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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Prohibiting
Items in Immigration Detention
Facilities) Bill 2017
No. , 2017
(Immigration and Border Protection)
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
No. , 2017
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Migration Act 1958
3
No. , 2017
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
1
A Bill for an Act to amend the Migration Act 1958,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Migration Amendment (Prohibiting Items in
5
Immigration Detention Facilities) Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
2
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
No. , 2017
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments Schedule 1
No. , 2017
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
3
Schedule 1--Amendments
1
2
Migration Act 1958
3
1 Subsection 5(1)
4
Insert:
5
immigration detention facility has the meaning given by
6
section 251A.
7
prohibited thing has the meaning given by section 251A.
8
2 After section 251
9
Insert:
10
251A Search of detainees etc.--prohibited things in immigration
11
detention facilities
12
(1) A thing is a prohibited thing in relation to a person in detention, or
13
in relation to an immigration detention facility, if:
14
(a) both:
15
(i) possession of the thing is unlawful because of a law of
16
the Commonwealth, or a law of the State or Territory in
17
which the person is detained, or in which the facility is
18
located; and
19
(ii) the thing is determined under paragraph (2)(a); or
20
(b) the thing is determined under paragraph (2)(b).
21
(2) The Minister may, by legislative instrument, determine a thing for
22
the purposes of subsection (1) if the Minister is satisfied that:
23
(a) possession of the thing is prohibited by law in a place or
24
places in Australia; or
25
(b) possession or use of the thing in an immigration detention
26
facility might be a risk to the health, safety or security of
27
persons in the facility, or to the order of the facility.
28
Note:
Examples of things that might be considered to pose a risk mentioned
29
in paragraph (b) are as follows:
30
(a) mobile phones;
31
Schedule 1 Amendments
4
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
No. , 2017
(b) SIM cards;
1
(c) computers and other electronic devices, such as tablets;
2
(d) medications or health care supplements, in specified
3
circumstances;
4
(e) publications or other material that could incite violence, racism
5
or hatred.
6
(3) An immigration detention facility is:
7
(a) a detention centre established under this Act (see
8
section 273); or
9
(b) another place approved by the Minister in writing for the
10
purposes of subparagraph (b)(v) of the definition of
11
immigration detention in subsection 5(1).
12
3 Section 252 (heading)
13
Repeal the heading, substitute:
14
252 Searches of detainees and non-citizens in immigration
15
clearance--general powers
16
4 At the end of subsection 252(2)
17
Add:
18
; (c) for a search under paragraph (1)(a)--in addition to the
19
purposes mentioned in paragraphs (a) and (b) of this
20
subsection, to find out whether a prohibited thing, other than
21
a prohibited thing to which paragraph (a) or (b) applies, is
22
hidden on the person, in the clothing or in the property.
23
5 Subsection 252(4)
24
Omit ", or a document or other thing referred to in paragraph (2)(b),",
25
substitute ", a document or other thing referred to in paragraph (2)(b), or
26
a prohibited thing determined under paragraph 251A(2)(a),".
27
6 Paragraphs 252(4)(a) and (b)
28
Omit "other".
29
7 At the end of subsection 252(4)
30
Add:
31
Amendments Schedule 1
No. , 2017
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
5
Note:
A prohibited thing determined under paragraph 251A(2)(a) that is
1
found in the course of a search of a person who is detained is a thing
2
the possession of which is unlawful because of a law of the
3
Commonwealth, or a law of the State or Territory in which the person
4
is detained (see section 251A).
5
8 After subsection 252(4)
6
Insert:
7
(4A) If, in the course of a search in relation to a detained person under
8
this section, an authorised officer finds a prohibited thing
9
determined under paragraph 251A(2)(b), the officer:
10
(a) may take possession of it; and
11
(b) may retain it; and
12
(c) must, if it appears that the thing is owned or was controlled
13
by a detainee, take all reasonable steps to return it to the
14
detainee when he or she ceases to be in detention; and
15
(d) must, if it appears that the thing is owned or was controlled
16
by a person other than a detainee, take all reasonable steps to
17
return it to the person.
18
Note:
Paragraph 251A(2)(b) covers the determination of a thing as a
19
prohibited thing if the Minister is satisfied that its possession or use in
20
an immigration detention facility might be a risk to the health, safety
21
or security of persons in the facility, or to the order of the facility.
22
(4B) However, if an authorised officer retains a prohibited thing under
23
paragraph (4A)(b), after taking all reasonable steps to return the
24
thing under paragraph (4A)(c) or (d), it is forfeited to the
25
Commonwealth if the officer considers on reasonable grounds that:
26
(a) its owner or the person who last controlled the thing cannot
27
be identified; or
28
(b) the thing is abandoned; or
29
(c) if it appears that the thing is owned or was controlled by a
30
detainee--the thing cannot be returned to the detainee when
31
he or she ceases to be in detention; or
32
(d) if it appears that the thing is owned or was controlled by a
33
person other than a detainee--the thing cannot be returned to
34
the person.
35
Schedule 1 Amendments
6
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
No. , 2017
(4C) If a prohibited thing is forfeited under subsection (4B), the
1
authorised officer may dispose of it in any way he or she thinks
2
appropriate.
3
9 Subsection 252(9)
4
Repeal the subsection, substitute:
5
(9) To avoid doubt, a search of a person may be conducted under this
6
section irrespective of whether powers are exercised under any of
7
the following sections in relation to the person, or an immigration
8
detention facility:
9
(a) section 252AA (searches of detainees--screening
10
procedures);
11
(b) section 252A (searches of detainees--strip searches);
12
(c) section 252BA (searches of certain immigration detention
13
facilities--general).
14
10 Section 252AA (heading)
15
Repeal the heading, substitute:
16
252AA Searches of detainees--screening procedures
17
11 Subsection 252AA(1)
18
Omit all the words after "a thing in his or her", substitute:
19
possession:
20
(a) a weapon, or other thing, capable of being used:
21
(i) to inflict bodily injury; or
22
(ii) to help the detainee, or any other detainee, to escape
23
from immigration detention; or
24
(b) a prohibited thing, other than a weapon or other thing to
25
which paragraph (a) applies.
26
12 After subsection 252AA(3)
27
Insert:
28
(3A) If an authorised officer uses a dog in conducting a screening
29
procedure under this section, the officer must:
30
Amendments Schedule 1
No. , 2017
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
7
(a) take all reasonable precautions to prevent the dog touching
1
any person (other than the officer); and
2
(b) keep the dog under control while conducting the screening
3
procedure.
4
(3AA) If an authorised officer uses a dog in accordance with
5
subsection (3A) in conducting a screening procedure under this
6
section, that use of the dog is not unlawful only because of the
7
behaviour of the dog (including the touching of any person by the
8
dog).
9
13 Subsection 252AA(4)
10
Repeal the subsection, substitute:
11
(4) To avoid doubt, a screening procedure in relation to a detainee may
12
be conducted under this section irrespective of whether powers are
13
exercised under any of the following sections in relation to the
14
detainee, or an immigration detention facility:
15
(a) section 252 (searches of detainees and non-citizens in
16
immigration clearance--general powers);
17
(b) section 252A (searches of detainees--strip searches);
18
(c) section 252BA (searches of certain immigration detention
19
facilities--general).
20
14 Subsection 252AA(5) (at the end of the definition of
21
conducting a screening procedure)
22
Add:
23
; or (d) using a dog to search a detainee or things in the detainee's
24
possession.
25
15 Section 252A (heading)
26
Repeal the heading, substitute:
27
252A Searches of detainees--strip searches
28
16 Subsection 252A(1)
29
Omit all the words (including the note) after "a thing in his or her",
30
substitute:
31
Schedule 1 Amendments
8
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
No. , 2017
possession:
1
(a) a weapon, or other thing, capable of being used:
2
(i) to inflict bodily injury; or
3
(ii) to help the detainee, or any other detainee, to escape
4
from immigration detention; or
5
(b) a prohibited thing, other than a weapon or other thing to
6
which paragraph (a) applies.
7
Note:
Section 252B sets out rules for conducting a strip search under this
8
section.
9
17 Paragraph 252A(3)(a)
10
After "subsection (1)", insert "(including a prohibited thing)".
11
18 Subsection 252A(7)
12
Repeal the subsection, substitute:
13
(7) To avoid doubt, a strip search of a detainee may be conducted
14
under this section irrespective of whether powers are exercised
15
under any of the following sections in relation to the detainee, or
16
an immigration detention facility:
17
(a) section 252 (searches of detainees and non-citizens in
18
immigration clearance--general powers);
19
(b) section 252AA (searches of detainees--screening
20
procedures);
21
(c) section 252BA (searches of certain immigration detention
22
facilities--general).
23
19 Section 252B (heading)
24
Repeal the heading, substitute:
25
252B Searches of detainees--rules for conducting a strip search
26
20 Paragraph 252B(1)(j)
27
After "subsection 252A(1)", insert "(including a prohibited thing)".
28
21 After section 252B
29
Insert:
30
Amendments Schedule 1
No. , 2017
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
9
252BA Searches of certain immigration detention facilities--general
1
Power to search
2
(1) For the purposes set out in subsection (2), an authorised officer
3
may, without warrant, conduct a search of an immigration
4
detention facility operated by or on behalf of the Commonwealth,
5
including, without limitation, a search covering any or all of the
6
following:
7
(a) accommodation areas;
8
(b) administrative areas;
9
(c) common areas;
10
(d) detainees' personal effects;
11
(e) detainees' rooms;
12
(f) medical examination areas;
13
(g) storage areas.
14
Purposes of search
15
(2) A search of the facility may be conducted under this section only to
16
find out whether any of the following are at the facility:
17
(a) a weapon or other thing capable of being used to inflict
18
bodily injury or to help a detainee to escape from
19
immigration detention;
20
(b) a prohibited thing, other than a weapon or other thing to
21
which paragraph (a) applies.
22
Note:
For the possession and retention by an immigration officer of any of
23
these things found in the course of a search under this section, see
24
sections 252C and 252CA.
25
Conduct of search
26
(3) Without limiting subsection (1), an authorised officer may use a
27
dog in conducting a search under this section.
28
(4) If an authorised officer uses a dog in conducting a search under this
29
section, the officer must:
30
(a) take all reasonable precautions to prevent the dog touching
31
any person (other than the officer); and
32
(b) keep the dog under control while conducting the search.
33
Schedule 1 Amendments
10
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
No. , 2017
(5) If an authorised officer uses a dog in accordance with
1
subsection (4) in conducting a search under this section, that use of
2
the dog is not unlawful only because of the behaviour of the dog
3
(including the touching of any person by the dog).
4
(6) An authorised officer who conducts a search under this section
5
must not use more force against a person or property, or subject a
6
person to greater indignity, than is reasonably necessary in order to
7
conduct the search.
8
Exercise of search powers
9
(7) To avoid doubt, a search of an immigration detention facility may
10
be conducted under this section irrespective of whether powers are
11
exercised under any of the following sections in relation to a
12
person detained in the facility:
13
(a) section 252 (searches of detainees and non-citizens in
14
immigration clearance--general powers);
15
(b) section 252AA (searches of detainees--screening
16
procedures);
17
(c) section 252A (searches of detainees--strip searches).
18
252BB Searches of certain immigration detention facilities--
19
authorised officers' assistants
20
Authorised officers may be assisted by other persons
21
(1) An authorised officer may be assisted by other persons in
22
exercising powers or performing functions or duties in conducting
23
a search under section 252BA (other than under
24
subsection 252BA(3)), or under section 252C or 252CA in relation
25
to such a search, if that assistance is necessary and reasonable. A
26
person giving such assistance is the authorised officer's assistant.
27
Note:
Subsection 252BA(3) provides for an authorised officer to use a dog
28
to conduct a search of an immigration detention facility.
29
Sections 252C and 252CA provide for how to deal with things that are
30
found in the conduct of a search under section 252BA.
31
Amendments Schedule 1
No. , 2017
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
11
Powers of an authorised officer's assistant
1
(2) An authorised officer's assistant in relation to a search of an
2
immigration detention facility under section 252BA:
3
(a) may enter the facility; and
4
(b) may exercise powers and perform functions and duties for the
5
purposes of a search or screening procedure in relation to
6
which subsection (1) applies in relation to any thing found in
7
the course of that search or screening procedure; and
8
(c) must do so in accordance with any directions given to the
9
assistant by the authorised officer.
10
(3) A power exercised by an authorised officer's assistant as
11
mentioned in subsection (2) is taken for all purposes to have been
12
exercised by the authorised officer.
13
(4) A function or duty performed by an authorised officer's assistant as
14
mentioned in subsection (2) is taken for all purposes to have been
15
performed by the authorised officer.
16
(5) If a direction is given under paragraph (2)(c) in writing, the
17
direction is not a legislative instrument.
18
22 Section 252C (heading)
19
Repeal the heading, substitute:
20
252C Screening and strip searches of detainees and searches of
21
facilities--retention of seized things (general)
22
23 Subsection 252C(1)
23
Omit "conducting a screening procedure under section 252AA or
24
conducting a strip search under section 252A", substitute "a search
25
under section 252AA (which deals with screening procedures), 252A
26
(which deals with strip searches) or 252BA (which deals with
27
immigration detention facility searches)".
28
24 Subsection 252C(2)
29
Repeal the subsection, substitute:
30
Schedule 1 Amendments
12
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
No. , 2017
(2) The following things are forfeited to the Commonwealth if found
1
in the course of a search mentioned in subsection (1):
2
(a) a weapon or other thing capable of being used to inflict
3
bodily injury or to help a detainee to escape from
4
immigration detention;
5
(b) a prohibited thing determined under paragraph 251A(2)(a),
6
other than a weapon or other thing to which paragraph (a)
7
applies.
8
Note:
A prohibited thing determined under paragraph 251A(2)(a) that
9
is found in the course of a search of a person who is detained is a
10
thing the possession of which is unlawful because of a law of the
11
Commonwealth, or a law of the State or Territory in which the
12
person is detained (see section 251A).
13
25 After section 252C
14
Insert:
15
252CA Screening and strip searches of detainees and searches of
16
facilities--retention of certain prohibited things
17
(1) This section applies in relation to a prohibited thing determined
18
under paragraph 251A(2)(b), unless subsection 252C(1) applies in
19
relation to the prohibited thing.
20
Note 1:
Paragraph 251A(2)(b) covers the determination of a thing as a
21
prohibited thing if the Minister is satisfied that its possession or use in
22
an immigration detention facility might be a risk to the health, safety
23
or security of persons in the facility, or to the order of the facility.
24
Note 2:
Paragraph 252C(1)(a) provides for the retention under section 252C of
25
a thing (including a prohibited thing determined under
26
paragraph 251A(2)(b)) if it might provide evidence of the commission
27
of an offence against this Act.
28
Note 3:
For the possession and retention of other things obtained by screening
29
or strip search, or by a search of immigration detention facilities, see
30
section 252C.
31
(2) If, in the course of a search under section 252AA (which deals with
32
screening procedures), 252A (which deals with strip searches) or
33
252BA (which deals with immigration detention facility searches),
34
an authorised officer finds a prohibited thing in relation to which
35
this section applies, the officer:
36
(a) may take possession of it; and
37
Amendments Schedule 1
No. , 2017
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
13
(b) may retain it; and
1
(c) must, if it appears that the thing is owned or was controlled
2
by a detainee, take all reasonable steps to return it to the
3
detainee when he or she ceases to be in detention; and
4
(d) must, if it appears that the thing is owned or was controlled
5
by a person other than a detainee, take all reasonable steps to
6
return it to the person.
7
(3) However, if an authorised officer retains a prohibited thing under
8
paragraph (2)(b), after taking all reasonable steps to return the
9
thing under paragraph (2)(c) or (d), it is forfeited to the
10
Commonwealth if the officer considers on reasonable grounds that:
11
(a) its owner or the person who last controlled the thing cannot
12
be identified; or
13
(b) the thing is abandoned; or
14
(c) if it appears that the thing is owned or was controlled by a
15
detainee--the thing cannot be returned to the detainee when
16
he or she ceases to be in detention; or
17
(d) if it appears that the thing is owned or was controlled by a
18
person other than a detainee--the thing cannot be returned to
19
the person.
20
(4) If a prohibited thing is forfeited under subsection (3), the
21
authorised officer may dispose of it in any way he or she thinks
22
appropriate.
23
26 Section 252G (heading)
24
Repeal the heading, substitute:
25
252G Persons entering immigration detention facilities--screening
26
powers
27
27 Subsection 252G(1)
28
Omit "a detention centre established under this Act", substitute "an
29
immigration detention facility operated by or on behalf of the
30
Commonwealth".
31
28 At the end of subsection 252G(1)
32
Add:
33
Schedule 1 Amendments
14
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
No. , 2017
; (d) allow an authorised officer to use a dog for the purposes of
1
searching the person for a thing to which subsection (3)
2
applies.
3
29 After subsection 252G(2)
4
Insert:
5
(2A) If an authorised officer uses a dog for the purposes of searching a
6
person for a thing to which subsection (3) applies, the officer must:
7
(a) take all reasonable precautions to prevent the dog touching
8
any person (other than the officer); and
9
(b) keep the dog under control while conducting the search.
10
(2B) If an authorised officer uses a dog in accordance with
11
subsection (2A) for the purposes of searching a person for a thing
12
to which subsection (3) applies, that use of the dog is not unlawful
13
only because of the behaviour of the dog (including the touching of
14
any person by the dog).
15
30 Subsection 252G(3)
16
Repeal the subsection, substitute:
17
(3) An authorised officer may request that a person do something
18
under subsection (4) if the person is about to enter an immigration
19
detention facility operated by or on behalf of the Commonwealth,
20
and the officer suspects on reasonable grounds that the person has
21
in his or her possession:
22
(a) a thing that:
23
(i) might endanger the safety of the detainees, staff or other
24
persons at the facility; or
25
(ii) might disrupt the order or security arrangements at the
26
facility; or
27
(b) a prohibited thing.
28
(3A) A request may be made under subsection (4) that a person do
29
something whether or not a request is also made under
30
subsection (1) that the person do something.
31
31 Paragraph 252G(4)(e)
32
Omit all the words after "concealing", substitute:
33
Amendments Schedule 1
No. , 2017
Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017
15
something that:
1
(i) might endanger the safety of the detainees, staff or other
2
persons at the immigration detention facility; or
3
(ii) might disrupt the order or security arrangements at the
4
facility; or
5
(iii) is a prohibited thing.
6
32 Subsection 252G(5)
7
Omit "A person", substitute "Subject to subsections (6) and (6A), a
8
person".
9
33 Subsections 252G(5) and (6)
10
Omit "detention centre", substitute "immigration detention facility".
11
34 After subsection 252G(6)
12
Insert:
13
(6A) If a person leaves a prohibited thing determined under
14
paragraph 251A(2)(b) in a place as mentioned in subsection (5) of
15
this section, after taking all reasonable steps to return the thing to
16
the person for the purposes of that subsection, it is forfeited to the
17
Commonwealth if an authorised officer considers on reasonable
18
grounds that:
19
(a) its owner or a person who controls the thing cannot be
20
identified; or
21
(b) the thing is abandoned; or
22
(c) the thing otherwise cannot be returned to the person.
23
Note:
Paragraph 251A(2)(b) covers the determination of a thing as a
24
prohibited thing if the Minister is satisfied that its possession or use in
25
an immigration detention facility might be a risk to the health, safety
26
or security of persons in the facility, or to the order of the facility.
27
(6B) If a prohibited thing is forfeited under subsection (6A), the
28
authorised officer may dispose of it in any way he or she thinks
29
appropriate.
30
35 Subsection 252G(7)
31
Omit "a detention centre established under this Act", substitute "an
32
immigration detention facility".
33