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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

 

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (IMMIGRATION DETAINEES)

BILL (No. 2) 2001

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

(Government)

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

The Hon. Philip Ruddock MP)

 



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

 

 

OUTLINE

 

1.                        The purpose of the amendments to the Migration Legislation Amendment (Immigration Detainees) Bill (No. 2) 2001 (“the Bill”) is to:

 

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

 

·          provide that a strip search of an immigration detainee, who is at least 10 years old but under 18 years old, must be authorised by order of a magistrate; and

 

·          clarify on what basis an officer may form a suspicion on reasonable grounds that there is hidden on a 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.

 

 

FINANCIAL IMPACT STATEMENT

 

2.                        The amendments will have minimal financial impact.

 

 



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

 

 

NOTES ON AMENDMENTS

 

Amendment (1)  

 

1.                        This amendment omits proposed subsection 252(9) of the Migration Act 1958 (“the Act”) as contained in item 1 of Schedule 1 to the Bill and substitutes a new subsection 252(9). 

 

2.                        The amendment is consequential to amendment (2) which inserts new section 252AA into item 2 of Schedule 1 to the Bill.  New section 252AA provides a power to conduct a screening procedure in relation to a detainee.

 

3.                        New subsection 252(9) clarifies that a search of a detainee may be conducted under section 252 of the Act irrespective of whether a screening procedure is conducted in relation to the person under new section 252AA or a strip search is conducted of the person under proposed section 252A.  Proposed section 252A is contained in item 2 of Schedule 1 to the Bill.

 

4.                        A complementary provision is contained in new section 252AA and proposed section 252A.  This puts it beyond doubt that the exercise of powers in section 252, new section 252AA and proposed section 252A are separate and autonomous.

 

Amendment (2)

 

Section 252AA                                Power to conduct a screening procedure

 

5.                        This amendment inserts new section 252AA into item 2 of Schedule 1 to the Bill.

 

6.                        New section 252AA introduces a power to conduct a screening procedure in relation to a detainee.  As is the case with proposed section 252A, it does not apply to a detainee to whom proposed section 252F applies, that is, a detainee held in a State or Territory prison or remand centre.  Proposed section 252F is contained in item 2 of Schedule 1 to the Bill.

 

7.                        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.                        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 proposed section 252A may be conducted.

 

9.                        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.

 

10.                    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.

 

11.                    “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.

 

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

 

13.                    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.  Section 252G was recently inserted into the Act by the Migration Legislation Amendment (Immigration Detainees) Act 2001 .

 

14.                    New subsections 252AA(2) and (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. 

 

15.                    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.

 

16.                    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.

 

17.                    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 proposed section 252A.  This puts it beyond doubt that the exercise of powers in section 252, new section 252AA and proposed section 252A are separate and autonomous.

 

Amendment (3)

 

18.                    This amendment omits proposed paragraph 252A(3)(c) as contained in item 2 of Schedule 1 to the Bill and substitutes a new paragraph 252A(3)(c).

 

19.                    Proposed subsection 252A(3) provides that an authorised officer may conduct a strip search of a detainee only if certain requirements are met.  One of these requirements is that the strip search must be authorised in accordance with new paragraph 252A(3)(c).

 

20.                    The effect of new subparagraph 252A(3)(c)(ii) is that 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.  A magistrate may only make an order authorising a strip search if he or she is satisfied that there are reasonable grounds for the officer’s suspicions required by proposed paragraphs 252A(3)(a) and 252A(3)(b). 

 

21.                    As a result of this amendment, the Secretary or an SES Band 3 employee in the Department referred to in new subparagraph 252A(3)(c)(i) may now only authorise a strip search of a detainee who is at least 18 years old.

 

Amendment (4)

 

22.                    This amendment inserts new subsection 252A(3A) into proposed section 252A as contained in item 2 of Schedule 1 to the Bill.

 

23.                    Proposed subsection 252A(3) provides that an authorised officer may conduct a strip search of a detainee only if certain requirements are met.  One of these requirements, as contained in proposed paragraph 252A(3)(a), is that 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, capable of  being used to:

 

·          inflict bodily injury; or

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

 

24.                    New subsection 252A(3A) sets out what may cause an officer to form a suspicion on reasonable grounds for the purposes of proposed 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 or another officer); or

·          any other information that is available to the officer.



 

Amendment (5)

 

25.                    This amendment inserts new subsections 252A(6A), 252A(6B) and 252A(6C) into proposed section 252A as contained in item 2 of Schedule 1 to the Bill.

 

26.                    New subsections 252A(6A) to 252A(6C) relate to the power to make an order authorising a strip search of a detainee aged at least 10 years old but under 18 years old, conferred on a magistrate by new subparagraph 252A(3)(c)(ii).

 

27.                    New subsection 252A(6A) provides that this power is conferred on a magistrate in a personal capacity and not as a court or a member of a court. 

 

28.                    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.

 

29.                    New subsection 252A(6C) applies to a magistrate who exercises the power conferred by new subparagraph 252A(3)(c)(ii).  It 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.

 

30.                    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.

 

31.                    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.

 

32.                    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).

 

Amendment (6)

 

33.                    This amendment omits proposed subsection 252A(7) as contained in item 2 of Schedule 1 to the Bill and substitutes a new subsection 252A(7). 

 

34.                    The amendment is consequential to amendment (2), which inserts new section 252AA into item 2 of Schedule 1 to the Bill.  New section 252AA provides a power to conduct a screening procedure in relation to a detainee.

 

35.                    New subsection 252A(7) clarifies that a strip search of a detainee may be conducted under proposed section 252A 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 person under new section 252AA.  This puts it beyond doubt that the exercise of powers in section 252, new section 252AA, and proposed section 252A are separate and autonomous.

 

Amendment (7)

 

36.                    This amendment makes a technical amendment to the heading for proposed section 252C as contained in item 2 of Schedule 1 to the Bill, which is consequential to amendment (2).   It inserts the words “screening procedure or” before the words “strip search”.

 

Amendment (8)

 

37.                    This amendment amends proposed subsection 252C(1), as contained in item 2 of Schedule 1 to the Bill, as a consequence of amendment (2).

 

38.                    In summary, proposed section 252C provides for the possession and retention of certain things found during a strip search under proposed section 252A. 

 

39.                    The amendment to proposed subsection 252C(1) makes it clear that proposed section 252C also applies to the possession and retention of certain things found in the course of conducting a screening procedure in relation to a detainee under new section 252AA.

 

Amendment (9)

 

40.                    This amendment omits proposed subsection 252C(2), as contained in item 2 of Schedule 1 to the Bill, and substitutes a new subsection 252C(2) as a consequence of amendment (2).

 

41.                    Proposed subsection 252C(2) provides that a weapon or other thing described in proposed subsection 252A(1) is forfeited to the Commonwealth if it is found in the course of conducting a strip search under proposed section 252A.

 

42.                    New subsection 252C(2) makes it clear that a weapon or other thing described in new subsection 252AA(1) and proposed subsection 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 proposed section 252A.

 

Amendment (10)

 

43.                    This amendment makes a technical amendment to proposed subsection 252F(3), as contained in item 2 of Schedule 1 to the Bill, as a consequence of amendment (2).

 

44.                    The amendment clarifies that new section 252AA and proposed section 252A do not apply to a detainee if proposed section 252F applies to that detainee.