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Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

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2016-2017-2018

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

 

 

(1)     Page 10 (after line 13), at the end of the Bill, add:

Schedule 6 Prohibiting Items in Immigration Detention Facilities

   

Migration Act 1958

1  Subsection 5(1)

Insert:

immigration detention facility has the meaning given by section 251A.

prohibited thing has the meaning given by section 251A.

2  After section 251

Insert:

251A   Search of detainees etc.—prohibited things in immigration detention facilities

             (1)  A thing is a prohibited thing in relation to a person in detention, or in relation to an immigration detention facility, if:

                     (a)  both:

                              (i)  possession of the thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained, or in which the facility is located; and

                             (ii)  the thing is determined under paragraph (2)(a); or

                     (b)  the thing is determined under paragraph (2)(b).

             (2)  The Minister may, by legislative instrument, determine a thing for the purposes of subsection (1) if the Minister is satisfied that:

                     (a)  possession of the thing is prohibited by law in a place or places in Australia; or

                     (b)  possession or use of the thing in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

Note:          Examples of things that might be considered to pose a risk mentioned in paragraph (b) are as follows:

(a)    mobile phones;

(b)    SIM cards;

(c)    computers and other electronic devices, such as tablets;

(d)    medications or health care supplements, in specified circumstances;

(e)    publications or other material that could incite violence, racism or hatred.

             (3)  An immigration detention facility is:

                     (a)  a detention centre established under this Act (see section 273); or

                     (b)  another place approved by the Minister in writing for the purposes of subparagraph (b)(v) of the definition of immigration detention in subsection 5(1).

3  Section 252 (heading)

Repeal the heading, substitute:

252   Searches of detainees and non-citizens in immigration clearance—general powers

4  At the end of subsection 252(2)

Add:

                   ; (c)  for a search under paragraph (1)(a)—in addition to the purposes mentioned in paragraphs (a) and (b) of this subsection, to find out whether a prohibited thing, other than a prohibited thing to which paragraph (a) or (b) applies, is hidden on the person, in the clothing or in the property.

5  Subsection 252(4)

Omit “, or a document or other thing referred to in paragraph (2)(b),”, substitute “, a document or other thing referred to in paragraph (2)(b), or a prohibited thing determined under paragraph 251A(2)(a),”.

6  Paragraphs 252(4)(a) and (b)

Omit “other”.

7  At the end of subsection 252(4)

Add:

Note:          A prohibited thing determined under paragraph 251A(2)(a) that is found in the course of a search of a person who is detained is a thing the possession of which is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained (see section 251A).

8  After subsection 252(4)

Insert:

          (4A)  If, in the course of a search in relation to a detained person under this section, an authorised officer finds a prohibited thing determined under paragraph 251A(2)(b), the officer:

                     (a)  may take possession of it; and

                     (b)  may retain it; and

                     (c)  must, if it appears that the thing is owned or was controlled by a detainee, take all reasonable steps to return it to the detainee when he or she ceases to be in detention; and

                     (d)  must, if it appears that the thing is owned or was controlled by a person other than a detainee, take all reasonable steps to return it to the person.

Note:          Paragraph 251A(2)(b) covers the determination of a thing as a prohibited thing if the Minister is satisfied that its possession or use in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

          (4B)  However, if an authorised officer retains a prohibited thing under paragraph (4A)(b), after taking all reasonable steps to return the thing under paragraph (4A)(c) or (d), it is forfeited to the Commonwealth if the officer considers on reasonable grounds that:

                     (a)  its owner or the person who last controlled the thing cannot be identified; or

                     (b)  the thing is abandoned; or

                     (c)  if it appears that the thing is owned or was controlled by a detainee—the thing cannot be returned to the detainee when he or she ceases to be in detention; or

                     (d)  if it appears that the thing is owned or was controlled by a person other than a detainee—the thing cannot be returned to the person.

          (4C)  If a prohibited thing is forfeited under subsection (4B), the authorised officer may dispose of it in any way he or she thinks appropriate.

9  Subsection 252(9)

Repeal the subsection, substitute:

             (9)  To avoid doubt, a search of a person may be conducted under this section irrespective of whether powers are exercised under any of the following sections in relation to the person, or an immigration detention facility:

                     (a)  section 252AA (searches of detainees—screening procedures);

                     (b)  section 252A (searches of detainees—strip searches);

                     (c)  section 252BA (searches of certain immigration detention facilities—general).

10  Section 252AA (heading)

Repeal the heading, substitute:

252AA   Searches of detainees—screening procedures

11  Subsection 252AA(1)

Omit all the words after “a thing in his or her”, substitute:

                   possession:

                     (a)  a weapon, or other thing, capable of being used:

                              (i)  to inflict bodily injury; or

                             (ii)  to help the detainee, or any other detainee, to escape from immigration detention; or

                     (b)  a prohibited thing, other than a weapon or other thing to which paragraph (a) applies.

12  After subsection 252AA(3)

Insert:

          (3A)  If an authorised officer uses a dog in conducting a screening procedure under this section, the officer must:

                     (a)  take all reasonable precautions to prevent the dog touching any person (other than the officer); and

                     (b)  keep the dog under control while conducting the screening procedure.

       (3AA)  If an authorised officer uses a dog in accordance with subsection (3A) in conducting a screening procedure under this section, that use of the dog is not unlawful only because of the behaviour of the dog (including the touching of any person by the dog).

13  Subsection 252AA(4)

Repeal the subsection, substitute:

             (4)  To avoid doubt, a screening procedure in relation to a detainee may be conducted under this section irrespective of whether powers are exercised under any of the following sections in relation to the detainee, or an immigration detention facility:

                     (a)  section 252 (searches of detainees and non-citizens in immigration clearance—general powers);

                     (b)  section 252A (searches of detainees—strip searches);

                     (c)  section 252BA (searches of certain immigration detention facilities—general).

14  Subsection 252AA(5) (at the end of the definition of conducting a screening procedure )

Add:

               ; or (d)  using a dog to search a detainee or things in the detainee’s possession.

15  Section 252A (heading)

Repeal the heading, substitute:

252A   Searches of detainees—strip searches

16  Subsection 252A(1)

Omit all the words (including the note) after “a thing in his or her”, substitute:

                   possession:

                     (a)  a weapon, or other thing, capable of being used:

                              (i)  to inflict bodily injury; or

                             (ii)  to help the detainee, or any other detainee, to escape from immigration detention; or

                     (b)  a prohibited thing, other than a weapon or other thing to which paragraph (a) applies.

Note:          Section 252B sets out rules for conducting a strip search under this section.

17  Paragraph 252A(3)(a)

After “subsection (1)”, insert “(including a prohibited thing)”.

18  Subsection 252A(7)

Repeal the subsection, substitute:

             (7)  To avoid doubt, a strip search of a detainee may be conducted under this section irrespective of whether powers are exercised under any of the following sections in relation to the detainee, or an immigration detention facility:

                     (a)  section 252 (searches of detainees and non-citizens in immigration clearance—general powers);

                     (b)  section 252AA (searches of detainees—screening procedures);

                     (c)  section 252BA (searches of certain immigration detention facilities—general).

19  Section 252B (heading)

Repeal the heading, substitute:

252B   Searches of detainees—rules for conducting a strip search

20  Paragraph 252B(1)(j)

After “subsection 252A(1)”, insert “(including a prohibited thing)”.

21  After section 252B

Insert:

252BA   Searches of certain immigration detention facilities—general

Power to search

             (1)  For the purposes set out in subsection (2), an authorised officer may, without warrant, conduct a search of an immigration detention facility operated by or on behalf of the Commonwealth, including, without limitation, a search covering any or all of the following:

                     (a)  accommodation areas;

                     (b)  administrative areas;

                     (c)  common areas;

                     (d)  detainees’ personal effects;

                     (e)  detainees’ rooms;

                      (f)  medical examination areas;

                     (g)  storage areas.

Purposes of search

             (2)  A search of the facility may be conducted under this section only to find out whether any of the following are at the facility:

                     (a)  a weapon or other thing capable of being used to inflict bodily injury or to help a detainee to escape from immigration detention;

                     (b)  a prohibited thing, other than a weapon or other thing to which paragraph (a) applies.

Note:          For the possession and retention by an immigration officer of any of these things found in the course of a search under this section, see sections 252C and 252CA.

Conduct of search

             (3)  Without limiting subsection (1), an authorised officer may use a dog in conducting a search under this section.

             (4)  If an authorised officer uses a dog in conducting a search under this section, the officer must:

                     (a)  take all reasonable precautions to prevent the dog touching any person (other than the officer); and

                     (b)  keep the dog under control while conducting the search.

             (5)  If an authorised officer uses a dog in accordance with subsection (4) in conducting a search under this section, that use of the dog is not unlawful only because of the behaviour of the dog (including the touching of any person by the dog).

             (6)  An authorised officer who conducts a search under this section must not use more force against a person or property, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

Exercise of search powers

             (7)  To avoid doubt, a search of an immigration detention facility may be conducted under this section irrespective of whether powers are exercised under any of the following sections in relation to a person detained in the facility:

                     (a)  section 252 (searches of detainees and non-citizens in immigration clearance—general powers);

                     (b)  section 252AA (searches of detainees—screening procedures);

                     (c)  section 252A (searches of detainees—strip searches).

252BB   Searches of certain immigration detention facilities—authorised officers’ assistants

Authorised officers may be assisted by other persons

             (1)  An authorised officer may be assisted by other persons in exercising powers or performing functions or duties in conducting a search under section 252BA (other than under subsection 252BA(3)), or under section 252C or 252CA in relation to such a search, if that assistance is necessary and reasonable. A person giving such assistance is the authorised officer’s assistant .

Note:          Subsection 252BA(3) provides for an authorised officer to use a dog to conduct a search of an immigration detention facility. Sections 252C and 252CA provide for how to deal with things that are found in the conduct of a search under section 252BA.

Powers of an authorised officer’s assistant

             (2)  An authorised officer’s assistant in relation to a search of an immigration detention facility under section 252BA:

                     (a)  may enter the facility; and

                     (b)  may exercise powers and perform functions and duties for the purposes of a search or screening procedure in relation to which subsection (1) applies in relation to any thing found in the course of that search or screening procedure; and

                     (c)  must do so in accordance with any directions given to the assistant by the authorised officer.

             (3)  A power exercised by an authorised officer’s assistant as mentioned in subsection (2) is taken for all purposes to have been exercised by the authorised officer.

             (4)  A function or duty performed by an authorised officer’s assistant as mentioned in subsection (2) is taken for all purposes to have been performed by the authorised officer.

             (5)  If a direction is given under paragraph (2)(c) in writing, the direction is not a legislative instrument.

22  Section 252C (heading)

Repeal the heading, substitute:

252C   Screening and strip searches of detainees and searches of facilities—retention of seized things (general)

23  Subsection 252C(1)

Omit “conducting a screening procedure under section 252AA or conducting a strip search under section 252A”, substitute “a search under section 252AA (which deals with screening procedures), 252A (which deals with strip searches) or 252BA (which deals with immigration detention facility searches)”.

24  Subsection 252C(2)

Repeal the subsection, substitute:

             (2)  The following things are forfeited to the Commonwealth if found in the course of a search mentioned in subsection (1):

                     (a)  a weapon or other thing capable of being used to inflict bodily injury or to help a detainee to escape from immigration detention;

                     (b)  a prohibited thing determined under paragraph 251A(2)(a), other than a weapon or other thing to which paragraph (a) applies.

Note:       A prohibited thing determined under paragraph 251A(2)(a) that is found in the course of a search of a person who is detained is a thing the possession of which is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained (see section 251A).

25  After section 252C

Insert:

252CA   Screening and strip searches of detainees and searches of facilities—retention of certain prohibited things

             (1)  This section applies in relation to a prohibited thing determined under paragraph 251A(2)(b), unless subsection 252C(1) applies in relation to the prohibited thing.

Note 1:       Paragraph 251A(2)(b) covers the determination of a thing as a prohibited thing if the Minister is satisfied that its possession or use in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

Note 2:       Paragraph 252C(1)(a) provides for the retention under section 252C of a thing (including a prohibited thing determined under paragraph 251A(2)(b)) if it might provide evidence of the commission of an offence against this Act.

Note 3:       For the possession and retention of other things obtained by screening or strip search, or by a search of immigration detention facilities, see section 252C.

             (2)  If, in the course of a search under section 252AA (which deals with screening procedures), 252A (which deals with strip searches) or 252BA (which deals with immigration detention facility searches), an authorised officer finds a prohibited thing in relation to which this section applies, the officer:

                     (a)  may take possession of it; and

                     (b)  may retain it; and

                     (c)  must, if it appears that the thing is owned or was controlled by a detainee, take all reasonable steps to return it to the detainee when he or she ceases to be in detention; and

                     (d)  must, if it appears that the thing is owned or was controlled by a person other than a detainee, take all reasonable steps to return it to the person.

             (3)  However, if an authorised officer retains a prohibited thing under paragraph (2)(b), after taking all reasonable steps to return the thing under paragraph (2)(c) or (d), it is forfeited to the Commonwealth if the officer considers on reasonable grounds that:

                     (a)  its owner or the person who last controlled the thing cannot be identified; or

                     (b)  the thing is abandoned; or

                     (c)  if it appears that the thing is owned or was controlled by a detainee—the thing cannot be returned to the detainee when he or she ceases to be in detention; or

                     (d)  if it appears that the thing is owned or was controlled by a person other than a detainee—the thing cannot be returned to the person.

             (4)  If a prohibited thing is forfeited under subsection (3), the authorised officer may dispose of it in any way he or she thinks appropriate.

26  Section 252G (heading)

Repeal the heading, substitute:

252G   Persons entering immigration detention facilities—screening powers

27  Subsection 252G(1)

Omit “a detention centre established under this Act”, substitute “an immigration detention facility operated by or on behalf of the Commonwealth”.

28  At the end of subsection 252G(1)

Add:

                   ; (d)  allow an authorised officer to use a dog for the purposes of searching the person for a thing to which subsection (3) applies.

29  After subsection 252G(2)

Insert:

          (2A)  If an authorised officer uses a dog for the purposes of searching a person for a thing to which subsection (3) applies, the officer must:

                     (a)  take all reasonable precautions to prevent the dog touching any person (other than the officer); and

                     (b)  keep the dog under control while conducting the search.

          (2B)  If an authorised officer uses a dog in accordance with subsection (2A) for the purposes of searching a person for a thing to which subsection (3) applies, that use of the dog is not unlawful only because of the behaviour of the dog (including the touching of any person by the dog).

30  Subsection 252G(3)

Repeal the subsection, substitute:

             (3)  An authorised officer may request that a person do something under subsection (4) if the person is about to enter an immigration detention facility operated by or on behalf of the Commonwealth, and the officer suspects on reasonable grounds that the person has in his or her possession:

                     (a)  a thing that:

                              (i)  might endanger the safety of the detainees, staff or other persons at the facility; or

                             (ii)  might disrupt the order or security arrangements at the facility; or

                     (b)  a prohibited thing.

          (3A)  A request may be made under subsection (4) that a person do something whether or not a request is also made under subsection (1) that the person do something.

31  Paragraph 252G(4)(e)

Omit all the words after “concealing”, substitute:

                   something that:

                              (i)  might endanger the safety of the detainees, staff or other persons at the immigration detention facility; or

                             (ii)  might disrupt the order or security arrangements at the facility; or

                            (iii)  is a prohibited thing.

32  Subsection 252G(5)

Omit “A person”, substitute “Subject to subsections (6) and (6A), a person”.

33  Subsections 252G(5) and (6)

Omit “detention centre”, substitute “immigration detention facility”.

34  After subsection 252G(6)

Insert:

          (6A)  If a person leaves a prohibited thing determined under paragraph 251A(2)(b) in a place as mentioned in subsection (5) of this section, after taking all reasonable steps to return the thing to the person for the purposes of that subsection, it is forfeited to the Commonwealth if an authorised officer considers on reasonable grounds that:

                     (a)  its owner or a person who controls the thing cannot be identified; or

                     (b)  the thing is abandoned; or

                     (c)  the thing otherwise cannot be returned to the person.

Note:          Paragraph 251A(2)(b) covers the determination of a thing as a prohibited thing if the Minister is satisfied that its possession or use in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

          (6B)  If a prohibited thing is forfeited under subsection (6A), the authorised officer may dispose of it in any way he or she thinks appropriate.

35  Subsection 252G(7)

Omit “a detention centre established under this Act”, substitute “an immigration detention facility”.

[prohibiting items in immigration detention facilities]