Senate

Supplmentary Explanatory Memorandum relating to sheet JC574

(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural Affairs, the Honourable David Coleman MP)

Outline

The Government amendments amend the Migration Act 1958 (Migration Act) to allow the Minister to determine a thing as prohibited. Such a thing will be a prohibited thing in relation to immigration detention facilities and detainees. These things may include narcotic drugs, mobile phones, Subscriber Identity Module (SIM cards), child pornography and other things of concern. The amendments also strengthen search and seizure powers, including the use of detector dogs for screening of detainees and visitors and a new statutory power to search facilities operated by or for the Commonwealth, in order to enforce both the existing and new prohibitions.

The profile of the detainee caseload across the immigration detention network has changed significantly over the past two years. 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 child sex offenders and members of outlaw motorcycle gangs or other organised crime groups.

Evidence indicates that detainees are using mobile phones to coordinate and assist escape efforts, as a commodity of exchange, to aid the movement of contraband, and to convey threats. There are also reports that mobile phones have contributed to:

•

abusive and aggressive altercations between detainees with mobile phones and Unauthorised Maritime Arrival detainees who are already prohibited from accessing mobile phones;

•

use of force incidents resulting from the removal of controlled item have included, but are not limited to, detainees being held while trying to abscond from a search and the use of mechanical restraints after death threats were made to an officer; and

•

efforts to coordinate internal demonstrations to coincide with external protests.

The presence of narcotic drugs and other dangerous things in the immigration detention network poses a risk to the ongoing safety, security and order across the network. For example, razor blades have been used to disrupt and delay transfer operations and food has been used to conceal contraband including narcotic drugs.

The existing search and seizure powers in the Migration Act are not sufficient to manage narcotic drugs, mobile phones, SIM cards or other things that are of concern within the context of immigration detention facilities. The amendments seek to improve these powers in order to enhance the health, safety and security of persons within immigration detention facilities and the order of these facilities.

Specifically, the amendments amend 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 or 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 legislative instrument, prohibited things in relation to immigration detention facilities. These things will include illegal things, specifically narcotic drugs and child pornography and things that present a risk within immigration detention facilities including mobile phones and SIM cards;

•

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

•

strengthen the screening and seizure powers in relation to detainees in sections 252, 252AA, 252A, 252B, 252C and 252CA;

•

strengthen the powers under 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 narcotic drugs and other prohibited things; and

•

enable the use of detector dogs for screening detainees, and persons about to enter an immigration detention facility operated by or on behalf of the Commonwealth, and for searching these facilities.

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 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.

AMENDMENTS TO THE HOME AFFAIRS LEGISLATION AMENDMENT (MISCELLANEOUS MEASURES) BILL 2018

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

Schedule 6-Prohibiting Items in Immigration Detention Facilities

Item 1 - Subsection 5(1)

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

2. 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 Schedule.

3. Item 1 also provides that the new definition 'prohibited thing' will have the meaning given by new section 251A inserted by item 2 of this Schedule.

Item 2 - After section 251

4. This item inserts new section 251A "Search of detainees etc. - prohibited things in immigration detention facilities".

5. 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 (1) and to provide a definition of prohibited thing and immigration detention facility.

6. The powers to search and screen detainees, and to screen persons about to enter a facility, for prohibited things will be amended by other items in the amendments. The amemdments 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.

7. Subsection 251A(1) defines a prohibited thing in relation to a person in detention, 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 subsection 251A(2)(a); or

(b)

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

8. 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.

9. 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 this State, but not prohibited by the law of Western Australia and therefore not a prohibited thing in relation to a person in detention in that State.

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

11. It is currently intended that under paragraph 251A(2)(a) the Minister will determine narcotic drugs and child pornography for the purposes of subsection (1).

12. To clarify the operation of new subsection 251A(2), a note has been included at the end of subsection 251A(2) to provide examples of things that might be considered to pose a risk to the health, safety or security of persons in the facility, or to the order of the facility. These things include, but are not limited to: mobile phones, Subscriber Identity Module (SIM cards), computers and other electronic devices, such as tablets, medications or health care supplements, in specified circumstances, or publications or other material that could incite violence, racism or hatred.

13. Medications or health care supplements in specified circumstances as listed in the note are intended to capture circumstances where a person in an immigration detention facility may be in possession of medication that has been prescribed for another person.

14. Publications or other material that could incite violence, racism or hatred as listed in the note are intended to capture things which could pose a serious risk to the safety, security of persons in the facility and to the order of facilities.

15. 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.

16. Migration Agents or legal representatives will continue to be able to contact their clients. The Department of Immigration and Border Protection (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.

17. The amendments will not prohibit authorised officers (including Departmental officers, Serco officers and Detention Health Services Providers) 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.

18. Subsection 251A(3) 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 writing for the purposes of subparagraph (b)(v) of the definition of 'immigration detention' in subsection 5(1).

19. The purpose of this new definition is to ensure that the power to conduct personal searches of detainees and searches of facilities for prohibited things will apply to detention centres established under section 273 (otherwise known as an Immigration Detention Centre (IDCs)) and also to a place approved in writing by the Minister or a 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)).

20. 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.

21. APODs include certain facilities operated the Department, known as facility-based APODs. Currently there are three facility-based APODs approved by the Minister. These are:

•

Phosphate Hill (Christmas Island)

•

Construction Camp (Christmas Island)

•

Northern APOD (Darwin)

22. In addition to these three facility-based APODs, there are also currently three Immigration Transit Accommodation (ITA) facilities that are authorised as APODs and controlled by the Department:

•

Brisbane Immigration Transit Accommodation (BITA)

•

Melbourne Immigration Transit Accommodation (MITA)

•

Adelaide Immigration Transit Accommodation (AITA)

23. 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.

24. The new search and seizure powers provided by this Schedule will apply in relation to persons detained in all types of APODs but these new powers will not extend search and screening powers to non-facility-based places of accommodation or visitors to these type of APODs.

Item 3 - Section 252 (heading)

25. This item repeals the heading for section 252 "Searches of persons" and substitutes a new heading for this section "Searches of detainees, and non-citizens in immigration clearance - general powers".

26. 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 - At the end of subsection 252(2)

27. This item adds a new paragraph (c) to subsection 252(2).

28. 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 establish whether a person is carrying hidden 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 other detainees. This provision does not empower an authorised officer to remove the person's clothing or require the person to remove their clothing.

29. New paragraph 252(2)(c) specifies that for subsection 252(1)(a), the purposes for searching a person detained in Australia also includes to find out whether a prohibited thing (other than a prohibited thing to which paragraph (a) and (b) applies), is hidden on the person, in the clothing or in the property. This new purpose is in addition to those purposes already articulated in paragraphs 252(2)(a) and (b).

30. This new search power does not apply to searches of persons in immigration clearance referred to in subsection 252(1)(b).

Item 5 - Subsection 252(4)

31. This item amends subsection 252(4) to include the new category of prohibited thing determined for the purposes of new paragraph 251A(2)(a) in the list of things that may be found 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 subsections 242(4A) and (4B) set out below will apply to the other category of prohibited thing.

32. The effect of this item is to expand the range of things that an authorised officer may take possession of, and retain, under subsection 252(4) if found in the course of a search conducted under subsection 252(1).

Item 6 - Paragraphs 252(4)(a) and (b)

33. This item makes a technical amendment to paragraphs 252(4)(a) and (b) to omit the word "other" from the phrase "other thing".

34. Following this amendment, a "thing" in paragraphs 252(4)(a) and (b) will include an "other thing referred to in paragraph (2)(b)" and "a prohibited thing" as defined by subsection 251A(1) at item 2 of this Schedule.

Item 7 - At the end of subsection 252(4)

35. This item adds a note at the end of subsection 252(4).

36. The purpose of the note is to give context to the reference made to paragraph 251A(2)(a) in subsection 252(4) introduced by the amendment in item 5 of this Schedule.

Item 8 - After subsection 252(4)

37. This item inserts new subsections 252(4A), (4B) and (4C) which together address the retention, return, forfeiture and disposal of prohibited things determined under paragraph 251A(2)(b).

38. The purpose of subsection 252(4A) is to specify how an authorised officer is to deal with a thing determined as a prohibited thing for the purposes of paragraph 251A(2)(b), which is found in the course of a search in relation to a detained person.

39. This section specifies that the authorised officer conducting the search may: (a) take possession of the prohibited thing; and (b) retain the prohibited thing.

40. Paragraphs (c) and (d) further state that if it appears that the thing is owned or was controlled by a detainee or by a person other than the detainee, the 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 owned or controlled the thing.

41. The note to paragraph (d) provides that subsection 252(4A) applies in relation to prohibited things determined by legislative instrument under paragraph 251A(2)(b) where the Minister is satisfied that possession or use of such a 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.

42. Subsection 252(4B) provides that where an officer retains a prohibited thing under paragraph 252(4A)(b), after having taken all reasonable steps to return the thing, this thing is forfeited to the Commonwealth if 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 he or she ceases to be in detention.

43. Paragraphs 252(4A)(d) and (4B)(d) apply in circumstances where the prohibited thing is clearly not the property of a detainee, and is owned or was controlled by someone else (for example, the thing may have been stolen from a departmental officer or visitor). Under paragraph 252(4A)(d), if the true owner or controller of the thing can be identified, it is intended that the thing be returned to that person. Under paragraph 252(4B)(d), the thing is forfeited to the Commonwealth if the thing cannot be returned to the true owner or controller.

44. 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.

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

Item 9 - Subsection 252(9)

46. This item repeals and substitutes subsection 252(9).

47. This purpose of this item is to make clear that an authorised officer who undertakes a type of search in relation to a detainee or immigration detention facility is not precluded from undertaking a different type of search in relation to the detainee or the facility, specifically searches under: section 252AA (searches of detainees - screening procedures); section 252A (searches of detainees - strip searches) and section 252BA (searches of certain immigration detention facilities - general).

48. This amendment incorporates an express reference to new section 252BA which is inserted by item 21 of this Schedule and which allows for searches of immigration detention facilities operated by or on behalf of the Commonwealth.

Item 10 - Section 252AA (heading)

49. 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".

50. 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 252AA(1)

51. This item makes a technical amendment to subsection 252AA(1) to include the new category of prohibited thing (other than a weapon or other thing to which paragraph (a) applies) in the list of things that a detainee may be screened for by an authorised officer.

Item 12 - After subsection 252AA(3)

52. This item inserts new subsections 252AA(3A) and 252AA(3AA).

53. The purpose of new subsection 252AA(3A) is to provide an appropriate safety measure for detainees where a dog is used by an authorised officer to conduct a screening procedure under this section. The use of a dog in conducting a screening procedure is to be inserted by item 14 below.

54. The subsection requires an authorised officer using a dog to conduct a screening procedure under this section to take all reasonable precautions to prevent the dog from touching any person (other than the officer) during the screening procedure and that the officer keep the dog under control while conducting the screening procedure.

55. New subsection 252AA(3AA) provides that using a dog for a screening procedure under this section, in accordance with subsection 252(3A) is not unlawful only because of the behaviour of the dog, as long as the other precautions in new subsection 252AA(3A) 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.

56. These amendments will give authorised officers under the Migration Act the ability to use highly trained detector dogs to search detainees in immigration detention facilities when conducting a screening procedure. Detector dogs are specifically trained to find concealed things such as narcotics, and are routinely used at Australian international airports and seaports and mail centres. The dogs are trained to give a passive or "sit" response where they detect a person may be carrying or concealing something or a pawing or scratching response to areas where things may be hidden. Departmental officers involved in using a dog to conduct a screening procedure will be specifically authorised for the purpose of handling a dog and will have undergone extensive training in handling detector dogs.

57. Expanding the search and screening powers in immigration detention facilities to include the use of detector dogs will ensure the Department has the ability to efficiently and effectively search and screen for, and retain, things that pose a risk to the health, safety, security of people in immigration detention facilities or that undermine the order of these facilities.

Item 13 - Subsection 252AA(4)

58. The purpose of new subsection 252AA(4) is to make clear that an authorised officer who undertakes a screening procedure in relation to a detainee is not precluded from undertaking a different type of search in relation to the detainee or an immigration detention facility, specifically searches under: section 252 (searches of detainees, and non-citizens in immigration in immigration clearance - general powers); section 252A (searches of detainees - strip searches) and section 252BA (searches of certain immigration detention facilities - general).

59. This amendment incorporates an express reference to new section 252BA which is inserted by item 21 of this Schedule and which allows for searches of immigration detention facilities operated by or on behalf of the Commonwealth.

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

60. This item amends the section 252AA(5) definition of conducting a screening procedure to add using a dog for the purposes of searching a detainee or things in the detainee's possession.

Item 15 - Section 252A (heading)

61. 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".

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

Item 16 - Subsection 252A(1)

63. This item makes a technical amendment to subsection 252A(1) to include the new category of prohibited thing (other than a weapon or other thing to which paragraph (a) applies) in the list of things that a strip search of a detainee may be conducted by an authorised officer to find.

Item 17 - Paragraph 252A(3)(a)

64. This item makes a technical amendment to paragraph 252A(3)(a) to include the new category of prohibited thing in the list of things that an authorised officer must reasonably suspect is hidden on the detainee in order for the authorised officer to be able to conduct a strip search.

Item 18 - Subsection 252A(7)

65. This item repeals and substitutes subsection 252A(7).

66. The purpose of new subsection 252A(7) is to make clear that an authorised officer who undertakes a strip search of a detainee is not precluded from undertaking a different type of search in relation to the detainee or an immigration detention facility, specifically searches under: section 252 (searches of detainees, and non-citizens in immigration in immigration clearance - general powers); section 252AA (searches of detainees - screening procedures) and section 252BA (searches of certain immigration detention facilities - general).

67. This amendment incorporates an express reference to new section 252BA which is inserted by item 21 of this Schedule, which allows for searches of immigration detention facilities operated by or on behalf of the Commonwealth.

Item 19 - Section 252B (heading)

68. 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".

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

Item 20 - Paragraph 252B(1)(j)

70. Paragraph 252B(1)(j) states that an authorised officer must not remove more pieces of clothing or use more visual inspection than the authorised officer conducting the search believes reasonably necessary to determine whether there is hidden on the detainee in his or her clothing, or in a thing in his or her possession, a weapon or other thing described in subsection 252A(1).

71. This item makes a technical amendment to paragraph 252B(1)(j) to include the new category of prohibited thing as a thing that the authorised officer may seek to determine is hidden on the detainee in his or her clothing, or in a thing in his or her possession.

Item 21 - After section 252B

72. This item inserts new section 252BA "Searches of certain immigration detention facilities - general" and new section 252BB "Searches of certain immigration detention facilities - authorised officers' assistants".

73. Currently common law is relied on to search for prohibited items in areas within an immigration detention facility, including detainee accommodation and common areas, to ensure the safety and security of detainees, departmental staff, contractors and other persons.

74. New 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 accommodation areas, administrative areas, common areas, detainees' personal effects, detainees' rooms, medical examination areas and storage areas to find prohibited things.

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

76. Under subsection 252BA(2), a search of the immigration detention facility may be conducted under this section only to find out whether any of the following are at the facility:

(a)

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

(b)

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

77. Subsections 252BA(3) to (6) set out specific conditions in relation to the conduct of a search of the immigration detention facility operated by or on behalf of the Commonwealth.

78. Subsection 252BA(3) 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 subsection 252BA(1) and does not limit these powers.

79. New subsection 252BA(4) 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 keep the dog under control while conducting the search.

80. New subsection 252BA(5) 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 new subsection 252BA(4) 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.

81. 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 dog and will have undergone extensive training in the handling of detector dogs.

82. Subsection 252BA(6) 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.

83. 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.

84. Subsection 252BA(7) makes clear that exercising the search powers available under section 252BA in relation to an immigration detention facility does not preclude the other searches in relation to the detainee or the facility, including searches under: section 252 (searches of detainees, and non-citizens in immigration in immigration clearance - general powers); section 252AA (searches of detainees - screening procedures) and section 252A (searches of detainees - strip searches).

85. 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 of an immigration detention facility operated by or on behalf of the Commonwealth under section 252BA.

86. Subsection 252BB(1) provides that an authorised officer may be assisted by other persons in exercising powers or performing functions or duties for the purposes of a search under section 252BA, or in relation to retention of things found in the course of a screening process or search under sections 252C and 252CA if that assistance is necessary and reasonable. By including the wording 'necessary and reasonable' this restricts the use of officers' assistants to situations where such the assistance is necessary to ensure the authorised officer can carry out their powers, functions or duties to complete the search of the facility.

87. Subsection 252B(1) explains that in these circumstances the person providing assistance to an authorised officer is considered to be an 'officer's assistant'.

88. The note at the end of subsection 252BB(1) mentions the operation of subsection 252BA(3) and sections 252C and 252CA as these provisions are directly referenced in new section 252BB.

89. New subsection 252BB(2) sets out the powers that an officer's assistant will have in relation to a search of an immigration detention facility operated by or on behalf of the Commonwealth under section 252BA. These powers are outlined in paragraphs 252BB(2)(a) and (b) and allow an officer's assistant to enter the facility and to exercise powers and perform functions and duties in relation to which subsection 252BB(1) applies in relation to anything found in the course of a search or screening procedure. Paragraph 252BB(2)(c) limits these powers so that the officers' assistant must carry out the powers in subsection 252BB(1)(a) and (b) in accordance with a direction given to them by the authorised officer.

90. Subsection 252BB(3) provides that a power exercised by an 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 officers' assistant as those exercised by the authorised officer.

91. Subsection 252BB(4) provides that a function or duty performed by an 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 officers' assistant as those performed by the authorised officer.

92. Subsection 252BB(5) provides that if a direction is given to a person assisting 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 2003.

Item 22 - Section 252C (heading)

93. 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-retention of seized things (general)".

94. 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 searches of detainees and searches of facilities.

Item 23 - Subsection 252C(1)

95. This amendment adds new section 252BA (searches of certain immigration detention facilities - general) to the list of searches included in this provision. This will mean that an authorised officer may take possession and retain a thing found in the course of a search under section 252AA (which deals with screening procedures), 252A (which deals with strip searches) or 252BA (which deals with immigration detention facility searches) if the thing: might provide evidence of the commission of an offence under the Migration Act, or is forfeited or forfeitable to the Commonwealth.

96. This amendment incorporates an express reference to new section 252BA which is inserted by item 21 of this Schedule which allows for searches of immigration detention facilities operated by or on behalf of the Commonwealth

Item 24 - Subsection 252C(2)

97. This item repeals and substitutes subsection 252C(2).

98. The purpose of this subsection is to specify the type of things that are forfeited to the Commonwealth if found in the course of any of the searches mentioned in new subsection 252C(1).

99. Under paragraph 252C(2)(b), only prohibited things determined for the purposes of paragraph 251A(2)(a) (other than a weapon or other thing to which paragraph (a) applies) are forfeited to the Commonwealth if found in the course of a search mentioned in subsection 252C(1). This is because things determined under paragraph 251A(2)(a) are things that are illegal to possess such as narcotic drugs and child pornography. However, prohibited things determined by paragraph 252C(2)(b) are not forfeited or forfeitable, but may be retained under section 252C if they provide evidence of an offence against the Migration Act, or under new section 252CA (inserted by item 25 below).

100. The Note after paragraph 252C(2)(b) provides that a prohibited thing for the purposes of paragraph 251A(2)(a) found during a search of a detainee must be unlawful because of a law of the Commonwealth or the State or Territory in which that person is being detained.

Item 25 - After section 252C

101. This item inserts new section 252CA "Screening and strip searches of detainees, and searches of facilities-retention of certain prohibited things".

102. 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 such that the thing is retained as it might provide evidence of the commission of an offence against the Migration Act.

103. Subsection 252CA(2) allows an authorised officer to: (a) take possession of the prohibited thing; and (b) retain it.

104. Under paragraphs 252CA(2)(c) and (d) if it appears that the thing is owned or was controlled by a detainee, the officer must take all reasonable steps to return the thing to the detainee when he or she ceases to be in detention. An example of taking reasonable steps to return a thing would be where food has been taken and retained, and the food has spoiled during their time in detention. In that circumstance, it would not be reasonable to return the food.

105. Subsection 252CA(3) provides for forfeiture to the Commonwealth of a prohibited thing found by an authorised officer during a search under 252AA (screening procedure), 252A (strip search) or 252BA (search of an immigration detention facility) and retained in accordance with paragraph 252CA(2)(b). This subsection allows for these things to be forfeited to the Commonwealth if the officer has taken all reasonable steps to return the thing to the person under paragraph 252CA(2)(c) or (d) and considers on reasonable grounds that one of the circumstances listed in the provision are satisfied. These circumstances are that:

(a)

the thing's owner or person who last controlled the thing cannot be identified; or

(b)

the thing is abandoned; or

(c)

if it appears that the thing is owned or was controlled by a detainee - the thing cannot be returned to the detainee when he or she ceases to be in detention.

106. Paragraphs 252CA(2)(d) and (3)(d) are inserted for circumstances in which the prohibited thing is clearly not the property of a detainee, and is, or was, owned or controlled by someone else (for example, it may have been stolen from a Departmental officer or visitor). Under paragraph 252CA(2)(d), if the true owner or controller of the thing can be identified, it is intended that the thing be returned to that person if practicable. Under paragraph 252CA(3)(d), it is intended that if it is not practicable to return the thing to the person who owned or controlled it then the thing is forfeited to the Commonwealth.

107. Subsection 252CA(4) allows for an authorised officer to dispose of a prohibited thing forfeited to the Commonwealth under subsection 252CA(3) in any way he or she thinks appropriate.

Item 26 - Section 252G (heading)

108. 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".

109. 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 27 - Subsection 252G(1)

110. Section 252G provides certain powers relating to the entry of a person to an immigration detention facility operated by or on behalf of the Commonwealth and is required to maintain the order and security of these facilities as well as the safety and security of detainees, officers and other persons at the facility. This section will allow authorised officers to screen visitors entering an immigration detention facility 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.

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

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

113. The amendment also limits this definition to those immigration detention facilities operated by or on behalf of the Commonwealth. The purpose of this limitation is to ensure that the search powers provided by section 252G only apply to persons entering a facility-based APOD or ITA as described at paragraphs 25-27 above. 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 as described in paragraph 28 above.

Item 28 - Subsection 252G(1)

114. This item amends subsection 252G(1) to insert new paragraph 252G(1)(d).

115. This new paragraph allows an authorised officer to use a dog for the purpose of searching a person entering an immigration detention facility for a thing to which subsection 252G(3) applies.

Item 29 - After subsection 252G(2)

116. This item inserts new subsections 252G(2A) and 252G(2B).

117. The purpose of new subsection 252G(2A) is to provide appropriate safety measures for persons entering an immigration detention facility where a dog is used to search a person.

118. The subsection requires an authorised officer to take all reasonable precautions to prevent the dog from touching any person (other than the officer) during the search and that the officer keep the dog under control while conducting the search.

119. New subsection 252G(2B) provides that using a dog to search a person in accordance with section 252G is not unlawful only because of the behaviour of the dog, as long as the other precautions in this new subsection 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.

120. These amendments will give authorised officers under the Migration Act the ability to use highly trained detector dogs to search a person entering an immigration detention facility that is operated by or on behalf of the Commonwealth.

Item 30 - Subsection 252G(3)

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

122. Subsection 252G(3) expands the circumstances in which an authorised officer may request 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. These changes will allow an authorised officer who suspects on reasonable grounds that a person about to enter an immigration detention facility has in his or her possession a prohibited thing to request that the person do one or more of the following:

•

allow the authorised officer to inspect things in the person's possession;

•

remove some or all of the person's outer clothing such as a oat, jacket or something similar;

•

remove items from the pockets of the person's clothing;

•

open a thing in the person's possession, or remove the thing's contents, to allow the authorised officer to inspect the thing or its contents;

•

leave a thing, or some or all of its contents, in a place specified by the authorised officer.

123. Subsection 262G(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 the a request has also been made under subsection 252G(1) for the person to undergo a screening procedure.

Item 31 - Paragraph 252G(4)(e)

124. This item amends paragraph 252G(4)(e).

125. The amendment expands the circumstances which an authorised officer may request 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 its contents are capable of concealing a prohibited thing.

Item 32 - Subsection 252G(5)

126. 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 33 of thisSchedule.

Item 33 - Subsections 252G(5) and (6)

127. This item amends subsections 252G(5) and (6) to omit the wording "detention centre" and substitute the words "immigration detention facility", as a consequence of the amendment to subsection 252G(1)

Item 34 - After subsection 252G(6)

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

129. The purpose of these amendments is to specify how things 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 found, the thing is abandoned, or the thing can otherwise not be returned.

130. This subsection provides that if these circumstances apply and the authorised officer has taken all reasonable steps to return the prohibited thing to the person for the purposes of that subsection, the prohibited thing will be forfeited to the Commonwealth. Similar to section 252CA, an example of where reasonable steps to return a thing may apply would be where food has been left and the owner has been given a reasonable amount of time and has not collected the food, and the food has spoiled during this time. In this case, it would not be reasonable to return the food.

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

Item 35 - Subsection 252G(7)

132. This item amends subsection 252G(7) to omit the wording "detention centre" and substitute the words "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

The amendments are 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 Amendments

The amendments will amend several provisions in the Migration Act 1958 (the Migration Act) to prohibit narcotic drugs, mobile phones, SIM cards and other things of concern in relation to persons in immigration detention and the immigration detention facilities. The amendments also strengthen search and seizure powers, including through the use of detector dogs for screening procedures for detainees and visitors and searching facilities, in order to enforce these prohibitions.

The amendments seek to clarify the Department's 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 people accommodated at, visiting or working in an immigration detention facility.

Specifically the amendments propose to amend the Migration Act to insert new definitions under subsection 5(1), to define Detention Centres and Alternative Places of Detention collectively as 'immigration detention facilities' and to define a 'prohibited thing'.

A new section, 251A, will be inserted to enable the Minister to determine, by legislative instrument, things to be prohibited, in relation to persons in immigration detention and the immigration detention facilities. These things will include illegal things, specifically narcotic drugs and child pornography, and things that are dangerous within immigration detention facilities including mobile phones and SIM cards.

Additionally there are amendments directed towards strengthening the search and seizure powers in the Migration Act, that is, section 252. These include:

•

the ability to search a person, the person's clothing and any property under the immediate control of the person for a prohibited thing as defined by the Migration Act (amendments to section 252(2) of the Migration Act);

•

the ability to take possession and retain a prohibited thing where it was found during the course of a search under section 252 of the Migration Act (amendments to section 252(4) of the Migration Act);

•

the ability to use screening equipment or a detector dog to screen a detainee's person or their possessions to search for prohibited things (amendments to section 252AA of the Migration Act);

•

the ability to use a detector dog to screen persons entering an immigration detention facility (amendments to section 252G of the Migration Act);

•

an authorised officer's ability to ask a person entering an immigration detention facility to do something where the authorised officer suspects on reasonable grounds that the person might have in their possession something that might endanger the safety of detainees, staff or other persons, might disrupt the order or security arrangements or a prohibited thing (new section 252G(3) and amended section 252(g)(4)(e) of the Migration Act);

•

the ability to conduct strip searches to search for prohibited things (amendments to section 252A of the Migration Act);

•

the ability to search an immigration detention facility, including accommodation areas, administrative areas, common areas, detainee's personal effects, detainee's rooms, medical examination areas and storage areas, for the purposes of determining whether there are weapons, other things capable of being used to inflict bodily injury, things capable of assisting a detainee to escape from immigration detention and prohibited things, and to use detector dogs to do so (new section 252BA of the Migration Act);

•

the ability to allow a person to assist an authorised officer to conduct the searches described above (new section 252BB of the Migration Act); and

•

the ability to take possession and retain things found as a result of a screening of a detainee or their possessions, a strip search or a search of the immigration detention facility where the thing might provide evidence of the commission of an offence against the Migration Act or forfeitable to the Commonwealth (which includes prohibiting things as set out in new section 252C(2) of the Migration Act).

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.

More than half of the detainee population consists of high-risk individuals who do not hold a visa, pending their removal from Australia. This includes members of outlaw motorcycle gangs and other organised crime groups whose visas have been cancelled or refused.

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. These amendments 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 narcotic drugs and other contraband such as mobile poses a risk to the health, safety, security and order of the immigration detention network.

The amendments seek to strengthen the search and seizure powers, including the use of detector dogs, 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 amendments are 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 with 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.

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 will specify by 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 and other visitors.

The Department has, 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 and SIM cards will be specified as '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, 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 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.

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.

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 delegate) prior to a strip search 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:

•

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

•

must be conducted in a private area;

•

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

•

must not involve a search of the detainee's body cavities;

•

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 sub-paragraph 252BA(6) - an authorised officer who conducts a search under this section must not use more force against a person or property, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

The use of detector dogs will be subject to a number of protections. For example, section 252AA(3A) provides that if an authorised officer uses a dog in conducting a screening procedure, the officer must:

(a)

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

(b)

keep the dog under control while conducting the screening procedure.

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, section 252CA(2) 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 amendments are 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.