CTH Parliament Considers Bill Concerning Prohibited Items In Immigration Detention Facilities

Thursday 4 June 2020 @ 11.47 a.m. | Legal Research | Immigration

On 14 May, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (Cth) (‘the Bill’) was introduced to the House of Representatives by Hon Alan Tudge, the Minister for Population, Cities and Urban Infrastructure (‘the Minister’). The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, with a reporting date of August 5. The purpose of the Bill is to enable the Minister to determine “prohibited things” by disallowable legislative instrument in relation to immigration detention facilities. Complimentary to this power, the Bill intends to strengthen search and seizure and screening of authorised officers.

What is a “Prohibited Thing”?

The Bill defines a “prohibited thing” as a thing which is either:

  • unlawful for a detainee to possess according to federal law or the law of the relevant State or Territory or alternatively, 
  • a thing which is determined by disallowable legislative instrument by the Minister to be a “prohibited thing”. 

The Bill states that the Minister may only make such a determination if the Minister is satisfied that:

  • the thing is an unlawful object to possess in certain places in Australia or
  • possession or use of the thing in an immigration detention facility may constitute a risk to the health, safety, and security of persons in the facility or to the order of the facility.

The Explanatory Memorandum states that “prohibited things” may include controlled drugs (as defined in the Criminal Code Act 1995) and prescription drugs not taken by the person to whom they are prescribed, mobile phones, SIM cards, and internet-capable devices.

Search and Seizure Powers Relating to Detainees

The Bill outlines new sections 252BA and 252BB of the Migration Act that statutorily confers upon authorised officers and their assistants the power to search, without a warrant, immigration detention facilities operated on or behalf of the Commonwealth. A non-exhaustive list of possible areas to which the search powers apply is outlined in the Bill. A search may involve a detainees’ personal effects, rooms, common areas and areas for the purposes of accommodation, administration, medical examination, and storage. An authorised officer may conduct a search for a weapon, escape aid or a prohibited thing, regardless of whether the officer has any suspicion that there is such a thing at the facility.

The Bill also contains several provisions relating to the scope and nature of the new search power. For instance, the Bill stipulates that a dog may be used in conducting a search of an immigration detention facility provided reasonably precautions are taken and the dog is under control. The use of dogs specifically applies to a search of a facility and not a detainee. The Bill also states expressly that “an authorised officer who conducts a search under this section must not use more force against a person or property, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.” Furthermore, according to the Explanatory Memorandum, besides creating the new search power, the Bill proposes to amend sections 252, 252AA, 252A and 252C of the Migration Act and add sections 252BA and 252CA to “clarify and strengthen the search and seizure powers in relation to detainees.” 

Powers Concerning Entry to an Immigration Detention Facility

If passed and assented, the Bill will also strengthen the powers under section 252G relating to a person about to enter an immigration detention facility operated by or on behalf of the Commonwealth. Currently, the Migration Act states that an officer may request a person about to enter a detention centre to do one or more of the following:

  • walk through screening equipment;
  • allow an officer to pass hand‑held screening equipment over or around the person or around things in the person’s possession;
  • allow things in the person’s possession to pass through screening equipment or to be examined by X ray.

The Bill proposes that an express provision be included that states an officer may make such a request whether or not prior to making the request the officer had any suspicion that the person possessed a thing that could possibly endanger the safety of persons within the facility, disrupt order or security arrangements of the facility, or a prohibited thing.

Ministerial Directions Requiring Seizure Powers to be Exercised

The Bill proposes to provide the Minister with the power to issue binding written directions by a legislative instrument in relation to the exercise of authorised officers’ seizure powers. According to the Minister’s Second Reading Speech, “This will allow the minister to implement a targeted, intelligence led, risk based approach to the mandatory confiscation of prohibited items of concern from detainees considered high risk and pose a threat to the safety and security of detainees.”

Public Scrutiny of the Bill

Amnesty International has published a submission to the Legal and Constitutional Affairs Legislation Committee stating their concern that the Bill “violates international rules and will be detrimental to the wellbeing of people under the care of the Australian Government in immigration detention.” Human Rights Law Centre's Legal Director David Burke expressed concern that the Bill would further reduce transparency of treatment of detainees within these facilities stating, “abuse thrives behind closed doors”. Mr Burke cited the significance of video recordings from mobile phones documenting abuses within detention facilities. Similar concerns were echoed by the ASRC, GetUp and RACS’ Centre Directors who state that the Bill avoids accountability and fails to provide vital inquiries into justifications of detention, lengths of detention and treatment of detainees. National Justice Project chief executive, George Newhouse, expressed the necessity of mobile phones as a mechanism of accountability stating that a mobile ban would result in “an increase in violence, human rights abuses and possibly even deaths in detention.” Notably, Mr Newhouse led a class action of about 80 asylum seekers that successfully overturned a previous mobile phone ban in detention centres in 2018.

According to the Explanatory Memorandum, the limitations the Bill imposes on the detainees’ right to privacy stating that the powers the Bill seeks to introduce “are commensurate to the risk that currently exists in immigration detention facilities.” These risks include the use of mobile phones in coordinated disturbances and escapes, and illegal activity such as drug distribution and the operation of criminal enterprises. A Media Release from the Minister stated that between 1 January 2020 and 30 April 2020, 332 incidents of contraband were recorded in immigration detention facilities .The Memorandum also says that the Bill does not affect the availability of landline telephones, internet access, access to facsimile machines and postal services, which enable detainees to have “reasonable access” to their support networks. The Second Reading Speech addresses the fact that the Bill is a modified version of the 2017 Bill and the modifications intend to “specifically address feedback from the committees to ensure the amendments do not trespass on personal rights and liberties of detainees.”  

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