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Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 53, 2017-18 21 NOVEMBER 2017

Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 Cat Barker Foreign Affairs, Defence and Security Section

Harriet Spinks Social Policy Section

Contents

The Bills Digest at a glance ................................................... 3

Purpose of the Bill ............................................................... 4

Background ......................................................................... 4

Mobile phone ban in immigration detention centres ........... 4

Legal challenge to mobile phone ban ................................... 6

Committee consideration .................................................... 6

Senate Standing Committee on Legal and Constitutional Affairs ...................................................................................... 6

Senate Standing Committee for the Scrutiny of Bills .............. 6

Policy position of non-government parties/independents ..... 7

Position of major interest groups ......................................... 8

Concerns about prohibition of mobile phones........................ 9

Concerns about increased securitisation of immigration detention ................................................................................. 9

Concerns about coercive powers .......................................... 10

Financial implications ........................................................ 10

Statement of Compatibility with Human Rights .................. 10

Parliamentary Joint Committee on Human Rights ................ 10

Prohibited things ................................................................. 11

Search and seizure powers .................................................. 11

Key issues and provisions................................................... 11

Definitions and power to determine prohibited things ........ 11

Immigration detention facilities .......................................... 12

Date introduced: 13 September 2017

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: On Proclamation or six months after Royal Assent, whichever occurs first.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

November 2017.

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Power to determine prohibited things ................................ 12

Search and seizure powers .................................................... 13

Existing powers .................................................................... 13

Expanding the purposes for which existing powers may be exercised to include finding prohibited things ............... 14

New powers to use detector dogs when conducting screening procedures .......................................................... 14

New statutory powers to search certain immigration detention facilities ............................................................... 15

Stakeholder concerns about the use of detector dogs for screening and searches .................................................. 16

Dealing with items found during searches of detainees or immigration detention facilities and screening procedures in relation to detainees .................................... 17

Seized things...................................................................... 17

Prohibited things ............................................................... 17

Dealing with items found during screening procedures in relation to people about to enter a facility ..................... 18

Concluding comments ....................................................... 18

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The Bills Digest at a glance • The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 (the Bill) will amend the Migration Act 1958 (the Act) to allow the Minister for Immigration and Border Protection to determine that an item is a ‘prohibited thing’ in relation to immigration detention facilities. Determinations

will be made by legislative instrument, but those instruments will not be subject to disallowance.

• The Government has indicated that items that will be prohibited will include things such as mobile phones and SIM cards, computers and other electronic devices, narcotic drugs, child pornography, alcohol, cigarette lighters and money. While a broad range of items are likely to be prohibited, the Bill appears to be a specific reaction to a recent attempt by the Government to seize mobile phones from people held in immigration detention centres, which is currently being prevented through a temporary injunction imposed by the Federal Court.

• The Bill will also:

- allow existing screening, search and seizure powers (including strip searches) to be used in relation to prohibited things - provide a statutory power to search all areas of immigration detention facilities operated by or on behalf of the Commonwealth for certain items, including prohibited things, without a warrant and - enable the use of detector dogs to screen detainees and persons entering immigration detention facilities

operated by or on behalf of the Commonwealth, and to search the facilities themselves. • The Government has pointed to the changing immigration detention population profile in explaining its rationale for the proposed amendments. In particular, it has stated that over half of this population comprises ‘high risk cohorts’, including individuals with significant criminal histories. The Government has

also stated that the availability of mobile phones in immigration detention is enabling criminal behaviour including drug distribution, and facilitating threats between detainees.

• The Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 14 November 2017. Submissions to the inquiry raised numerous issues with the Bill, with stakeholders expressing concern that its restrictive measures, which are ostensibly a response to increasing numbers of high risk detainees, will be imposed across the entire immigration detention population. Common themes identified in submissions to the inquiry were: that the measures contained in the Bill are unnecessary and disproportionate in relation to the security risks posed in immigration detention; that the Minister’s power to prohibit items is unreasonably broad; and specifically, that prohibiting mobile phones in immigration detention will unreasonably limit detainees’ rights to privacy and political communication, and contact with family members and legal representatives. The coercive powers about which stakeholders expressed the greatest concern were the use of detector dogs to locate prohibited things and the use of strip searches for prohibited things which are not otherwise unlawful.

• The Committee’s majority report recommended that the Bill be passed but that the Government should consider a minor amendment to the Bill to ensure that detainees have access to communication facilities that will meet their needs and enable contact with family, friends and legal services. The Australian Labor Party issued a dissenting report recommending substantial amendments to the Bill, while the Australian Greens’ dissenting report recommended that the Bill should be opposed.

• The Senate Standing Committee for the Scrutiny of Bills considered that the amendments unduly trespass on personal rights and liberties because they apply in the same way to all detainees instead of being targeted towards high-risk individuals. It also raised concerns about prohibited things being determined by the Minister instead of specified in the Act, and in relation to the proposed powers to search certain immigration detention facilities.

• The Parliamentary Joint Committee on Human Rights raised several concerns about the Bill’s impact on human rights, including the Bill’s engagement and limiting of rights in ways not acknowledged in the statement of compatibility. It sought the Minister’s advice on whether limitations on the right to privacy, the right not to be subjected to arbitrary or unlawful interference with family, the right to freedom of expression and the right to bodily integrity are proportionate. It also sought the Minister’s advice on the compatibility of the Bill with the right to freedom from torture, cruel, inhuman and degrading treatment and the rights of the child.

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Purpose of the Bill The purpose of the Bill is to amend the Act to allow the Minister to determine that an item is a ‘prohibited thing’ in relation to immigration detention facilities, allow screening, search and seizure powers to be used to find prohibited things and strengthen screening, search and seizure powers under the Act relating to detainees and immigration detention facilities. Specifically, the Bill will:

• define immigration detention facilities as immigration detention centres established under section 273 of the Act and places approved by the Minister in writing as an Alternative Place of Detention (APOD)

• allow the Minister to determine by legislative instrument that an item is a prohibited thing in relation to immigration detention facilities

• provide a statutory power for authorised officers and officers’ assistants to search all areas of immigration detention facilities operated by or on behalf of the Commonwealth for certain items, including prohibited things, without a warrant

• allow existing screening, search and seizure powers in relation to detainees to be used to find prohibited things

• allow existing screening powers in relation to persons entering an immigration detention facility to be used to find prohibited things and

• enable the use of detector dogs to screen detainees and persons entering immigration detention facilities operated by or on behalf of the Commonwealth, and to search the facilities themselves.

Background The Bill will amend the Act to allow the Minister for Immigration and Border Protection to determine that an item is a ‘prohibited thing’ in relation to immigration detention facilities, and allow prohibited things to be searched for and seized. The Government has indicated that items that will be prohibited will include things such as mobile phones and SIM cards, computers and other electronic devices, narcotic drugs, child pornography, alcohol, cigarette lighters and money.1 While a broad range of items are likely to be prohibited, the Bill appears to be a specific reaction to a recent attempt by the Government to seize mobile phones from people held in immigration detention centres, which has been prevented through action in the Federal Court.

Mobile phone ban in immigration detention centres It has, for many years, been Government policy to not permit asylum seekers who arrive in Australia irregularly by boat (irregular maritime arrivals, or IMAs) to have mobile phones in immigration detention centres. In contrast, other cohorts in immigration detention facilities, such as those who have overstayed their visas or had their visas cancelled on character grounds, have been permitted to have mobile phones. This policy was not legislated, but was articulated in the DIBP Procedures Advice Manual.2 The Department of Immigration and Border Protection (DIBP) advised a Supplementary Budget Estimates hearing in October 2016 that the policy of not permitting IMAs to have mobile phones in detention was not new, and that it was ‘implemented to address the risk of IMAs passing on sensitive operational information to contacts outside of the detention environment, particularly during the peak boat arrival period.’3

In November 2016 the DIBP announced that it would begin restricting access to mobile phones to all people in immigration detention, with access to be completely phased out by February 2017.4 The measure was described as comprising part of ‘Operation Safe Centres’, which is ‘aimed at stamping out illegal activity across the

1. P Dutton, ‘Second reading speech: Migration Legislation Amendment (Prohibiting Items in Immigration Detention) Bill 2017’, House of Representatives, Debates, 13 September 2017, pp. 10180-82; Department of Immigration and Border Protection (DIBP), Submission to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 44], n.d., pp. 6-7.

2. DIBP, Procedures Advice Manual (PAM3) Detention Services Manual, Chapter 8 (Safety and Security), Legendcom database. Until July 2016, the mobile phone ban as articulated in the Detention Services Manual applied to only IMAs and those in border screening detention. The policy as currently articulated applies to all detainees. 3. Legal and Constitutional Affairs Legislation Committee, Answers to Questions on Notice, Immigration and Border Protection Portfolio

Supplementary Budget Estimates 2016-17, Question SE16/079. 4. Department of Immigration and Border Protection (DIBP), New measures to combat illegal activity within immigration detention facilities, media release, 21 November 2016.

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immigration detention network’.5 According to Australian Border Force (ABF) Commander Detention Operations:

Mobile phones can create a serious risk to the safety of detainees, staff and visitors to immigration detention facilities … Some detainees have used them to organise criminal activities, threaten other detainees, create or escalate disturbances and plan escapes by enlisting outsiders to assist them. 6

The DIBP reiterated this position when questioned about the policy of removing mobile phones from detainees at an Additional Estimates hearing in February 2017 when the then Commissioner of the ABF, Roman Quaedvlieg, stated that ‘the use of mobile phones for any number of nefarious activities in our centres is broad and across the network.’7 Commissioner Quaedvlieg gave evidence that the decision to ban mobile phones in immigration detention centres had been made by him personally, and was supported by the Minister for Immigration and Border Protection. In offering a rationale for the policy, Commissioner Quaedvlieg stated:

What prompted the implementation of that policy was my fundamental concern that we were unable to manage a secure and safe amenity for detainees within our detention network. It is a well-known fact that in custodial settings things like mobile phones are not just contraband and currency but are actually utilised to ferment a whole range of activities, including escapes and the smuggling of contraband into the centres, and, indeed, the maintenance of criminal enterprises from within the centre out in the real world. It is not a modern custodial setting where mobile phones are available to the population of our centres.

8

In further information provided on notice following that committee hearing, the DIBP outlined six case studies of incidents in immigration detention centres in which mobile phones had been used to plan or commit what it described as ‘illegal activities’. These included: communicating with protesters outside the centres to organise major demonstrations and disturbances; planning and executing escapes; and threatening to commit assault. 9

The decision to restrict detainees’ access to mobile phones was further justified by DIBP as being necessary in the context of the changing profile of detainees. For many years following the increase in unauthorised maritime arrivals which began in 2009, the immigration detention population in Australia was made up largely of IMAs—in 2011-12 there were 14,438 IMAs in detention, compared to 2,216 visa overstayers and 480 people whose visas had been cancelled.10 However, with large numbers of IMAs being released from detention on bridging visas over the last several years, and increasing numbers of people being subject to visa cancellation on character grounds following an expansion of the Minster’s cancellation powers, the immigration detention population profile has changed significantly.11 When the policy of banning mobile phones was announced by DIBP in November 2016, it stated that IMAs comprised less than a third of the detention population, and there was a much larger cohort of detainees who were the subject of visa cancellation following criminal behaviour.12

This changing immigration detention population profile was also highlighted by the Minister in his second reading speech introducing the Bill as a reason why he requires legislative power to ban certain items in immigration detention facilities:

Today, around 50 per cent of the detention population are non-citizens who have had their visas cancelled. And while IMAs now only make up around 25 per cent—as opposed to 99 per cent under Labor—of the detention population, this cohort is complex and includes people with criminal histories or other security concerns which present a risk to the Australian community.

5. Ibid.

6. Ibid.

7. Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 27 February 2017, p. 132. 8. Ibid.

9. Legal and Constitutional Affairs Legislation Committee, Answers to Question on Notice, Immigration and Border Protection Portfolio, Additional Budget Estimates 2016-17, Question AE17/046. 10. J Phillips and H Spinks, Immigration detention in Australia, Background note, Parliamentary Library, Canberra, 2013, p. 41. 11. The Minister’s cancellation powers were significantly expanded by the Migration Amendment (Character and General Visa Cancellation) Act

2014.

12. DIBP, New measures to combat illegal activity within immigration detention facilities, op. cit.

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This means that more than half of the detainee population consists of high-risk cohorts. These cohorts have significant criminal histories, like child sex offences or links to criminal gangs, such as outlaw motorcycle gangs and other organised crime groups, or represent an unacceptable risk to the Australian community otherwise.

These criminals often have serious behavioural issues and pose a critical threat to the health, safety, security and order of the detention network. 13

Legal challenge to mobile phone ban When questioned by Senators about the policy of banning mobile phones in immigration detention centres in February 2017, Commissioner Quaedvlieg confirmed that the power to confiscate mobile phones from people in immigration detention was not legislated, and that this was something that was being considered by the Government.14 Thus, when the ban on mobile phones in immigration detention was announced in November 2016, this was a matter of policy, not law. The same is true of the long-standing policy of not permitting IMAs in immigration detention to have mobile phones.

Following the DIBP’s announcement in November 2016, action was launched in the Federal Court by lawyers from the National Justice Project, on behalf of around 80 detainees, seeking to prevent the Department from confiscating detainees’ mobile phones. The Court granted a temporary injunction in February 2017, preventing the DIBP from seizing detainees’ mobile phones.15 In June 2017 the Full Bench of the Federal Court heard an appeal against the injunction, which centred not on the reasons for granting the injunction, but on whether the Federal Court had jurisdiction to impose the injunction in the first place. The Court’s decision, handed down on 17 August 2017, confirmed that it did have jurisdiction and the injunction should be upheld.16 This temporary injunction appears to still be in effect. Following this decision the Government moved quickly to legislate power to remove mobile phones (and other items) from immigration detainees, with this Bill being introduced into Parliament less than one month later.

Committee consideration Senate Standing Committee on Legal and Constitutional Affairs The Senate Standing Committee on Legal and Constitutional Affairs reported on its inquiry into the Bill on 16 November 2017.17 The majority report of the Committee recommended that the Bill be passed, subject to two recommendations relating access to communication for and with detainees: that the DIBP provide a central information registry concerning detainees’ status and location in order to facilitate communication with families, advocates and legal representatives; and that the Government consider amending the Bill to ensure detainees have access to communication facilities that enable appropriate contact with families, friends and legal services.

The Australian Labor Party (ALP) and the Australian Greens (the Greens) both issued dissenting reports. The ALP recommended that the Bill should be passed subject to substantial amendments, while the Greens recommended that the Bill should be opposed in its entirety. Further information is provided in the ‘Policy positions of non-government parties’ and ‘Key issues and provisions’ sections of this Digest.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) highlighted three key concerns with the Bill.

While acknowledging the difficulties posed by immigration detainees with serious criminal histories, it considered that the amendments unduly trespass on personal rights and liberties because they apply in the

13. Dutton, ‘Second reading speech: Migration Legislation Amendment (Prohibiting Items in Immigration Detention) Bill 2017’, op. cit. 14. Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, op. cit., p. 135. 15. Federal Court of Australia, ARJ17 v Minister for Immigration and Border protection, Order, 19 February 2017. 16. Minister for Immigration and Border Protection v ARJ17 [2017] FCAFC 125. A separate interlocutory (temporary) injunction was dissolved by

the Federal Circuit Court, which found that the removal of mobile phones was authorised by the Migration Act and did not amount to a denial of procedural fairness. See SZSZM v Minister for Immigration & Ors [2017] FCCA 819. However, this decision has no effect on the injunction imposed by the Federal Court, and is not binding on any decision the Federal Court may ultimately make regarding the legality of the ban. 17. Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017

[Provisions], The Senate, 16 November 2017.

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same way to all detainees instead of being targeted towards high-risk individuals.18 The Committee maintained that view after considering information that the Minister for Immigration and Border Protection provided in response to its initial commentary on the Bill, stating:

… The committee notes the difficulties in having a two-tiered approach to allowing different detainees access to things such as mobile phones, but notes that removing such access for persons that do not pose a risk effectively punishes those persons for the actions of others … 19

The Committee drew its concerns to the attention of Senators and left the question of the appropriateness of the amendments to the Senate as a whole.20

In relation to determination of prohibited things, the Committee suggested that items should be set out in the Act instead of determined by the Minister. Because determinations will prohibit the possession of certain items by all detainees, the Committee considers that ‘giving this power to the Minister delegates important policy, as opposed to operational, decisions, which has not been appropriately justified in the explanatory materials.’ It sought the Minister’s advice on why it is considered necessary and appropriate for the Minister to determine which items are prohibited and on what consultation would occur prior to an instrument being made.21

The Minister responded that determinations by legislative instrument will enable the Minister to ‘respond quickly and flexibly to emerging threats to the health, safety or security of all persons in an IDF or the order of these facilities’. He stated that while the instruments would not be disallowable, they would be tabled in Parliament for scrutiny.22 The Committee noted but was not satisfied by the Minister’s response. It sought the Minister’s detailed justification for exempting these instruments, which it maintains are policy decisions, from the usual parliamentary disallowance process.23

The Committee also raised concerns about the proposed powers to search certain immigration detention facilities. It noted that it is possible under the Act for the Minister, Secretary of DIBP or ABF Commissioner to specify persons other than government employees as ‘authorised officers’ and ‘officers’, and that no legislative guidance appeared to exist as to who may be an authorised officer’s assistant. It sought the Minister’s advice on who is likely to be authorised as an ‘authorised officer’ and as an authorised officer’s assistant (and whether it will include non-government employees), why it is necessary to confer coercive powers on persons other than authorised officers, what training and qualifications will be required, and why the Bill does not provide legislative guidance on the appropriate training and qualifications.24

The Minister responded that authorised officers would include departmental officers and Serco officers, and that assistants had been included to cover people who may sometimes be required to assist with searches, such as locksmiths, but who would not be appointed. He also provided information on training requirements.25 The Committee requested that the information provided by the Minister be incorporated into the Explanatory Memorandum and considered that it would be ‘appropriate for the Bill to be amended to, at a minimum, require that authorised officers and any person assisting possess specified skills, training or experience’. It otherwise left the appropriateness of the amendments to the Senate as a whole.26

Policy position of non-government parties/independents The ALP indicated when the Bill was introduced that it was open to supporting the Bill but would reserve its final position until the Senate Legal and Constitutional Affairs Committee completed its inquiry.27 As noted above, the ALP’s dissenting report on the inquiry recommended substantial amendments to the Bill, due to its concern that

18. Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Scrutiny digest, 12, 2017, The Senate, 18 October 2017, pp. 38-40; Scrutiny of Bills Committee, Scrutiny digest, 13, 2017, The Senate, 15 November 2017, pp. 114-15 19. Scrutiny of Bills Committee, Scrutiny digest, 13, op. cit., p. 115. 20. Ibid.

21. Scrutiny of Bills Committee, Scrutiny digest, 12, op. cit., pp. 40-2 (quote taken from p. 41). 22. Scrutiny of Bills Committee, Scrutiny digest, 13, op. cit., pp. 117-18 (quote taken from p. 118). 23. Ibid., pp. 118-19. 24. Scrutiny of Bills Committee, Scrutiny digest, 12, op. cit., pp. 42-3. 25. Scrutiny of Bills Committee, Scrutiny digest, 13, op. cit., pp. 121-2. 26. Ibid., pp. 122-3. 27. S Neumann (Shadow Minister for Immigration and Border Protection), Transcript: Karvelas on Sky, media release, 17 September 2017.

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the measures contained in the Bill are not proportionate to the risks associated with the changing profile of immigration detainees.28 The amendments recommended by the ALP included:

• ‘prohibited thing’ should be narrowly defined, and defined in statute

• electronic devices such as mobile phones should only be removed if there is evidence that removal is necessary and proportionate, and that detainees should be provided with adequate access to communication facilities

• prescription medications and supplements recommended by a health practitioner should not be prohibited

• searches of detainees’ personal effects and rooms should be limited to cases where there is reasonable suspicion they are in possession of contraband

• strip searches should only be conducted in exceptional circumstances and

• detector dogs should be able to be used in immigration detention and transit facilities, but not on detainees.

As noted above, the Greens’ dissenting report on the Senate inquiry into to the Bill recommends that the Bill be opposed in its entirety, as ‘the amendments proposed by this Bill are disproportionate and may be contrary to Australia’s international human rights obligations’.29 The Greens expressed concern that the provisions contained in the Bill: would further erode the human rights of immigration detainees; are indicative of ‘an alarming trend to increase the discretionary powers of the Immigration Minister’; and are reflective of a prison environment rather than immigration detention.30

At the time of writing, no other minor parties or independents had formally stated their position on the Bill.

Position of major interest groups The Australian Human Rights Commission (AHRC) raised multiple concerns about the human rights implications of the Bill, noting in particular that it considered the blanket application of restrictive measures to all immigration detainees in response to the security and safety challenges posed by a particular group ‘may not be a necessary, reasonable or proportionate response to the identified risks.’ Specific concerns identified by the AHRC include:

• the Minister’s power to determine an item is a prohibited thing is unreasonably broad, and could potentially be applied to items which pose no specific threat

• a prohibition on mobile phones would unreasonably restrict detainees’ access to communication facilities, and would limit a range of human rights, such as those relating to privacy, freedom of expression and association, and protection of the family and

• under the new search powers proposed in the Bill, and without adequate oversight of those powers, strip searches of immigration detainees may become routine.31

The Law Council of Australia (LCA) identified several concerns with the Bill, notably:

• the approach to defining a 'prohibited thing' is not necessary or proportionate in the context of the objectives of the measure

• the discretion granted to the Minister to declare by legislative instrument a 'prohibited thing' may amount to an inappropriate delegation of legislative power

• the proposed new coercive powers in the Bill are similar to powers that apply in a criminal law context, and it is not proportionate to apply such powers in the case of immigration detention and

• there is no requirement for there to be a reasonable suspicion before the proposed coercive powers may be exercised.32

28. Labor Party Senators’ Dissenting Report, Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 [Provisions], op. cit., pp. 27-34. 29. Australian Greens, Dissenting Report, Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 [Provisions], op. cit., p. 37. 30. Ibid., pp. 35-6. 31. Australian Human Rights Commission (AHRC), Submission to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the

Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 11].

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Australian Lawyers for Human Rights (ALHR) also considered that the Bill infringes several human rights and is a disproportionate response to security concerns relating to the immigration detention population and environment. It believed that ‘the behaviour which would be permitted under this legislation—apparently with no judicial oversight—is akin to the torture of innocent people.’33

Concerns about prohibition of mobile phones The policy of removing detainees’ mobile phones has been criticised by refugee advocates, who argue that for asylum seekers in immigration detention mobile phones provide access to their families and social networks, which is important for their mental health, as well as ensuring critical access to their legal representatives.34 This was also a common theme amongst submissions to the Senate inquiry into the Bill, with several advocacy groups expressing the view that access to mobile phones is crucial for the mental well-being of detained asylum seekers, and for them to be able to access legal representation.35

In addition, many stakeholders have pointed out that prohibiting mobile phones in immigration detention will infringe on detainees’ right to political communication, due to its intended effect of limiting their ability to organise and participate in protest activity. The Andrew and Renata Kaldor Centre for International Refugee Law at the University of New South Wales (Kaldor Centre) noted that ‘one of the expressed justifications of the bill is to curtail the ability of immigration detainees to participate in legitimate protest activities which impacts directly on the freedom of political communication.’ 36 As noted above, the Government has identified coordinating internal protest activity with external protests as one of the actions it is hoping to prevent by prohibiting mobile phones in detention centres. The Explanatory Memorandum to the Bill similarly identifies ‘efforts to coordinate internal demonstrations to coincide with external protests’ amongst a list of activities that mobile phones have facilitated that the Government considers to be undesirable.37 The Kaldor Centre believes that the effects of the Bill on limiting detainees’ implied freedom of political communication would leave it open to constitutional challenge.

Concerns about increased securitisation of immigration detention Several migrant and refugee advocacy groups are concerned that asylum seekers and other ‘non-criminal’ detainees will be subject to the same restrictions and prohibitions as ‘criminal detainees’ (those who have had their visas cancelled following a criminal conviction), and view the Bill as further step towards what they describe as increased securitisation of immigration detention. The Federation of Ethnic Communities’ Councils of Australia (FECCA) and the Settlement Council of Australia (SCOA) stated in their joint submission that they are ‘concerned about the treatment of all non-criminal detainees including children in immigration detention being subject to rules designed to control a prison population.’38 Similarly, Liberty Victoria argued that ‘immigration detention centres are not prisons, and people seeking asylum should not be treated like criminals.’39

32. Law Council of Australia (LCA), Submission to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 64]. 33. Australian Lawyers for Human Rights (ALHR), Submission to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 34], p. 3. 34. For example, see Refugee Action Coalition Sydney, Federal Court injunction granted to stop Immigration seizing mobile phones, media release,

19 February 2017. While official policy is that IMAs should not have access to mobile phones in immigration detention, it appears that some have managed to retain their phones. Additionally, not all asylum seekers in immigration detention are IMAs. 35. See for example Federation of Ethnic Communities’ Councils of Australia and Settlement Council of Australia (FECCA), Submission to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention

Facilities) Bill 2017, October 2017, [submission No. 1]; AHRC, Submission, op. cit.; Liberty Victoria, Submission to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 25]; Combined Refugee Action Group, Submission to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 30]. 36. Andrew and Renata Kaldor Centre for International Refugee Law, Submission to Senate Standing Committees on Legal and Constitutional

Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 52], p. 5. 37. Explanatory Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, p. 2. 38. FECCA, Submission, op. cit., p. 2. 39. Liberty Victoria, Submission, op. cit., p. 2.

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The LCA went further in arguing that treating immigration detention centres as though they are prisons, and subjecting detainees to the sorts of rules imposed in the criminal justice system, is not only unjust but also outside the Government’s power:

Immigration detention differs from criminal detention in that it is administrative in character and is not triggered by criminal offending or the suspicion thereof. It is impermissible for immigration detention to become punitive in character, as it would offend against the principle that the judicial power of the Commonwealth could only be vested in Chapter Ill courts.

40

As discussed above, the Minister and the former ABF Commissioner have argued that the Bill is a necessary response to the changing profile of detainees in immigration detention. However refugee and human rights advocates argue that applying restrictive measures aimed at criminal detainees to non-criminal asylum seekers (and others) is unjust and immoral. For example, the Refugee Council of Australia (RCOA) stated:

While we do not deny that groups, such as child sex offenders and those who committed violent crimes are currently detained in an increasing number and that ABF and detention service providers need to implement measures to manage their needs and risks, there is almost no reference to the fact that the Australian immigration detention facilities still accommodate a large number of people with much lower risk ratings. These groups include those who have sought asylum, those who did not comply with their visa conditions (for example, visa overstayers) and those had their visa cancelled for crimes such as traffic offences. This Bill fails to protect the rights of these groups and requires them to face the same restrictive measures as those who committed violent crimes and are assessed to be of high risk to self or others.

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Concerns about coercive powers Stakeholders have also expressed concern that the expanded search powers contained in the Bill, particularly in relation to the use of detector dogs and strip searches, are unnecessary and disproportionate to the security threats posed in the detention environment. Some submissions to the inquiry argued that the use of detector dogs to conduct searches in immigration detention could engender feelings of fear and intimidation in vulnerable asylum seekers. For example, the RCOA argued:

…the use of dogs - no matter how trained they are in giving a passive response - is highly inappropriate in a place where people with a history of trauma, torture and mental health issues are deprived of their liberty. For many people, seeing dogs during these search processes can bring to mind memories of police raids in countries of origin.

42

Further detail on stakeholder concerns is included in the ‘Key issues and provisions’ section of this Digest.

Financial implications The Explanatory Memorandum to the Bill states that there will be no financial impact.43

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.44 However, as noted elsewhere in this Digest, the Parliamentary Joint Committee on Human Rights, the Greens and some stakeholders, including the AHRC, have questioned that assessment.

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) raised several concerns about the Bill’s impact on human rights, including the Bill’s engagement and limiting of rights in ways not acknowledged in the statement

40. LCA, Submission, op. cit., p. 8. 41. Refugee Council of Australia (RCOA), Submission to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 55], p. 2. 42. Ibid., p. 5. 43. Explanatory Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, p. 3. 44. The Statement of Compatibility with Human Rights can be found at page 22 of the Explanatory Memorandum to the Bill.

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of compatibility. Like the Scrutiny of Bills Committee and some stakeholders, the PJCHR highlighted in its discussion the fact that the proposed restrictions and powers will apply in the same way to all detainees, and the breadth of the Minister’s discretion to prohibit items.45

Prohibited things The PJCHR considered that there were questions as to whether the prohibition of certain items, including mobile phones and SIM cards, is compatible with the right to privacy. It sought the Minister’s advice as to whether the measure is a proportionate limitation on the right to privacy, including whether it is the least rights restrictive way to achieve the stated objective and whether it is accompanied by adequate safeguards to protect against arbitrary application.46 It also sought the Minister’s advice on whether that measure is a proportionate limitation on the right not to be subjected to arbitrary or unlawful interference with family (including information on the extent of access to alternative methods of communicating with family) and on the right to freedom of expression.47

Search and seizure powers The PJCHR noted that the right to freedom from torture and cruel, inhuman and degrading treatment or punishment is absolute, with no limitations permissible under international human rights law. It considered that the proposed powers to conduct strip searches of detainees to locate prohibited things and to use force in searches of certain immigration detention facilities engage that right. The PJCHR sought the Minister’s advice on the compatibility of those measures with the prohibition on torture and cruel, inhuman and degrading treatment or punishment.48 It also sought the Minister’s advice in relation to the right to humane treatment in detention, specifically the adequacy of safeguards in relation to strip searches and any monitoring or oversight proposed for the use of force.49

The PJCHR also considered the compatibility of the power to conduct strip searches to locate prohibited things with the right to bodily integrity and sought the Minister’s advice on whether the limitation on that right is proportionate. In this context, it noted that a strip search will not necessarily be a method of last resort, as such searches may be conducted irrespective of the exercise of other search and screening powers.50

Finally, the PJCHR noted that the Act prohibits strip searches of children under ten years of age, but permits the exercise of coercive powers, including strip searches, in relation to detainees between ten and 18 years of age. It sought the Minister’s advice on whether the amended search and seizure powers, particularly powers to conduct strip searches, are compatible with the rights of children.51

Key issues and provisions Definitions and power to determine prohibited things Item 1 will insert two new definitions into subsection 5(1) of the Act. The first is a new definition of immigration detention facility and the second is a new definition of prohibited thing, both of which will have the meaning given in proposed section 251A.

Item 2 will insert proposed section 251A into the Act. This will provide definitions of prohibited thing and immigration detention facility, and provide the power for the Minister to determine, by legislative instrument, that a thing is a prohibited thing.

45. Parliamentary Joint Committee on Human Rights, Report, 11, 2017, 17 October 2017, pp. 19-34. 46. Ibid., pp. 19-23. 47. Ibid., pp. 23-7. 48. Ibid., pp. 28-31. 49. Ibid., pp. 29-31. 50. Ibid., pp. 31-3 (see subsection 252A(7) as amended by the Bill). Under subsection 252A(3) of the Act as amended by the Bill, before

performing a strip search, an authorised officer must suspect on reasonable grounds that there is hidden on the detainee a certain item (including a prohibited thing), suspect on reasonable grounds that it is necessary to conduct a strip search to recover the item and obtain approval from a senior DIBP official (in the case of an adult detainee) or a magistrate (in the case of a detainee 10 to 18 years of age). Under subsection 252A(3A), the suspicion may be on the basis of a regular search of the detainee, a screening procedure or ‘any other information that is available to the officer’. 51. Ibid., pp. 33-4.

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Immigration detention facilities Proposed subsection 251A(3) will define an immigration detention facility as: a detention centre established under section 273 of the Act, or; ‘another placed approved by the Minister in writing for the purposes of subparagraph (b)(v) of the definition of immigration detention in subsection 5(1)’. Places approved by the Minister in writing under this subparagraph are referred to by the DIBP as Alternative Places of Detention (APODs). APODs are generally used to house detainees where their needs cannot be met in an immigration detention centre (IDC). Many different kinds of places can be approved by the Minister as APODs, including: hospitals, in the case of necessary medical treatment; schools, to meet the educational needs of children in immigration detention; motels and other rented accommodation, where there is insufficient space available to house detainees in detention centres, or an IDC is deemed unsuitable for an individual’s or group’s particular needs; and accommodation in the community made available through agreements with other government departments (for example, the Department of Defence facility at Inverbrackie, which has previously been used as an APOD).52

The effect of this definition is that all persons who are held in an IDC or an APOD will be subject to the prohibition on certain items, and the personal search and seizure powers set out in the Bill. However, these provisions will not apply to people who have been released from a detention facility to reside in community detention. Proposed new powers to search facilities and expanded powers to screen people entering facilities will be restricted to immigration detention facilities operated by or on behalf of the Commonwealth.53 This is intended to preclude the exercise of those powers in ‘non-facility-based’ APODs such as hotels, schools and hospitals. 54

Power to determine prohibited things Proposed subsection 251A(1) will define a prohibited thing in relation to a person in detention or in relation to an immigration detention facility as:

• an item which has been determined by the Minister as a prohibited thing because he or she is satisfied that possession or use of the thing in immigration detention might pose a risk to the health, safety or security of persons, or to the facility or

• an item to which both of the following apply:

- possession of the thing is unlawful because of a Commonwealth law, or law of the state or territory in which the person is detained or the facility is located and - the thing is determined by the Minister as a prohibited thing, because the Minister is satisfied that possession of the thing is prohibited by law in a place or places in Australia. Proposed subsection 251A(2) will allow the Minister to make a non-disallowable legislative instrument determining that an item is a prohibited thing in relation to either of the two categories outlined above.55 In relation to unlawful items, the Explanatory Memorandum states that it is ‘currently intended that … the Minister will determine narcotic drugs and child pornography’.56 Items may only be determined under this provision if they are items which are already subject to prohibitions or restrictions under Commonwealth or state or territory law. The scope for determining further items under this provision in the future is therefore limited by the operation of other relevant laws.

In relation to items that may be determined because they are considered to cause a risk to the health, safety or security of persons in detention and detention facilities, the potential scope is much broader. A note to proposed paragraph 251A(2)(b) gives examples of things that may be considered to fall into this category, specifically:

• mobile phones

52. Phillips and Spinks, op. cit., p. 45. 53. Proposed section 252BA and subsection 252G(1) as amended by item 27. 54. Explanatory Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, pp. 14, 19. 55. Under section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 ‘an instrument (other than a regulation) made under

Part 1, 2 or 9 of the Migration Act 1958’ is not subject to disallowance. Proposed section 251A will be inserted into Part 2 of the Migration Act, meaning a legislative instrument made under this section will not be subject to disallowance. 56. Explanatory Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, p. 6.

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• SIM cards

• computers and other electronic devices

• medication or health care supplements in specified circumstances and

• publications or material that could incite violence, racism or hatred.

However, this note does not have the effect of limiting the things that may be determined by the Minister as prohibited things to only those items in this list. The Minister may determine any item as a prohibited thing, provided he or she is ‘satisfied’ that it ‘might’ pose a risk in the immigration detention environment. As noted above, stakeholders have observed that this power is potentially very broad, and could be used to prohibit a wide range of items. The AHRC is of the view that the threshold set for the Minister, that an item ‘might’ pose a risk to safety or security, is too low as it does not require the Minister to be satisfied that an item is likely to pose a risk.57 The LCA has pointed out that the provision contains no guidance on what would constitute a risk to the order of a facility, nor what ‘order of the facility’ is intended to mean in this context.58 The LCA is also concerned that the provision provides no avenue for administrative redress to contest a decision of the Minister to prohibit certain items.59

As noted earlier in this Digest, the Scrutiny of Bills Committee considered that prohibited items should instead be specified in the Act or the legislative instruments made subject to disallowance, while the PJCHR sought advice from the Minister on whether the limits this measure places on certain human rights are proportionate. In their dissenting report on the Senate Standing Committee on Legal and Constitutional Affairs’ inquiry into the Bill, ALP senators recommended that ‘prohibited thing’ should be narrowly defined, and that it should be defined in the Act to provide for parliamentary oversight.60 ALP senators also recommended that the definition of ‘prohibited thing’ should explicitly not include prescription medications or health supplements recommended by a health practitioner, and that there should be no blanket prohibition on communication devices such as mobile phones, in accordance with a recommendation made to the inquiry by the AHRC that detainees should be provided with adequate communications facilities.61 The majority report of the Senate inquiry also reflected this recommendation of the AHRC, and recommended amendments to the Bill to ensure detainees have access to appropriate communication facilities.62

Search and seizure powers

Existing powers Division 13 of Part 2 of the Act provides powers of examination, search, detention and identification that are exercisable in particular places or in relation to particular people. Sections 252-252G set out powers of authorised officers primarily in relation to people detained in immigration detention and people entering immigration detention facilities.

The powers that may currently be exercised in relation to detainees are:

• searching detainees, their clothing and any property under their immediate control (section 252)

• conducting screening procedures in relation to detainees (including requiring a detainee to walk through screening equipment, passing hand-held screening equipment over a detainee and passing things in the detainee’s possession through screening equipment or examining them by x-ray) (section 252AA)

• conducting strip searches of detainees (section 252A and 252B) and

• retaining certain items found in the possession of detainees in the exercise of the above powers (sections 252 and 252C).

Currently, officers may exercise those powers against detainees for the purposes of finding out if there is hidden on the detainee, in his or her clothing or in his or her possession a weapon or other thing capable of being used:

57. AHRC, Submission, op. cit., p. 8. 58. LCA, Submission, op. cit., p. 9. 59. Ibid., p. 9. 60. Labor Party Senators’ Dissenting Report, op. cit., p. 29. 61. Ibid. p. 32; AHRC, Submission, op. cit. p. 4. 62. Legal and Constitutional Affairs Legislation Committee, op. cit., p. 25.

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• to inflict bodily injury or

• to help the detainee or another person escape from immigration detention.63

Strip searches are only permitted where an authorised officer suspects on reasonable grounds that such a thing is hidden on a detainee, in his or her clothing or in a thing in his or her possession, and suspects on reasonable grounds that it is necessary to conduct a strip search to recover the thing. A strip search may only take place if ordered by a magistrate (for a detainee aged 10-18 years) or authorised by a senior DIBP official (for an adult detainee).64

The powers that may currently be exercised in relation to people about to enter a detention centre (under section 252G) are:

• requesting that they undergo screening procedures

• requesting that a person allow an authorised officer to inspect things in the person’s possession, remove some or all of his or her outer clothing, remove items from his or her pockets and/or open things or remove their contents for inspection (if an authorised officer suspects on reasonable grounds that the person about to enter has in his or possession a thing that might endanger the safety of detainees, staff or other persons in the facility or disrupt the order or security arrangements in place) and

• requesting that a person leave certain items in a specified place while the person is in the facility.

Under subsection 252G(7) a person who does not comply with a request made under section 252G may be refused entry.

Expanding the purposes for which existing powers may be exercised to include finding prohibited things The Bill will amend sections 252-252G so that the search and screening powers outlined above may also be exercised in order to find prohibited things in the possession of detainees or people entering immigration detention facilities.65 A prohibited thing found in the exercise of those powers will be dealt with differently depending on whether it is prohibited because possession of the thing is unlawful, or because it could pose a risk in the immigration detention environment (see further below).

Given the breadth of what might be included in the category of prohibited things, some stakeholders have raised concerns about the expansion of these search powers. Stakeholders were particularly concerned that allowing strip searches to be conducted for the purpose of locating prohibited things is not proportionate to the risks that some such items present compared to weapons and other things capable of inflicting bodily injury.66 The LCA recommended that strip searches to find prohibited things only be permitted for prohibited things the possession of which is unlawful, and only be conducted in exceptional circumstances; its recommendation was endorsed by ALP senators in their dissenting report on the Senate Standing Committee on Legal and Constitutional Affairs’ inquiry into the Bill.67 The AHRC recommended the introduction of a system of independent oversight of strip searches of detainees, under which DIBP would be required to maintain records of all such searches and notify the Commonwealth Ombudsman of any complaints, and the Ombudsman would be given powers to inspect those records and be required to conduct and report on annual reviews.68

New powers to use detector dogs when conducting screening procedures The screening procedures that authorised officers may currently use in relation to detainees (under section 252AA) and people entering immigration detention facilities (under section 252G) involve the use of

63. Migration Act, paragraph 252(2)(a) and subsections 252AA(1), 252A(1). Section 252 applies to searches of detainees and also non-citizens who have been immigration cleared. It also allows for searches to be conducted for the purpose of finding out whether there is hidden on a person or his or her clothing or property a document or other thing that is, or may be, evidence for grounds for cancelling a person’s visa. 64. Migration Act, subsection 252A(3). Strip searches of detainees under the age of ten are prohibited under section 252B, which provides rules

and safeguards for the conduct of strip searches. 65. Item 4 will amend subsection 252(2); item 11 will amend subsection 252AA(1); item 16 will amend subsection 252A(1); item 24 will repeal and replace subsection 252C(2); item 30 will repeal and replace subsection 252G(3). 66. LCA, Submission, op. cit., p. 15; Immigration Advice and Rights Centre Inc. (IARC), Submission to Senate Standing Committees on Legal and

Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 51]; AHRC, Submission, op. cit., pp. 11-13. 67. LCA, Submission, op. cit., p. 15; Labor Party Senators’ Dissenting Report, op. cit., pp. 33-4. 68. AHRC, Submission, op. cit., p. 13.

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screening equipment, defined to mean ‘a metal detector or similar device for detecting objects or particular substances’. 69 This can include having a person walk through screening equipment, passing hand-held screening equipment over or around a person and putting a thing in a person’s possession through screening equipment or examining it by X-ray.70

Item 14 will amend the definition of ‘conducting a screening procedure’ in relation to a detainee in subsection 252AA(5) to include using a dog to search a detainee or things in the detainee’s possession. This will allow the use of detector dogs to search detainees for the purposes of finding certain things, including prohibited things. In their dissenting report on the Senate Standing Committee on Legal and Constitutional Affairs’ inquiry into the Bill, ALP Senators supported the use of detector dogs to search immigration detention facilities, but not to screen detainees.71

Item 28 will amend subsection 252G(1) so that an authorised officer may ask a person about to enter an immigration detention facility operated by or on behalf of the Commonwealth to allow the officer to use a dog for the purposes of searching the person for a thing to which subsection 252G(3) applies. This will allow the use of detector dogs to search people for certain things, including prohibited things.

In both instances, an authorised officer using a dog must take all reasonable precautions to prevent the dog touching anyone other than themselves and keep the dog under control while conducting the search. If the officer complies with those requirements, the use of the dog will not be unlawful only because of the behaviour of the dog.72

The Explanatory Memorandum states that DIBP officers involved in using dogs for screening procedures ‘will be specifically authorised for the purpose of handling a dog and will have undergone extensive training in handling detector dogs’.73 The ABF’s Detector Dog Program trains both handlers and dogs, with dogs trained to detect narcotics, firearms, explosives, currency and tobacco and handlers required to complete three phases of training totalling around six months. 74 While the Explanatory Memorandum points to locating narcotics as an example of how detector dogs will be used in the immigration detention context, it is worth noting that detector dogs have been used to locate mobile phones in New South Wales prisons since late 2009, and more recently also for chargers and SIM cards.75

New statutory powers to search certain immigration detention facilities While Division 13 of Part 2 of the Act provides statutory powers to search people, it does not extend to searches of places. DIBP currently relies on a common law duty of care for searches of areas within immigration detention facilities.76 Item 21 will insert proposed section 252BA to provide statutory powers for authorised officers to search immigration detention facilities ‘operated by or on behalf of the Commonwealth’, including but not limited to accommodation, administrative and common areas, detainees rooms and personal effects, medical examination areas and storage areas. Searches will be permitted for the same purposes as those of detainees, that is, to find things capable of being used to inflict bodily injury or help a detainee escape, and prohibited things. 77

An authorised officer will be able to use a dog in conducting a search of a facility, and if the authorised officer does so, he or she must take all reasonable precautions to prevent the dog touching anyone other than

69. Screening equipment is defined in subsection 252AA(5) and subsection 252G(2). 70. Subsection 252AA(5) and subsection 252G(1). 71. Labor Party Senators’ Dissenting Report, op. cit., p. 34. 72. For detainees, proposed subsections 252AA(3A) and (3AA), inserted by item 12; for persons about to enter a facility, proposed

subsections 252G(2A) and (2B), inserted by item 29. 73. Explanatory Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, p. 11. 74. DIBP, ‘Detector Dog Program - working with dogs to help protect Australia’ and ‘Training detector dog teams’, DIBP website. 75. Corrective Services NSW, K9 partnership gets smart on prison mobile phone detection, media release, 15 April 2013; J Fife-Yeomans, ‘Hank

nose his stuff’, The Daily Telegraph, 5 August 2017, p. 20, ProQuest database. 76. Explanatory Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, p. 14; DIBP, Procedures Advice Manual (PAM3) Detention Services Manual, Chapter 1 (Legislative and principles overview) and Chapter 8 (Safety and Security), Legendcom database. 77. Proposed subsection 252BA(2).

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themselves and keep the dog under control while conducting the search. If the officer complies with those requirements, the use of the dog will not be unlawful only because of the behaviour of the dog.78

An authorised officer must not use more force against a person or property, or subject a person to greater indignity, than is reasonably necessary to conduct a search.79

Item 21 will also insert proposed section 252BB, which will allow authorised officers to be assisted by other persons in searching an immigration detention facility, if the assistance is necessary and reasonable. The assistant will not be permitted to use a dog, but may otherwise assist in a search under proposed section 252BA, and the taking into possession and retaining of certain things located during searches and screening procedures under sections 252C and proposed section 252CA.

Where weapons and other things capable of being used to inflict bodily injury or help a detainee to escape from immigration detention are found in the course of a search of an immigration detention facility, the possession and retention of such items will operate in the same way as is currently the case when those items are found using existing search and screening powers. For the possession and retention of prohibited things, see the following section of this Digest.

As noted earlier in this Digest, the Scrutiny of Bills Committee sought the Minister’s advice on who is likely to be authorised as an ‘authorised officer’ and as an authorised officer’s assistant (and whether it will include non-government employees), why it is necessary to confer coercive powers on persons other than authorised officers, what training and qualifications will be required, and why the Bill does not provide legislative guidance on the appropriate training and qualifications.80 Some stakeholders raised similar concerns about the potential for search powers to be exercised by non-government employees and without adequate training or qualifications.81 The Minister advised that authorised officers would include departmental officers and Serco officers, and that assistants had been included to cover people who may sometimes be required to assist with searches, such as locksmiths, but who would not be appointed. He also provided information on training requirements.82 The Committee requested that the information provided by the Minister be incorporated into the Explanatory Memorandum and considered that it would be ‘appropriate for the Bill to be amended to, at a minimum, require that authorised officers and any person assisting possess specified skills, training or experience’.83

The LCA recommended that searches of detainees’ rooms and personal effects only be permitted where there is reasonable suspicion that a detainee possesses an item of concern, a recommendation endorsed by ALP Senators in their dissenting report on the Senate Standing Committee on Legal and Constitutional Affairs’ inquiry into the Bill.84 The RCOA noted its particular concern about searches of medical examination areas, stating that the proposed provisions would not prevent officers from interrupting a private medical consultation to search an area for prohibited things.85

Stakeholder concerns about the use of detector dogs for screening and searches As outlined above, the Bill would enable the use of detector dogs in screening procedures relating to detainees and persons about to enter certain immigration detention facilities, and for searches of those facilities. Stakeholders raised several concerns about these proposed amendments. With respect to screening detainees and searching facilities, some stakeholders argued that the use of detector dogs could engender feelings of fear and intimidation in vulnerable asylum seekers and not take account of cultural sensitivities.86 It was also

78. Proposed subsections 252BA(3), (4) and (5). 79. Proposed subsection 252BA(6). 80. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., pp. 42-3.

81. LCA, Submission, op. cit., pp. 13-14; IARC, Submission, op. cit.; National Justice Project, Submission to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 58], pp. 4-5. 82. Scrutiny of Bills Committee, Scrutiny digest, 13, op. cit., pp. 121-2. 83. Ibid., p. 123. 84. LCA, Submission, op. cit., p. 14; Labor Party Senators’ Dissenting Report, op. cit., pp. 32-3. 85. RCOA, Submission, op. cit., p. 5. 86. Liberty Victoria, Submission, op. cit., p. 5; New South Wales Council for Civil Liberties, Submission to Senate Standing Committees on Legal

and Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 54], pp. 6-7; IARC, Submission, op. cit.; RCOA, Submission, op. cit., p. 5; Rural Australians for Refugees, Submission to

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suggested that the use of detector dogs to screen people visiting immigration detention facilities would further discourage visitors, who provide important links to the outside world.87 The NSW Council for Civil Liberties and the Immigration Advice and Rights Centre also pointed to a 2006 report by the NSW Ombudsman that cast doubt about the reliability of detector dogs for detecting illicit drugs. 88

Dealing with items found during searches of detainees or immigration detention facilities and screening procedures in relation to detainees Under the Act, an authorised officer may take possession of and retain certain things found in the course of a search, or strip search, of a detainee, or a screening procedure conducted in relation to a detainee.89 Sections 252D and 252E allow things to be retained beyond an initial 60 days on successful application to a magistrate. The Bill will amend sections 252 and 252C and insert proposed section 252CA to make provision for dealing with prohibited things located in the exercise of those powers and certain items located in searches of immigration detention facilities.90

Seized things Things other than prohibited things found in the course of a search of an immigration detention facility under proposed section 252BA will be dealt with in the same way as things found in the course of searches of detainees under sections 252AA and 252A. This will mean that:

• a thing that might provide evidence of the commission of an offence against the Act may be seized and must generally be returned if it is decided it will not be used in evidence or after 60 days and

• a weapon or other thing capable of being used to inflict bodily injury or help a detainee to escape from immigration detention may be seized and is then forfeited or forfeitable to the Commonwealth. The authorised officer who seized the item must give it to a constable as soon as practicable.91

Prohibited things Prohibited things found during searches and screening procedures may be seized, and will then be dealt with differently depending on the grounds on which they are prohibited.

If a prohibited thing is seized because its possession is unlawful, it will be dealt with in the same way as weapons and other things capable of being used to inflict bodily injury or help a detainee to escape from immigration detention.92

If a prohibited thing is seized on the grounds that its possession in an immigration detention facility might be a risk to the health, safety or security of persons in the facility or the order of the facility, the authorised officer must:

• if it appears that the item belongs to a detainee, take all reasonable steps to return the item to the detainee when he or she leaves immigration detention and

• if it appears that the item belongs to someone else, take all reasonable steps to return the item to that person.93

Senate Standing Committees on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017, October 2017, [submission No. 26], p. 4; LCA, Submission, op. cit., pp. 15-16. 87. Liberty Victoria, Submission, op. cit., p. 5; NSW CCL, Submission, op. cit., p. 6. 88. NSW CCL, Submission, op. cit., p. 7; IARC, Submission, op. cit. The review of the Police Powers (Drug Detection Dogs) Act 2001 (NSW) found that prohibited drugs were located in only 26 per cent of searches conducted of people following an indication given by a detector dog (usually sitting next to the scent) that drugs may be present: NSW Ombudsman, Review of the Police Powers (Drug Detection Dogs) Act 2001, NSW Ombudsman, June 2006, pp. i-ii. 89. Migration Act, subsection 252(4) and section 252C. 90. Items 8, 24 and 25. 91. Migration Act, section 252C as amended by items 22 to 24. 92. Subsection 252(4) as amended for searches of detainees; section 252C as amended for screening procedures in relation to detainees, strip searches of detainees and searches of immigration detention facilities; section 252G as amended for screening procedures in relation to persons about to enter immigration detention facilities. 93. Proposed subsection 252(4A), inserted by item 8 for searches of detainees; otherwise proposed section 252CA, inserted by item 25.

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If, after taking all reasonable steps to return the item, an authorised officer considers on reasonable grounds that the item cannot be returned for certain listed reasons (including that the owner cannot be identified), the item is forfeited to the Commonwealth.94

Dealing with items found during screening procedures in relation to people about to enter a facility Under subsections 252G(5) and (6), if a person about to enter a Commonwealth immigration detention facility leaves a thing in a specified place, the person is entitled to its return when leaving the facility, unless possession of the thing is unlawful under a Commonwealth, state or territory law. The Bill will amend section 252G so that the same applies to things left because they are prohibited things.95 It will also insert proposed subsection 252G(6A), which will apply if a person leaves an item that is a prohibited thing because it might pose a risk in the immigration detention environment. It will provide that if, after taking all reasonable steps to return the item, an authorised officer considers on reasonable grounds that the item cannot be returned for certain listed reasons (including that the owner cannot be identified), the item is forfeited to the Commonwealth.96

Concluding comments This Bill proposes to amend the Act to strengthen existing search and seizure powers in immigration detention facilities, and to provide for particular items to be prohibited in immigration detention facilities. These measures are justified by the Government as being a necessary response to the changing immigration detention population profile resulting from significantly increased numbers of visa cancellations, leading to detention centres being populated with large numbers of people with criminal histories.

However, the Bill raises several issues which are worthy of consideration. Of key concern is whether the measures contained in the Bill are necessary and proportionate in response to the security threat posed by the cohort of high-risk detainees identified by the Government as the target group for the expanded search and seizure powers. Several stakeholders have argued that it is unnecessary, and unjust, for these restrictive measures to be applied across the entire immigration detention network, to all detainees, including the non-criminal visa cancellation cohort and vulnerable asylum seekers. The Scrutiny of Bills Committee and the PJCHR also questioned the proportionality of the measures in the Bill on that basis. The measures contained in the Bill are viewed by many as further evidence of the trend towards increasing securitisation of the immigration detention system, and there is broad agreement amongst refugee and human rights groups that it is inappropriate for immigration detention centres to be managed as though they are prisons. 97

More specifically, the proposed Ministerial power to prohibit items has been criticised by multiple stakeholders, as well as the Scrutiny of Bills Committee, as being unreasonably broad. The prohibition power contained in the Bill appears to be a reaction to a recent court decision preventing the implementation of a ban on mobile phones in immigration detention centres, and much of the discussion about the Bill has focused on the issue of access to mobile phones. However the effect of this provision will be much broader than simply banning mobile phones—it will allow the Minister to prohibit almost any item he or she wishes if satisfied that it ‘might’ pose a risk in the immigration detention environment.

The Bill also goes further than simply providing for the prohibition of certain items by expanding existing screening, search and seizure powers in relation to detainees, immigration detention facilities and visitors to those facilities. The coercive powers about which stakeholders expressed the greatest concern were the use of detector dogs to locate prohibited things and the use of strip searches for prohibited things other than those that are unlawful. Some stakeholders also raised concerns about who will be permitted to exercise the expanded powers and whether they would have sufficient training and qualifications.

There is general agreement across stakeholder groups and the parliamentary scrutiny committees that the measures contained in the Bill will act to limit the rights of immigration detainees in a broad range of ways— from restricting the rights to privacy and access to communications via a prohibition on mobile phones, to potentially impinging on the right to freedom from torture and cruel, inhuman and degrading treatment or punishment through the use of strip searches. The question the Parliament will therefore need to consider in

94. Proposed subsection 252(4B), inserted by item 8 for searches of detainees; otherwise proposed section 252CA, inserted by item 25. 95. Amendments to subsections 252G(4), (5) and (6) made by items 31-33. 96. Proposed subsection 252G(6A) is inserted by item 34. 97. For example see FECCA, Submission, op. cit.; LCA, Submission, op. cit.; Liberty Victoria, Submission, op. cit.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 19

relation to the Bill is whether it accepts that these rights-limiting measures are necessary, reasonable and proportionate in response to the risks posed in the immigration detention environment.

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