Bills Digest No. 53,
2017–18
PDF version [378KB]
Cat Barker
Foreign Affairs, Defence and Security Section
Harriet Spinks
Social Policy Section
21
November 2017
Contents
The Bills Digest at a glance
Purpose of the Bill
Background
Mobile phone ban in immigration detention
centres
Legal challenge to mobile phone ban
Committee consideration
Senate Standing Committee on Legal
and Constitutional Affairs
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Concerns about prohibition of mobile
phones
Concerns about increased
securitisation of immigration detention
Concerns about coercive powers
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Prohibited things
Search and seizure powers
Key issues and provisions
Definitions and power to determine
prohibited things
Immigration detention facilities
Power to determine prohibited things
Search and seizure powers
Existing powers
Expanding the purposes for which
existing powers may be exercised to include finding prohibited things
New powers to use detector dogs when
conducting screening procedures
New statutory powers to search
certain immigration detention facilities
Stakeholder concerns about the use of
detector dogs for screening and searches
Dealing with items found during
searches of detainees or immigration detention facilities and screening
procedures in relation to detainees
Seized things
Prohibited things
Dealing with items found during
screening procedures in relation to people about to enter a facility
Concluding comments
Date introduced: 13
September 2017
House: House of
Representatives
Portfolio: Immigration
and Border Protection
Commencement: On
Proclamation or six months after Royal Assent, whichever occurs first.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at November 2017.
The Bills Digest at a glance
- The
Migration Amendment (Prohibiting Items in Immigration Detention Facilities)
Bill 2017 (the Bill) will amend the Migration Act 1958
(the Act) to allow the Minister for Immigration and Border Protection to
determine that an item is a ‘prohibited thing’ in relation to immigration
detention facilities. Determinations will be made by legislative instrument,
but those instruments will not be subject to disallowance.
- The
Government has indicated that items that will be prohibited will include things
such as mobile phones and SIM cards, computers and other electronic devices, narcotic
drugs, child pornography, alcohol, cigarette lighters and money. While a broad
range of items are likely to be prohibited, the Bill appears to be a specific
reaction to a recent attempt by the Government to seize mobile phones from
people held in immigration detention centres, which is currently being
prevented through a temporary injunction imposed by the Federal Court.
- The
Bill will also:
- allow
existing screening, search and seizure powers (including strip searches) to be
used in relation to prohibited things
- provide
a statutory power to search all areas of immigration detention facilities
operated by or on behalf of the Commonwealth for certain items, including
prohibited things, without a warrant and
- enable
the use of detector dogs to screen detainees and persons entering immigration
detention facilities operated by or on behalf of the Commonwealth, and to
search the facilities themselves.
- The
Government has pointed to the changing immigration detention population profile
in explaining its rationale for the proposed amendments. In particular, it has
stated that over half of this population comprises ‘high risk cohorts’,
including individuals with significant criminal histories. The Government has
also stated that the availability of mobile phones in immigration detention is
enabling criminal behaviour including drug distribution, and facilitating threats
between detainees.
- The
Bill was referred to the Senate Standing Committee on Legal and Constitutional
Affairs for inquiry and report by 14 November 2017. Submissions to the inquiry
raised numerous issues with the Bill, with stakeholders expressing concern that
its restrictive measures, which are ostensibly a response to increasing numbers
of high risk detainees, will be imposed across the entire immigration detention
population. Common themes identified in submissions to the inquiry 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. The coercive powers about which
stakeholders expressed the greatest concern were the use of detector dogs to
locate prohibited things and the use of strip searches for prohibited things which
are not otherwise unlawful.
- The
Committee’s majority report recommended that the Bill be passed but that the
Government should consider a minor amendment to the Bill to ensure that
detainees have access to communication facilities that will meet their needs
and enable contact with family, friends and legal services. The Australian
Labor Party issued a dissenting report recommending substantial amendments to
the Bill, while the Australian Greens’ dissenting report recommended that the
Bill should be opposed.
- The
Senate Standing Committee for the Scrutiny of Bills considered that the
amendments unduly trespass on personal rights and liberties because they apply
in the same way to all detainees instead of being targeted towards high-risk
individuals. It also raised concerns about prohibited things being determined
by the Minister instead of specified in the Act, and in relation to the proposed
powers to search certain immigration detention facilities.
- The
Parliamentary Joint Committee on Human Rights raised several concerns about the
Bill’s impact on human rights, including the Bill’s engagement and limiting of
rights in ways not acknowledged in the statement of compatibility. It sought
the Minister’s advice on whether limitations on the right to privacy, the right
not to be subjected to arbitrary or unlawful interference with family, the
right to freedom of expression and the right to bodily integrity are
proportionate. It also sought the Minister’s advice on the compatibility of the
Bill with the right to freedom from torture, cruel, inhuman and degrading
treatment and the rights of the child.
Purpose of
the Bill
The purpose of the Bill is to amend the 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.
Specifically, the Bill will:
- define immigration detention facilities as immigration detention centres
established under section 273 of the Act and places approved by the Minister in
writing as an Alternative Place of Detention (APOD)
- allow
the Minister to determine by legislative instrument that an item is a prohibited
thing in relation to immigration detention facilities
- provide
a statutory power for authorised officers and officers’ assistants to search
all areas of immigration detention facilities operated by or on behalf of the
Commonwealth for certain items, including prohibited things, without a warrant
- allow
existing screening, search and seizure powers in relation to detainees to be
used to find prohibited things
- allow
existing screening powers in relation to persons entering an immigration
detention facility to be used to find prohibited things and
- enable
the use of detector dogs to screen detainees and persons entering immigration
detention facilities operated by or on behalf of the Commonwealth, and to
search the facilities themselves.
Background
The Bill will amend the Act to allow the Minister for
Immigration and Border Protection to determine that an item is a ‘prohibited
thing’ in relation to immigration detention facilities, 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,
computers and other electronic devices, narcotic drugs, child pornography,
alcohol, cigarette lighters and money.[1]
While a broad range of items are likely to be prohibited, the Bill appears to
be a specific reaction to a recent attempt by the Government to seize mobile
phones from people held in immigration detention centres, which has been
prevented through action in the Federal Court.
Mobile
phone ban in immigration detention centres
It has, for many years, been Government policy to not permit
asylum seekers who arrive 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,
have been permitted to have mobile phones. This policy was not legislated, but
was articulated in the DIBP Procedures Advice Manual.[2]
The Department of Immigration and Border Protection (DIBP) 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.’[3]
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.[4]
The measure was described as comprising part of ‘Operation Safe Centres’, which
is ‘aimed at stamping out illegal activity across the immigration detention
network’.[5]
According to 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.[6]
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.’[7]
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.[8]
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.[9]
The decision to restrict detainees’ access to mobile
phones was further justified by DIBP as being necessary in the context of the
changing profile of detainees. For many years following the increase in
unauthorised maritime arrivals which began 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.[10]
However, with large numbers of IMAs being released from detention on bridging
visas over the last several years, and increasing numbers of people being
subject to visa cancellation on character grounds following an expansion of the
Minster’s cancellation powers, the immigration detention population profile has
changed significantly.[11]
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.[12]
This changing immigration detention population profile was
also highlighted by the Minister in his second reading speech introducing the
Bill as a reason why he requires legislative power to ban certain items in
immigration detention facilities:
Today, around 50 per cent of the detention
population are non-citizens who have had their visas cancelled. And while IMAs
now only make up around 25 per cent—as opposed to 99 per cent under Labor—of
the detention population, this cohort is complex and includes people with
criminal histories or other security concerns which present a risk to the
Australian community.
This means that more than half of the detainee
population consists of high-risk cohorts. These cohorts have significant
criminal histories, like child sex offences or links to criminal gangs, such as
outlaw motorcycle gangs and other organised crime groups, or represent an
unacceptable risk to the Australian community otherwise.
These criminals often have serious
behavioural issues and pose a critical threat to the health, safety, security
and order of the detention network.[13]
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 legislated, and that this was something that was
being considered by the Government.[14]
Thus, when the ban on mobile phones in immigration detention was announced in
November 2016, this was a matter of policy, not law. The same is true of the
long-standing 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 by lawyers from the National Justice Project,
on behalf of around 80 detainees, seeking to prevent the Department from
confiscating detainees’ mobile phones. The Court granted a temporary injunction
in February 2017, preventing the DIBP from seizing detainees’ mobile phones.[15]
In June 2017 the Full Bench 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 Court’s decision, handed down on 17 August 2017, confirmed that it did have
jurisdiction and the injunction should be upheld.[16]
This temporary injunction appears to still be in effect. Following this
decision the Government moved quickly to legislate power to remove mobile
phones (and other items) from immigration detainees, with this Bill being
introduced into Parliament less than one month later.
Committee
consideration
Senate
Standing Committee on Legal and Constitutional Affairs
The Senate Standing Committee on Legal and Constitutional
Affairs reported on its inquiry into the Bill on 16 November 2017.[17]
The majority report of the Committee recommended that the Bill be passed,
subject to two recommendations relating access to communication for and with
detainees: that the DIBP provide a central information registry concerning
detainees’ status and location in order to facilitate communication with
families, advocates and legal representatives; and that the Government consider
amending the Bill to ensure detainees have access to communication facilities
that enable appropriate contact with families, friends and legal services.
The Australian Labor Party (ALP) and the Australian Greens (the
Greens) both issued dissenting reports. The ALP recommended that the Bill
should be passed subject to substantial amendments, while the Greens
recommended that the Bill should be opposed in its entirety. Further
information is provided in the ‘Policy positions of non-government parties’ and
‘Key issues and provisions’ sections of this Digest.
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
(Scrutiny of Bills Committee) highlighted three key concerns with the Bill.
While acknowledging the difficulties posed by immigration
detainees with serious criminal histories, it considered that the amendments
unduly trespass on personal rights and liberties because they apply in the same
way to all detainees instead of being targeted towards high-risk individuals.[18]
The Committee maintained that view after considering information that the
Minister for Immigration and Border Protection provided in response to its
initial commentary on the Bill, stating:
... The committee notes the difficulties in having a two-tiered
approach to allowing different detainees access to things such as mobile
phones, but notes that removing such access for persons that do not pose a risk
effectively punishes those persons for the actions of others ...[19]
The Committee drew its concerns to the attention of Senators
and left the question of the appropriateness of the amendments to the Senate as
a whole.[20]
In relation to determination of prohibited things, the
Committee suggested that items should be set out in the Act instead of
determined by the Minister. Because determinations will prohibit the possession
of certain items by all detainees, the Committee considers that ‘giving this
power to the Minister delegates important policy, as opposed to operational,
decisions, which has not been appropriately justified in the explanatory
materials.’ It sought the Minister’s advice on why it is considered necessary
and appropriate for the Minister to determine which items are prohibited and on
what consultation would occur prior to an instrument being made.[21]
The Minister responded that determinations by legislative instrument
will enable the Minister to ‘respond quickly and flexibly to emerging threats
to the health, safety or security of all persons in an IDF or the order of
these facilities’. He stated that while the instruments would not be
disallowable, they would be tabled in Parliament for scrutiny.[22]
The Committee noted but was not satisfied by the Minister’s response. It sought
the Minister’s detailed justification for exempting these instruments, which it
maintains are policy decisions, from the usual parliamentary disallowance
process.[23]
The Committee also raised concerns about the proposed powers
to search certain immigration detention facilities. It noted that it is
possible under the Act for the Minister, Secretary of DIBP or ABF Commissioner
to specify persons other than government employees as ‘authorised officers’ and
‘officers’, and that no legislative guidance appeared to exist as to who may be
an authorised officer’s assistant. It sought the Minister’s advice on who is
likely to be authorised as an ‘authorised officer’ and as an authorised officer’s
assistant (and whether it will include non-government employees), why it is
necessary to confer coercive powers on persons other than authorised officers,
what training and qualifications will be required, and why the Bill does not
provide legislative guidance on the appropriate training and qualifications.[24]
The Minister responded that authorised officers would
include departmental officers and Serco officers, and that assistants had been
included to cover people who may sometimes be required to assist with searches,
such as locksmiths, but who would not be appointed. He also provided
information on training requirements.[25]
The Committee requested that the information provided by the Minister be
incorporated into the Explanatory Memorandum and considered that it would be
‘appropriate for the Bill to be amended to, at a minimum, require that
authorised officers and any person assisting possess specified skills, training
or experience’. It otherwise left the appropriateness of the amendments to the Senate
as a whole.[26]
Policy
position of non-government parties/independents
The ALP indicated when the Bill was
introduced that it was open to supporting the Bill but would reserve its final
position until the Senate Legal and Constitutional Affairs Committee completed
its inquiry.[27]
As noted above, the ALP’s dissenting report on the inquiry recommended
substantial amendments to the Bill, due to its concern that the measures
contained in the Bill are not proportionate to the risks associated with the
changing profile of immigration detainees.[28]
The amendments recommended by the ALP included:
- ‘prohibited
thing’ should be narrowly defined, and defined in statute
- electronic
devices such as mobile phones should only be removed if there is evidence that
removal is necessary and proportionate, and that detainees should be provided
with adequate access to communication facilities
- prescription
medications and supplements recommended by a health practitioner should not be
prohibited
- searches
of detainees’ personal effects and rooms should be limited to cases where there
is reasonable suspicion they are in possession of contraband
- strip
searches should only be conducted in exceptional circumstances and
- detector
dogs should be able to be used in immigration detention and transit facilities,
but not on detainees.
As noted above, the Greens’ dissenting report on the
Senate inquiry into to the Bill recommends that the Bill be opposed in its
entirety, as ‘the amendments proposed by this Bill are disproportionate and may
be contrary to Australia’s international human rights obligations’.[29]
The Greens expressed concern that the provisions contained in the Bill: would
further erode the human rights of immigration detainees; are indicative of ‘an
alarming trend to increase the discretionary powers of the Immigration
Minister’; and are reflective of a prison environment rather than immigration
detention.[30]
At the time of writing, no other minor parties or
independents had formally stated their position on the Bill.
Position of
major interest groups
The Australian Human Rights Commission (AHRC) raised
multiple concerns about the human rights implications of the Bill, noting in
particular that it considered the blanket application of restrictive measures
to all immigration detainees in response to the security and safety challenges
posed by a particular group ‘may not be a necessary, reasonable or
proportionate response to the identified risks.’ Specific concerns identified
by the AHRC include:
- the
Minister’s power to determine an item is a prohibited thing is unreasonably
broad, and could potentially be applied to items which pose no specific threat
- a
prohibition on mobile phones would unreasonably restrict detainees’ access to
communication facilities, and would limit a range of human rights, such as
those relating to privacy, freedom of expression and association, and
protection of the family and
- under
the new search powers proposed in the Bill, and without adequate oversight of
those powers, strip searches of immigration detainees may become routine.[31]
The Law Council of Australia (LCA) identified several
concerns with the Bill, notably:
- the
approach to defining a 'prohibited thing' is not necessary or proportionate in the context of the objectives of the measure
- the
discretion granted to the Minister to
declare by legislative
instrument a 'prohibited thing' may amount
to an inappropriate
delegation of legislative power
- the
proposed new coercive powers in the Bill are similar to powers that apply
in a criminal law context, and it is
not proportionate to apply such powers in the case of immigration detention
and
- there
is no requirement for there to be a
reasonable suspicion
before the proposed coercive powers may be exercised.[32]
Australian Lawyers for Human Rights (ALHR) also considered
that the Bill infringes several human rights and is a disproportionate response
to security concerns relating to the immigration detention population and
environment. It believed that ‘the behaviour which would be permitted under
this legislation—apparently with no judicial oversight—is akin to the torture
of innocent people.’[33]
Concerns
about prohibition of mobile phones
The policy of removing detainees’ mobile phones has 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.[34]
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 detained asylum seekers, and for
them to be able to access legal representation.[35]
In addition, many stakeholders have pointed out that
prohibiting mobile phones in immigration detention will infringe on detainees’
right to political communication, due to its intended effect of limiting their ability
to organise and participate in protest activity. The Andrew and Renata Kaldor
Centre for International Refugee Law at the University of New South Wales
(Kaldor Centre) noted that ‘one of the expressed justifications of the bill is
to curtail the ability of immigration detainees to participate in legitimate
protest activities which impacts directly on the freedom of political
communication.’[36]
As noted above, the Government has identified coordinating internal protest
activity with external protests as one of the actions it is hoping to prevent by
prohibiting mobile phones in detention centres. The Explanatory Memorandum to
the Bill similarly identifies ‘efforts to coordinate internal demonstrations to
coincide with external protests’ amongst a list of activities that mobile
phones have facilitated that the Government considers to be undesirable.[37]
The Kaldor Centre believes that the effects of the Bill on limiting detainees’
implied freedom of political communication would leave it open to
constitutional challenge.
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
further step towards what they describe as increased securitisation of
immigration detention. The Federation of Ethnic Communities’ Councils of
Australia (FECCA) and the Settlement Council of Australia (SCOA) stated in
their joint submission that they are ‘concerned about the treatment of all
non-criminal detainees including children in immigration detention being
subject to rules designed to control a prison population.’[38]
Similarly, Liberty Victoria argued that ‘immigration detention centres are not
prisons, and people seeking asylum should not be treated like criminals.’[39]
The LCA went 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:
Immigration
detention differs from
criminal detention
in that it is
administrative
in character and is not triggered by criminal offending or the suspicion thereof. It is impermissible for immigration
detention to become punitive in character, as it would offend
against the principle that the judicial power
of the Commonwealth
could only
be vested in Chapter Ill courts.[40]
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 and immoral. For example,
the Refugee Council of Australia (RCOA) stated:
While we do not deny that groups, such as child sex offenders
and those who committed violent crimes are currently detained in an increasing
number and that ABF and detention service providers need to implement measures
to manage their needs and risks, there is almost no reference to the fact that
the Australian immigration detention facilities still accommodate a large
number of people with much lower risk ratings. These groups include those who
have sought asylum, those who did not comply with their visa conditions (for
example, visa overstayers) and those had their visa cancelled for crimes such
as traffic offences. This Bill fails to protect the rights of these groups and
requires them to face the same restrictive measures as those who committed
violent crimes and are assessed to be of high risk to self or others.[41]
Concerns
about coercive powers
Stakeholders have also expressed concern that the expanded
search powers contained in the Bill, particularly in relation to the use of
detector dogs and strip searches, are unnecessary and disproportionate to the
security threats posed in the detention environment. Some submissions to the
inquiry argued that the use of detector dogs to conduct searches in immigration
detention could engender feelings of fear and intimidation in vulnerable asylum
seekers. For example, the RCOA argued:
...the use of dogs – no matter how trained they are in giving a
passive response – is highly inappropriate in a place where people with a
history of trauma, torture and mental health issues are deprived of their liberty.
For many people, seeing dogs during these search processes can bring to mind memories
of police raids in countries of origin.[42]
Further detail on stakeholder concerns is included 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.[43]
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.[44]
However, as noted elsewhere in this Digest, the Parliamentary Joint Committee
on Human Rights, the Greens and some stakeholders, including the AHRC, have
questioned that assessment.
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR) raised
several concerns about the Bill’s impact on human rights, including the Bill’s
engagement and limiting of rights in ways not acknowledged in the statement of
compatibility. Like the Scrutiny of Bills Committee and some stakeholders, the
PJCHR highlighted in its discussion the fact that the proposed restrictions and
powers will apply in the same way to all detainees, and the breadth of the
Minister’s discretion to prohibit items.[45]
Prohibited
things
The PJCHR considered that there were questions as to whether
the prohibition of certain items, including mobile phones and SIM cards, is
compatible with the right to privacy. It sought the Minister’s advice as to
whether the measure is a proportionate limitation on the right to privacy,
including whether it is the least rights restrictive way to achieve the stated
objective and whether it is accompanied by adequate safeguards to protect
against arbitrary application.[46]
It also sought the Minister’s advice on whether that measure is a proportionate
limitation on the right not to be subjected to arbitrary or unlawful
interference with family (including information on the extent of access to
alternative methods of communicating with family) and on the right to freedom
of expression.[47]
Search and
seizure powers
The PJCHR noted that the right to freedom from torture and
cruel, inhuman and degrading treatment or punishment is absolute, with no
limitations permissible under international human rights law. It considered
that the proposed powers to conduct strip searches of detainees to locate
prohibited things and to use force in searches of certain immigration detention
facilities engage that right. The PJCHR sought the Minister’s advice on the
compatibility of those measures with the prohibition on torture and cruel,
inhuman and degrading treatment or punishment.[48]
It also sought the Minister’s advice in relation to the right to humane
treatment in detention, specifically the adequacy of safeguards in relation to
strip searches and any monitoring or oversight proposed for the use of force.[49]
The PJCHR also considered the compatibility of the power to
conduct strip searches to locate prohibited things with the right to bodily
integrity and sought the Minister’s advice on whether the limitation on that
right is proportionate. In this context, it noted that a strip search will not
necessarily be a method of last resort, as such searches may be conducted
irrespective of the exercise of other search and screening powers.[50]
Finally, the PJCHR noted that the Act prohibits strip
searches of children under ten years of age, but permits the exercise of
coercive powers, including strip searches, in relation to detainees between ten
and 18 years of age. It sought the Minister’s advice on whether the amended
search and seizure powers, particularly powers to conduct strip searches, are
compatible with the rights of children.[51]
Key issues
and provisions
Definitions
and power to determine prohibited things
Item 1 will insert two new definitions into subsection
5(1) of the Act. The first is a new definition of immigration detention
facility and the second is a new definition of prohibited thing,
both of which will have the meaning given in proposed section 251A.
Item 2 will insert proposed section 251A
into the Act. This will provide definitions of prohibited thing
and immigration detention facility, and provide the power for the
Minister to determine, by legislative instrument, that a thing is a prohibited
thing.
Immigration
detention facilities
Proposed subsection 251A(3) will define an immigration
detention facility as: a detention centre established under section 273
of the Act, or; ‘another placed approved by the Minister in writing for the
purposes of subparagraph (b)(v) of the definition of immigration
detention in subsection 5(1)’. Places approved by the Minister in
writing under this subparagraph are referred to by the DIBP as Alternative
Places of Detention (APODs). APODs are generally used to house detainees where
their needs cannot be met in an immigration detention centre (IDC). Many
different kinds of places can be approved by the Minister as APODs, including:
hospitals, in the case of necessary medical treatment; schools, to meet the
educational needs of children in immigration detention; motels and other rented
accommodation, where there is insufficient space available to house detainees
in detention centres, or an IDC is deemed unsuitable for an individual’s or group’s
particular needs; and accommodation in the community made available through
agreements with other government departments (for example, the Department of Defence
facility at Inverbrackie, which has previously been used as an APOD).[52]
The effect of this definition is that all persons who are
held in an IDC or an APOD will be subject to the prohibition on certain items,
and the personal search and seizure powers set out in the Bill. However, these provisions
will not apply to people who have been released from a detention facility to
reside in community detention. Proposed new powers to search facilities and
expanded powers to screen people entering facilities will be restricted to
immigration detention facilities operated by or on behalf of the Commonwealth.[53]
This is intended to preclude the exercise of those powers in
‘non-facility-based’ APODs such as hotels, schools and hospitals.[54]
Power to
determine prohibited things
Proposed subsection
251A(1) will define a prohibited thing in relation to a
person in detention or in relation to an immigration detention facility as:
- an
item which has been determined by the Minister as a prohibited thing because he
or she is satisfied that possession or use of the thing in immigration
detention might pose a risk to the health, safety or security of persons, or to
the facility or
- an
item to which both of the following apply:
- possession
of the thing is unlawful because of a Commonwealth law, or law of the state or
territory in which the person is detained or the facility is located and
- the
thing is determined by the Minister as a prohibited thing, because the Minister
is satisfied that possession of the thing is prohibited by law in a place or
places in Australia.
Proposed subsection 251A(2) will allow the Minister
to make a non-disallowable legislative instrument determining that an item is a
prohibited thing in relation to either of the two categories outlined above.[55]
In relation to unlawful items, the Explanatory Memorandum states that it is
‘currently intended that ... the Minister will determine narcotic drugs and child
pornography’.[56]
Items may only be determined under this provision if they are items which are
already subject to prohibitions or restrictions under Commonwealth or state or
territory law. The scope for determining further items under this provision in
the future is therefore limited by the operation of other relevant laws.
In relation to items that may be determined because they
are considered to cause a risk to the health, safety or security of persons in
detention and detention facilities, the potential scope is much broader. 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
- computers
and other electronic devices
- medication
or health care supplements in specified circumstances and
- publications
or material that could incite violence, racism or hatred.
However, this note does not have the effect of limiting the
things that may be determined by the Minister as prohibited things to only
those items in this list. The Minister may determine any item as a prohibited
thing, provided he or she is ‘satisfied’ that it ‘might’ pose a risk in the
immigration detention environment. As noted above, stakeholders have observed
that this power is potentially very broad, and could be used to prohibit a wide
range of items. The AHRC is of the view that the threshold set for the
Minister, that an item ‘might’ pose a risk to safety or security, is too low as
it does not require the Minister to be satisfied that an item is likely
to pose a risk.[57]
The LCA has pointed out that the provision contains no guidance on what would
constitute a risk to the order of a facility, nor what ‘order of the facility’
is intended to mean in this context.[58]
The LCA is also concerned that the provision provides no avenue for
administrative redress to contest a decision of the Minister to prohibit
certain items.[59]
As noted earlier in this Digest, the Scrutiny of Bills
Committee considered that prohibited items should instead be specified in the
Act or the legislative instruments made subject to disallowance, while the
PJCHR sought advice from the Minister on whether the limits this measure places
on certain human rights are proportionate. In their dissenting report on the
Senate Standing Committee on Legal and Constitutional Affairs’ inquiry into the
Bill, ALP senators recommended that ‘prohibited thing’ should be narrowly
defined, and that it should be defined in the Act to provide for parliamentary
oversight.[60]
ALP senators also recommended that the definition of ‘prohibited thing’ should
explicitly not include prescription medications or health supplements
recommended by a health practitioner, and that there should be no blanket prohibition
on communication devices such as mobile phones, in accordance with a
recommendation made to the inquiry by the AHRC that detainees should be
provided with adequate communications facilities.[61]
The majority report of the Senate inquiry also reflected this recommendation of
the AHRC, and recommended amendments to the Bill to ensure detainees have
access to appropriate communication facilities.[62]
Search and
seizure powers
Existing
powers
Division 13 of Part 2 of the Act provides powers
of examination, search, detention and identification that are exercisable in
particular places or in relation to particular people. Sections 252–252G
set out 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.[63]
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 DIBP official (for an
adult detainee).[64]
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) a person who does not comply
with a request made under section 252G may be refused entry.
Expanding
the purposes for which existing powers may be exercised to include finding
prohibited things
The Bill will amend sections 252–252G so that the search
and screening powers outlined above may also be exercised in order to find
prohibited things in the possession of detainees or people entering immigration
detention facilities.[65]
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).
Given the breadth of what might be included in the
category of prohibited things, some stakeholders have raised concerns about the
expansion of these search powers. Stakeholders were particularly concerned that
allowing strip searches to be conducted for the purpose of locating prohibited things
is not proportionate to the risks that some such items present compared to
weapons and other things capable of inflicting bodily injury.[66]
The LCA recommended that strip searches to find prohibited things only be
permitted for prohibited things the possession of which is unlawful, and only
be conducted in exceptional circumstances; its recommendation was endorsed by
ALP senators in their dissenting report on the Senate Standing Committee on
Legal and Constitutional Affairs’ inquiry into the Bill.[67]
The AHRC recommended the introduction of a system of independent oversight of
strip searches of detainees, under which DIBP would be required to maintain
records of all such searches and notify the Commonwealth Ombudsman of any
complaints, and the Ombudsman would be given powers to inspect those records
and be required to conduct and report on annual reviews.[68]
New powers
to use detector dogs when conducting screening procedures
The screening procedures that authorised officers may currently
use in relation to detainees (under section 252AA) and people entering
immigration detention facilities (under section 252G) involve the use of
screening equipment, defined to mean ‘a metal detector or similar device for
detecting objects or particular substances’.[69]
This can include having a person walk through screening equipment, passing
hand-held screening equipment over or around a person and putting a thing in a
person’s possession through screening equipment or examining it by X-ray.[70]
Item 14 will amend the definition of ‘conducting
a screening procedure’ in relation to a detainee in subsection 252AA(5) to
include using a dog to search a detainee or things in the detainee’s
possession. This will allow the use of detector dogs to search detainees for
the purposes of finding certain things, including prohibited things. In their
dissenting report on the Senate Standing Committee on Legal and Constitutional
Affairs’ inquiry into the Bill, ALP Senators supported the use of detector dogs
to search immigration detention facilities, but not to screen detainees.[71]
Item 28 will amend subsection 252G(1) so
that an authorised officer may ask a person about to enter an immigration
detention facility operated by or on behalf of the Commonwealth to allow the
officer to use a dog for the purposes of searching the person for a thing to
which subsection 252G(3) applies. This will allow the use of detector dogs
to search people for certain things, including prohibited things.
In both instances, an authorised officer using a dog must
take all reasonable precautions to prevent the dog touching anyone other than
themselves and keep the dog under control while conducting the search. If the
officer complies with those requirements, the use of the dog will not be
unlawful only because of the behaviour of the dog.[72]
The Explanatory Memorandum states that DIBP officers
involved in using dogs for screening procedures ‘will be specifically
authorised for the purpose of handling a dog and will have undergone extensive
training in handling detector dogs’.[73]
The ABF’s Detector Dog Program trains both handlers and dogs, with dogs trained
to detect narcotics, firearms, explosives, currency and tobacco and handlers
required to complete three phases of training totalling around six months.[74]
While the Explanatory Memorandum points to locating narcotics as an example of
how detector dogs will be used in the immigration detention context, it is
worth noting that detector dogs have been used to locate mobile phones in New
South Wales prisons since late 2009, and more recently also for chargers and
SIM cards.[75]
New statutory
powers to search certain immigration detention facilities
While Division 13 of Part 2 of the Act provides
statutory powers to search people, it does not extend to searches of places. DIBP
currently relies on a common law duty of care for searches of areas within
immigration detention facilities.[76]
Item 21 will insert proposed section 252BA to provide
statutory powers for authorised officers to search immigration detention
facilities ‘operated by or on behalf of the Commonwealth’, including but not
limited to accommodation, administrative and common areas, detainees rooms and
personal effects, medical examination areas and storage areas. Searches will be
permitted for the same purposes as those of detainees, that is, to find things
capable of being used to inflict bodily injury or help a detainee escape, and
prohibited things.[77]
An authorised officer will be able to use a dog in
conducting a search of a facility, and if the authorised officer does so, he or
she must take all reasonable precautions to prevent the dog touching anyone
other than themselves and keep the dog under control while conducting the
search. If the officer complies with those requirements, the use of the dog
will not be unlawful only because of the behaviour of the dog.[78]
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.[79]
Item 21 will also insert proposed
section 252BB, which will allow authorised officers to be assisted by
other persons in searching an immigration detention facility, if the assistance
is necessary and reasonable. The assistant will not be permitted to use a dog,
but may otherwise assist in a search under proposed section 252BA,
and the taking into possession and retaining of certain things located during
searches and screening procedures under sections 252C and proposed section 252CA.
Where weapons and other things capable of being used to
inflict bodily injury or help a detainee to escape from immigration detention
are found in the course of a search of an immigration detention facility, the
possession and retention of such items will operate in the same way as is
currently the case when those items are found using existing search and
screening powers. For the possession and retention of prohibited things, see
the following section of this Digest.
As noted earlier in this Digest, the Scrutiny of Bills
Committee sought the Minister’s advice on who is likely to be authorised as an
‘authorised officer’ and as an authorised officer’s assistant (and whether it
will include non-government employees), why it is necessary to confer coercive
powers on persons other than authorised officers, what training and
qualifications will be required, and why the Bill does not provide legislative
guidance on the appropriate training and qualifications.[80]
Some stakeholders raised similar concerns about the potential for search powers
to be exercised by non-government employees and without adequate training or
qualifications.[81]
The Minister advised that authorised officers would include departmental
officers and Serco officers, and that assistants had been included to cover
people who may sometimes be required to assist with searches, such as
locksmiths, but who would not be appointed. He also provided information on
training requirements.[82]
The Committee requested that the information provided by the Minister be
incorporated into the Explanatory Memorandum and considered that it would be
‘appropriate for the Bill to be amended to, at a minimum, require that
authorised officers and any person assisting possess specified skills, training
or experience’.[83]
The LCA recommended that searches of detainees’ rooms and
personal effects only be permitted where there is reasonable suspicion that a
detainee possesses an item of concern, a recommendation endorsed by ALP Senators
in their dissenting report on the Senate Standing Committee on Legal and
Constitutional Affairs’ inquiry into the Bill.[84]
The RCOA noted its particular concern about searches of medical examination
areas, stating that the proposed provisions would not prevent officers from
interrupting a private medical consultation to search an area for prohibited things.[85]
Stakeholder
concerns about the use of detector dogs for screening and searches
As outlined above, the Bill would enable the use of
detector dogs in screening procedures relating to detainees and persons about
to enter certain immigration detention facilities, and for searches of those
facilities. Stakeholders raised several concerns about these proposed
amendments. With respect to screening detainees and searching facilities, some
stakeholders argued that the use of detector dogs could engender feelings of
fear and intimidation in vulnerable asylum seekers and not take account of
cultural sensitivities.[86]
It was also suggested that the use of detector dogs to screen people visiting immigration
detention facilities would further discourage visitors, who provide important
links to the outside world.[87]
The NSW Council for Civil Liberties and the Immigration Advice and Rights
Centre also pointed to a 2006 report by the NSW Ombudsman that cast doubt about
the reliability of detector dogs for detecting illicit drugs.[88]
Dealing
with items found during searches of detainees or immigration detention
facilities and screening procedures in relation to detainees
Under the 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.[89]
Sections 252D and 252E allow things to be retained beyond an initial 60
days on successful application to a magistrate. The Bill will amend sections 252
and 252C and insert 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.[90]
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 that:
- a
thing that might provide evidence of the commission of an offence against the 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 other thing capable of being used to inflict bodily injury or help a
detainee to escape from immigration detention may be seized and is then
forfeited or forfeitable to the Commonwealth. The authorised officer who seized
the item must give it to a constable as soon as practicable.[91]
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.[92]
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.[93]
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.[94]
Dealing
with items found during screening procedures in relation to people about to
enter a facility
Under subsections 252G(5) and (6), if a person about to
enter a Commonwealth immigration detention facility leaves a thing in a
specified place, the person is entitled to its return when leaving the
facility, unless possession of the thing is unlawful under a Commonwealth,
state or territory law. The Bill will amend section 252G so that the same
applies to things left because they are prohibited things.[95]
It will also insert proposed subsection 252G(6A), which will apply if
a person leaves an item that is a prohibited thing because it might pose a risk
in the immigration detention environment. It will provide that 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.[96]
Concluding comments
This Bill proposes to amend the 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.[97]
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 recent 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 goes further than simply providing for the
prohibition of certain items by expanding existing screening, search and
seizure powers in relation to detainees, immigration detention facilities and
visitors to those facilities. The coercive powers about which stakeholders
expressed the greatest concern were the use of detector dogs to locate
prohibited things and 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.
[1]. P
Dutton, ‘Second
reading speech: Migration Legislation Amendment (Prohibiting Items in Immigration
Detention) Bill 2017’, House of Representatives, Debates, 13
September 2017, pp. 10180–82; Department of Immigration and Border Protection
(DIBP), Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 44], n.d.,
pp. 6–7.
[2]. DIBP,
Procedures Advice Manual (PAM3) Detention Services Manual, Chapter 8
(Safety and Security), Legendcom database. Until July 2016, the mobile phone
ban as articulated in the Detention Services Manual applied to only IMAs and
those in border screening detention. The policy as currently articulated
applies to all detainees.
[3]. Legal
and Constitutional Affairs Legislation Committee, Answers to Questions on
Notice, Immigration and Border Protection Portfolio Supplementary Budget
Estimates 2016–17, Question
SE16/079.
[4]. Department
of Immigration and Border Protection (DIBP), New
measures to combat illegal activity within immigration detention facilities,
media release, 21 November 2016.
[5]. Ibid.
[6]. Ibid.
[7]. Legal
and Constitutional Affairs Legislation Committee, Official
committee Hansard, 27 February 2017, p. 132.
[8]. Ibid.
[9]. Legal
and Constitutional Affairs Legislation Committee, Answers to Question on
Notice, Immigration and Border Protection Portfolio, Additional Budget
Estimates 2016–17, Question
AE17/046.
[10]. J
Phillips and H Spinks, Immigration
detention in Australia, Background note, Parliamentary Library,
Canberra, 2013, p. 41.
[11]. The
Minister’s cancellation powers were significantly expanded by the Migration
Amendment (Character and General Visa Cancellation) Act 2014.
[12]. DIBP,
New
measures to combat illegal activity within immigration detention facilities,
op. cit.
[13]. Dutton,
‘Second
reading speech: Migration Legislation Amendment (Prohibiting Items in
Immigration Detention) Bill 2017’, op. cit.
[14]. Legal
and Constitutional Affairs Legislation Committee, Official
committee Hansard, op. cit., p. 135.
[15]. Federal
Court of Australia, ARJ17 v Minister for Immigration and Border protection, Order,
19 February 2017.
[16]. Minister
for Immigration and Border Protection v ARJ17 [2017]
FCAFC 125. A separate interlocutory (temporary) injunction was dissolved by
the Federal Circuit Court, which found that the removal of mobile phones was
authorised by the Migration Act and did not amount to a denial of
procedural fairness. See SZSZM v Minister for Immigration & Ors [2017]
FCCA 819. However, this decision has no effect on the injunction imposed by
the Federal Court, and is not binding on any decision the Federal Court may
ultimately make regarding the legality of the ban.
[17]. Legal
and Constitutional Affairs Legislation Committee, Migration
Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017
[Provisions], The Senate, 16 November 2017.
[18]. Senate
Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Scrutiny
digest, 12, 2017, The Senate, 18 October 2017,
pp. 38–40; Scrutiny of Bills Committee, Scrutiny
digest, 13, 2017, The Senate, 15 November 2017, pp. 114–15
[19]. Scrutiny
of Bills Committee, Scrutiny
digest, 13, op. cit., p. 115.
[20]. Ibid.
[21]. Scrutiny
of Bills Committee, Scrutiny
digest, 12, op. cit., pp. 40–2 (quote taken from p. 41).
[22]. Scrutiny
of Bills Committee, Scrutiny
digest, 13, op. cit., pp. 117–18 (quote taken from
p. 118).
[23]. Ibid.,
pp. 118–19.
[24]. Scrutiny
of Bills Committee, Scrutiny
digest, 12, op. cit., pp. 42–3.
[25]. Scrutiny
of Bills Committee, Scrutiny
digest, 13, op. cit., pp. 121–2.
[26]. Ibid.,
pp. 122–3.
[27]. S
Neumann (Shadow Minister for Immigration and Border Protection), Transcript:
Karvelas on Sky, media release, 17 September 2017.
[28]. Labor
Party Senators’ Dissenting Report, Legal and Constitutional Affairs Legislation
Committee, Migration
Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017
[Provisions], op. cit., pp. 27–34.
[29]. Australian
Greens, Dissenting Report, Legal and Constitutional Affairs Legislation
Committee, Migration
Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017
[Provisions], op. cit., p. 37.
[30]. Ibid.,
pp. 35–6.
[31]. Australian
Human Rights Commission (AHRC), Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 11].
[32]. Law
Council of Australia (LCA), Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 64].
[33]. Australian
Lawyers for Human Rights (ALHR), Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 34], p. 3.
[34]. For
example, see Refugee Action Coalition Sydney, Federal Court injunction granted to stop Immigration seizing mobile
phones, media release, 19 February 2017. While official policy
is that IMAs should not have access to mobile phones in immigration detention,
it appears that some have managed to retain their phones. Additionally, not all
asylum seekers in immigration detention are IMAs.
[35]. See
for example Federation of Ethnic Communities’ Councils of Australia and
Settlement Council of Australia (FECCA), Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 1]; AHRC, Submission,
op. cit.; Liberty Victoria, Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 25]; Combined Refugee
Action Group, Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 30].
[36]. Andrew
and Renata Kaldor Centre for International Refugee Law, Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 52], p. 5.
[37]. Explanatory
Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, p. 2.
[38]. FECCA,
Submission,
op. cit., p. 2.
[39]. Liberty
Victoria, Submission,
op. cit., p. 2.
[40]. LCA,
Submission,
op. cit., p. 8.
[41]. Refugee
Council of Australia (RCOA), Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 55], p. 2.
[42]. Ibid.,
p. 5.
[43]. Explanatory
Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, p. 3.
[44]. The
Statement of Compatibility with Human Rights can be found at page 22 of the Explanatory
Memorandum to the Bill.
[45]. Parliamentary
Joint Committee on Human Rights, Report,
11, 2017, 17 October 2017, pp. 19–34.
[46]. Ibid.,
pp. 19–23.
[47]. Ibid.,
pp. 23–7.
[48]. Ibid.,
pp. 28–31.
[49]. Ibid.,
pp. 29–31.
[50]. Ibid.,
pp. 31–3 (see subsection 252A(7) as amended by the Bill). Under
subsection 252A(3) of the Act as amended by the Bill, before performing a
strip search, an authorised officer must suspect on reasonable grounds that
there is hidden on the detainee a certain item (including a prohibited thing),
suspect on reasonable grounds that it is necessary to conduct a strip search to
recover the item and obtain approval from a senior DIBP official (in the case
of an adult detainee) or a magistrate (in the case of a detainee 10 to 18 years
of age). Under subsection 252A(3A), the suspicion may be on the basis of a
regular search of the detainee, a screening procedure or ‘any other information
that is available to the officer’.
[51]. Ibid.,
pp. 33–4.
[52]. Phillips
and Spinks, op. cit., p. 45.
[53]. Proposed
section 252BA and subsection 252G(1) as amended by item 27.
[54]. Explanatory
Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, pp. 14, 19.
[55]. Under
section 10 of the Legislation
(Exemptions and Other Matters) Regulation 2015 ‘an instrument (other than a
regulation) made under Part 1, 2 or 9 of the Migration Act 1958’ is
not subject to disallowance. Proposed section 251A will be inserted into
Part 2 of the Migration Act, meaning a legislative instrument made under
this section will not be subject to disallowance.
[56]. Explanatory
Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, p. 6.
[57]. AHRC,
Submission,
op. cit., p. 8.
[58]. LCA,
Submission,
op. cit., p. 9.
[59]. Ibid.,
p. 9.
[60]. Labor
Party Senators’ Dissenting Report, op. cit., p. 29.
[61]. Ibid.
p. 32; AHRC, Submission,
op. cit. p. 4.
[62]. Legal
and Constitutional Affairs Legislation Committee, op. cit., p. 25.
[63]. Migration
Act, paragraph 252(2)(a) and subsections 252AA(1), 252A(1).
Section 252 applies to searches of detainees and also non-citizens who
have been immigration cleared. It also allows for searches to be conducted for
the purpose of finding out whether there is hidden on a person or his or her
clothing or property a document or other thing that is, or may be, evidence for
grounds for cancelling a person’s visa.
[64]. Migration
Act, subsection 252A(3). Strip searches of detainees under the age of
ten are prohibited under section 252B, which provides rules and safeguards
for the conduct of strip searches.
[65]. Item 4
will amend subsection 252(2); item 11 will amend
subsection 252AA(1); item 16 will amend
subsection 252A(1); item 24 will repeal and replace
subsection 252C(2); item 30 will repeal and replace
subsection 252G(3).
[66]. LCA,
Submission,
op. cit., p. 15; Immigration Advice and Rights Centre Inc. (IARC), Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 51]; AHRC, Submission,
op. cit., pp. 11–13.
[67]. LCA,
Submission,
op. cit., p. 15; Labor Party Senators’ Dissenting Report,
op. cit., pp. 33–4.
[68]. AHRC,
Submission,
op. cit., p. 13.
[69]. Screening
equipment is defined in subsection 252AA(5) and
subsection 252G(2).
[70]. Subsection 252AA(5)
and subsection 252G(1).
[71]. Labor
Party Senators’ Dissenting Report, op. cit., p. 34.
[72]. For
detainees, proposed subsections 252AA(3A) and (3AA), inserted by item 12;
for persons about to enter a facility, proposed subsections 252G(2A)
and (2B), inserted by item 29.
[73]. Explanatory
Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, p. 11.
[74]. DIBP,
‘Detector
Dog Program – working with dogs to help protect Australia’ and ‘Training
detector dog teams’, DIBP website.
[75]. Corrective
Services NSW, K9
partnership gets smart on prison mobile phone detection, media release,
15 April 2013; J Fife-Yeomans, ‘Hank nose his stuff’,
The Daily Telegraph, 5 August 2017, p. 20, ProQuest
database.
[76]. Explanatory
Memorandum, Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, p. 14; DIBP, Procedures Advice Manual (PAM3)
Detention Services Manual, Chapter 1 (Legislative and principles overview)
and Chapter 8 (Safety and Security), Legendcom database.
[77]. Proposed
subsection 252BA(2).
[78]. Proposed
subsections 252BA(3), (4) and (5).
[79]. Proposed
subsection 252BA(6).
[80]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, op. cit., pp. 42–3.
[81]. LCA,
Submission,
op. cit., pp. 13–14; IARC, Submission,
op. cit.; National Justice Project, Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 58], pp. 4–5.
[82]. Scrutiny
of Bills Committee, Scrutiny
digest, 13, op. cit., pp. 121–2.
[83]. Ibid.,
p. 123.
[84]. LCA,
Submission,
op. cit., p. 14; Labor Party Senators’ Dissenting Report,
op. cit., pp. 32–3.
[85]. RCOA,
Submission,
op. cit., p. 5.
[86]. Liberty
Victoria, Submission,
op. cit., p. 5; New South Wales Council for Civil Liberties, Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 54], pp. 6–7;
IARC, Submission,
op. cit.; RCOA, Submission,
op. cit., p. 5; Rural Australians for Refugees, Submission
to Senate Standing Committees on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017, October 2017, [submission No. 26], p. 4; LCA, Submission,
op. cit., pp. 15–16.
[87]. Liberty
Victoria, Submission,
op. cit., p. 5; NSW CCL, Submission,
op. cit., p. 6.
[88]. NSW
CCL, Submission,
op. cit., p. 7; IARC, Submission,
op. cit. The review of the Police Powers (Drug Detection Dogs) Act 2001
(NSW) found that prohibited drugs were located in only 26 per cent of
searches conducted of people following an indication given by a detector dog
(usually sitting next to the scent) that drugs may be present: NSW Ombudsman, Review
of the Police Powers (Drug Detection Dogs) Act 2001, NSW Ombudsman,
June 2006, pp. i–ii.
[89]. Migration
Act, subsection 252(4) and section 252C.
[90]. Items
8, 24 and 25.
[91]. Migration
Act, section 252C as amended by items 22 to 24.
[92]. Subsection 252(4)
as amended for searches of detainees; section 252C as amended for screening
procedures in relation to detainees, strip searches of detainees and searches
of immigration detention facilities; section 252G as amended for screening
procedures in relation to persons about to enter immigration detention
facilities.
[93]. Proposed
subsection 252(4A), inserted by item 8 for searches of
detainees; otherwise proposed section 252CA, inserted by item 25.
[94]. Proposed
subsection 252(4B), inserted by item 8 for searches of
detainees; otherwise proposed section 252CA, inserted by item 25.
[95]. Amendments
to subsections 252G(4), (5) and (6) made by items 31–33.
[96]. Proposed
subsection 252G(6A) is inserted by item 34.
[97]. For
example see FECCA, Submission,
op. cit.; LCA, Submission,
op. cit.; Liberty Victoria, Submission,
op. cit.
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