Purpose and history of the Bill

The purpose of the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024 (the Bill) is to amend the Migration Act 1958 to:

• allow the Minister to determine, by legislative instrument, that a thing is a ‘prohibited thing’ in relation to immigration detention facilities and immigration detainees
• allow authorised officers and officers’ assistants to search, without a warrant, immigration detention facilities operated by or on behalf of the Commonwealth, including with the use of detector dogs
• strengthen search and seizure powers in relation to immigration detainees and
• allow the Minister to direct that an officer must exercise his or her seizure powers in relation to certain items.

As discussed in the background to this Bills Digest, the Bill is similar to previous Bills which were tabled in Parliament in 2017 and 2020 but were not passed. This Bills Digest will focus on the changes to the Bill compared with the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the 2020 Bill).

These changes relate to additional safeguards contained in this Bill, including:

• limiting the exercise of the search and seizure powers unless they are exercised for the purpose of preventing or lessening an ‘immigration detention facility risk’
• allowing for the return of prohibited items if an officer believes on reasonable grounds it is no longer necessary to retain the item for the purpose of preventing or lessening a detention facility risk
• providing detainees with alternative means of communication for certain purposes where a person’s communication device has been seized and
• clarifying that certain powers cannot be exercised to the extent that they limit the implied constitutional doctrine of freedom of political communication.

Background

There are a number of existing powers of search and retention of items under the Migration Act that apply to detainees in immigration detention.

Division 13 of Part 2 of the Migration Act provides powers of examination, search, detention and identification that are exercisable in particular places or in relation to particular people. Existing sections 252–252G set out the powers of authorised officers primarily in relation to people detained in immigration detention and people entering immigration detention facilities. Currently, an authorised officer may conduct a search of a detainee without a warrant in relation to a potential weapon or escape aid under section 252. Authorised officers may also conduct, without a warrant, screening procedures and strip searches of persons detained under respective sections 252AA and 252A of the Migration Act (see the Bills Digest for the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, pp. 18–19, for further discussion of these provisions).

The Coalition Government introduced legislation in 2017 and 2020 intending to provide stronger powers for search and seizure in immigration detention facilities:

• the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 (the 2017 Bill)
• the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the 2020 Bill).

Both bills passed the House of Representatives and were introduced into the Senate but lapsed at the end of the respective parliaments. The present Bill draws substantially on the 2 previous bills.

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

The 2017 Bill was introduced to the House of Representatives on 13 September 2017 and proposed amendments to the Migration Act to allow the Minister to determine that an item is a ‘prohibited thing’ in relation to immigration detention facilities, allow screening, search and seizure powers to be used to find prohibited things and strengthen screening, search and seizure powers under the Act relating to detainees and immigration detention facilities.

A primary aim of the 2017 Bill was to provide the legislative framework to ban the use of mobile phones in immigration detention. The Department of Immigration and Border Protection announced a blanket ban on mobile phones under policy in November 2016, expanding a policy applying only to asylum seekers who had arrived in Australia irregularly by boat to apply to all people in immigration detention. Access was to be phased out by February 2017 (see the Bills Digest for the 2020 Bill pp. 4–7 for further background).

A series of legal actions followed the announcement, with the Federal Court of Australia ultimately finding that the blanket ban policy was invalid on the ground that it was not authorised by any provision of the Migration Act (ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98; see the Bills Digest for the 2020 Bill pp. 7–8 for further background).

During the debate on the Bill in the House of Representatives, Labor Members opposed the passage of the Bill. Labor Senators provided a dissenting report to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017. The dissenting report made a number of recommendations focused on ensuring the proposed powers were only used when reasonable, necessary and proportionate, and ensuring detainees could maintain adequate communications with people outside detention. Subject to the recommendations, Labor Party senators recommended that the bill be passed.

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

The 2020 Bill was introduced to the House of Representatives on 14 May 2020 and proposed similar amendments to the 2017 Bill. It incorporated a number of suggested amendments that arose from committee inquiries into the 2017 Bill’s provisions (see the Bills Digest for the 2020 Bill pp. 8–9 for further details). The policy focus and public debate continued to be on the banning of mobile phones.

The Explanatory Memorandum to the 2020 Bill explicitly stated that it would address the decision of the Federal Court in ARJ17 v Minister for Immigration and Border Protection (p. 3).

Submissions to the Senate Legal and Constitutional Affairs Legislation Committee during its Inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 highlighted specific concerns with multiple aspects of the Bill. Concerns generally centred around 3 key thematic issues: the intended prohibition on mobile phones; the ‘securitisation’ of immigration detention; and the increased use of coercive powers. The Department of Home Affairs and detention services provider Serco supported the need for the 2020 Bill to address the stated inadequacy of the existing framework in addressing the change in the nature of the detainee cohort (discussed further below) (see the Committee’s report and the Bills Digest for the 2020 Bill pp.10–14).

Labor Senators provided a dissenting report and recommendations to the Committee’s report on the 2020 Bill in similar terms to that of the 2017 Bill, and stated:

Labor Senators recognise that the ‘types’ of detainees have changed over recent years, thus a different approach is likely required. The Labor Party supports prohibiting items that are already illegal under state, territory, or Commonwealth law, particularly narcotic drugs, child exploitation material or weapons as these items present a demonstrable risk within the detainee population and to detention centre staff.

However, the Government has failed to make a case for why this situation cannot be handled on a case by case basis or through existing legislation. (p. 37)

The dissenting report further expressed concern that:

… the positive benefits of mobile phones to detainees and their welfare are being lost in the generalised accusations of misuse…

Labor Senators consider that submissions and witnesses have made convincing arguments both for the benefits of mobile phones to detainees and against the blanket ban on mobile phones for all detainees that this bill would permit. (p. 40)

The need for the Bill

Governments have stated the necessity of the successive iterations of the Bill as due to the changing nature of the immigration detainee population. As noted by the Australian Human Rights Commission (AHRC) Yongah Hill Immigration Detention Inspection Report of April 2024, over the past decade, there has been a decline in the proportion of asylum seekers in onshore immigration detention:

This reduction was largely due to the release of large numbers of asylum seekers from closed detention into alternative community arrangements; and a decrease in the number of people entering detention following a significant decline in boat arrivals to Australia. (p. 12)

The introduction of mandatory visa cancellation under section 501 of the Migration Act (the ‘character test’) with effect from December 2014 has also contributed to the rise in that cohort of people being detained (p. 13).

The Explanatory Memorandum to the Bill states that:

Immigration detention facilities now accommodate an increasing number of higher-risk detainees awaiting removal from Australia, often having entered immigration detention directly from a correctional facility, including members of outlaw motorcycle gangs and other organised crime groups. (p. 3)

The Explanatory Memorandum states that this change in nature of the detention cohort has led to an increase in the conduct and orchestration of criminal activities in detention, and to an increase in the use of illicit and controlled drugs, presenting a risk to detainees and staff (p. 3).  

This reasoning is similar to that for the previous bills (see the Bills Digest for the 2020 Bill pp. 6–8 and the discussion in the 2020 Committee report pp. 13–16).

Minister for Home Affairs, Tony Burke, announced in a media release on 12 October 2024 that the Government would introduce ‘legislation to boost search and seizure powers in immigration detention centres’. He stated that ‘About 90 per cent of the current caseload hold a criminal conviction’ (see also the Minister’s second reading speech). The media release also stated that the legislation would contain ‘safeguards’ to ensure detainees could continue to communicate with family and with legal representatives.

The media release also stated that:

The changes respond to external calls for action, including from the Australian Human Rights Commission, whose report into conditions at the Yongah Hill Immigration Detention Centre recommended bolstered search powers for staff where there is reasonable suspicion of drug concealment.

The AHRC report made 33 recommendations (pp. 65–68) including:

Recommendation 4: The Government should reform the search powers available to detention centre staff to allow for targeted personal searches and room searches to be conducted where there is reasonable suspicion that drugs are being concealed.

The remaining recommendations were generally on the provision of detention services including health care, wellbeing and general conditions and treatment of detainees and staff.

The report provides some statistics on people in detention and states ‘Throughout 2023, people detained due to the cancellation of their visa under s 501 consistently comprised near to, and over, 60% of the overall detention population’ (p. 13).

Latest detention statistics are available on the Department of Home Affairs website. According to the latest report, as at 30 September 2024, there were 984 people in held immigration detention (including in alternative places of detention), of whom 83.7% had a criminal history (p. 4). Of the 984 people, 560 had had their visa cancelled under section 501 of the Migration Act (character cancellation) and 108 were unauthorised maritime arrivals (p. 8). The remaining 316 included people who had their visa cancelled under other provisions of the Migration Act, visa overstayers, illegal foreign fishers and people who had not been immigration-cleared.

Policy position of non-government parties/independents

Although the present Bill is similar to the 2017 and 2020 bills introduced by the Coalition when in government, the Coalition has not yet stated a position on the present Bill.

Greens Senator David Shoebridge has criticised the Bill, arguing ‘preventing people from filming, photographing and sharing details about their detention is clearly wrong’.

Key issues and provisions

As discussed above, the Bill is substantially similar to the 2020 Bill which lapsed upon dissolution and for which a Bills Digest was previously prepared. Therefore, this Bills Digest primarily focuses on identifying the changes between the two Bills. While it does include some discussion on provisions which were included in the 2020 Bill for context, please see the Bills Digest for the 2020 Bill for further analysis and commentary on these provisions, including stakeholder views.

Connection to immigration detention facility risks

Proposed section 251A gives the Minister the power to make a disallowable legislative instrument determining a thing to be a ‘prohibited thing’ in relation to a person in detention or in relation to an immigration detention facility. The Minister must be satisfied that either possession of the thing is prohibited by an Australian law, or possession or use of the thing in an immigration detention facility might be a risk (referred to as an ‘immigration detention facility risk’) to the health, safety, security of persons in the facility or the order of the facility.

Proposed subsection 251A(5) inserts a new definition of ‘immigration detention facility’ as either a detention centre established under the Migration Act or another place approved by the Minister in writing under the Act (known as an Alternative Place of Detention (APOD)).

As stated in the Explanatory Memorandum:

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 [immigration detention centre]. APODs include facility-based forms of detention, such as Immigration Transit Accommodation (ITAs) and non-facility based forms of detention in places in the broader community, such as leased private housing, hotel and motel accommodation, hospitals and schools [and] other places in the broader community that have been designated as alternative places of immigration detention. (p. 12)

Proposed subsection 251B(6) gives the Minister the power to make a legislative instrument directing an authorised officer (or an authorised officer in a specified class of relevant officers) to seize a thing by exercising one or more specified relevant seizure powers.

Unlike the 2020 Bill, Item 1 of the Bill inserts proposed section 251AA which limits when the exercise of certain search or seizure powers is considered to be authorised. Proposed subsection 251AA(1) sets out these limits, as summarised in the table below.

Proposed subsection 251AA(8) provides that a reference to the exercise of a power under a provision of this Act includes a reference to:

• the exercise of any particular aspect of the power under any particular part of that provision, and of any related power (or any particular aspect of such a related power) and
• the exercise of the power (or a related power) in any particular way.

While the Explanatory Memorandum does not provide any guidance as to how this provision is intended to operate, proposed subsection 251AA(8) includes an example of how it would apply:

A reference in this section to the exercise of a power of the Minister to make a direction under subsection 251B(6) in relation to a prohibited thing determined under paragraph 251A(2)(b) includes a reference to the exercise of that power by the Minister in relation to the following, as specified in the direction:

(a) any particular relevant seizure power (or all such powers);

(b) any particular class of persons, things or immigration detention facilities (or all such persons, things or facilities);

(c) any particular circumstances.

Proposed subsections 251AA(4)–(6) provide for the temporary return of seized things (where the person can request the thing be returned to them for a specified time period) and require the return of seized things where it is no longer necessary for them to be retained. These provisions were not included in the 2020 Bill.

Access to alternative means of communication

Item 2 inserts proposed section 251AB which provides that the Secretary must provide a detainee with an alternative means of communication where their device has been seized under the relevant search and seizure powers. These provisions were not included in the 2020 Bill.

The alternative means of communication must be reasonably sufficient to enable the detainee to:

• communicate with a member of the family unit of the detainee or
• communicate with any person outside the immigration detention facility for the purposes of obtaining legal advice; obtaining support of a prescribed kind; or communicating governmental or political matters.

The Explanatory Memorandum states that with respect to obtaining support of a prescribed kind, other purposes would be prescribed under the Migration Regulations:

This provision ensures appropriate flexibility to prescribe other kinds of support for a detainee where the detainee may require access to an alternative means of communication. Any regulations made for the purposes of this provision would be a disallowable legislative instrument, and appropriately subject to parliamentary scrutiny. (p. 17)

The Explanatory Memorandum also provides some guidance on what would constitute alternative means of communication:

These options include, although are not limited to, landline telephones, internet access, postal services and other reasonably available communication device options. The Department has reviewed, and continues to review, the availability of telephone, internet and other facilities for use by detainees across the immigration detention network, to ensure these facilities are adequate for communicating with external persons or entities. As a result of reviews, additional landline telephones have been installed at most immigration detention facilities. This guarantees in the very least the availability of a base communication channel. Additionally, immigration detention facilities will continue to facilitate visits by detainees’ family members, friends, legal representatives, advocates and other visitors. (p. 55)

In its submission to the Senate Committee on the 2020 Bill, the Kaldor Centre for Refugee Law noted that ‘Detainees may be reluctant to use these facilities to discuss sensitive matters such as conditions of detention or other matters that may be relevant to political discourse on asylum seeker issues because of fears their communications may be monitored.’ (p. 10)

Recognition of constitutional limitations

Item 2 inserts proposed section 251AC which provides that the power of the Minister to determine prohibited things and the powers covered by proposed subsection 251AA(7) (see the table above) may not be exercised to the extent (if any) that the exercise of the power would infringe any constitutional doctrine of implied freedom of political communication. These provisions were not included in the 2020 Bill.

The Australian Human Rights Commission has summarised the operation of this doctrine:

The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals. 

In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v the Commonwealth (1992) 177 CLR 106, the majority of the High Court held that an implied freedom of political communication exists as an incident of the system of representative government established by the Constitution. This was reaffirmed in Unions NSW v New South Wales [2013] HCA 58.

It would ultimately be a decision for the High Court of Australia whether the exercise of the relevant power infringes on this doctrine.

As noted in the Senate Legal and Constitutional Affairs Legislation Committee report on the 2020 Bill, stakeholders raised concerns about the constitutional validity of the 2020 Bill. The Kaldor Centre for Refugee Law stated that the 2020 Bill, if passed, would likely face constitutional challenge on the grounds that it infringes the implied freedom of political communication, and that such a challenge would have reasonable prospects of success (p.10).

The Law Council of Australia stated that that some of the powers proposed in the 2020 Bill could also be challenged on the grounds that they were punitive in nature and may therefore be inconsistent with the constitutional principle that the judicial power of the Commonwealth can only be vested in Chapter III courts (p. 10). This principle has recently been relied on to successfully challenge indefinite detention and the imposition of monitoring and curfew conditions on certain bridging visa holders. The Law Council noted that the powers which may restrict detainees’ communication with legal representatives and family members and take away access to information, communication and entertainment on the internet and social media are similar to prison powers and therefore may be viewed as punitive (p. 10).

Concluding comments

At the time of writing, the Bill has been listed for debate in the Senate less than a week following its introduction and has not been referred to committee for inquiry. Stakeholders including the Asylum Seeker Resource Centre and the Human Rights Law Centre have expressed concerns about the rushed nature of the legislation. While the government has introduced safeguards to reduce the risk of the Bill being held to be constitutionally invalid by the High Court, it is likely that the measures will be subject to challenge.