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

Introductory Info

Date introduced: 14 May 2020
House: House of Representatives
Portfolio: Home Affairs
Commencement: On the earlier of Proclamation, or six months after Royal Assent.

The Bills Digest at a glance

The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the Bill) will amend the Migration Act 1958 to allow the Minister to determine, via a disallowable legislative instrument, that an item is a ‘prohibited thing’ in relation to immigration detention facilities and immigration detainees.

The Government has indicated that items that will be prohibited will include things such as mobile phones and SIM cards, internet capable devices, and illegal drugs. While a broad range of items are likely to be prohibited, the Bill appears to be a reaction to an attempt by the Government in 2017 to seize mobile phones from people held in immigration detention centres, which was found by the Federal Court to be invalid.

The Bill will also:

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
expand 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 certain circumstances.

The Government has pointed to the changing immigration detention population profile in explaining its rationale for the proposed amendments, noting that individuals with significant criminal histories now comprise a large proportion of the detention population. The Government also argues that the availability of mobile phones in immigration detention is enabling criminal behaviour including drug distribution, and facilitating threats between detainees and towards detention centre staff.

The Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 5 August 2020. Submissions to the inquiry raised numerous concerns with the Bill. Common themes identified in submissions were: that the measures contained in the Bill are unnecessary and disproportionate in relation to the security risks posed in immigration detention; that the Minister’s power to prohibit items is unreasonably broad; and, specifically, that prohibiting mobile phones in immigration detention will unreasonably limit detainees’ rights to privacy and political communication, and contact with family members and legal representatives. Stakeholders also expressed concern about the expansion of coercive powers such as strip searches.

The Senate Standing Committee for the Scrutiny of Bills raised concerns that the amendments unduly infringe detainees’ personal rights and liberties because the powers will apply to the entire detention population, not just high-risk detainees. It also raised concerns about: prohibited things being determined by the Minister instead of specified in the Act; broad discretionary powers being provided to the Minister; and the delegation of administrative powers.

The Parliamentary Joint Committee on Human Rights noted that the Bill’s measures were likely to engage, and could limit, a range of rights, including the right to privacy; right to humane treatment in detention; right to protection of the family; right to freedom of expression; children’s rights; and the prohibition against torture, cruel, inhuman and degrading treatment or punishment.

An earlier Bill with similar policy intent was introduced in September 2017, and passed the House of Representatives in February 2018. However it did not pass the Senate, and lapsed at the end of the 45th Parliament in July 2019.

History of the Bill

The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 (the first Bill) was introduced into the House of Representatives on 13 September 2017.[1] It passed the third reading in the House of Representatives on 7 February 2018. It was introduced into the Senate on 8 February 2018 but was not debated, and the Bill lapsed at the end of the 45th Parliament on 1 July 2019.

This Bill was introduced into the House of Representatives on 14 May 2020. It is similar in intent and scope to the first Bill. However it is not in equivalent terms to that Bill and there are some notable differences. These are discussed below under ‘Background’ and ‘Key issues and provisions’.

A Bills Digest was prepared in respect of the first Bill.[2] Much of the material in the present Digest has been sourced from that earlier one.

Purpose of the Bill

The purpose of the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (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.

Background

The Bill will amend the Migration Act to allow the Minister to determine, by legislative instrument, that an item is a ‘prohibited thing’ in relation to immigration detention facilities and detainees, and allow prohibited things to be searched for and seized. The Government has indicated that items that will be prohibited will include things such as mobile phones and SIM cards, internet-capable devices, illegal drugs, and medication taken without a prescription.[3]

The Bill is broadly similar to the first Bill. However, it includes changes which address concerns raised by the Committees that examined the first Bill. These issues are discussed further in this section below and in the ‘Provisions’ section of this Digest.

Mobile phone ban in immigration detention centres

While the Bill will allow for a broad range of items to be prohibited, much of the discussion around the Bill centres on the intended prohibition of mobile phones. This is consistent with the policy intent of the first Bill, which was introduced following an attempt by the Government in 2017 to seize mobile phones from people held in immigration detention centres. This was prevented through action in the Federal Court (as discussed further below).

For many years it was Government policy to not permit asylum seekers who had arrived in Australia irregularly by boat (irregular maritime arrivals, or IMAs) to have mobile phones in immigration detention centres. In contrast, other cohorts in immigration detention facilities, such as those who have overstayed their visas or had their visas cancelled on character grounds, had been permitted to have mobile phones. This policy was not legislated, but was articulated in the Department’s Procedures Advice Manual.[4] The then Department of Immigration and Border Protection (DIBP, now the Department of Home Affairs) advised a Supplementary Budget Estimates hearing in October 2016 that the policy of not permitting IMAs to have mobile phones in detention was not new, and that it was ‘implemented to address the risk of IMAs passing on sensitive operational information to contacts outside of the detention environment, particularly during the peak boat arrival period’.[5]

In November 2016 the DIBP announced that it would begin restricting access to mobile phones to all people in immigration detention, with access to be completely phased out by February 2017.[6] The measure was described as comprising part of ‘Operation Safe Centres’, which was ‘aimed at stamping out illegal activity across the immigration detention network’.[7] According to then Australian Border Force (ABF) Commander Detention Operations:

Mobile phones can create a serious risk to the safety of detainees, staff and visitors to immigration detention facilities ... Some detainees have used them to organise criminal activities, threaten other detainees, create or escalate disturbances and plan escapes by enlisting outsiders to assist them.[8]

The DIBP reiterated this position when questioned about the policy of removing mobile phones from detainees at an Additional Estimates hearing in February 2017 when the then Commissioner of the ABF, Roman Quaedvlieg, stated that ‘the use of mobile phones for any number of nefarious activities in our centres is broad and across the network’.[9] Commissioner Quaedvlieg gave evidence that the decision to ban mobile phones in immigration detention centres had been made by him personally, and was supported by the Minister for Immigration and Border Protection. In offering a rationale for the policy Commissioner Quaedvlieg stated:

What prompted the implementation of that policy was my fundamental concern that we were unable to manage a secure and safe amenity for detainees within our detention network. It is a well-known fact that in custodial settings things like mobile phones are not just contraband and currency but are actually utilised to ferment a whole range of activities, including escapes and the smuggling of contraband into the centres, and, indeed, the maintenance of criminal enterprises from within the centre out in the real world. It is not a modern custodial setting where mobile phones are available to the population of our centres.[10]

In further information provided on notice following that Committee hearing, the DIBP outlined six case studies of incidents in immigration detention centres in which mobile phones had been used to plan or commit what it described as ‘illegal activities’. These included: communicating with protesters outside the centres to organise major demonstrations and disturbances; planning and executing escapes; and threatening to commit assault.[11]

The decision to restrict detainees’ access to mobile phones was further justified as being necessary in the context of the changing profile of detainees. For many years following the increase in unauthorised maritime arrivals beginning in 2009, the immigration detention population in Australia was made up largely of IMAs—in 2011–12 there were 14,438 IMAs in detention, compared to 2,216 visa overstayers and 480 people whose visas had been cancelled.[12] However, with large numbers of IMAs being released from detention on bridging visas, and increasing numbers of people being subject to visa cancellation on character grounds following an expansion of the Minister’s cancellation powers, the immigration detention population profile has changed significantly.[13]

When the policy of banning mobile phones was announced by DIBP in November 2016, it stated that IMAs comprised less than a third of the detention population, and there was a much larger cohort of detainees who were the subject of visa cancellation following criminal behaviour.[14] As at 31 May 2020 the immigration detention population comprised 1,458 people, of which 505 (34.6 per cent) were IMAs and 675 (46.3 per cent) were section 501 visa cancellations (cancellation on character grounds). The remaining 278 were non-immigration cleared air arrivals, seaport arrivals, visa overstayers, and those whose visa had been cancelled on other grounds.[15]

This changing immigration detention population profile was highlighted by the Minister in his second reading speech introducing the first Bill, as a reason for requiring the legislative power to ban certain items in immigration detention facilities.[16] This same justification has been given by the Minister as a reason for introducing the current Bill:

This government has strengthened section 501 of the Migration Act to better protect the Australian community from non-citizen nationals who commit serious crimes. These changes have allowed the government to cancel the visas of more than 4,600 individuals who have committed criminal offences in Australia.

This action has resulted in a significant increase in the number of detainees with criminal histories in our immigration detention facilities. Today, a large proportion of the detention population are unlawful noncitizens who have criminal histories.

Some of these detainees have a history of child sex offences or violent crimes, including murder and domestic violence. Others have come to immigration detention with significant histories of drug-related offences or proven links to criminal organisations, such as outlaw motorcycle gangs and other organised crime groups. Unfortunately, some of these individuals seek to continue criminal activities and associations while in detention centres.

One of the most critical challenges in managing immigration detention is the continuing incursion, distribution and use of illegal drugs and contraband items, and associated criminal activity. Officers of the Australian Border Force (ABF) cannot fully maintain the safety, security and good order of immigration detention facilities, because legislation does not support them to remove illegal or dangerous items from detention facilities.[17]

Legal challenge to mobile phone ban

When questioned by Senators about the policy of banning mobile phones in immigration detention centres in February 2017, Commissioner Quaedvlieg confirmed that the power to confiscate mobile phones from people in immigration detention was not set out in existing legislation, and that this was something that was being considered by the Government.[18] Thus, when the ban on mobile phones in immigration detention was announced in November 2016, such a ban was a matter of policy, not law. The same was true of the earlier policy of not permitting IMAs in immigration detention to have mobile phones.

Following the DIBP’s announcement in November 2016, action was launched in the Federal Court of Australia by lawyers from the National Justice Project, on behalf of around 80 detainees, seeking to prevent the Department from confiscating detainees’ mobile phones. At first instance, the Court granted a temporary injunction in February 2017, preventing the DIBP from seizing detainees’ mobile phones.[19]

Subsequently, in June 2017 the Full Court of the Federal Court heard an appeal against the injunction, which centred not on the reasons for granting the injunction, but on whether the Federal Court had jurisdiction to impose the injunction in the first place. The Full Court’s decision, handed down on 17 August 2017, confirmed that it did have jurisdiction and the injunction should be upheld.[20] Following this decision the Government moved quickly to legislate power to remove mobile phones (and other items) from immigration detainees, with the first Bill being introduced into Parliament less than one month later.

In June 2018, while the first Bill was before the Parliament, the Federal Court ruled that the Migration Act did not provide any power for the Department to implement a blanket ban on mobile phones in immigration detention.[21] It also ruled that actions by authorised officers to search for and seize mobile phones from detainees in accordance with the proposed ban were invalid.[22] This Federal Court ruling, and the fact that the first Bill did not proceed through the Senate, mean that immigration detainees are currently able to keep their mobile phones. The current Bill marks the second occasion on which the Government seeks to legislate the power to prohibit mobile phones (and other items) in immigration detention centres—a power the Federal Court has determined the Migration Act does not currently provide.

Differences with the first Bill

The first Bill was strongly opposed by refugee advocates, human rights groups, and legal organisations. Their objections to that Bill centred largely around concerns that: removing mobile phones from refugees and asylum seekers was a breach of their rights and would restrict their access to legal and social support networks; the provisions would contribute to an increased securitisation of immigration detention facilities, making these facilities increasingly prison-like; and that it would give the Minister unreasonably broad powers to prohibit items, particularly as legislative instruments determining items to be prohibited things would not have been disallowable.[23]

The Australian Greens (the Greens) opposed the first Bill entirely, while the ALP indicated it was not opposed in principle, but had concerns with some of the detail.[24] The first Bill passed the House, but without the support of the ALP or the cross bench, it did not progress in the Senate.

The current Bill attempts to achieve the same policy objective as the first Bill—that is, prohibiting, and providing for the search for, and seizure of, certain items in immigration detention facilities. However this Bill differs from the first Bill in some notable ways:

the Minister’s declaration that certain items are ‘prohibited items’ will be a disallowable instrument, whereas under the first Bill it would not have been disallowable
medications and supplements prescribed or supplied by an authorised health service provider for a detainee’s use cannot be prohibited things in relation to the detainee—the first Bill would have allowed for these items to be prohibited things
the use of detector dogs will only be authorised for searches of immigration detention facilities, not for searches of detainees or people entering an immigration detention facility—the first Bill would have allowed detector dogs to be used to search detainees and people entering a detention facility
the powers to search for, and seize, prohibited things will expressly not apply to detainees who are in community detention (that is, they are the subject of a residence determination under section 197AB of the Migration Act). The first Bill did not exclude people in community detention from these powers and
this Bill 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. This power did not feature in the first Bill.

Most of these differences are designed to address issues raised by the various Committees that inquired into the first Bill.[25] However several stakeholders remain opposed to this Bill, arguing that these amendments do not adequately address their concerns about the first Bill. These issues are further addressed below in the ‘Position of major interest groups’ and Key issues and provisions’ section of this Digest.

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Bill has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 5 August 2020. Details of the inquiry are at the inquiry homepage. Some of the evidence presented to the Committee for this inquiry is included in the ‘Position of major interest groups’ and ‘Key issues and provisions’ sections of this Digest.

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee considered the Bill in its report dated 10 June 2020.[26] The Committee raised concerns about, and requested further advice on, several aspects of the Bill, notably:

infringements on detainees’ personal rights and liberties—in particular the fact that the powers will apply to the entire detention population, not just high-risk detainees, and therefore low-risk detainees may be subject to unnecessary restrictions on their rights and freedoms
significant matters being determined by delegated legislation—in particular the fact that the specific items to be prohibited will be decided by Regulation, rather than set out in primary legislation
broad discretionary powers—specifically in relation to allowing the Minister to direct that an officer must exercise a seizure power and
delegation of administrative powers—specifically in relation to the provisions allowing for ‘authorised officers’ and ‘officer’s assistants’ to exercise search and seizure powers, while not requiring that these people be government employees. The Committee’s view is that only government employees with appropriate training should be authorised to exercise coercive powers.[27]

At the time of writing, the Minister’s response has not been received by the Committee.[28] Some of these issues are addressed further in the ‘Key issues and provisions’ section of this Digest.

Policy position of non-government parties/independents

The ALP has not formally stated its position on the current Bill. It voted against the first Bill in the House of Representatives.[29] It was not opposed to that Bill in principle, rather it was concerned about the detail. Its dissenting report following the inquiry of the Senate Legal and Constitutional Affairs Committee recommended that the first Bill be passed with certain amendments.[30] Some of the ALP’s concerns with the first Bill have been addressed in this Bill (for example, it recommended that detector dogs be used to search facilities, but not detainees) but many have not (for example, it recommended that ‘prohibited thing’ should be defined in statute, not by legislative instrument, and that search powers should be limited to cases where an officer has a reasonable suspicion that a detainee is in possession of a prohibited thing).

The Greens are opposed to the Bill in its entirety, describing it as ‘massive overreach’ and a ‘transparent attempt to cut people in immigration detention off from the outside world’.[31]

At the time of writing, none of the minor parties or independents has formally stated a position on the Bill. The first Bill was opposed in the House of Representatives by the independent Andrew Wilkie, and Centre Alliance’s Rebekha Sharkie, both of whom voted against it, while Katter’s Australian Party MP, Bob Katter, voted in favour.[32]

Position of major interest groups

Several key stakeholder groups have identified concerns with the Bill in their submissions to the current Senate inquiry. For example, the Australian Human Rights Commission considers that the Bill may result in ‘unreasonable limitations on human rights’, and has expressed particular concern with three key aspects of the Bill:

that a general prohibition on mobile phones, which is not limited to specific individuals or cohorts, would unreasonably limit a range of human rights
that the Bill does not require an officer to have a reasonable suspicion that a detainee is in possession of a prohibited item before conducting a search and
that strip searches should not be authorised for items that are not unlawful.[33]

The AHRC also considers that the Minister’s power to declare items to be prohibited items is unreasonably broad, and could encompass a wide range of items which are not inherently dangerous.[34]

The Law Council of Australia (LCA) believes that ‘the proposed prohibition, search and seizure powers are not necessary or proportionate to achieving the Bill’s stated purpose of ensuring the health, safety and security of detainees, staff and visitors to an immigration detention facility.’[35] It raised several specific concerns, notably:

the Bill grants an exceptional level of discretion to the Minister regarding the scope and exercise of coercive powers, which may be an inappropriate delegation of power from the Legislature to the Executive
the purpose of immigration detention must be administrative, not punitive, and the provisions in the Bill risk immigration detention facilities becoming too prison-like
the prohibition of mobile phones and internet-capable devices will adversely affect the timely and confidential provision of legal information and advice, and the rights of detainees, and
the Bill does not provide sufficient safeguards or oversight of the exercise of expanded search and seizure powers.

These, and many other, submissions to the Senate inquiry into the Bill have highlighted specific concerns with multiple aspects of the Bill. Concerns generally centre around three key thematic issues: the intended prohibition on mobile phones; the ‘securitisation’ of immigration detention; and the increased use of coercive powers.

Concerns about prohibition of mobile phones

The policy of removing detainees’ mobile phones has, for many years, been criticised by refugee advocates, who argue that, for asylum seekers in immigration detention, mobile phones provide access to their families and social networks, which is important for their mental health, as well as ensuring critical access to their legal representatives.[36] This was also a common theme amongst submissions to the Senate inquiry into the Bill, with several advocacy groups expressing the view that access to mobile phones is crucial for the mental well-being of detainees, and for them to be able to access legal representation in a timely and confidential manner.[37] The AHRC noted that, in the course of its visits to immigration detention facilities, detention centre staff, as well as detainees themselves, had commented on the mental-health benefits of mobile phones.[38]

The importance of mobile phones in allowing detainees to contact family and friends was highlighted as being of particular importance in the context of the COVID-19 pandemic for two reasons: first, because the pandemic has led to face-to-face visits to detention centres being temporarily suspended, meaning virtual contact is the only form of contact available; and, second, because personal mobile phones reduce the risk of transmission of disease that would be associated with the use of shared phones and computers.[39]

In addition, some stakeholders argue that prohibiting mobile phones in immigration detention will infringe detainees’ right to political communication, and impair transparency and accountability. The Andrew and Renata Kaldor Centre for International Refugee Law at the University of New South Wales (Kaldor Centre) argues that detainees’ ability to document conditions inside detention centres using mobile phones and to communicate with journalists ‘facilitates transparency and promotes accountability, and it should not be eroded’.[40] The Kaldor Centre also believes that the Bill’s perceived limiting of detainees’ implied freedom of political communication would leave it open to constitutional challenge.[41]

The Minister has stated that the Government’s intention is not to institute a blanket ban on mobile phones (as it has attempted to do previously), and that the power to prohibit and seize mobile phones will be targeted at certain individuals and cohorts:

While not introducing a blanket ban on mobile phones in detention, we are proposing to allow the minister to direct officers to seize mobile phones from certain categories of people, while providing officers with the discretion to search for and seize mobile phones in other circumstances. So people who are not using their mobile phone for criminal activities or activities that affect the health, safety and security of staff, detainees and the facility will still be able to retain their mobile phones.[42]

However, several stakeholders are concerned that, notwithstanding the Minister’s assertion that the intention is to prohibit and seize items in a targeted fashion, the Bill does not actually limit the Minister’s power in this regard. As the Human Rights Law Centre notes:

contrary to statements in the Explanatory Memorandum that the amendments will provide for “a targeted, intelligence-led, risk-based approach” to seizures of items, the proposed powers are designed to allow for blanket bans on items that apply regardless of individual circumstances.[43]

Concerns about increased securitisation of immigration detention

Several migrant and refugee advocacy groups are concerned that asylum seekers and other ‘non-criminal’ detainees will be subject to the same restrictions and prohibitions as ‘criminal detainees’ (those who have had their visas cancelled following a criminal conviction), and view the Bill as a further step towards what they describe as the increased securitisation of immigration detention.

For example, Liberty Victoria argues that ‘the amendments proposed by the Bill follow an increasing trend of ‘securitisation’ of immigration detention in recent years ... The potential for increasing and normalising the use of searches, including strip searches, is a further move of “securitisation”’.[44]

The LCA goes further in arguing that treating immigration detention centres as though they are prisons, and subjecting detainees to the sorts of rules imposed in the criminal justice system, is not only unjust but also outside the Government’s power:

The Law Council wishes to clarify that the purpose of immigration detention is administrative, not punitive. Immigration detention differs from criminal detention in that it is administrative in character and is not triggered by criminal offending or suspicion. It is impermissible for immigration detention to become punitive in character, as this would offend against the constitutional principle that the judicial power of the Commonwealth can only be vested in Chapter III courts.[45]

As discussed above, the Minister and the former ABF Commissioner have argued that the Bill is a necessary response to the changing profile of detainees in immigration detention. However, refugee and human rights advocates argue that applying restrictive measures aimed at criminal detainees to non-criminal asylum seekers (and others) is unjust. For example, the Refugee Council of Australia (RCOA) stated:

There is no denying that, following changes to the character cancellation provision, the number of people in detention who had spent time in correctional facilities, and consequently had their visas cancelled, has increased. It is understandable that the management of the risks some members of this group may present might require the implementation of more restrictive detention management policies in relation to them. However, increasingly the enforcement-centred approach to the management of detention facilities is becoming the default practice. That our immigration detention facilities are still accommodating a great number of vulnerable and low risk people is being ignored, and there seems to be deliberate disregard of the fact that all of these people are in administrative detention and are not deprived of liberty because they committed a crime.[46]

Concerns about expanded coercive powers

Stakeholders have expressed concern that the expanded search powers contained in the Bill, particularly in relation to the use of strip searches, are unnecessary and disproportionate to the security threats posed in the detention environment.

The Human Rights Law Centre argues:

Strip searches are degrading and dehumanising procedures that should only be permitted in exceptional circumstances involving a risk to life or safety. ... It is unnecessary and inappropriate to strip search a person for the kind of everyday objects that could be prohibited under the Bill.[47]

The AHRC is concerned that the expanded search powers provided for in the Bill will disproportionately limit detainees’ right to privacy[48] and that the Bill does not provide for adequate oversight of the power to perform strip searches.[49]

The use of strip searches was of particular concern to many stakeholders in the context of vulnerable cohorts, who may have experienced past trauma. For example, the RCOA stated:

Considering the prevalence of historical, pre-existing trauma in the immigration detention population, the fact that many are fleeing persecution and traumatic experiences, and lower rates of trauma-informed training and practices for the detention guards, the practice of strip searching will be of added concern in immigration detention facilities.[50]

Support for the Bill

While most submissions to the inquiry opposed the Bill, or had concerns about its current form and scope, one key stakeholder submission expressed unqualified support. Serco, the company which is contracted to provide onshore immigration detention services, states that the Bill ‘will help achieve the health and safety outcomes Serco aims to provide’.[51] It argues that the provisions of the Bill will benefit the health and safety of detainees, as well as immigration detention staff. In relation to the safety of staff members, it cites cases in which detainees have collected information about, and images of, staff members, and posted them to social media using mobile phones or internet-capable devices, resulting in harassment and intimidation of staff members. Serco acknowledges that the provisions of the Bill will apply to all detainees, not just those considered high risk, but considers that this is appropriate in the circumstances. It argues that ‘this Bill, if enacted, will have a net improved benefit for the health and safety of all detainees and staff.’[52]

Stakeholder concerns are further explored in the ‘Key issues and provisions’ section of this Digest.

Financial implications

The Explanatory Memorandum to the Bill states that there will be no financial impact.[53]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[54]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights reported on the Bill on 17 June 2020.[55] The Committee noted that the measures in the Bill were ‘designed to ensure that the Department of Home Affairs can provide a safe and secure environment for staff, detainees and visitors in an immigration detention facility’, and that if they could achieve this objective, the measures would likely promote the right to security of the person.[56] However, the Committee noted the Bill’s measures were also likely to engage, and could limit, a range of other rights, including the right to privacy; right to humane treatment in detention; right to protection of the family; right to freedom of expression; children’s rights; and the prohibition against torture, cruel, inhuman and degrading treatment or punishment.

In considering whether the Bill’s limitations on these rights are reasonable, necessary and proportionate, the Committee noted:

the impact that banning mobile phones would have on detainees’ private lives, their ability to be in regular contact with family, and their right to correspond with others without interference
the potential for a blanket ban that applies to all detainees, regardless of the level of risk they may pose
the absence of limitations on the types of things the Minister may prescribe as being prohibited
if mobile phones and other electronic devices were banned, it is not clear whether alternative communication avenues would provide a similar degree of privacy and access to family, friends, legal advisors or other support persons
the expansion of the bases on which strip searches can be conducted raised questions as to whether the expanded powers are consistent with the requirement under international human rights law that strip searches be conducted only when absolutely necessary
the absence of information regarding oversight of the use of force by authorised officers, and absence of any legislative requirement that officers be trained in the use of force or how to conduct strip searches and
that the Bill would enable authorised officers and their assistants to conduct searches (other than strip searches) without the need for any suspicion that a detainee has a prohibited thing in their possession.

The Committee requested further information from the Minister on a range of matters connected with these points.[57] At the time of writing, the Minister’s response has been received but not yet published by the Committee.[58]

Key issues and provisions

‘Prohibited things’ and immigration detention facilities

Summary

Proposed section 251A of the Migration Act gives the Minister the power to make a 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 to health, safety, security or the order of the facility.

Unlike the corresponding provision in the first Bill, the current Bill:

provides that an instrument made by the Minister will be disallowable and
specifies that a medication or health care supplement cannot be a ‘prohibited thing’ in relation to a person for whom that medication or supplement has been prescribed.

Minister’s power to determine prohibited things

Item 2 inserts proposed section 251A into the Migration Act. This provides that the Minister may make a 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, if satisfied that either:

possession of the thing is prohibited by law in a place or places in Australia (proposed paragraph 251A(2)(a)) 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 (proposed paragraph 251A(2)(b)).

An item subject to a determination under proposed paragraph 251A(2)(a) will only be a prohibited thing in relation to a person in detention or in relation to an immigration detention facility if possession of the thing is unlawful under a law of the Commonwealth, or a law of the state or territory in which the person is detained or the facility located.[59] The Explanatory Memorandum notes that this provision will allow the Minister to determine controlled drugs as a prohibited thing.[60]

There are two differences between the provision in the current Bill and the version in the first Bill:

the current Bill specifies that a medication or health care supplement cannot be a prohibited thing in relation to a particular person if it has been prescribed or supplied for the person’s individual use by an authorised health service provider[61] and
under the current Bill, a determination made by the Minister under proposed section 251A will be subject to Parliamentary disallowance.[62] This would allow either the full or partial disallowance of such an instrument.[63]

Both of these changes were proposed as Government amendments to the first Bill.[64]

Immigration detention facilities

Proposed subsection 251A(5) defines an immigration detention facility as:

a detention centre established under the Migration Act or
another place approved by the Minister in writing under the Act—this is known as an Alternative Place of Detention.[65]

This definition means that the power to determine a thing to be a prohibited thing, and the search and seizure powers which may operate in respect of such things, will apply beyond immigration detention centres, to include alternative places of detention such as hospitals and hotels.

As discussed elsewhere in this Digest, the search and seizure powers in respect of prohibited things (unless weapons or escape aids) cannot be used in respect of detainees covered by a residence determination or non-citizens who have not been immigration cleared but are not in detention.[66]

Scope of Minister’s power

The scope of the Minister’s power to determine that an item is a prohibited thing because it might cause a risk to the health, safety or security of persons in detention and detention facilities is very broad. A note to proposed paragraph 251A(2)(b) gives examples of things that may be considered to fall into this category, specifically:

mobile phones
SIM cards and
computers and other electronic devices designed to be capable of being connected to the internet.

The Scrutiny of Bills Committee raised concerns that the terms of proposed subsection 251A(2):

are not defined and it is not clear on the face of the primary legislation what might constitute an item that might pose a risk to the ‘order of the facility’.[67]

The Committee noted its general view that significant matters, such as what is prohibited in immigration detention facilities, should be included in primary legislation unless there is a sound justification for the use of delegated legislation. It stated that its scrutiny concerns were ‘heightened by the potential consequences flowing from declaring an item to be a prohibited item’.[68] The Committee sought the Minister’s ‘more detailed advice’ as to why it is necessary and appropriate to allow the Minister to determine prohibited items by legislative instrument, and whether the Bill could be amended to include ‘additional high-level guidance’ regarding when the power may be exercised, including providing a definition for ‘order of the facility’.[69]

A number of submissions to the Senate inquiry also raised concerns about the threshold required for the Minister to make a determination under this provision. The Kaldor Centre pointed to the requirement that possession or use of the thing ‘might’ be a risk, describing this as a ‘very low and poorly defined risk threshold’, which could conceivably allow an extremely broad range of things to be determined to be prohibited, including pens, paper, clothes and bedsheets.[70] The Human Rights Law Centre similarly argued that the proposed power is sufficiently broad to allow the prohibition of ‘innocuous, everyday objects like pens and paper, if the Minister wished to control peaceful demonstrations in detention’.[71]

Liberty Victoria has suggested the amendments confer on the Minister of the day ‘an unjustifiably broad personal power to prohibit anything he or she personally wished to ban from immigration detention, including items that pose no specific threat’.[72]

Search and seizure powers

Summary

The Bill expands the purposes for which existing search and seizure powers may be used, to include finding and seizing a prohibited thing. It also introduces a new statutory power to search immigration detention facilities and provides for the use of dogs in searching these facilities. Authorised officers may be assisted by other persons in performing most of their powers and functions under these provisions.

The Bill differs from this aspect of the first Bill in the following ways:

it provides the Minister with the power to make a non-disallowable legislative instrument directing seizure of a thing (proposed subsection 251B(6))[73]
it limits the use of a dog to searches of immigration detention facilities; the first Bill additionally provided for the use of a dog in conducting screening procedures
it expressly provides that the seizure of a prohibited thing is not authorised in respect of detainees covered by a residence determination or non-citizens who have not been immigration cleared and are not in immigration detention (proposed subsection 252(4B)). The first Bill was silent on this issue and
it removes references to search powers being used in respect of prohibited things ‘hidden’ on a person, or in their clothing or property, and expressly states that the visibility or intentional concealment of a thing is not relevant to the exercise of such powers (proposed subsections 251B(1)–(4)).

Existing powers

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. The powers that may currently be exercised in relation to detainees are:

searching detainees, their clothing and any property under their immediate control (section 252)
conducting screening procedures in relation to detainees (including requiring a detainee to walk through screening equipment, passing hand-held screening equipment over a detainee and passing things in the detainee’s possession through screening equipment or examining them by x-ray) (section 252AA)
conducting strip searches of detainees (section 252A and 252B) and
retaining certain items found in the possession of detainees in the exercise of the above powers (sections 252 and 252C).

Currently, officers may exercise those powers against detainees for the purposes of finding out if there is hidden on the detainee, in his or her clothing, or in his or her possession a weapon or other thing capable of being used:

to inflict bodily injury or
to help the detainee or another person escape from immigration detention.[74]

Strip searches are only permitted where an authorised officer suspects on reasonable grounds that such a thing is hidden on a detainee, in his or her clothing or in a thing in his or her possession, and suspects on reasonable grounds that it is necessary to conduct a strip search to recover the thing. A strip search may only take place if ordered by a magistrate (for a detainee aged 10–18 years) or authorised by a senior Department official (for an adult detainee).[75]

The powers that may currently be exercised in relation to people about to enter a detention centre (under section 252G) are:

requesting that they undergo screening procedures
requesting that a person allow an authorised officer to inspect things in the person’s possession, remove some or all of his or her outer clothing, remove items from his or her pockets and/or open things or remove their contents for inspection (if an authorised officer suspects on reasonable grounds that the person about to enter has in his or possession a thing that might endanger the safety of detainees, staff or other persons in the facility or disrupt the order or security arrangements in place) and
requesting that a person leave certain items in a specified place while the person is in the facility.

Under subsection 252G(7) of the Migration Act a person who does not comply with a request made under section 252G may be refused entry.

Expanding the purposes for which search powers may be used

The Bill will amend sections 252–252G to expand the purposes for which the search and screening powers outlined above may be used—under the changes, the powers may also be exercised in order to find prohibited things in the possession of detainees or people entering immigration detention facilities.[76]

A prohibited thing found in the exercise of those powers will be dealt with differently depending on whether it is prohibited because possession of the thing is unlawful, or because it could pose a risk in the immigration detention environment (see further below).

Visibility of thing is not relevant

Proposed subsections 251B(1) and (2) clarify that a search power may be exercised or a screening procedure conducted for a thing, whether or not the thing is visible to the authorised officer beforehand, and whether or not the thing has been intentionally concealed. In amending the existing search powers, the Bill also removes references to a thing being ‘hidden’ on a detainee (or in their clothing or property).

These changes were not in the first Bill, and appear intended to address certain findings of the Full Court of the Federal Court in ARJ17 v Minister for Immigration and Border Protection.[77] As part of its finding that the Department’s policy to impose a blanket ban on mobile phones and SIM cards in immigration detention centres was invalid, the Court found that the Department could not rely on the existing search and seizure powers under the Migration Act to authorise the policy. Although the Department argued that the ‘natural and ordinary meaning of section 252’ authorised the removal of phones and SIM cards pursuant to the blanket policy, the Court found that this was not the case.

In separate judgements, Justices Rares and Flick pointed to the language of subsection 252(2), which authorises a search ‘to find out whether there is hidden on the person’ a weapon or thing capable of being used to inflict bodily injury or help the person to escape from immigration detention. Justice Rares held that the reference to ‘hidden on the person’ provided an important qualification of the purpose for which the search power could be exercised:

The fact that the purpose is to “find out” if there is intentional concealment supplies the statutory justification for the search being without warrant. The purpose that s 252(2) prescribes is not merely to search for a weapon, document or other thing; rather, it is to find out if the detainee has hidden (i.e. intentionally concealed) a weapon, document or other thing.

The policy and implementation plan seek to avail of the power to search for the former, not the latter purpose. That is not a use of the power in good faith.[78] (Emphasis in original)

The Court held the meaning of the terms ‘hidden’ and ‘found’ could not be expanded to permit the retention of an item under section 252 which was already in plain sight—such as a mobile phone placed on top of a detainee’s books or clothes.[79]

The amendments in the Bill to remove references to the exercise of search powers in respect of things which are ‘hidden’, and the express provision in proposed section 251B that search and screening powers may be exercised in relation to items which are already visible, remove constraints on the use of these powers which the Federal Court had identified.

New statutory powers to search immigration detention facilities

While Division 13 of Part 2 of the Migration Act provides statutory powers to search people, it does not extend to searches of places. The Explanatory Memorandum to the current Bill states:

Currently, there are limited bases upon which searches of areas within an immigration detention facility for items that may pose a risk to the safety and security of detainees and other persons can be done.[80]

Item 19 inserts proposed section 252BA into the Migration Act to provide statutory authorisation for searches of immigration detention facilities which are operated by or on behalf of the Commonwealth. This extends (but is not limited) to accommodation, administrative and common areas, detainees’ personal effects, detainees’ rooms, medical examination areas and storage areas.[81] Searches will be permitted for the same purposes as those of detainees, that is, to find a weapon or escape aid, or a prohibited thing.[82] Proposed subsection 252BA(3) provides that an authorised officer may search the facility for a thing whether or not the officer has suspicion there is such a thing at the facility.

An authorised officer must not use more force against a person or property, or subject a person to greater indignity, than is reasonably necessary to conduct a search.[83]

Proposed subsections 252BA(4)–(6) provide for the use of a dog in conducting searches of immigration detention facilities. If using a dog in conducting a search, the officer must take all reasonable precautions to prevent the dog touching any person and must keep the dog under control. However, if the authorised officer complies with these requirements, the use of the dog will not be unlawful because of the behaviour of the dog, including if the dog touches a person.

This is a narrower provision for the use of dogs in searches than was provided for under the first Bill. Unlike that Bill, this Bill does not permit the use of a dog to search a detainee, though will permit the use of a dog to search a detainee’s personal effects.[84] Nonetheless, some submissions to the Senate inquiry expressed concern about any use of detector dogs in the immigration detention context, noting that the use of detector dogs may cause considerable distress to detainees with past experiences of torture and trauma.[85]

Authorised officers’ assistants

Item 19 inserts proposed section 252BB, which provides that an authorised officer may be assisted by other persons in exercising powers or performing functions or duties in conducting:

a search of an immigration detention facility under proposed section 252BA or
the seizure of a thing under sections 252C, 252CA or 252CB in relation to such a search.

Such assistance must be necessary and reasonable, and an assistant is not permitted to use a dog.[86] Beyond these limitations, an authorised officers’ assistant has similar powers to those of the authorised officer under the relevant provisions—they may enter the immigration detention facility, and may exercise any of the same powers, and perform any of the same functions and duties as are conferred on the officer in relation to the search and seizure, in accordance with any directions given by the authorised officer.[87]

Anything done by an assistant under this provision is taken to have been done by the authorised officer.[88]

Commentary

The Scrutiny of Bills Committee raised concerns about the powers conferred on authorised officers and their assistants, reiterating its position that coercive powers should generally only be conferred on government employees with appropriate training, particularly where such powers authorise the use of force (as is the case with proposed subsection 252BA(7)).

The Committee noted that an authorised officer does not need to be a government employee, and pointed to the absence of any legislative guidance as to who may be an authorised officer’s assistant, how they are to be appointed and whether they are to have any particular expertise or training. It requested the Minister’s advice as to:

who is intended to be authorised as an ‘authorised officer’ and ‘authorised officer’s assistant’, and whether these will include non-government employees
why it is necessary to confer coercive powers on assistants and
what training and qualifications will be required of persons conferred with these powers, and why the Bill does not provide legislative guidance on this.[89]

At the time of writing this Digest, the Minister’s response had not been received.

Dealing with items found during searches and screening procedures

Under the current provisions in the Migration Act, an authorised officer may take possession of and retain certain things found in the course of a search, or strip search, of a detainee, or a screening procedure conducted in relation to a detainee.[90] Existing sections 252D and 252E allow things seized during a screening procedure or strip search to be retained beyond an initial 60 days on successful application to a magistrate.

The Bill amends sections 252 and 252C and inserts proposed section 252CA to make provision for dealing with prohibited things located in the exercise of those powers and certain items located in searches of immigration detention facilities.[91] It also inserts proposed subsection 251B(6), allowing the Minister to direct the seizure of a thing, including in relation to a specified class of persons, a particular thing or class of things, or a particular facility or class of facilities.[92]

Seized things

Things, other than prohibited things, found in the course of a search of an immigration detention facility under proposed section 252BA will be dealt with in the same way as things found in the course of searches of detainees under sections 252AA and 252A. This will mean:

a thing that might provide evidence of the commission of an offence against the Migration Act may be seized and must generally be returned if it is decided it will not be used in evidence or after 60 days and
a weapon or escape aid may be seized and is then forfeited or forfeitable to the Commonwealth.[93]

Prohibited things

Prohibited things found during searches and screening procedures may be seized, and will then be dealt with differently depending on the grounds on which they are prohibited.

If a prohibited thing is seized because its possession is unlawful, it will be dealt with in the same way as weapons and other things capable of being used to inflict bodily injury or help a detainee to escape from immigration detention.[94]

If a prohibited thing is seized on the grounds that its possession in an immigration detention facility might be a risk to the health, safety or security of persons in the facility or the order of the facility, the authorised officer must:

if it appears that the item belongs to a detainee, take all reasonable steps to return the item to the detainee when he or she leaves immigration detention and
if it appears that the item belongs to someone else, take all reasonable steps to return the item to that person.[95]

However, there are some limitations on the seizure of prohibited things which are not unlawful:

seizure is not authorised if it is from a detainee covered by a residence determination who is residing at the place specified in the determination, or from a non-citizen who has not been immigration cleared and is not in detention[96] and
a medication or health care supplement may not be seized in the course of a search of an immigration detention facility if there are reasonable grounds for an authorised officer to consider the medication or supplement is possessed or controlled by a particular detainee, and is not a prohibited thing in relation to the particular detainee (because it is prescribed or supplied for their individual use).[97]

If, after taking all reasonable steps to return the item, an authorised officer considers on reasonable grounds that the item cannot be returned for certain listed reasons (including that the owner cannot be identified), the item is forfeited to the Commonwealth.[98]

New power of Minister to direct seizures

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.[99] The direction may require the seizure of a thing in relation to:

a person in a specified class of persons, or all persons, to whom the relevant seizure power relates
a specified thing, a thing in a specified class of things, or all things, to which the relevant seizure power relates
a specified immigration detention facility, an immigration detention facility in a specified class of facilities, or all immigration detention facilities and/or
any circumstances specified in the directions (for example, a particular period during which the direction is to take effect).

Unlike an instrument determining something to be a ‘prohibited thing’, a seizure direction by the Minister will not be disallowable.[100]

Commentary

This power was not in the first Bill. The Explanatory Memorandum states that the provision:

... would allow the Department to implement, for example, a targeted, intelligence-led, risk-based approach in relation to the seizure of mobile phones, SIM cards and other prohibited things from detainees in facilities specified in a binding Ministerial direction, based on risk assessments and operational security.[101]

Some stakeholders, particularly those in the legal sector, noted that these provisions confer quite broad discretionary powers on the Minister, and expressed concern that few limitations are placed on them, nor are they subject to parliamentary oversight through the disallowance process. For example, the LCA believes that there is a ‘worrying lack of limitations on the exercise of these powers’, and:

... the Minister is being granted an unjustifiably broad discretion to make blanket decisions affecting the lives of persons in immigration detention, without sufficient oversight. It appears possible to make a direction compelling seizure with respect to ‘all persons’ to whom the relevant seizure power relates, ‘all things’ to which it relates, and ‘all detention facilities’ under ‘any circumstances’. There is no test by which the Minister must be reasonably satisfied of any matters before making such an instrument. This is a power which can be applied in a blanket fashion, and has the effect of overriding the authorised officer’s discretion to exercise the power in a manner which responds to the circumstances.[102]

The Scrutiny of Bills Committee queried why the Explanatory Memorandum does not provide a justification for the inclusion of such a ‘broad discretionary power’, and requested more detailed advice from the Minister as to:

... why it is considered necessary and appropriate to provide the minister with broad discretionary powers to require an authorised officer to exercise seizure powers via non-disallowable legislative instrument in circumstances where there is limited guidance on the face of the primary legislation as to when the powers may be exercised.[103]

Concluding comments

This Bill proposes to amend the Migration Act to strengthen existing search and seizure powers in immigration detention facilities, and to provide for particular items to be prohibited in immigration detention facilities. These measures are justified by the Government as being a necessary response to the changing immigration detention population profile resulting from significantly increased numbers of visa cancellations, leading to detention centres being populated with large numbers of people with criminal histories.

However, the Bill raises several issues which are worthy of consideration. Of key concern is whether the measures contained in the Bill are necessary and proportionate in response to the security threat posed by the cohort of high-risk detainees identified by the Government as the target group for the expanded search and seizure powers. Several stakeholders have argued that it is unnecessary, and unjust, for these restrictive measures to be applied across the entire immigration detention network, to all detainees, including the non-criminal visa cancellation cohort and vulnerable asylum seekers. The Scrutiny of Bills Committee and the PJCHR also questioned the proportionality of the measures in the Bill on that basis. The measures contained in the Bill are viewed by many as further evidence of the trend towards increasing securitisation of the immigration detention system, and there is broad agreement amongst refugee and human rights groups that it is inappropriate for immigration detention centres to be managed as though they are prisons.

More specifically, the proposed Ministerial power to prohibit items has been criticised by multiple stakeholders, as well as the Scrutiny of Bills Committee, as being unreasonably broad. The prohibition power contained in the Bill appears to be a reaction to a Federal Court decision preventing the implementation of a ban on mobile phones in immigration detention centres, and much of the discussion about the Bill has focused on the issue of access to mobile phones. However the effect of this provision will be much broader than simply banning mobile phones—it will allow the Minister to prohibit almost any item he or she wishes if satisfied that it ‘might’ pose a risk in the immigration detention environment.

The Bill also significantly expands existing screening, search and seizure powers in immigration detention facilities. Many stakeholders expressed concern about the expansion of these coercive powers, particularly the use of strip searches for prohibited things other than those that are unlawful. Some stakeholders also raised concerns about who will be permitted to exercise the expanded powers and whether they would have sufficient training and qualifications.

There is general agreement across stakeholder groups and the parliamentary scrutiny committees that the measures contained in the Bill will act to limit the rights of immigration detainees in a broad range of ways—from restricting the rights to privacy and access to communications via a prohibition on mobile phones, to potentially impinging on the right to freedom from torture and cruel, inhuman and degrading treatment or punishment through the use of strip searches. The question the Parliament will therefore need to consider in relation to the Bill is whether it accepts that these rights-limiting measures are necessary, reasonable and proportionate in response to the risks posed in the immigration detention environment.