2019 - 2020

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

MIGRATION AMENDMENT (PROHIBITING ITEMS IN IMMIGRATION DETENTION FACILITIES) BILL 2020

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Population, Cities and Urban Infrastructure, the Hon. Alan Tudge MP, on behalf of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon. David Coleman MP)

 

MIGRATION AMENDMENT (PROHIBITING ITEMS IN IMMIGRATION DETENTION FACILITIES) BILL 2020

 

OUTLINE

 

The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the Bill) amends the Migration Act 1958 (Migration Act) to allow the Minister to determine that a thing is a prohibited thing in relation to immigration detention facilities and detainees (whether or not they are in an immigration detention facility). These things may include controlled drugs (as defined in the Criminal Code Act 1995 ) and prescription drugs not taken by the person to whom they are prescribed, mobile phones, Subscriber Identity Module (SIM cards), and internet-capable devices. The Bill also includes a new statutory power to search facilities operated by or on behalf of the Commonwealth, in order to enforce both the existing and new prohibitions.

 

The amendments in the Bill seek to strengthen the Department of Home Affairs’ ability to regulate the possession of particular items in immigration detention facilities in order to ensure that the Department can provide a safe and secure environment for staff, detainees and visitors in an immigration detention facility.

 

Authorised officers will be provided with training and guidance in relation to the exercise of their new seizure powers. For example, an authorised officer’s decision to seize a mobile phone or a SIM card (if such things are determined to be prohibited things) from a detainee would be made taking into account a range of considerations including, but not limited to, the existence of police recommendations or relevant court orders in relation to the detainee, and whether the detainee is a registered sex offender or has a history of child sex offences.

 

The amendments will also allow for a targeted, intelligence-led, risk-based approach in relation to the seizure of prohibited things from detainees , by allowing the Minister to issue binding written directions that make it mandatory for officers to seize items that are covered by their seizure powers.

 

Immigration detention facilities now accommodate an increasing number of higher risk detainees awaiting removal, often having entered immigration detention directly from a correctional facility, including members of outlaw motorcycle gangs and other organised crime groups.

 

Evidence indicates that detainees are using mobile phones and other internet-capable devices to organise criminal activities inside and outside immigration detention facilities, to coordinate and assist escape efforts, as a commodity of exchange, to aid the movement of contraband, and to convey threats to other detainees and staff.

 

Detainees will continue to have reasonable access to landline telephones, facsimile, the internet, postal services and visits in order to maintain contact with their support networks and legal representatives. Family, friends, legal representatives and advocates can also contact detainees directly via the immigration detention facility.  

 

The presence of controlled drugs and prescription drugs not taken as prescribed in the immigration detention network also poses a risk to the ongoing safety, security and order across the network. There is evidence of illicit substance use and trafficking in immigration detention facilities to a degree that presents a serious health and safety risk to detainees, whether or not detainees are actively involved, as well as to officers and contracted service provider staff who may encounter unknown substances or substance-affected detainees.

 

The existing search and seizure powers in the Migration Act are not sufficient to prevent the misuse of drugs, mobile phones, SIM cards and internet-capable devices or other things that are of concern within the context of immigration detention facilities.

 

The Bill also addresses the Full Federal Court decision in ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98.

Specifically , the Bill amends the Migration Act to:

·          insert new definitions under subsection 5(1) to define section 273 detention centres and places approved in writing by the Minister under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1) of the Migration Act (otherwise known as Alternative Places of Detention (APODs)) collectively as ‘immigration detention facilities’, and to define a ‘prohibited thing’;

·          insert new section 251A to enable the Minister to determine, by disallowable legislative instrument, prohibited things in relation to immigration detention facilities and detainees (whether or not they are in an immigration detention facility). These things may include illegal things, specifically controlled drugs, and things that present a risk within immigration detention facilities including mobile phones, SIM cards and internet-capable devices;

·          insert new sections 252BA and 252BB to allow authorised officers and authorised officers’ assistants to search, without a warrant, immigration detention facilities operated by or on behalf of the Commonwealth, including accommodation areas, administrative areas, common areas, detainees’ rooms, detainees’ personal effects, medical examination areas and storage areas, and to allow the use of detector dogs to conduct these searches;

·          clarify and strengthen the search and seizure powers in relation to detainees in sections 252, 252AA, 252A, 252BA, 252C and 252CA;

·          strengthen the powers in section 252G in relation to a person about to enter an immigration detention facility operated by or on behalf of the Commonwealth to expressly allow an authorised officer to screen and search for prohibited things (which may include controlled drugs); and

• allow the Minister to issue binding written directions to officers in relation to the exercise of their seizure powers.

 

 

FINANCIAL IMPACT STATEMENT

 

These amendments will have no financial impact.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A .

 

 

 

 

 

 

MIGRATION AMENDMENT (PROHIBITING ITEMS IN IMMIGRATION DETENTION FACILITIES) BILL 2020

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short Title

 

1.                   Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Act 2020 .

 

Clause 2          Commencement

 

2.                   Subclause 2(1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

3.                   Item 1 of the table provides that the whole of this Act commences on a single day to be fixed by Proclamation. However, if the provisions do not commence within a period of six months beginning on the day this Act received the Royal Assent, they commence on the day after the end of that period.

 

4.                   Subclause 2(2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act .

 

Clause 3          Schedule(s)

 

5.                   This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned. In addition, any other item in a Schedule to this Act has effect according to its terms. In this Act, the Migration Act 1958 is being amended.

 

 

SCHEDULE 1 - Amendments

 

Migration Act 1958

 

Item 1                         Subsection 5(1)

 

6.                   This item inserts four new definitions into subsection 5(1).

 

7.                   The item provides that the new definition “ immigration detention facility ” will have the meaning given by new section 251A inserted by item 2 of this Bill.

 

8.                   The item also provides that the new definition “ prohibited thing ” will have the meaning given by new section 251A inserted by item 2 of this Bill.

 

9.                   The item also provides that the new definition “ relevant seizure power ” will have the meaning given by new section 251B inserted by item 2 of this Bill.

 

10.               The item also provides that the new definition “ weapon or escape aid ” will have the meaning given by section 252, as amended by item 5 of this Bill.

 

Item 2               After section 251

 

11.               This item inserts new section 251A “ Search of detainees etc. - prohibited things ”.

 

12.               The purpose of this new section is to provide a head of power for the Minister, by legislative instrument, to determine a thing for the purposes of subsection 251A(1) and to provide a definition of prohibited thing and immigration detention facility .

 

13.               The powers to search and screen detainees, and to screen persons about to enter an immigration detention facility, for prohibited things will be amended by other items in the Bill. The Bill also includes a new power to search immigration detention facilities operated by or on behalf of the Commonwealth for prohibited things and other things. This amendment will enable the Minister to respond quickly and flexibly to emerging threats to the health, safety or security of persons in an immigration detention facility and maintain the order of these facilities.

 

14.               Subsection 251A(1) defines a prohibited thing in relation to a person in detention (whether or not the person is detained in an immigration detention facility), or in relation to an immigration detention facility. In these circumstances a thing will be a prohibited thing 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 by the Minister by legislative instrument under paragraph 251A(2)(a); or

(b)    the thing is determined by the Minister by legislative instrument under paragraph 251A(2)(b).

 

15.               Example 1 under paragraph 251A(1)(b) explains that a thing may be a prohibited thing in relation to an immigration detention facility for the purposes of a search of such a facility under section 252BA and the seizure of prohibited things in the course of such a search under section 252C or 252CA.

 

16.               In relation to prohibited things determined under paragraph 251A(2)(b), even though the Minister’s satisfaction is based on the possession or use of the thing in an immigration detention facility , a determination that a thing is a prohibited thing will apply in relation to detainees who are not detained in, or not about to enter, an immigration detention facility, as well as in relation to detainees who are detained in an immigration detention facility.  Detainees who are the subject of a residence determination will not be subject to the search and seizure provisions in relation to prohibited items.

 

17.               Example 2 under paragraph 251A(1)(b) explains that a mobile phone may, if determined under paragraph (2)(b), be a prohibited thing in relation to a person in detention even if the person is not detained in an immigration detention facility.

 

18.               New subsection 251A(2) enables the Minister to determine, by legislative instrument, a thing for the purposes of subsection 251A(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.

 

19.               Something may be determined under paragraph 251A(2)(a) because its possession is prohibited by law in one State or Territory, but not be a prohibited thing that is the subject of a search of a person in detention in another State or Territory. For example, a thing may be prohibited by the law of New South Wales and therefore determined as a prohibited thing in relation to a person in immigration detention in New South Wales, but not prohibited by the law of Western Australia and therefore not a prohibited thing in relation to a person in immigration detention in Western Australia.  

 

20.               This instrument will give the Minister flexibility to respond quickly if operational requirements change and, as a result, the list of things determined by the Minister as prohibited things needs to be amended.

 

21.               Under paragraph 251A(2)(a), the Minister would be able to determine controlled drugs for the purposes of subsection 251A(1).

 

 

22.               Controlled drugs are introduced to detention facilities by visitors, through mail, in person, or by throwing items over the fences of the facilities. Distribution and use of controlled drugs within the immigration detention network involves dangerous substances such as methamphetamine, heroin, cocaine and fentanyl. The prevalence of controlled drug use and trafficking in immigration detention facilities presents a serious health and safety risk to detainees, Australian Border Force and contracted service provider staff who encounter unknown substances or interact with substance affected detainees.

 

23.               To clarify the operation of new subsection 251A(2), at the end of subsection 251A(2) examples have been provided of things that may be determined to be prohibited things if the Minister is satisfied that they pose a risk mentioned in paragraph 251A(2)(b). Such things include, but are not limited to: mobile phones, SIM cards, and computers and other electronic devices designed to be capable of being connected to the internet.           

 

24.               Detainees will continue to have reasonable access to communication facilities in order to maintain contact with their support networks. Regular contact with family and friends is acknowledged as supporting detainees’ resilience and mental health. Contact will be provided via landline telephones, facsimile, internet access in compliance with the Conditions of Use of Internet agreement, postal services and visits.

 

25.               In the context of removals under section 198 of the Migration Act, requests by removees to access legal assistance during their removal will be facilitated until such time as it is no longer reasonably practicable to do so. What is reasonable will depend on the circumstances including what is happening operationally and whether facilities to access legal assistance are readily available having regard to the particular operational environment.   

 

26.               Migration Agents or legal representatives will continue to be able to contact their clients. The Department of Home Affairs (the Department) will ensure that communication avenues are maintained and enhanced, to enable detainees to progress their immigration status resolution in a timely fashion. Detainees and legal representatives remain able to schedule telephone interviews ahead of time if they require access to a desk or private space.

 

27.               The amendments in the Bill will not prohibit authorised officers (including Departmental officers, Serco officers and Detention Health Services Providers staff) from possessing and using prohibited things in immigration detention facilities during the course of their duties. This means that authorised officers will continue to be able to possess and use mobile phones, SIM cards and computers in the course of their official duties at immigration detention facilities.

 

28.               Things determined under legislative instrument for the purpose of paragraph 251A(2)(b) may also include prescription and non-prescription medications as well as health care supplements, where the person in possession of these things is not the person to whom they have been prescribed or supplied for use within the immigration detention facility.

29.               There has been a significant increase of prescription medication such as Xanax and Suboxone being found in the possession of detainees who do not hold a prescription for these medications. The misuse of medications is a serious risk to the health and safety of detainees and they are also being used as a form of currency, which poses a risk to the order of the facilities.

 

30.               It is not intended that the new search and seizure powers provided by the Bill will apply to a detainee in an immigration detention facility who is in possession of a medication or health care supplement prescribed or supplied for that person’s individual use by an authorised health service provider.

 

31.               New subsection 251A(3) has the effect of preventing the application of the new search and seizure powers in the Bill in relation to a medication or health care supplement prescribed or supplied for a person’s individual use by a health service provider authorised by the person in charge of the immigration detention facility. This will mean that medications and health care supplements supplied to, and in the possession of, a detainee in an immigration detention facility will not be a prohibited thing under new section 251A.

 

32.               The amendment will support the management of medications within immigration detention facilities by ensuring that safe and appropriate health care continues to be provided to detainees, while the misuse of medications by some people within these facilities can be responded to appropriately.

 

33.               An instrument made under new section 251A will be disallowable. Legislative instruments made under new section 251A would normally be exempt from disallowance due to the operation of paragraph 44(2)(b) of the Legislation Act 2003 (the Legislation Act) and table item 20 in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 . However, new subsection 251A(4) will extend section 42 of the Legislation Act to a legislative instrument made under new section 251A that determines things as prohibited things in relation to detainees (whether or not they are detained in an immigration detention facility) and immigration detention facilities, despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act. The effect of this amendment is that such an instrument would be subject to disallowance.

 

34.               Subsection 251A(5) defines an immigration detention facility as either a detention centre established under section 273 of the Migration Act or another place approved by the Minister in writi ng for the purposes of subparagraph (b)(v) of the definition of ‘ immigration detention ’ in subsection 5(1).

 

35.               This definition is relevant to the Minister’s power to determine a thing as a prohibited thing, and to the new power to search immigration detention facilities operated by or on behalf of the Commonwealth, and to screen persons about to enter such facilities, for prohibited things. 

 

36.               Detention centres established under section 273 are otherwise known as Immigration Detention Centres (IDCs)), and places approved in writing under subparagraph (b)(v) of the definition of ‘ immigration detention’ in subsection 5(1) of the Migration Act are otherwise known as Alternative Places of Detention (APODs)).

 

37.               An APOD is a place of immigration detention used by the Department to meet the specific needs of detainees that cannot be adequately catered for in an IDC. APODs include facility-based forms of detention, such as Immigration Transit Accommodation (ITAs) and places in the broader community (eg. hotels and motels) which have been designated as alternative places of immigration detention (non-facility).

 

38.               There are currently six facility-based APODs approved by the Minister and operated by or on behalf of the Department. These are:

• Phosphate Hill (Christmas Island)
• Construction Camp (Christmas Island)
• Broadmeadow Residential Precinct (BRP)

·          Brisbane Immigration Transit Accommodation (BITA)

·          Melbourne Immigration Transit Accommodation (MITA)

·          Adelaide Immigration Transit Accommodation (AITA).

 

39.               Non-facility-based places of accommodation in the broader community that have been approved as places of immigration detention are also types of APODs. These places include leased private housing, hotel and motel accommodation, hospitals and schools.

 

40.               The new personal search powers provided by this Bill will apply in relation to persons detained in all types of APODs (as well as to detainees who are not detained in an immigration detention facility). The new powers to search certain immigration detention facilities under new section 252BA, and to screen persons about to enter certain facilities under section 252G, will not extend to non-facility-based APODs.

 

New section 251B

 

41.               This item also inserts new section 251B “ Searches of detainees etc. - exercise of powers generally ”.

 

42.               Subsection 251B(1) provides that an authorised officer may exercise a power to search for a thing under section 252 or 252BA:

• whether or not the thing is visible to the authorised officer:
• • in the case of a search under section 252—immediately before the start of the search; or
  • in the case of a search of an immigration detention facility under section 252BA—immediately before the start of the search of the facility, or of any area of the facility covered by the search; and
• if the thing is not visible to the authorised officer at that time—whether or not the thing had been intentionally concealed.

 

43.               The note after paragraph 251B(1)(b) explains s ection 252 covers searches of detainees and certain non-citizens, and section 252BA covers searches of immigration detention facilities.

 

44.               Subsection 251B(1) ensures that authorised officers can search for things that are visible or are concealed with no intention to hide them, in addition to things that are intentionally concealed.

 

45.               Subsection 251B(2) provides that an authorised officer may conduct a screening procedure for a thing under section 252AA, or a strip search for a thing under section 252A, whether or not the thing had been intentionally concealed before the screening procedure or strip search was conducted.

 

46.               The note after subsection 251B(2) explains that s ection 252AA covers screening procedures for detainees, and section 252A covers strip searches of detainees, and that these sections authorise searches for things which are not visible immediately before the procedure or search starts to be conducted.

 

47.               Subsection 251B(2) ensures that authorised officers can conduct a screening procedure or a strip search for things that are concealed with no intention to hide them, in addition to things that are intentionally concealed.

 

48.               Subsection 251B(3) provides that a n authorised officer may seize a thing under section 252, in the course of a search under that section, or under section 252C or 252CA, in the course of a search under section 252BA:

• whether or not the thing was visible to the authorised officer:

o    in the case of a search under section 252—immediately before the start of the search; or

o    in the case of a search of an immigration detention facility under section 252BA—immediately before the start of the search of the facility, or of any area of the facility covered by the search; and

·          if the thing was not visible to the authorised officer at that time—whether or not the thing had been intentionally concealed.

 

49.               Subsection 251B(3) ensures that authorised officers can seize things in the course of a search under section 252 or 252BA that are visible or are concealed with no intention to hide them, in addition to things that are intentionally concealed.

 

50.               Subsection 251B(4) provides that a n authorised officer may seize a thing under section 252C or 252CA, in the course of the conduct of a screening procedure under section 252AA or of a strip search under section 252A, whether or not the thing had been intentionally concealed before the screening procedure or strip search was conducted.

 

51.               Subsection 251B(4) ensures that authorised officers can seize things in the course of a screening procedure or a strip search that are concealed with no intention to hide them, in addition to things that are intentionally concealed.

 

52.               The following example illustrates how subsections 251B(2) and (4) operate. An authorised officer may conduct a screening procedure under section 252AA or a strip search under section 252A whether or not the thing had been intentionally concealed before the screening procedure or strip search was conducted . If a weapon or other seizeable thing is identified in the course of the screening procedure or the strip search, the authorised officer may seize it whether or not the thing had been intentionally concealed before the screening procedure or strip search was conducted.

 

53.               Subsection 251B(5) provides that a power may be exercised under any of sections 252, 252AA, 252A, 252BA, 252C and 252CA in relation to a person, immigration detention facility or thing irrespective of whether any powers are exercised in relation to the person, immigration detention facility or thing under another of those sections.

 

54.               Subsection 251B(5) will replace the operation of the following provisions of the Migration Act which will be repealed by this Bill:

·          subsection 252(9), repealed by item 6;

·          subsection 252AA(4), repealed by item 9; and

·          subsection 252A(7), repealed by item 15;

 

55.               Subsection 251B(5) is intended to clarify that the powers mentioned in the new subsection do not limit each other. It replicates the legal effect of subsections 252(9), 252AA(4) and 252A(7), and extends that legal effect to section 252C (as amended by items 21 and 22), and to new sections 252BA (inserted by item 19) and 252CA (inserted by item 23).  

 

56.               Subsection 251B(6) provides that the Minister may , by legislative instrument, direct that an authorised officer (or an authorised officer in a specified class of relevant officers) must seize a thing by exercising one or more specified relevant seizure powers (or all relevant seizure powers) in relation to one or more of the following:

·          a person in a specified class of persons, or all persons, to whom the relevant seizure power relates;

·          a specified thing, a thing in a specified class of things, or all things, to which the relevant seizure power relates;

·          a specified immigration detention facility, an immigration detention facility in a specified class of such facilities, or all immigration detention facilities;

·          any circumstances specified in the directions.

 

57.               Subsection 251B(6) contains two examples of matters that a direction may be given in relation to. The first example, under paragraph 251B(6)(a), is a ll detainees in a specified immigration detention facility, or all detainees in such a facility other than those who are unauthorised maritime arrivals. The second example, under paragraph 251B(6)(d), is that a direction could specify a particular period during which the direction is to take effect, or the duration of a specified event.

 

58.               Subsection 251B (7) provides that a relevant seizure power is a power to seize a thing under any of the following provisions:

·          paragraph 252(4)(a) or (4A)(a) (searches of detainees etc.—general powers of personal search and seizure);

·          subsection 252C(1) (screening and strip searches of detainees and searches of facilities—seizure (general));

·          subsection 252CA(2) (screening and strip searches of detainees and searches of facilities—seizure of certain prohibited things).

 

59.               Each of the provisions mentioned in subsection 251B(7) contains a power allowing an authorised officer to seize a thing.

 

60.               Subsection 251B(8) provides that s ubsection 251B(6) does not empower the Minister to give directions that would be inconsistent with the Migration Act or the regulations.

 

61.               Subsection 251B(6) will allow the Minister to direct that an authorised officer must seize an item under one of the powers mentioned in subsection 251B(7). This would allow the Department to implement, for example, a targeted, intelligence-led, risk-based approach in relation to the seizure of mobile phones, SIM cards and other prohibited things from detainees in facilities specified in a binding Ministerial direction, based on risk assessments and operational security.

 

62.               An instrument made under subsection 251B(6) will not be disallowable. This is due to the operation of paragraph 44(2)(b) of the Legislation Act and table item 20 in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 .

 

Item 3             Section 252 (heading)

 

63.               This item repeals the heading for section 252 “ Searches of persons ” and substitutes a new heading for this section “ Searches of detainees etc. - general powers of personal search and seizure ”.

 

64.               This new heading more clearly indicates the scope of the search powers under this section by making express reference to searches of detainees.

 

Item 4             Subsections 252(1) and (2)

 

65.               This item repeals and substitutes subsections 252(1) and (2).

 

66.               Current section 252 provides the power for an authorised officer to search a person detained in Australia, or a person who is a non-citizen who has not been immigration cleared where there are reasonable grounds for suspecting a person’s visa should be cancelled. This section allows an authorised officer to search the person and any of the person’s clothing and property under their immediate control, for example a person’s bags or outer clothing. The purpose of these searches is to locate visa cancellation evidence, or to establish whether a person is carrying weapons or other things that may be used to inflict bodily injury or to help the person to escape from immigration detention, to ensure the personal safety of authorised officers and detainees. This provision does not empower an authorised officer to remove the person’s clothing or require the person to remove their clothing.

 

67.               New subsection 252(1) provides that section 252 applies in relation to the following persons:

·          a detainee;

·          a person who is a non-citizen, if

o    the person has not been immigration cleared; and

o    an authorised officer has reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa; and

o    the person is not in detention.

 

68.               Current subsection 252(1) applies to a person who is “detained in Australia” whereas new subsection 252(1) applies to a “detainee”.  Because the power to detain a person arises only in relation to a non-citizen who is in Australia, this change does not affect the substance of subsection 252(1).

 

69.               Current subsection 252(1) applies to a non-citizen who has not been immigration cleared and an authorised officer has reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa. New subsection 252(1) applies to a person in the same circumstances, but also includes the circumstance that the person is not in detention under the Migration Act. This change does not affect the substance of current subsection 252(1).

 

70.               New subsection 252(2) provides that an authorised officer may, without warrant, search a person, the person’s clothing and any property under the immediate control of the person for any thing that may be seized from the person under paragraph 252(4)(a) or 252(4A)(a), whether or not the officer has any suspicion that the person has such a thing on the person’s body, in the person’s clothing or in any such property. 

 

71.               New subsection 252(2) is the same as current subsection 252(2) in that under new subsection 252(2), an authorised officer:

·          need not suspect that a person to whom section 252 applies is carrying a thing that may be seized from the person under subsection 252(4) or (4A), in order to conduct a search under section 252; and

·          may search a person, the person’s clothing and any property under the immediate control of the person.

 

72.               New subsection 252(2) allows an authorised officer to search for any thing that may be seized from the person under new subsection 252(4) or (4A). New subsections 252(4) and (4A), inserted by item 5 of the Bill, expand the types of things that an authorised officer may search for, to include prohibited things determined under new paragraphs 251A(2)(a) and (2)(b).

Item 5             Subsection 252(4)

 

73.               This item repeals and substitutes subsection 252(4), and inserts new subsections 252(4A), (4B), (4C), (4D) and (4E).

 

New subsection 252(4)

 

74.               New subsection 252(4) provides that subject to subsection 252(4C), an authorised officer:

·          may, in the course of a search under this section, seize any of the following:

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

o    a document or other thing that is, or may be, evidence for grounds for cancelling the visa of the person who is being searched ( visa cancellation evidence in relation to the person);

o    a prohibited thing determined under paragraph 251A(2)(a) (other than a prohibited thing that is also a weapon or escape aid, or visa cancellation evidence); and

·          may retain the thing for such time as the authorised officer thinks necessary for the purposes of the Migration Act.

 

75.               New subsection 252(4) includes definitions of “ weapon or escape aid ” and “ visa cancellation evidence ” , which are used in new provisions in this Bill.  New subsection 252(4) also includes the new category of prohibited thing determined under new paragraph 251A(2)(a) in the list of things that may be seized by an authorised officer in the course of a search conducted under section 252. This will therefore apply only in relation to prohibited things whose possession is prohibited by a law in a place or places in Australia. New subsection 252(4A) set out below will apply to the other category of prohibited thing.

 

76.               A prohibited thing determined under paragraph 251A(2)(a) which is also a weapon or escape aid, or visa cancellation evidence, would be seized under subsection 252(4) on the basis that it is a weapon or escape aid, or visa cancellation evidence (as applicable in the circumstances).

 

77.               The seizure power in subparagraph 252(4)(a)(iii) is subject to subsection 252(4B), which sets out that prohibited things (other than a prohibited thing that is also a weapon or escape aid, or visa cancellation evidence) cannot be seized from certain cohorts of persons.  This is explained in Note 2 under subsection 252(4).

 

78.               This item expands the range of things that an authorised officer may take seize under subsection 252(4) in the course of a search conducted under section 252.

 

 

 

New subsection 252(4A)

 

79.               This item also inserts new subsection 252(4A), which deals with the seizure and return of prohibited things determined under paragraph 251A(2)(b) (other than a prohibited thing that is also a weapon or escape aid, or visa cancellation evidence).

 

80.               Paragraph 252(4A)(a) provides that subject to subsection 252(4C), an authorised officer may, in the course of a search under section 252, seize a prohibited thing determined under paragraph 251A(2)(b) (other than a prohibited thing that is also a weapon or escape aid, or visa cancellation evidence).

 

81.               Paragraphs 252(4A)(b) and (c) provide that if it appears that the thing is owned or was controlled by a detainee or by a person other than the detainee, the authorised officer must take all reasonable steps to return it to the detainee when he or she ceases to be in detention, or to the person who appears to own or control the thing.

 

82.               Note 1 after paragraph 252(4A)(c) explains that 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.

 

83.               Note 2 explains that paragraph 252(4A)(a) does not apply in relation to certain detainees and non-citizens (see subsection 252(4B)).

 

New subsection 252(4B)

 

84.               Under subsection 252(4B), prohibited things (other than a prohibited thing that is also a weapon or escape aid, or visa cancellation evidence) cannot be seized from certain cohorts of persons. 

 

85.               Subsection 252(4B) provides that the seizure of a prohibited thing under subparagraph 252(4)(a)(iii) or paragraph 252(4A)(a) is not authorised if the seizure is from:

·          a detainee covered by a residence determination who is residing at the place specified in the determination; or

·          a non-citizen covered by paragraph 252(1)(b).

 

86.               A detainee covered by a residence determination is a person in relation to whom the Minister has made a determination, under section 197AB of the Migration Act, that the person is to reside at a specified place, instead of being detained at a place covered by the definition of “immigration detention” in subsection 5(1) of the Migration Act.

 

87.               A non-citizen covered by paragraph 252(1)(b) is a person:

·          who has not been immigration cleared; and

·          in relation to whom an authorised officer has reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa; and

·          who is not in detention.

 

88.               Subsection 252(4B) ensures that an authorised officer cannot seize a prohibited thing (other than a prohibited thing that is also a weapon or escape aid, or visa cancellation evidence) from the two cohorts covered by the subsection.

 

89.               The note under paragraph 252(4B)(b) explains that if a prohibited thing is also a weapon or escape aid, or visa cancellation evidence, it can be seized from such a person under subparagraph 252(4)(a)(i) or (ii).

 

New subsection 252(4C)

 

90.               New subsection 252(4C) provides that if an authorised officer has the power to seize a thing under paragraph 252(4)(a) or (4A)(a), the officer must seize the thing if a direction under subsection 251B(6) has the effect of requiring the officer to seize the thing.

 

91.               New subsection 251B(6), inserted by item 2 of this Bill, provides that the Minister may , by legislative instrument, direct that an authorised officer (or an authorised officer in a specified class of relevant officers) must seize a thing by exercising one or more specified relevant seizure powers (or all relevant seizure powers) in relation to one or more matters.

 

92.               The effect of subsection 252(4C) is that if an authorised officer conducts a search of a person under s 252 and, during the conduct of that search, identifies a thing that the authorised officer may seize under paragraph 252(4)(a) or (4A)(a), the officer must seize the thing if so directed by the Minister under subsection 251B(6).

 

93.               The note under subsection 252(4C) explains that an authorised officer does not have the power to seize a prohibited thing under paragraph (4)(a) or (4A)(a) if subsection 252(4B) applies in relation to the thing.

 

New subsection 252(4D)

 

94.               New subsection 252(4D) provides that a prohibited thing seized under paragraph 252(4A)(a) is forfeited to the Commonwealth if the authorised officer considers on reasonable grounds, after taking all reasonable steps to return the thing under new paragraphs 252(4A)(b) or (c), that one of the circumstances listed in the provision is satisfied. These circumstances are:

 

(a)     the thing’s 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 the detainee 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.

 

95.               Specific reference is made to both owners and former controllers of things in this item to clarify where ownership of a thing may not be immediately clear, however control of this thing can be easily established.

 

New subsection 252(4E)

 

96.               New subsection 252(4E) allows an authorised officer to dispose of a thing forfeited to the Commonwealth under subsection 252(4D). This provision gives the authorised officer the authority to dispose of the thing in any way the officer thinks appropriate.

 

Item 6             Subsection 252(9)

 

97.               This item repeals subsection 252(9).

 

98.               Subsection 252(9) provides that to avoid doubt, a search of a person may be conducted under this section irrespective of whether a screening procedure is conducted in relation to the person under section 252AA or a strip search of the person is conducted under section 252A.

 

99.               New subsection 251B(5), inserted by item 2 of the Bill, will replace current subsection 252(9), as well as subsection 252AA(4) (which is repealed by item 9) and subsection 252A(7) (which is repealed by item 15).

 

Item 7             Section 252AA (heading)

 

100.           This item repeals the heading for section 252AA “ Power to conduct a screening procedure ” and substitutes the new heading for this section “ Searches of detainees - screening procedures ”.

 

101.           This new heading more clearly indicates the scope of the search powers under this section by making express reference to searches of detainees.

 

Item 8             Subsection 252AA(1)

 

102.           This item repeals and substitutes subsection 252AA(1), and inserts new subsection 252AA(1A).

 

103.           New subsection 252AA(1) provides that an authorised officer may, without warrant, conduct a screening procedure in relation to a detainee, other than a detainee to whom section 252F applies, for any of the following things on the detainee’s body, in the detainee’s clothing, or in a thing in the detainee’s possession:

·          a weapon or escape aid;

·          a prohibited thing.

 

104.           New subsection 252AA(1) expands the types of things that an authorised officer may screen for, to include prohibited things determined under new paragraphs 251A(2)(a) and (2)(b).

 

105.           Subsection 252AA(1A) provides that an authorised officer may conduct a screening procedure under subsection 252AA(1) in relation to a detainee for a thing mentioned in that subsection whether or not the officer has any suspicion that the detainee has such a thing on the detainee’s body, in the detainee’s clothing or in a thing in the detainee’s possession.

 

106.           New subsection 252AA(1A) clarifies that like current subsection 252AA(1), new subsection 252AA(1) does not require an authorised officer to suspect that a detainee is carrying a particular item in order to conduct a screening procedure.

 

Item 9             Subsection 252AA(4)

 

107.           This item repeals subsection 252AA(4).

 

108.           Subsection 252AA(4) currently provides that to avoid doubt, a screening procedure may be conducted in relation to a detainee under this section irrespective of whether a search of the detainee is conducted under section 252 or 252A.

 

109.           New subsection 251B(5), inserted by item 2 of the Bill, will replace current subsection 252AA(4), as well as subsection 252(9) (which is repealed by item 6) and subsection 252A(7) (which is repealed by item 15).

 

Item 10           Section 252A (heading)

 

110.           This item repeals the heading for section 252A “ Power to conduct a strip search ” and substitutes the new heading for this section “ Searches of detainees - strip searches ”.

 

111.           This new heading more clearly indicates the scope of the search powers under this section by making express reference to searches of detainees.

 

Item 11           Subsection 252A(1)

 

112.           This item repeals and substitutes subsection 252A(1).

 

113.           New subsection 252A(1) provides that an authorised officer may, without warrant, conduct a strip search of a detainee, other than a detainee to whom section 252F applies, for any of the following things on the detainee’s body, in the detainee’s clothing, or in a thing in the detainee’s possession:

·          a weapon or escape aid;

·          a prohibited thing.

 

114.           New subsection 252A(1) expands the types of things that an authorised officer may search for, to include prohibited things determined under new paragraphs 251A(2)(a) and (2)(b).

 

115.           The note under subsection 252A(1) is the same as the note under current subsection 252A(1). It explains that section 252B sets out rules for conducting a strip search under section 252A.

 

Item 12           Subsection 252A(2)

 

116.           This item makes a technical amendment to subsection 252A(2). It omits “of the detainee, of his or her clothing, or of a thing in his or her possession”, and substitutes “of a detainee’s body or clothing or of a thing in the detainee’s possession”.  This amendment removes the gendered references to “his or her” and replaces them with references to “detainee”.

 

Item 13           Paragraph 252A(2)(a)

 

117.           This item makes a technical amendment to paragraph 252A(2)(a). It omits “his or her clothing”, and substitutes “the detainee’s clothing”.  This amendment removes the gendered reference to “his or her” and replaces it with a reference to “detainee”.

 

Item 14           Paragraph 252A(3)(a)

 

118.           This item repeals and substitutes paragraph 252A(3)(a).

 

119.           A strip search of a detainee may be conducted by an authorised officer only if the requirements of subsection 252A(3) are met.

 

120.           The requirement in new paragraph 252A(3)(a) is that an officer suspects on reasonable grounds that there is on the detainee’s body, in the detainee’s clothing or in a thing in the detainee’s possession any of the following things:

·          a weapon or escape aid;

·          a prohibited thing.

 

121.           New paragraph 252A(3)(a) expands the types of things that an authorised officer may search for, to include prohibited things determined under new paragraphs 251A(2)(a) and (2)(b).  It also removes the gendered references to “his or her” and replaces them with references to “detainee”.

 

Item 15           Subsection 252A(7)

 

122.           This item repeals subsection 252A(7).

 

123.           Subsection 252A(7) currently provides that to avoid doubt, a strip search of a detainee may be conducted under this section irrespective of whether a search of the detainee is conducted under section 252 or a screening procedure is conducted in relation to the detainee under section 252AA .

 

124.           New subsection 251B(5), inserted by item 2 of the Bill, will replace current subsection 252A(7), as well as subsection 252(9) (which is repealed by item 6) and subsection 252AA(4) (which is repealed by item 9).

 

Item 16            Section 252B (heading)

 

125.           This item repeals the heading for section 252B “ Rules for conducting a strip search ” and substitutes the new heading for this section “ Searches of detainees - rules for conducting a strip search ”.

 

126.           This new heading more clearly indicates the scope of the search powers under this section by making express reference to searches of detainees.

 

Item 17           Paragraph 252B(1)(j)

 

127.           This item repeals and substitutes paragraph 252B(1)(j).

 

128.           Section 252B sets out rules for conducting strip searches.

 

129.           New paragraph 252B(1)(j) provides that a strip search of a detainee must not involve the removal of more items of clothing, or more visual inspection, than the authorised officer conducting the search believes on reasonable grounds to be necessary to determine whether there is on the detainee, in the detainee’s clothing or in a thing in the detainee’s possession any of the following things:

·          a weapon or escape aid;

·          a prohibited thing.

 

130.           New paragraph 252B(1)(j) acknowledges the expansion of the types of things that an authorised officer may search for, to include prohibited things determined under new paragraphs 251A(2)(a) and (2)(b).  It also removes the gendered references to “his or her” and replaces them with references to “detainee”.

 

Item 18             Paragraph 252B(7)(b)

 

131.           This item repeals and substitutes paragraph 252B(7)(b).

 

132.           Section 252B sets out rules for conducting strip searches. Under paragraph 252B(7)(b), a detainee must be provided with adequate clothing if during or as a result of a strip search any of his or her clothing is retained under section 252C.

 

133.           Under new paragraph 252B(7)(b), a detainee must be provided with adequate clothing if during or as a result of a strip search any of his or her clothing is seized under section 252C or 252CA.

 

134.           This item extends the obligation to provide a detainee with adequate clothing to circumstances where, during or as a result of a strip search, the detainee’s clothing is seized under section 252C, as amended by items 21 and 22 of this Bill, and new section 252CA, which is inserted by item 23 of this Bill.

 

Item 19             After section 252B

 

New section 252BA

 

135.           This item inserts new section 252BA “ Searches of certain immigration detention facilities - general ”.

 

136.           Currently, there are limited bases upon which searches of areas within an immigration detention facility for items that may pose a risk to the safety and security of detainees and other persons can be done.

 

137.           Section 252BA “ Searches of certain immigration detention facilities - general ” provides a clear and express statutory power for an authorised officer to undertake a search of an immigration detention facility operated by or on behalf of the Commonwealth. This provision will allow an authorised officer to search areas including accommodation areas, administrative areas, common areas, detainees’ personal effects, detainees’ rooms, medical examination areas and storage areas to find weapons or escape aids, or prohibited things.

 

138.           This power will only allow for searches of detention centres established under section 273 and facility-based APODs, and cannot be used to search non-facility-based APODs such as hotels, motels, schools or hospitals.

 

139.           Under subsection 252BA(2), a search of the immigration detention facility may be conducted for any of the following things:

·          a weapon or escape aid;

·          a prohibited thing.

 

140.           Subsection 252BA(3) provides that an authorised officer may search the facility for a thing under subsection 252BA(2) whether or not the officer has any suspicion that there is such a thing at the facility.

 

141.           The note under subsection 252BA(3) explains that sections 252C and 252CA are in relation to the seizure of things in the course of a search under this section.

 

142.           Subsections 252BA(4) to (7) set out specific conditions in relation to the conduct of a search of an immigration detention facility operated by or on behalf of the Commonwealth.

 

143.           Subsection 252BA(4) allows an authorised officer to use a dog to conduct a search of the immigration detention facility. This power is in addition to the search powers of an authorised officer under subsections 252BA(1) and (2), and does not limit these powers. A dog cannot be used to search detainees or goods in their possession, or people entering an immigration detention facility.

 

144.           Subsection 252BA(5) provides that where a dog is used by an authorised officer to conduct a search of an immigration detention facility under section 252BA, appropriate safety measures must be complied with. The measures are that an authorised officer must take all reasonable precautions to prevent the dog from touching any person (other than the officer) during the search and that the officer must keep the dog under control while conducting the search.

 

145.           Subsection 252BA(6) further clarifies that using a dog for a search under section 252BA is not unlawful only because of the behaviour of the dog, as long as the other precautions in subsection 252BA(5) are complied with. This provision will ensure that a search is not rendered unlawful if, for example, the dog touches a person during the search.

 

146.           These amendments will give authorised officers under the Migration Act the ability to use highly trained dogs to search immigration detention facilities operated by or on behalf of the Commonwealth. Departmental officers conducting these searches will be specifically authorised for the purpose of handling a detector dog and will have undergone extensive training in the handling of detector dogs.

 

147.           Subsection 252BA(7) provides that the force that an authorised officer can use when conducting a search of a facility under this section must not be more than is reasonably necessary in order to conduct the search. This restriction applies in relation to force used against a person or property.

 

148.           For example, a person may need to be moved from the entrance to a room to enable the area to be searched, or a locked door or storage unit may need to be opened in the course of the search of the facility.

 

New section 252BB

 

149.           This item also inserts new section 252BB.

 

150.           The purpose of new section 252BB “Searches of certain immigration detention facilities - authorised officers’ assistants” is to allow other persons to assist authorised officers in carrying out a search under section 252BA of an immigration detention facility operated by or on behalf of the Commonwealth.

 

151.           Subsection 252BB(1) provides that 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(4)), or under section 252C, 252CA or 252CB in relation to such a search, if that assistance is necessary and reasonable.

 

152.           The words “necessary and reasonable” restrict the use of authorised officers’ assistants to situations where such assistance is necessary and reasonable to ensure the authorised officer can carry out their powers, functions or duties to complete the search of the facility.

 

153.           Subsection 252BB(1) explains that in these circumstances the person providing assistance to an authorised officer is an “authorised officer’s assistant”.

 

154.           The note at the end of subsection 252BB(1) explains that subsection 252BA(4) provides for an authorised officer to use a dog to conduct a search of an immigration detention facility. The note also mentions that sections 252C, 252CA and 252CB deal with the seizure of things in the course of a search under section 252BA and their return in certain circumstances.

 

155.           Subsection 252BB(2) sets out the powers that an authorised officer’s assistant will have in relation to a search under section 252BA of an immigration detention facility operated by or on behalf of the Commonwealth. These powers are outlined in paragraphs 252BB(2)(a) and (b) and allow an authorised officer’s assistant to enter the facility and exercise any of the same powers and perform any of the same functions and duties as are conferred on the authorised officer in relation to the search under section 252BA (other than under subsection 252BA(4)) and sections 252C, 252CA and 252CB.

 

156.           Paragraph 252BB(2)(c) limits these powers so that the authorised officer’s assistant must exercise powers in paragraphs 252BB(2)(a) and (b) in accordance with any directions given to them by the authorised officer.

 

157.           Subsection 252BB(3) provides that a power exercised by an authorised officer’s assistant under subsection 252BB(2) is taken for all purposes to have been exercised by the authorised officer themselves. This provision gives the same authority to the powers exercised by the authorised officer’s assistant as those exercised by the authorised officer.

 

158.           Subsection 252BB(4) provides that a function or duty performed by an authorised officer’s assistant under subsection 252BB(2) is taken for all purposes to have been performed by the authorised officer themselves. This provision gives the same authority to the functions and duties performed by the authorised officer’s assistant as those performed by the authorised officer.

 

159.           Subsection 252BB(5) provides that section 251B applies in relation to the exercise of a power, or the performance of a function or duty, by an authorised officer’s assistant in the same way as it applies in relation to such an exercise or performance by the authorised officer.

 

160.           Subsection 251B, inserted by item 2 of this Bill, deals with the exercise of powers generally, including the exercise of a power whether or not a thing is visible to the authorised officer and whether or not a thing has been intentionally concealed.

 

161.           Subsection 252BB(6) provides that if a direction is given to an authorised officer’s assistant by an authorised officer under paragraph 252BB(2)(c) and the authorised officer gives the direction in writing, this direction is not a legislative instrument. This provision is merely declaratory of the law, confirming that a written direction under this provision is not legislative, rather than prescribing a substantive exemption from the requirements of the Legislation Act.

 

Item 20           Section 252C (heading)

 

162.           This item repeals the heading for section 252C “ Possession and retention of certain things obtained during a screening procedure or strip search ” and substitutes the new heading for this section “ Screening and strip searches of detainees and searches of facilities—seizure (general) ”.

 

163.           This new heading more clearly indicates the scope of the powers under this section to take possession and retain things by making express reference to screening and searches of detainees and searches of facilities.

 

Item 21           Subsections 252C(1) and (2)

 

164.           This item repeals and substitutes subsections 252C(1) and (2), and inserts new subsection 252C(2A).

 

165.           Current subsection 252C(1) provides that an authorised officer may take possession of and retain a thing found in the course of conducting a screening procedure under section 252AA or conducting a strip search under section 252A if the thing:

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

·          is forfeited or forfeitable to the Commonwealth.

 

166.           New subsection 252C(1) provides that subject to subsection 252C(2), in the course of the conduct of a screening procedure under section 252AA, or of a search under 252A or 252BA, an authorised officer may seize a thing that:

·          is a weapon or escape aid; or

·          is a prohibited thing determined under paragraph 251A(2)(a); or

·          is forfeitable to the Commonwealth (otherwise than under subsection (2A)); or

·          in any other case—might provide evidence of the commission of an offence against the Migration Act.

 

167.           New subsection 252C(1) expands the types of things that an authorised officer may seize, to include prohibited things determined under new paragraph 251A(2)(a). Prohibited things determined under new paragraph 251A(2)(b) are dealt with in new section 252CA inserted by item 23 of the Bill. 

 

168.           New subsection 252C(1) also includes an express reference to things that are forfeitable to the Commonwealth other than under subsection 252C(2A).  This category covers things that are forfeitable under another law. New subsection 252C(1) also adds searches under new section 252BA (searches of certain immigration detention facilities) to the list of searches covered by section 252C.

 

169.           Note 1 under paragraph 252C(1)(d) explains that section 252AA deals with screening detainees, section 252A deals with strip searches of detainees and section 252BA deals with searches of certain immigration detention facilities. Note 2 explains that paragraph 251A(2)(a) covers things the possession of which is unlawful.

 

170.           New subsection 252C(2) provides if an authorised officer has the power to seize a thing under subsection 252C(1), the officer must seize the thing if a direction under subsection 251B(6) has the effect of requiring the officer to seize the thing.

 

171.           New subsection 251B(6), inserted by item 2 of this Bill, provides that the Minister may , by legislative instrument, direct that an authorised officer (or an authorised officer in a specified class of relevant officers) must seize a thing by exercising one or more specified relevant seizure powers (or all relevant seizure powers) in relation to one or more matters.

 

172.           The effect of subsection 252C(2) is that if an authorised officer conducts a search under section 252A or 252BA or a screening procedure under section 252AA and, during the conduct of that search or screening procedure, identifies a thing that the authorised officer may seize under subsection 252C(1), the officer must seize the thing if so directed by the Minister under subsection 251B(6).

 

173.           Current subsection 252C(2) provides that a weapon or other thing described in subsection 252AA(1) or 252A(1) that is found in the course of conducting a screening procedure under section 252AA or a strip search under section 252A is forfeited to the Commonwealth.

 

174.           New subsection 252C(2A) provides that t he following things are forfeited to the Commonwealth if seized under subsection 252C(1):

·          a weapon or escape aid;

·          a prohibited thing determined under paragraph 251A(2)(a).

 

175.           Subsection 252C(2A) expands the types of things that are forfeited to the Commonwealth to include prohibited things determined under new paragraph 251A(2)(a). This is because things determined under paragraph 251A(2)(a) are things that are illegal to possess.

 

Item 22           Subsections 252C(4) and (5)

 

176.           This item repeals and substitutes subsection 252C(4).

 

177.           Current subsection 252C(4) provides that a n authorised officer must take reasonable steps to return any other thing retained under subsection 252C(1) to the person from whom it was taken, or to the owner if that person is not entitled to possess it, if one of the following happens:

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

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

 

178.           New subsection 252C(4) provides that section 252CB applies to any thing seized under paragraph 252C(1)(d) after the earliest of the following events happens:

·          the end of the period of 60 days after the thing was seized, or at the end of a longer period ordered by a magistrate under section 252E, unless proceedings mentioned in paragraph 252C(4)(b) are instituted before the end of that period (or that longer period);

·          proceedings in respect of which the thing might provide evidence (including any appeal to a court in relation to those proceedings) are completed;

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

 

179.           The note under paragraph 252C(4)(c) explains that section 252CB provides for the return of things seized under paragraph 252C(1)(d) and section 252CA.

 

180.           New subsection 252C(4) applies in relation to any thing seized under paragraph 252C(1)(d), that is, to any thing seized which might provide evidence of the commission of an offence against the Migration Act. Together with new section 252CB, it sets out when a seized thing must be returned or can be disposed of.

 

181.           This item also repeals and substitutes subsection 252C(5).

 

182.           Current subsection 252C(5) provides that the authorised officer does not have to take those steps mentioned in subsection 252C(4) if:

·          in a paragraph 252C(4)(b) case:

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

o    the authorised officer may retain the thing because of an order under section 252E ; or

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

 

183.           New subsection 252C(5) provides that despite new subsection 252C(4), section 252CB does not apply to a thing if an authorised officer is authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State or Territory), otherwise than under this section, to retain, destroy or dispose of the thing.

 

184.           New subsection 252C(5) replicates the effect of current paragraph 252C(5)(b), by ensuring that new subsection 252CB (which deals with when a seized thing must be returned or can be disposed of) does not apply in the circumstances set out in new subsection 252C(5). 

 

Item 23           After section 252C

 

New section 252CA

 

185.           This item inserts new section 252CA “ Screening and strip searches of detainees and searches of facilities—seizure of certain prohibited things ”.

 

186.           This new 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. Subsection 252C(1) would apply to a prohibited thing if the thing might provide evidence of the commission of an offence against the Migration Act.

 

187.           Notes under subsection 252CA(1) explain the Minister’s determination of a prohibited thing under paragraph 251A(2)(b), as well as pointing to section 252C which deals with the seizure of other things.

 

188.           Subsection 252CA(2) provides that subject to subsection 252CA(4), in the course of the conduct of a screening procedure under section 252AA, or of a search under 252A or 252BA, an authorised officer may seize a thing to which section 252CA applies.

 

189.           Subsection 252CA(3) provides that subsection 252CA(2) does not authorise the seizure of a medication or health care supplement in the course of a search under subsection 252BA if there are reasonable grounds for an authorised officer conducting the search to consider that:

• the medication or supplement is possessed or controlled by a particular detainee; and
• the medication or supplement is not a prohibited thing in relation to the particular detainee because of subsection 251A(3).

 

190.           The note under subsection 252CA(3) explains sections 252BA and 251A(3).

 

191.           The amendment will support the management of medications and supplements within immigration detention facilities by ensuring that the new seizure powers in relation to immigration detention facilities, as provided by the Bill, do not apply to medications or supplements that have been prescribed or supplied to a detainee for their individual use by an authorised health service provider.

 

192.           Subsection 252CA(4) provides that if an authorised officer has the power to seize a thing under subsection 252CA(2), the officer must seize the thing if a direction under subsection 251B(6) has the effect of requiring the officer to seize the thing.

 

193.           The note under subsection 252CA(4) explains that an authorised officer does not have the power to seize a medication or health care supplement under subsection 252CA(2) if subsection 252CA(3) applies in relation to a medication or health care supplement.

 

194.           New subsection 251B(6), inserted by item 2 of this Bill, provides that the Minister may , by legislative instrument, direct that an authorised officer (or an authorised officer in a specified class of relevant officers) must seize a thing by exercising one or more specified relevant seizure powers (or all relevant seizure powers) in relation to one or more matters.

 

195.           The effect of subsection 252CA(4) is that if an authorised officer conducts a search under section 252A or 252BA or a screening procedure under section 252AA and, during the conduct of that search or screening procedure, identifies a thing that the authorised officer may seize under subsection 252CA(2), the officer must seize the thing if so directed by the Minister under subsection 251B(6). That obligation is subject to subsection 252CA(3), which prevents the seizure of certain medications or health care supplements in certain circumstances.

 

196.           Subsection 252CA (5) provides that section 252CB applies to a thing that is seized under subsection 252CA(2).

 

197.           The note under subsection 252CA(5) explains that section 252CB provides for the return of things seized under section 252CA and of certain seized things under section 252C.

 

New section 252CB

 

198.           This item also inserts new section 252CB “ Screening and strip searches of detainees and searches of facilities - return of seized things ”.

 

199.           Subsection 252CB(1) provides that if section 252CB applies, because of subsection 252C(5) or 252CA(4), in relation to a thing that has been seized under subsection 252C(1) or 252CA(2), an authorised officer:

• 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 that detainee ceases to be in detention; and
• 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.

 

200.           The note under subsection 252CB(1) explains that section 252CB applies to a thing seized under paragraph 252C(1)(d) because it might provide evidence of the commission of an offence under the Migration Act. Section 252CB also applies to a prohibited thing determined under paragraph 251A(2)(b) that is seized under subsection 252CA(2).

 

201.           Subsection 252CB(2) provides that the thing is forfeited to the Commonwealth if, after taking all reasonable steps to return it under paragraph 252CB(1)(a) or (b), the authorised officer considers on reasonable grounds that:

• its owner or the person who last controlled the thing cannot be identified; or
• the thing is abandoned; or
• if it appears that the thing is owned or was controlled by a detainee—the thing cannot be returned to the detainee when the detainee ceases to be in detention; or
• 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.

 

202.           Subsection 252CB(3) allows for an authorised officer to dispose of a prohibited thing forfeited to the Commonwealth under subsection 252CB(2) in any way the officer thinks appropriate.

 

Item 24           Section 252D (heading)

 

203.           This item repeals the heading for section 252D “ Authorised officer may apply for a thing to be retained for a further period ” and substitutes a new heading for this section “ Retention of certain seized things for extended period - application for order by magistrate ”.

 

204.           This new heading more clearly indicates the scope of the section by making express reference to things which have been seized.

 

Item 25           Subsection 252D(1)

 

205.           This item omits “has taken possession of a thing referred to in subsection 252C(4)” and substitutes “seized a thing under paragraph 252C(1)(d)”.

 

206.           This amendment is consequential to the amendments made to section 252C by items 21 and 22 of this Bill, and does not alter the legal effect of subsection 252D(1).

 

Item 26           Paragraph 252D(1)(a)

 

207.           This item omits “takes possession of” and substitutes “seizes”.

 

208.           This amendment is consequential to the amendments made to section 252C by items 21 and 22 of this Bill, and does not alter the legal effect of paragraph 252D(1)(a).

 

Item 27           Section 252E (heading)

 

209.           This item repeals the heading for section 252E “ Magistrate may order that a thing be retained ” and substitutes a new heading for this section “ Retention of certain seized things for extended period - order by magistrate ”.

 

210.           This new heading more clearly indicates the scope of the section by making express reference to things which have been seized.

 

Item 28           Section 252G (heading)

 

211.           This item repeals the heading for section 252G “ Powers concerning entry to a detention centre ” and substitutes the new heading for this section “ Persons entering immigration detention facilities—screening powers ”.

 

212.           This new heading more clearly indicates the scope of the powers under this section by making express reference to screening powers in relation to persons entering immigration detention facilities.

 

Item 29                       Subsection 252G(1)

 

213.           The amendments to section 252G provide certain powers relating to the entry of a person to an immigration detention facility operated by or on behalf of the Commonwealth. This section as amended will allow authorised officers to screen visitors entering certain immigration detention facilities and is required to prevent the entry of things that visitors may seek to bring with them that might pose a risk to the health, safety and security of persons at the facility or undermine the order of these facilities.

 

214.           This item amends subsection 252G(1) to omit the words “a detention centre established under this Act” and substitutes “an immigration detention facility operated by or on behalf of the Commonwealth”.

 

215.           The purpose of this amendment is to ensure that the powers under section 252G apply in relation to the immigration detention facilities as defined by the new definition inserted by item 1 of this Bill. This will extend this provision to cover facility-based APODs in addition to detention centres established under section 273 of the Migration Act.

 

216.           The amendment limits this provision to those immigration detention facilities operated by or on behalf of the Commonwealth. The purpose of this limitation is to ensure that the screening powers provided by section 252G only apply to persons entering a facility-based APOD (including an ITA). It is not intended that this section apply to people entering a non-facility-based APOD such as a hotel or motel, school or hospital.

 

Item 30           After subsection 252G(1)

 

217.           This item inserts new subsection 252G(1A).

 

218.           New subsection 252G(1A) provides that an officer may make a request to a person under subsection 252G(1) whether or not, before making the request, the officer has any suspicion that there is in the person’s possession a thing mentioned in subsection 252G(3).

 

Item 31           Subsection 252G(3)

 

219.           This item repeals and substitutes subsection 252G(3) and inserts new subsection 252G(3A).

 

220.           New subsection 252G(3) provides that an authorised officer may request that a person do something under subsection 252G(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 there is in the person’s possession:

·          a thing that:

o    might endanger the safety of the detainees, staff or other persons at the facility; or

o    might disrupt the order or security arrangements at the facility; or

·          a prohibited thing.

 

221.           Subsection 252G(3) expands the types of things that an authorised officer may screen for, to include prohibited things determined under new paragraphs 251A(2)(a) and (2)(b).

 

222.           Subsection 252G(3A) makes clear that an authorised officer may make a request for a person to do one of the things listed in subsection 252G(4) whether or not a request has also been made under subsection 252G(1) for the person to do something mentioned in that subsection.

 

Item 32           Paragraph 252G(4)(e)

 

223.           This item repeals and substitutes paragraph 252G(4)(e).

 

224.           New paragraph 252G(4)(e) expands the circumstances in which an authorised officer may ask a person to leave a thing in their possession if they are about to enter an immigration detention facility operated by or on behalf of the Commonwealth, to include where an officer suspects on reasonable grounds that the thing or anything in its contents is a prohibited thing.

 

Item 33           Subsection 252G(5)

 

225.           This item omits the words “A person” and substitutes “Subject to subsections 252G(6) and (6A), a person”.  This item makes a technical amendment to subsection 252G(5) to refer to subsection 252G(6) and to new subsection 252G(6A) as inserted by item 37 of this Bill.

 

Item 34           Subsection 252G(5)

 

226.           This item amends subsection 252G(5) to omit the words “detention centre” and substitute the words “immigration detention facility”, as a consequence of the amendment to subsection 252G(1).

 

Item 35           Subsection 252G(6)

 

227.           This item makes a technical amendment to subsection 252G(6) to omit the word “However”. This word is unnecessary because of the amendment made by item 33 of this Bill.

 

Item 36           Subsection 252G(6)

 

228.           This item amends subsection 252G(6) to omit the words “detention centre” and substitute the words “immigration detention facility”, as a consequence of the amendment to subsection 252G(1).

 

Item 37            After subsection 252G(6)

 

229.           This item inserts new subsections 252G(6A) and (6B).

 

230.           The purpose of these amendments is to specify how prohibited things determined under paragraph 251A(2)(b) that are left in a place specified by an authorised officer by a person entering an immigration detention facility are to be dealt with where the owner or controller of the thing cannot be identified, the thing is abandoned, or the thing can otherwise not be returned.

 

231.           New subsection 252G(6A) provides that if a person leaves a prohibited thing determined under paragraph 251A(2)(b) in a place as mentioned in subsection 252G(5), it is forfeited to the Commonwealth if an authorised officer considers on reasonable grounds, after taking all reasonable steps to return the thing to the person for the purposes of subsection 252G(5), that one of the grounds set out in the subsection is satisfied.

 

232.           The note to this subsection explains the operation of paragraph 251A(2)(b).

 

233.           Where the prohibited thing has been forfeited under new subsection 252G(6A), new subsection 252G(6B) gives the authorised officer the power to dispose of it in any way they think appropriate.

 

Item 38           Subsection 252G(7)

 

234.           This item amends subsection 252G(7) to omit the words “a detention centre established under this Act” and substitute the words “an immigration detention facility”, as a consequence of the amendment to subsection 252G(1).

 

 

Attachment A

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the Bill) amends the Migration Act 1958 (Migration Act) to allow the Minister to determine that a thing is a prohibited thing in relation to immigration detention facilities and detainees (whether or not they are in an immigration detention facility). These things may include controlled drugs (as defined in the Criminal Code Act 1995 ) and prescription drugs not taken by the person to whom they are prescribed, mobile phones, Subscriber Identity Module (SIM cards), and internet-capable devices. The Bill also includes a new statutory power to search facilities operated by or on behalf of the Commonwealth, in order to enforce both the existing and new prohibitions.

The amendments in the Bill seek to strengthen the Department of Home Affairs’ ability to regulate the possession of particular items in immigration detention facilities in order to ensure that the Department can provide a safe and secure environment for staff, detainees and visitors in an immigration detention facility.

Authorised officers will be provided with training and guidance in relation to the exercise of their new seizure powers. For example, an authorised officer’s decision to seize a mobile phone or a SIM card (if such things are determined to be prohibited things) from a detainee would be made taking into account a range of considerations including, but not limited to, the existence of police recommendations or relevant court orders in relation to the detainee, and whether the detainee is a registered sex offender or has a history of child sex offences.

 

The amendments will also allow for a targeted, intelligence-led, risk-based approach in relation to the seizure of prohibited things from detainees , by allowing the Minister to issue binding written directions that make it mandatory for officers to seize items that are covered by their seizure powers.

The Bill amends the Migration Act to:

·          insert new definitions under subsection 5(1) to define section 273 detention centres and places approved in writing by the Minister under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1) of the Migration Act (otherwise known as Alternative Places of Detention (APODs)) collectively as ‘immigration detention facilities’, and to define a ‘prohibited thing’;

·          insert new section 251A to enable the Minister to determine, by disallowable legislative instrument, prohibited things in relation to immigration detention facilities and detainees (whether or not they are in an immigration detention facility). These things may include illegal things, specifically controlled drugs, and things that present a risk within immigration detention facilities including mobile phones, SIM cards and internet-capable devices;

·          insert new sections 252BA and 252BB to allow authorised officers and authorised officers’ assistants to search, without a warrant, immigration detention facilities operated by or on behalf of the Commonwealth, including accommodation areas, administrative areas, common areas, detainees’ rooms, detainees’ personal effects, medical examination areas and storage areas, and to allow the use of detector dogs to conduct these searches;

·          clarify and strengthen the search and seizure powers in relation to detainees in sections 252, 252AA, 252A, 252BA, 252C and 252CA;

·          strengthen the powers in section 252G in relation to a person about to enter an immigration detention facility operated by or on behalf of the Commonwealth to expressly allow an authorised officer to screen and search for prohibited things (which may include controlled drugs); and

• allow the Minister to issue binding written directions to officers in relation to the exercise of their seizure powers.

 

Human rights implications

Right to Privacy

Article 17 (1) of the International Covenant on Civil and Political Rights (ICCPR) states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Immigration detention facilities now accommodate an increasing number of higher risk detainees awaiting removal, often having entered immigration detention directly from a correctional facility, including members of outlaw motorcycle gangs and other organised crime groups.

The change to the demographics of the detention population is due to the Government’s successful border protection policy and the increase in visa refusal or cancellation on character grounds resulting from implementing the Government’s commitment to protecting the Australian community from non-citizens of serious character concern. However, the changing nature of the detention population has seen an increase in illegal activities in immigration detention facilities across Australia. This Bill will enable the Department to target this type of activity more effectively, and to better manage the risks posed by criminal activity to the safety of people in immigration detention.

Currently mobile phones are enabling criminal activity within the immigration detention network. Activity facilitated or assisted by mobile phone usage includes:

• drug distribution
• maintenance of criminal enterprises in and out of detention facilities
• commodity of exchange or currency
• owners of mobile phones being subjected to intimidation tactics (including theft of the phone)
• threats and /or assaults between detainees including an attempted contract killing.

In addition to the above, mobile phones have been used to coordinate disturbances and escapes.

The existing search and seizure powers in the Migration Act need clarification and are not sufficient to manage the increasing prevalence of illegal and anti-social behaviour in immigration detention facilities. The presence of controlled drugs and other contraband such as mobile phones poses a risk to the health, safety, security and order of the immigration detention network.

The amendments in the Bill seek to strengthen the search and seizure powers in order to provide for a safe and secure environment for people accommodated at, visiting or working at an immigration detention facility.

The strengthened and new search powers do represent a limitation to the right to detainees’ privacy. However, the right to privacy is not absolute. The search and seizure powers that the Bill is seeking to introduce are commensurate to the risk that currently exists in immigration detention facilities, that is as discussed above, the risk of drug distribution, violence and the facilitation of other criminal activities. The greater security of the immigration detention facility environment and persons in them that these amendments provide for are necessary to appropriately manage these risks, especially given that current search and seizure powers are limited in their ability to manage these risks . Currently in relation to searches (including strip searches) of persons detained in Australia, the Department can only search for a weapon or other thing capable or being used to inflict bodily injury, or to help the person to escape from immigration detention; not any other things that may facilitate criminal activities.

The new powers ensure that authorised officers can search for and seize things that are concealed with no intention to hide them, or that are visible, in addition to things that are intentionally concealed.

Additionally, a person about to enter a detention centre can currently only be screened for a thing that might:

·          endanger the safety of the detainees, staff or other persons at the detention centre; or

·          disrupt the order or security arrangements at the detention centre.

Currently the Department cannot screen for things that may facilitate criminal activities.

Officers must increasingly rely on common law as the basis for taking certain action designed to manage risks and keep control of immigration detention facilities.

These amendments are also proportionate to the serious consequences of injury to staff and detainees, and the greater Australian community if these risks are not properly managed. Any limitations on this right, through the search and seizure for things which are prohibited in immigration detention facilities, are reasonable, necessary and proportionate and are directed at the legitimate objective of protecting the health, safety and security of people in immigration detention and or to the order of the facility.

Right not to be subjected to arbitrary interference with family

Article 17(1) of ICCPR states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 23(1) of ICCPR states:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The Minister may determine, by disallowable legislative instrument under the proposed new power in section 251A, that mobile phones and Subscriber Identity Module (SIM) cards will be ‘prohibited things’.

The Department acknowledges that regular contact with family and friends supports detainee resilience and mental health and is committed to ensuring detainees have reasonable access to means of maintaining contact with their support networks. This contact will continue to be facilitated through the availability of landline telephones, internet access, access to facsimile machines and postal services. Additionally, immigration detention facilities will continue to facilitate visits by detainees’ family members, friends, legal representatives, advocates and other visitors.

The Department has reviewed, and continues to review, the availability of telephone, internet and facsimile facilities for use by detainees across the immigration detention network, to ensure these facilities are adequate to contact and be contacted by family, friends and legal representatives. As a result of reviews, additional landline telephones have been installed at most immigration detention facilities. This has meant that detainees have even greater and more readily available access to means of communication with their families.

The amendments do not represent an interference with family, given detainees have other readily available communication channels at their disposal to communicate with their families. 

Freedom of expression

Article 19(2) of ICCPR states:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The amendments seek to restrict certain things that can be brought into and/or possessed in an immigration detention facility. As per the discussion above regarding Articles 17 and 23(1) of the ICCPR, these ‘prohibited things’ will be things that the Minister so specifies as ‘prohibited things’ and that are unlawful to possess, or things that might be a risk to the health, safety or security of persons in an immigration detention facility, or to the order of the facility (including mobile phones and SIM cards).

Although mobile phones SIM cards and internet-capable devices may be determined to be ‘prohibited things’, a number of alternative communication avenues will remain available to detainees. These include landline telephones, access to the internet, access to facsimile machines and postal facilities. The Department has reviewed, and continues to review, the availability of these communication facilities for use by detainees across the immigration detention network to ensure these facilities are adequate to contact and be contacted by family, friends and legal representatives. As a result of reviews, additional landline telephones have been installed at most immigration detention facilities. Detainees therefore have even greater access to means of communication. Additionally, immigration detention facilities will continue to facilitate visits by detainees’ family members, friends, legal representatives, advocates and other visitors.

The amendments do not limit the right to freedom of expression, given the various other avenues of communication that are readily available to detainees.

The following communication avenues are currently available to detainees:

• landline phones (service available 24/7 without monitoring, the only limitation being that a private interview room may not always be available after hours);
• Internet (there is always an officer monitoring the room to maintain safety. Other monitoring is limited to the use of filters to block specific categories of activities such as for example porn, terrorism and gambling related internet and to the retrospective search of websites and of key words used to access inappropriate material);
• fax (Serco staff send when requested during office hours);
• post services (services available upon request during office hours);
• visits from family, friends and community members (each facility has different visiting hours).

Detainees are not required to lodge a request to use the landline phones, but may be required to fill out a form with the receiving fax number in respect to fax communications or the receiving address in respect to post facilities.  The booking system to access the internet is straightforward and ensures equity of access and there are usually no delays in this process. 

The monitoring of internet usage by detainees currently only occurs on Christmas Island. The Department, however, is in the process of replicating the monitoring of internet usage in mainland facilities with support of the Service Provider. The tool used for internet monitoring will allow for specific web sites and contents to be blocked based on categories (such as pornography and gambling). The monitoring tool will also allow retrospective searches to help identify websites accessed or searches completed by detainees that may be considered inappropriate material. This will enable the Australian Border Force to identify the inappropriate sites and to assess if the access requires further investigation. If, after further investigation the site is deemed to be prohibited or illegal, referrals to the AFP or local police will occur. If there are no issues with the website or search then no further action will occur.

Any limitations on the right to expression are reasonable, necessary and proportionate and are directed at the legitimate objective of protecting the health, safety and security of people in immigration detention and or to the order of the facility.

Treatment of persons in detention

Article 10(1) of ICCPR states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

This obligation has been interpreted to mean that States have a positive duty to provide detainees and prisoners with a minimum of services to satisfy their basic needs including food, clothing, medical care, sanitary facilities, communication, light, the opportunity to move about and privacy. As discussed above, the Department provides a number of readily available means of communication that include landline telephones, internet access, access to facsimile machines and postal services. In this respect, the potential restriction of mobile phone possession in immigration detention facilities does not represent a limitation on the obligation under Article 10 because these readily available facilities allow detainees appropriate and sufficient means of communication.

New subsections 251A(3) and 252CA(3) will have the positive effect of preventing the application of the new search and seizure powers in relation to medications and health care supplements where these have been prescribed or supplied to a detainee for their individual use by an authorised health services provider contracted by the Department in the relevant circumstances. The amendments will support the management of medications within immigration detention facilities by ensuring that safe and appropriate health care continues to be provided to detainees, while the misuse of medications can be responded to appropriately.

In relation to the conduct of the searches authorised by section 252 of the Migration Act, there are current provisions and a number of additional protections set out in the amendments that are designed to protect detainees and their property.

Current provisions

With regard to strip searches under section 252A of the Migration Act, authorisation must continue to be obtained from the Departmental Secretary or Australian Border Force Commissioner (or a Senior Executive Service Band 3 level employee in the Department) prior to a strip search of a detainee who is at least 18 years old being undertaken, and authorisation must continue to be obtained from a magistrate prior to a strip search of a detainee who is at least 10 years old but under 18 years old being undertaken. Strip searches will also remain subject to rules currently set out at section 252B of the Migration Act, which include (but are not limited to):

(1)    A strip search of a detainee under section 252A:

a)       must not subject the detainee to greater indignity than is reasonably necessary to conduct the strip search;

b)       must be conducted in a private area;

c)       must not be conducted on a detainee who is under 10;

d)      must not involve a search of the detainee’s body cavities;

e)       must not be conducted with greater force than is reasonably necessary to conduct the strip search.

Additional protections

Additionally, the amendments seek to introduce a number of provisions to protect detainees and their property. These include section 252BA - Searches of certain immigration detention facilities - general. This section includes subsection 252BA(7) - 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.     

The amendments also set out a number of provisions that seek to return certain ‘prohibited things’ to detainees on their release from detention. For example, subsection 252CB(1) will provide that an authorised officer must take all reasonable steps to return a ‘prohibited thing’ seized during a screening procedure, a strip search or a search of an immigration detention facility to the detainee on their release from detention, if it appears that the thing is owned or was controlled by the detainee.     

To the extent that the amendments may engage Article 10, there are sufficient protections provided by law to ensure that respect for detainees’ inherent dignity is maintained during the conduct of searches under section 252. Therefore, the amendments are consistent with the right under Article 10.

Conclusion

The Bill is compatible with human rights because where there are limits to human rights, such as with respect to privacy, those limitations are reasonable, necessary and proportionate to achieving the legitimate objective of ensuring a safe and secure environment for those who visit, work at or are detained in, an immigration detention facility.