Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017

by BMRSG Research Team

Summary and recommendation

The purpose of the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 (the Bill) is to amend the Migration Act to:

- allow the Minister to determine that an item is a ‘prohibited thing’ in relation to immigration detention facilities,
- allow existing screening, search and seizure powers to be used in relation to prohibited things,
- provide a power to search all areas of immigration detention facilities without a warrant, and
- enable the use of detector dogs to search facilities and to screen detainees and other persons entering the facilities.

As drafted, the Bill provides extremely wide powers both to the Minister, in declaring a thing to be a ‘prohibited thing’, and to staff within immigration detention facilities to conduct searches of facilities, detainees and visitors to such facilities, including with the use of dogs. The Bill is characterised by its lack of oversight in terms of the powers granted to the Minister and staff of the facilities. The Bill also provides that any determination by the Minister of a prohibited thing is not open to scrutiny of the Parliament.

The Bill has been the subject of review by a number of Parliamentary committees which have raised a number of areas of concern such as the disproportionate nature of the Bill, the impact on the personal rights and liberties of detainees, and its impact on human rights.

Consequently, the Government has indicated that it will seek to amend the Bill in the Senate by removing the more contentious elements, such as the use of dogs in search and screening procedures, and to open determinations of prohibited things made by the Minister to the scrutiny of Parliament through the disallowance procedure.

While this improves the situation somewhat, the Bill still contains major faults:

while the disallowance procedure opens up the Minister’s determinations in relation to a ‘prohibited thing’ to the scrutiny of Parliament, such scrutiny is worthless if the Government of the day controls both houses of Parliament. As suggested by the ALP, it is more appropriate for the definition of a ‘prohibited thing’ to be contained in the legislation rather than left to the determination of the Minister
there are no limits on the number of searches of detainees and facilities that may be carried out by staff of facilities. There is no reasonableness test in relation to searches, and there is no oversight of the conduct of staff who may carry out a search and seize personal items without a warrant.

The Bill, even with the Government’s proposed amendments, still presents an unacceptable imposition on asylum seeker detainees. In addition, those amendments do not sufficiently address the concerns raised by the Parliamentary committees. It is recommended that should the Bill be tabled again in the Senate, that further lobbying of cross-benchers be undertaken.

History of the Bill

The Bill was introduced to the House of Representatives on 13 September 2017 and passed without amendment.
The Bill was submitted to the Senate Standing Committee for the Scrutiny of Bills, the Senate Legal & Constitutional Affairs Legislation Committee, and the Parliamentary Joint Committee on Human Rights. Each of those committees provided a report on the Bill, with each raising concerns at a number of elements in the Bill.
In addition, the ALP recommended a number of amendments to the Bill and the Greens provided a dissenting report.

As a consequence of the various committee reports, the Government published a paper (the ‘Supplementary Explanatory Memorandum’) which contains its position in relation to the Bill in the Senate. The Supplementary Explanatory Memorandum states that the Government intends to oppose the use of dogs in search and screening procedures, recommend that the Bill be subject to disallowance by either House of Parliament, and recommend amendments in relation to medications and health care supplements as prohibited things.
The Bill was tabled in the Senate on 16 November 2017, with debate being adjourned on 8 February 2018. No information is available as to if, or when, the Bill will be re-presented to the Senate for further debate.

The timeline for the Bill is as follows:

13 September 2017 – introduced to House of Representatives
15 November 2017 – Senate Standing Committee for the Scrutiny of Bills report
16 November 2017 –Senate Legal & Constitutional Affairs Legislation Committee report
16 November 2017 – tabled in Senate
5 December 2017 – Parliamentary Joint Committee on Human Rights report
07 February 2018 – second and third reading House of Representatives
08 February 2018 – second reading Senate
08 February 2018 – debate adjourned Senate

This overview of the Bill is set out in three parts:

Part 1: The Bill as passed by the House of Representatives and tabled in the Senate
Part 2: Reports on the Bill by the Parliamentary Committees
Part 3: The Government’s proposed amendments to the Bill

The Bill, and all papers associated with the Bill, can be accessed on the Parliamentary website at the following link:
Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017

Part 1: The Bill as introduced into the House of Representatives and Senate

The Bill amends the Migration Act to insert two new definitions ( a ‘prohibited thing’ and ‘immigration detention facility’), to make consequential amendments to various sections to take into account the two new definitions, and to amend and supplement the screening, search and seizure powers already in the Migration Act.
The Bill is accompanied by an Explanatory Memorandum. The purpose of the Explanatory Memorandum is to give information about the proposed amendments in the Bill. The Explanatory Memorandum does not form part of the Bill and hence does not form part of the law.

Specifically, the Bill introduces the following:
A new definition of ‘prohibited thing’.
Proposed section 251A(1) inserts a definition of a ‘prohibited thing’. There are two components to this definition:
Firstly, a prohibited thing will be a thing the possession of which is unlawful in the state or territory where the person is detained or the facility is located, and the Minister has made a determination that the thing is prohibited. The purpose of this component of the definition is to capture the situation where the possession of something is prohibited in one state, but may not be prohibited in another. For example, a thing may be prohibited by the law of New South Wales and therefore determined as a prohibited thing in relation to a person in immigration detention in New South Wales, but not prohibited by Western Australian law. According to the Explanatory Memorandum, it is currently intended that the Minister will determine narcotic drugs and child pornography for the purposes of this component of the definition .

Secondly, the Minister may determine a thing to be a prohibited thing if the Minister is satisfied that 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.
No reasonableness test is inserted into the proposed definition (e.g., the Minister is reasonably satisfied) and there is no definition in either the Bill or the Explanatory Memorandum as to what “order of the facility” means.

As drafted, the Bill does not provide for oversight of the Parliament as to what is being determined as a prohibited thing, nor does it provide for any mechanism to appeal a determination made by the Minister.
The Bill contains a note setting out examples of things that might be considered to pose a risk. These include, but are not limited to:
(a) mobile phones;
(b) SIM cards;
(c) computers and other electronic devices, such as tablets;
(d) medications or health care supplements, in specified circumstances;
(e) publications or other material that could incite violence, racism or hatred.

The Explanatory Memorandum notes that in relation to medications or health care supplements, the intention is to capture circumstances where a person in an immigration detention facility may be in possession of medication that has been prescribed for another person .

In relation to mobile phones, the Explanatory Memorandum advises that there is evidence that detainees are using mobile phones to coordinate and assist escape efforts, as a commodity of exchange, to aid the movement of contraband, and to convey threats. In addition, the Explanatory Memorandum refers to reports of undesirable behaviour contributed to by mobile phones such as abusive and aggressive altercations between detainees who have mobile phones and Unauthorised Maritime Arrival detainees who are already prohibited from accessing mobile phones, and efforts to coordinate internal demonstrations to coincide with external protests . No supporting the evidence or reports relating to this type of behaviour is provided in the Explanatory Memorandum.

A new definition of ‘immigration detention facility’.
Proposed section 251A(3) inserts a definition of an ‘immigration detention facility’. This is defined as either a detention centre established under the Migration Act, or another place approved by the Minister in writing.
According to the Explanatory Memorandum another place approved by the Minister could include leased private housing, hotel and motel accommodation, hospitals and schools. As stated, the purpose of the new definition is to ensure that the powers to conduct personal searches of detainees and searches of facilities will apply to both detention centres and places approved by the Minister . The Explanatory Memorandum states that search and screening powers will not extend to these types of places or visitors to them . It would, however, appear to extend to searches of persons who are residents in such places.

Consequential Amendments:
The Bill contains a number of consequential amendments to sections of the Migration Act to take into account the two new definitions. So:

Section 252 dealing with searches of persons
Section 252AA dealing with screening procedures
Section 252A dealing with strip searches
Section 252B dealing with rules relating to strip searches
Section 252C dealing with the retention of seized things
Section 252G dealing with persons entering facilities

are each amended to either reference the new definition of ‘immigration detention facility’ and/or to bring within their scope a ‘prohibited thing’.

To amend and supplement the screening, search and seizure powers:
Section 252AA of the Migration Act currently gives an authorised officer the power to conduct a screening procedure in relation to a detainee. ‘Conducting a screening procedure’ currently involves the use of screening equipment such as a metal detector or similar device for detecting objects or particular substances. The Bill amends the section to allow an authorised officer to use a dog as a screening procedure (subsection (5)).

The section is also amended to insert new subsections 3A and 3AA.

Subsection 3A provides for appropriate safety measures where dogs are used in screening procedures. It provides that an authorised officer undertaking a search must take all reasonable precautions to prevent the dog from touching any person (other than the officer), and keep the dog under control while conducting the screening procedure.

Subsection 3AA provides that if a dog is used in conducting a screening procedure, that use of the dog is not unlawful only because of the behaviour of the dog (including the touching of any person by the dog).

Subsection 3AA would appear to make the requirement in subsection 3A for the authorised officer to use reasonable precautions redundant, as even if the officer uses a dog unreasonably, is negligent in the handling of the dog, or the dog attacks a person, the use of that dog, and hence the screening procedure, will not be unlawful.

The Explanatory Memorandum does not address this issue. It merely provides that officers involved in using a dog to conduct a screening procedure will be specifically authorised for the purpose of handling a dog and will have undergone extensive training in handling detector dogs .

New section 252BA has been inserted into the Migration Act to allow an authorised officer, without a warrant, to conduct a search of an immigration detention facility operated by on behalf of the Commonwealth. Without limitation, such a search may cover accommodation areas, administrative areas, common areas, detainees’ personal effects, detainees’ rooms, medical examination areas, and storage areas.

Only an immigration detention facility ‘operated by on behalf of the Commonwealth’ can be subject to such a search. A search of immigration detention facilities which are leased private housing, hotel and motel accommodation, hospitals or schools would not be subject to a search under this new section unless they are also operated by or on behalf of the Commonwealth.

A search of a facility may only be conducted to find out whether there is a weapon or other thing capable of being used to inflict bodily injury or to help a detainee to escape from immigration detention, or a prohibited thing.

There is no requirement for an authorised officer to reasonably suspect the presence of a weapon or thing before conducting a search. There is also no limit on the number of times that a search may conducted. As no warrant is required before conducting a search, there is no oversight of the grounds for which a search may be conducted.

This section also allows an authorised officer to use a dog to conduct a search of a facility. Similar protections in relation to the use of a dog as set out in new subsections 3A and 3AA (described above) are included in new section 252BA.

Currently, section 252G of the Migration Act allows an officer to request a person about to enter a detention facility to walk through screening equipment; allow the officer to pass hand held screening equipment over the person, around the person or around things in possession of the person, or to pass the person’s possessions through screening equipment or to be examined by X-ray. The officer may request this where the officer suspects on reasonable grounds that the person has in his or her possession a thing that might endanger the safety of the detainees, staff or other persons at the facility, or disrupt the order or security arrangements at the facility.

The Bill amends this section to allow an authorised officer to also use a dog for the purpose of searching a person. Similar protections in relation to the use of a dog are included in the amended section.

The section is further amended to allow an authorised officer to exercise his or her powers under this section where the officer suspects on reasonable grounds that the person also has in his or her possession a prohibited thing.

Given the broad definition of ‘prohibited thing’, this amendment could result in visitors to a detention facility being faced with dog searches at every visit.

Part 2: Commentary on the Bill by Parliamentary Committees

The Bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs, the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights.

The following summarises the comments made by these committees:

Senate Standing Committee on Legal and Constitutional Affairs:
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.

Senate Standing Committee for the Scrutiny of Bills:
The Committee 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:
The Committee 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.

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

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’. 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.

Part 3: Government’s proposed amendments in response to the Parliamentary Committees

In light of the commentary of the Parliamentary Committees, the Government has issued a Supplementary Explanatory Memorandum setting out its position for the Senate. The Government recommends the following amendments be considered by the Senate:

Paragraph (d) of the note attached to the definition of ‘prohibited thing’, which refers to medications and health care supplements (see discussion on page 4 above), is deleted and in its place a new note that provides that the medication or supplement is not a prohibited thing in relation to a particular person if the medication or supplement has been prescribed or supplied for the person’s individual use by an authorised health service provider. According to the Supplementary Explanatory Memorandum, the misuse of medications is a serious risk to the health and safety of detainees. The amendment is to ensure that appropriately supplied medications and supplements will be not determined ‘prohibited things’
As noted above, page 3, the Bill does not provide for oversight of the Parliament as to what is being determined as a prohibited thing. The Government recommends that the Bill be amended to provide that any instrument made under proposed section 251A be disallowable. This means that if the Minister determines a thing to be a prohibited thing, that determination must be tabled in Parliament, giving either house the power to disallow it. Once disallowed, the determination will have no effect.
Use of dogs for the purpose of searching a detainee or a detainees things is to be opposed, and therefore deleted from the Bill (noted above, page 5).
The protections relating to the use of dogs to be inserted as section 252AA(3A) (noted above, page 5) is to be opposed, and therefore deleted from the Bill. This is a consequence of opposing, and therefore deleting, the power to use a dog to search a facility.
Use of dogs for the purpose of searching a person about to enter a facility to be inserted as an amendment to section 252G(1) (noted above, page 6) is to be opposed and therefore deleted from the Bill.