91.                    New subsection 252F(2) provides that a law of a State or Territory that confers such a power, or affects the exercise of that power, applies to the detainee as though it were a law of the Commonwealth.

 

70. 92.                    New subsection 252F(3) clarifies that new section s 252AA and 252A do es not apply to a detainee if new section 252F applies to that detainee.