On 14 May 2020, the Senate referred the provisions of the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 5 August 2020.
The bill was referred to the committee following a recommendation of the Selection of Bills Committee. Appendix 1 to that report provided the following reasons for referral:
Banning of items in administrative detention. This is a legacy bill that the [Government] left on the notice paper for years. There is a very high likelihood there will be changes to the legislation, which will need substantial reconsideration by committee.
Concerns regarding human rights, and rights of the child (will provide for: prohibition of items in immigration detention facilities; searches without warrants; extra screening and seizure powers; and use of dogs for screening and searching detainees).
Conduct of inquiry
The committee advertised the inquiry on its website and wrote directly to a number of organisations inviting submissions by 11 June 2020. The committee received 135 submissions, listed at Appendix 1. The committee held a public hearing in Canberra on Friday, 3 July 2020. A list of witnesses is provided at Appendix 2.
Questions on notice and other material received by the committee are listed at Appendix 2. Submissions and the Hansard transcript of evidence may be accessed through the committee website.
The committee thanks the organisations and individuals who gave evidence at the public hearing as well as those who made written submissions.
Structure of this report
The report comprises two chapters as follows:
Chapter 1 outlines the administrative details of the inquiry, background to the inquiry and the key provisions of the bill.
Chapter 2 explores the key issues raised in evidence and provides the committee's view.
Purpose of the bill
The bill was introduced into the House of Representatives on 14 May 2020 by the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alan Tudge MP. In his Second Reading Speech, the minister stated that since strengthening section 501 of the Migration Act 1958 (the Migration Act), the government has cancelled the visas of more than 4,600 people who have committed criminal offences in Australia. The effect is that '[t]oday, a large proportion of the detention population are unlawful noncitizens who have criminal histories'. This includes individuals with histories of:
'child sex offences or violent crimes, including murder and domestic violence. Others have…significant histories of drug-related offences or proven links to criminal organisations, such as outlaw motorcycle gangs and other organised crime groups'.
The minister stated that 'some of these individuals seek to continue criminal activities and associations while in detention centres'. The challenge that has subsequently arisen, the minister explained, is to address the 'continuing incursion, distribution and use of illegal drugs and contraband items, and associated criminal activity'. The minister stated that at present, the Australian Border Force (ABF) does not have the power to remove illegal or dangerous items from immigration detention facilities, and therefore is unable to fully maintain the safety, security and good order of immigration detention facilities.
Therefore, the purpose of this legislation is to:
…provide the legislative basis to enable ABF officers to effectively combat the incursion, distribution, and use of contraband that pose a significant risk to the safety and security of the immigration detention environment.
The Department of Home Affairs (the department) submitted that the bill would amend the Migration Act 1958 (the Migration Act) to:
…determine 'prohibited things' and strengthen the powers of the Department of Home Affairs to search for and seize 'prohibited things' from detainees in immigration detention facilities. The amendments also clarify the intended operation of the search and seizure provisions, following the Full Federal Court decision in ARJ v Minister for Immigration and Border Protection  FCAFC 98.
The department stated that the bill:
is intended to further support the provision of a safe and secure environment for people accommodated in, visiting or working in an immigration detention facility. The bill seeks to strike a balance between the individual rights of detainees and the protection of the community, facility staff, visitors and other detainees.
Key provisions of the bill
The proposed amendments to the Migration Act are contained in Schedule 1 to the bill.
The explanatory memorandum states that the bill would amend the Migration Act to:
insert new definitions under subsection 5(1) to define section 273 detention centres and places approved in writing by the minister under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1) of the Migration Act (otherwise known as Alternative Places of Detention (APODs)) collectively as ‘immigration detention facilities’, and to define a ‘prohibited thing’;
insert new section 251A to enable the minister to determine, by disallowable legislative instrument, prohibited things in relation to immigration detention facilities and detainees (whether or not they are in an immigration detention facility). These things may include illegal things [that is, things prohibited by law in a place or places of Australia], specifically controlled drugs, and things that present a risk within immigration detention facilities including mobile phones, SIM cards and internet-capable devices;
insert new sections 252BA and 252BB to allow authorised officers and authorised officers’ assistants to search, without a warrant, immigration detention facilities operated by or on behalf of the Commonwealth, including accommodation areas, administrative areas, common areas, detainees’ rooms, detainees’ personal effects, medical examination areas, and storage areas, and to allow the use of detector dogs to conduct these searches;
clarify and strengthen the search and seizure powers in relation to detainees in sections 252, 252AA, 252A, 252BA, 252C and 252CA;
strengthen the powers in section 252G in relation to a person about to enter an immigration detention facility operated by or on behalf of the Commonwealth to expressly allow an authorised officer to screen and search for prohibited things (which may include controlled drugs); and
allow the minister to issue binding written directions to officers in relation to the exercise of their seizure powers.
Power to determine that an item is a 'prohibited thing'
Proposed subsection 251A(2) would provide the minister with the power to determine by a disallowable legislative instrument that an item is a 'prohibited thing' if the minister is satisfied that:
possession of the thing is prohibited by law in a place or places in Australia; or
possession or use of the thing in an immigration detention facility might be a risk to the health, safety or security of persons in the facility or to the order of the facility.
'Prohibited thing' is defined by proposed subsection 251A(1) as:
possession of the thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained or in which the facility is located; and
the thing is determined under paragraph (2)(a); or
The thing is determined under paragraph (2)(b).
Examples provided under subsections 251A(1) and (2) state that the following items may be determined to be prohibited things 'if the Minister is satisfied that they pose a risk mentioned in paragraph (b)':
computers and other electronic devices designed to be capable of being connected to the internet.
The explanatory memorandum identifies that the minister would be able to make a determination to prohibit the possession of controlled drugs under the amendments for the purposes of proposed subsection 251A(1).
Proposed subsection 251(3) states that medication or health care supplements are not prohibited things if they have been prescribed or supplied for the person's individual use by a health service provider authorised for the purpose by the person in charge of the facility.
The bill states that this subsection is applicable 'in relation to a person in detention (whether or not the person is detained in an immigration detention facility), or in relation to an immigration detention facility'. The explanatory memorandum clarifies that detainees who are the subject of a residence determination would not be subject to the search and seizure provisions in relation to prohibited items.
Search and seizure powers
The bill contains expanded powers for authorised officers to screen, search and seize prohibited things in immigration detention facilities in relation.
Proposed subsection 251B(1) provides that an authorised officer may conduct a search for a thing under proposed sections 252 (of detainees and certain non-citizens) or 252BA (of immigration detention facilities) whether or not the thing is visible to the authorised officer immediately prior to the search of the person or the facility, and, if the thing is not visible to the authorised officer at that time, whether or not the thing had been intentionally concealed. Similarly, proposed subsection 251B(2) provides the power for authorised officers to conduct a screening procedure or strip search of a detainee for a thing, whether or not that thing had been intentionally concealed prior to the commencement of the search. Authorised officers may seize things found in the course of such procedures by operation of proposed subsections 251B(3) and 251B(4).
Proposed subsection 251B(6) would vest in the minister the power to direct authorised officers to seize a prohibited thing. Instruments made under this subsection would not be disallowable. The explanatory memorandum states that this power 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.
The proposed amendments to section 252 would expand the existing powers to include the power to search for and seize a prohibited thing. Proposed subsection 252(2) provides that an authorised officer may conduct a search of a person's clothing and property for any of the items listed above without a warrant and whether or not that officer has a reasonable suspicion that the person has such a thing on their body, in their clothing or in their property. Under proposed subsection 252(4A), prohibited items could not be seized from detainees subject to a residence determination who are residing at the place specified in that determination.
Proposed section 252AA expands the existing power for authorised officers to conduct a screening procedure without a warrant for prohibited things in addition to items that may be a weapon or escape aid.
The operation of proposed section 252A would empower authorised persons to conduct strip searches without a warrant for prohibited things, as well as weapons and escape aids as currently constructed. Proposed subsection 252A(3)(a) requires that an authorised officer must suspect on 'reasonable grounds' that any items of this nature are on the body, in the clothing or in the possession of a detainee for a strip search to be conducted. Proposed subsection 252(1)(j) would require that strip search 'must not involve the removal of more items of clothing or more visual inspection, than the authorised officer conducting the search believes on reasonable grounds to be necessary'.
Proposed subsections 252BA(1) and (2) would provide authorised officers with a clear framework to conduct searches for weapons, escape aids and prohibited things in common areas, subsuming the current regime which relies on limited bases to search for items that may pose a risk to the safety and security of detainees and others. The power to search facilities would extend to accommodation, administration and common areas, detainees' personal effects and rooms, as well as medical examination and storage areas. The explanatory memorandum explains that these provisions would not apply to non-facility based APODs, including hotels, motels, schools or hospitals. Proposed subsection 252BA(3) states that such a search may be conducted whether or not the authorised officer has reasonable suspicion that there is such a thing at the facility.
Proposed subsection 252BA(4) states that an authorised officer may use a dog in conducting a search. The explanatory memorandum states that a dog cannot be used to search detainees or goods in their possession, or people entering an immigration detention facility.
The bill proposes to include a new section 252BB, which would allow authorised persons to be assisted by others while undertaking a search 'if that assistance is necessary and reasonable'. An authorised officer's assistant must follow the directions of the authorised officer, but may exercise any of the powers or functions of the authorised officer.
Previous iteration of the bill
The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 (the 2017 bill) was introduced to the House of Representatives on 13 September 2017 and passed by that chamber on 7 February 2018. The Senate commenced consideration of the 2017 bill on 8 February 2018, but did not progress past the second reading stage and ultimately lapsed at the end of the 45th Parliament.
The current bill substantially mirrors the 2017 bill and incorporates a number of suggested amendments that arose out of committee inquiries into its provisions, including:
allowing legislative instruments made by the minister to prohibit things to be subject to disallowance in proposed section 251A;
excluding medication and health care supplements from the definition of a 'prohibited thing' if it has been prescribed or supplied for the person's individual use by a health service provider authorised for the purpose by the person in charge of the facility in subsection 251A (3);
the creation of a new power for the minister to issue binding written directions to officers to exercise their seizure powers in subsection 251B (6);
limitation on the use of detection dogs to searches of immigration detention facilities, rather than in the course of screening procedures of persons; and
the preclusion of individuals covered by a residence determination (in community detention) from being subject to the amendments.
The provisions of the 2017 bill were referred to this committee on 14 September 2017 for inquiry and report by 16 November 2017. The committee made three recommendations:
that the department provide a central information registry regarding the status and location of immigration detainees in order to facilitate greater ease of communication with families, legal representatives and advocates;
that the government consider amending the bill in accordance with the third recommendation of the Australian Human Rights Commission, to ensure that detainees have access to communication facilities that will reasonably meet their needs, and enable timely, and where appropriate, private contact with friends, family, and legal services; and
subject to the preceding recommendations, that the Senate pass the bill.
The Australian Labor Party and the Australian Greens both presented dissenting reports. The former made six recommendations, proposing amendments to the bill and, subject to the incorporation of those amendments, that the bill ultimately be passed. The latter recommended that the bill not be passed.
Consideration by the Full Court of the Federal Court of Australia
The Full Court of the Federal Court of Australia considered the issue of whether or not a blanket ban on mobile phones in immigration detention centres was invalid in ARJ17 v Minister for Immigration and Border Protection  FCAFC 98. In that case, the applicant challenged a policy that was created by decisions of the Secretary of the then Department of Immigration and Border Protection in 2016. The effect of this was to extend a pre-existing policy 'prohibiting all illegal maritime arrival detainees from possessing and using mobile phones in detention' to all detainees. The Court ultimately held that the policy was invalid on the ground that it was not authorised by any provision of the Act.
The explanatory memorandum to the bill explicitly states that it addresses the decision of the Court in ARJ17 v Minister for Immigration and Border Protection.
Consideration by other committees
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills considered the bill in Scrutiny Digest No. 7/20. The committee raised concerns about the limited reasoning offered in the explanatory memorandum to justify the various expansions of powers suggested under the Act. In particular, the committee has requested further advice from the minister as to:
why it is necessary and appropriate to extend the existing powers for the search and seizure of items in immigration detention facilities, including by allowing the use of force, noting that doing so may trespass on the personal rights and liberties of all detainees, including those detainees that are not 'higher risk' and have never been convicted of an offence;
why it is considered necessary and appropriate to allow the minister to determine, by legislative instrument, what things are to be prohibited in immigration detention facilities;
whether the bill can be amended to include additional high-level guidance regarding when the power in subsection 251A(2) may be exercised, including providing a definition for 'order of the facility';
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 [that is, binding written directions] in circumstances where there is limited guidance on the face of the primary legislation as to when the powers may be exercised;
who it is intended will be authorised as an 'authorised officer' and an 'authorised officer's assistant' to exercise coercive powers and whether these will include non-government employees;
why it is necessary to confer coercive powers on 'other persons' to assist an authorised person and how such persons are to be appointed; and
what training and qualifications will be required of persons conferred with these powers, and why the bill does not provide any legislative guidance about the appropriate training and qualifications required of authorised officers and assistants.
At the time of writing, the minister's response had not been published.
Parliamentary Joint Committee on Human Rights (PJCHR)
The Parliamentary Joint Committee on Human Rights (PJCHR) considered the bill in Report 7 of 2020, which was tabled on 17 June 2020.
The committee noted that the proposed amendments are designed to provide a safe and secure environment for staff, detainees and visitors to immigration detention facilities and therefore would likely promote the right to security of the person. It has sought further information from the minister in regards to two potential limitations on human rights to assist the committee in determining whether they are reasonable, necessary and proportionate:
the effect of ministerial determinations to prohibit detainees from having access to certain things will likely engage and may limit the rights to privacy, protection of the family and freedom of expression;
the search and seizure powers under the bill may engage the prohibition on torture, cruel, inhuman and degrading treatment or punishment and the right to humane treatment in detention. They may also engage and limit the rights to privacy and the rights of the child.
In respect of both of these concerns, the committee has sought the minister's advice to determine whether these possible limitations on human rights are reasonable, necessary and proportionate.
At the time of presenting this report, the minister's response had not been published.
The explanatory memorandum states that the amendments will have no financial impact.
Note on references
In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.