Introduction
1.1
On 14 September 2017 the Senate referred the provisions of the
Migration Amendment (Prohibiting Items in Immigration Detention Facilities)
Bill 2017 (the bill) to the Legal and Constitutional Affairs Legislation
Committee (the committee) for inquiry and report by 14 November 2017.
1.2
The Selection of Bills Committee stated that the bill would see:
...a significant change to the operation of Immigration
Detention Centres. There is a level of concern among stakeholders about the proposed
amendments that suggests that further examination of the bill is necessary.[1]
Purpose of the bill
1.3
The bill would enable the Minister for
Immigration and Border Protection to determine things to be
prohibited in immigration detention facilities, and would also increase the
screening, search and seizure powers for authorised officers with respect to
immigration detention facilities, detainees, and visitors to facilities. In his
second reading speech the minister stated:
This bill will ensure our officers can carry out their
responsibilities properly, minimising unacceptable risks to the health, safety
and security of persons in immigration detention facilities and to the order of
these facilities.[2]
1.4
The Explanatory Memorandum (EM) presents the bill in the context of
changes to the profile of detainees in immigration detention facilities:
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.[3]
1.5
The EM further states that '[t]he 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.' It also argues that
'[t]he 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.'[4]
Key provisions of the bill
1.6
Schedule 1 of the bill contains 35 items that would amend the Migration Act 1958
(the Act). The key provisions of the bill are explained below.
Ministerial determinations of
prohibited things
1.7
Proposed subsection 251A(2) would enable to minister to determine, by
legislative instrument, a thing to be prohibited in immigration detention
facilities, if the minister is satisfied that:
- possession of the thing is prohibited by law in a place
or places in Australia; or
- 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.[5]
1.8
A ministerial determination made under this proposed subsection would
apply in relation to a person in detention, or in relation to an immigration
detention facility.[6]
1.9
With respect to proposed paragraph 251A(2)(a), the EM states that it is
currently intended that the minister will determine narcotic drugs and child
pornography to be prohibited items.[7]
1.10
The bill includes the following note to clarify what might be considered
to pose a risk:
- mobile
phones;
- SIM
cards;
- computers
and other electronic devices, such as tablets;
- medications
or health care supplements, in specified circumstances;
- publications
or other material that could incite violence, racism or hatred.[8]
1.11
The EM provides some further clarification about the items listed in the
note. It states that the reference to medications or healthcare supplements is
'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.' It also states that the reference to publications is '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.'[9]
1.12
The EM also states that '[d]etainees will continue to have reasonable
access to communication facilities in order to maintain contact with their
support networks.'[10]
1.13
Prohibitions determined by the minister may apply to both immigration
detention facilities and to Alternative Places of Detention (APODs). The EM
explains that '[a]n 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].'[11]
Some APODs are facility‑based while others are '[n]on-facility-based
places of accommodation in the broader community' including 'leased private
housing, hotel and motel accommodation, hospitals and schools.'[12]
1.14
The proposed legislative instrument would not be disallowable by the
Senate by virtue of Part 2 of the Migration Act 1958 being
exempt from the disallowance requirements of section 42 of the Legislation
(Exemptions and Other Matters) Regulation 2015.
Increased screening, search and
seizure powers
1.15
The Act currently allows authorised officers to search a detainee
to find out whether the person is carrying a weapon or an item capable of
helping the person escape from immigration detention.[13]
The bill would allow authorised officers to also search detainees 'to find out
whether a prohibited thing [as determined by legislative instrument]...is hidden
on the person, in the clothing or in the property.'[14]
1.16
The EM states that currently, common law is relied on when authorised
officers search immigration detention facilities, including detainee
accommodation and common areas.[15]
The bill would insert new section 252BA to provide 'a clear and express
statutory power for an authorised officer to undertake a search of an immigration
detention facility...'[16]
This would '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.'[17]
The officer '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.'[18]
Proposed section 252BB would also allow an authorised officer to be assisted by
another person when conducting these searches if that assistance is necessary
and reasonable.[19]
These new powers would enable searches of immigration detention facilities and
facility‑based APODs, but not of non-facility‑based APODs.[20]
A warrant is not required for these searches.[21]
1.17
The bill would also allow for authorised officers to use detector dogs
when screening detainees or visitors as well as when searching immigration
detention facilities.[22]
1.18
Currently, authorised officers may conduct a strip search to find a
weapon or a thing that could help a detainee escape from immigration detention.[23]
The bill would extend existing strip search powers to allow authorised officers
to conduct strip searches of detainees in immigration detention facilities to
find a prohibited thing. The officer must reasonably suspect that a prohibited
thing is hidden on the detainee in order to be able to conduct a strip search.[24]
1.19
The bill also includes provisions for the retention, return, forfeiture,
and disposal of prohibited things found by authorised officers when conducting
searches.[25]
Financial implications of the proposed measures
1.20
The EM states that the proposed amendments would have no financial
impact.[26]
Consideration by other committees
1.21
The bill was considered by the Parliamentary Joint Committee on Human
Rights (PJCHR) and by the Scrutiny of Bills Committee (SBC).[27]
Parliamentary Joint Committee on
Human Rights
1.22
The PJCHR made a number of points regarding the human rights
implications of the bill and sought advice from the minister with respect to
each of them. Its concerns primarily related to:
- The
prohibition of certain items from immigration detention facilities, such as
mobile phones, and whether the prohibition is compatible with the right to
privacy;[28]
the right to freedom of expression;[29]
or a proportionate limitation on the right not to be subject to arbitrary or
unlawful interference with the family.[30]
- The
proposed amendments relating to the search and seizure powers and whether these
powers are compatible with 'the right to freedom from torture, cruel, inhuman
and degrading treatment or punishment and the right to humane treatment in
detention';[31]
whether the powers are a permissible limitation on the right to bodily
integrity';[32]
and whether the seizure powers, particularly the power to strip search, 'raises
questions as to whether the bill is compatible with the rights of the child.'[33]
Scrutiny of Bills Committee
1.23
The SBC raised concerns that the bill may unduly trespass on personal
rights and liberties of detainees as it would limit the possession of things
such as mobile phones and introduce 'extensive search powers', noting that these
provisions would apply to all detainees regardless of the level of risk they posed.[34]
1.24
The SBC noted that 'around half the detention population is not made up
of high‑risk individuals' and that:
[t]he level of risk posed by persons detained due to the
exercise of the Minister's character ground visa cancellation powers is likely
to be very different to that posed by people seeking to be recognised as
refugees or a tourist having overstayed their visa.[35]
1.25
Additionally, the SBC noted that this bill would delegate the power to
the minister to determine, through delegated legislation, a thing to be
prohibited and that, in its view, such matters should be included in primary
legislation unless sound justification is provided.[36]
The SBC sought the minister's advice on this point, including why it is
necessary and appropriate to delegate this power to the minister and what type
of consultation is envisaged will be conducted prior to the making of the
legislative instrument.[37]
1.26
The SBC also noted that the bill would allow increased search powers for
'authorised officers' and their assistants. It noted that its 'consistent
scrutiny position is that coercive powers should generally only be conferred on
government employees with appropriate training.'[38]
The SBC sought the minister's advice on this point, including:
- whether the power to conduct coercive searches would
apply to non‑government employees,
- why it is necessary to confer powers on the assistants of
authorised persons, and
- what training will be required of persons conferred with
these powers.[39]
Note on references
1.27
In this report, references to Committee Hansard are to proof
transcripts. Page numbers may vary between proof and official transcripts.
Conduct of the inquiry
1.28
Details of this inquiry were advertised on the committee's website,
including a call for submissions to be received by 13 October 2017.[40]
The committee also wrote directly to some individuals and organisations
inviting them to make submissions. The committee received 82 submissions, which
are listed at appendix 1 of this report. The committee also received 171 form
letters, of which it published five samples.[41]
1.29
The committee held a public hearing in Canberra on
27 October 2017. The program of this hearing is at appendix 2 of this
report.
Structure of this report
1.30
This report consists of two chapters:
-
This chapter provides a brief overview of the bill, as well as
the administrative details of the inquiry.
-
Chapter 2 discusses the key issues raised in submissions and at
the public hearing, and provides the committee's views and recommendations.
Acknowledgements
1.31
The committee thanks all organisations and individuals that made
submissions to this inquiry.
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