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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Migration
Legislation Amendment (Immigration Detainees) Bill
2001
No. ,
2001
(Immigration and Multicultural
Affairs)
A Bill for an Act to amend the law
relating to migration, and for related purposes
ISBN: 0642 468834
Contents
A Bill for an Act to amend the law relating to migration,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Legislation Amendment
(Immigration Detainees) Act 2001.
(1) Subject to this section, this Act (other than item 5 of
Schedule 1) commences on a day or days to be fixed by
Proclamation.
(2) Subject to this section, if a provision of this Act (other than
item 5 of Schedule 1) does not commence under subsection (1)
within the period of 6 months beginning on the day on which it receives the
Royal Assent, it commences on the first day after the end of that
period.
(3) If item 2 of Schedule 1 to the Migration Legislation
Amendment (Application of Criminal Code) Act 2001 commences before
items 1 and 2 of Schedule 1 to this Act, items 1 and 2 of
Schedule 1 to this Act do not commence at all.
(4) Item 5 of Schedule 1 commences or is taken to have
commenced:
(a) immediately after item 4 of Schedule 1 commences, if that
item commences on or after the commencement of item 1 of Schedule 1 to
the Migration Legislation Amendment (Application of Criminal Code) Act
2001; or
(b) when item 1 of Schedule 1 to the Migration Legislation
Amendment (Application of Criminal Code) Act 2001 commences, if that item
commences after item 4 of Schedule 1 to this Act commences.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 Subsection 5(1) (paragraph (d) of the
definition of offence against this Act)
After “provision of”, insert “Division 7A of
Part 2 or a provision of”.
2 Subsection 5(1) (paragraph (e) of the
definition of offence against this Act)
After “against” (second occurring), insert
“Division 7A of Part 2 or against”.
3 After Division 7 of
Part 2
Insert:
A detainee must not escape from immigration detention.
Penalty: Imprisonment for 5 years.
(1) A detainee is guilty of an offence if he or she manufactures,
possesses, uses or distributes a weapon.
Penalty: Imprisonment for 3 years.
(2) In this section:
weapon includes:
(a) a thing made or adapted for use for inflicting bodily injury;
or
(b) a thing where the detainee who has the thing intends or threatens to
use the thing, or intends that the thing be used, to inflict bodily
injury.
4 After section 197B
Insert:
Chapter 2 of the Criminal Code applies to all offences
against this Division.
Note: For example, Chapter 2 of the Criminal Code
makes it an offence to attempt to commit an offence or urge the commission
of an offence.
5 Section 197C
Repeal the section.
6 At the end of
section 252
Add:
(9) To avoid doubt, a search of a person may be conducted under this
section irrespective of whether a search of the person is conducted under
section 252A.
7 After section 252
Insert:
(1) A strip search of a detainee, other than a detainee to whom
section 252F applies, may be conducted by an authorised officer, without
warrant, to find out whether there is hidden on the detainee, in his or her
clothing or in a thing in his or her possession a weapon, or other thing,
capable of being used:
(a) to inflict bodily injury; or
(b) to help the detainee, or any other detainee, to escape from
immigration detention.
Note: Section 252B sets out rules for conducting a
strip search under this section.
(2) A strip search of a detainee means a search of the
detainee, of his or her clothing or of a thing in his or her possession. It may
include:
(a) requiring the detainee to remove some or all of his or her clothing;
and
(b) an examination of that clothing and of the detainee’s body (but
not of the detainee’s body cavities).
(3) A strip search of a detainee may be conducted by an authorised officer
only if:
(a) an officer suspects on reasonable grounds that there is hidden on the
detainee, in his or her clothing or in a thing in his or her possession a weapon
or other thing described in subsection (1); and
(b) the officer referred to in paragraph (a) suspects on reasonable
grounds that it is necessary to conduct a strip search of the detainee to
recover that weapon or other thing; and
(c) one of the following persons (who is not the officer referred to in
paragraphs (a) and (b) nor the authorised officer conducting the strip
search) authorises the strip search because he or she is satisfied that there
are reasonable grounds for those suspicions:
(i) an SES employee in the Department who is authorised by the Secretary
to the Department for the purposes of this section;
(ii) a person performing the duties of such an SES employee;
(iii) another employee in the Department who is authorised by the
Secretary to the Department for the purposes of this section.
(4) An authorisation of a strip search given for the purposes of
paragraph (3)(c):
(a) may be given by telephone, fax or other electronic means;
and
(b) must be recorded in writing, and signed by the person giving the
authorisation, within one business day after it is given.
(5) A failure to comply with paragraph (4)(b) does not affect the
validity of a strip search conducted on the basis of that
authorisation.
(6) To avoid doubt, a strip search of a detainee may be conducted under
this section irrespective of whether a search of the detainee is conducted under
section 252.
(7) In this section:
business day means a day that is not a Saturday, Sunday or
public holiday in the place where the authorisation is given.
SES employee has the meaning given by the Public Service
Act 1999.
(1) A strip search of a detainee under section 252A:
(a) must not subject the detainee to greater indignity than is reasonably
necessary to conduct the strip search; and
(b) must be conducted in a private area; and
(c) must be conducted by an authorised officer of the same sex as the
detainee; and
(d) subject to subsections (2) and (3), must not be conducted in the
presence or view of a person who is of the opposite sex to the detainee;
and
(e) subject to subsections (2) and (3), must not be conducted in the
presence or view of a person whose presence is not necessary for the purposes of
the strip search; and
(f) must not be conducted on a detainee who is under 10; and
(g) if the detainee is at least 10 but under 18, or is incapable of
managing his or her affairs—must be conducted in the presence
of:
(i) the detainee’s parent or guardian if that person is in
immigration detention with the detainee and is readily available at the same
place; or
(ii) if that is not acceptable to the detainee or subparagraph (i)
does not apply—another person (other than an authorised officer) who is
capable of representing the detainee’s interests and who, as far as is
practicable in the circumstances, is acceptable to the detainee; and
(h) must not involve a search of the detainee’s body cavities;
and
(j) 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 to determine whether there is hidden on the
detainee, in his or her clothing or in a thing in his or her possession a weapon
or other thing described in subsection 252A(1); and
(k) must not be conducted with greater force than is reasonably necessary
to conduct the strip search.
(2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian,
or person present because of subparagraph (g)(ii), if the detainee has no
objection to that person being present.
(3) A strip search of a detainee may be conducted with the assistance of
another person if the authorised officer conducting the strip search considers
that to be necessary for the purposes of conducting it. That person must not be
of the opposite sex to the detainee unless:
(a) the person is a medical practitioner; and
(b) a medical practitioner of the same sex as the detainee is not
available within a reasonable time.
(4) An action or proceeding, whether civil or criminal, does not lie
against a person who, at the request of an authorised officer, assists in
conducting a strip search if the person acts in good faith and does not
contravene this section.
(5) A detainee must be provided with adequate clothing if during or as a
result of a strip search any of his or her clothing is:
(a) damaged or destroyed; or
(b) retained under section 252C.
(1) An authorised officer may take possession of and retain a thing found
in the course of conducting a strip search under section 252A if the
thing:
(a) might provide evidence of the commission of an offence against this
Act; or
(b) is forfeited or forfeitable to the Commonwealth.
(2) A weapon or other thing described in subsection 252A(1) that is found
in the course of conducting a strip search under section 252A is forfeited
to the Commonwealth.
(3) An authorised officer must not return a thing that is forfeited or
forfeitable to the Commonwealth. Instead, the authorised officer must, as soon
as practicable, give the thing to a constable (within the meaning of the
Crimes Act 1914).
(4) An authorised officer must take reasonable steps to return any other
thing retained under subsection (1) to the person from whom it was taken,
or to the owner if that person is not entitled to possess it, if one of the
following happens:
(a) it is decided that the thing is not to be used in evidence;
(b) the period of 60 days after the authorised officer takes possession of
the thing ends.
(5) However, the authorised officer does not have to take those steps
if:
(a) in a paragraph (4)(b) case:
(i) proceedings in respect of which the thing might provide evidence have
been instituted before the end of the 60 day period and have not been completed
(including an appeal to a court in relation to those proceedings); or
(ii) the authorised officer may retain the thing because of an order under
section 252E; or
(b) in any case—the authorised officer is otherwise authorised (by a
law, or an order of a court or a tribunal, of the Commonwealth or a State or
Territory) to retain, destroy or dispose of the thing.
(1) This section applies if an authorised officer has taken possession of
a thing referred to in subsection 252C(4) and proceedings in respect of which
the thing might provide evidence have not commenced before the end of:
(a) 60 days after the authorised officer takes possession of the thing;
or
(b) a period previously specified in an order of a magistrate under
section 252E.
(2) The authorised officer may apply to a magistrate for an order that the
officer may retain the thing for a further period.
(3) Before making the application, the authorised officer must:
(a) take reasonable steps to discover which persons’ interests would
be affected by the retention of the thing; and
(b) if it is practicable to do so, notify each person who the authorised
officer believes to be such a person of the proposed application.
(1) The magistrate may order that the authorised officer who made an
application under section 252D may retain the thing if the magistrate is
satisfied that it is necessary for the authorised officer to do so:
(a) for the purposes of an investigation as to whether an offence has been
committed; or
(b) to enable evidence of an offence to be secured for the purposes of a
prosecution.
(2) The order must specify the period for which the authorised officer may
retain the thing.
(3) A power conferred on a magistrate by this section is conferred on the
magistrate in a personal capacity and not as a court or a member of a
court.
(4) The magistrate need not accept the power conferred.
(5) A magistrate exercising a power under this section has the same
protection and immunity as if he or she were exercising that power as, or as a
member of, the court of which the magistrate is a member.
(1) This section applies to a detainee if:
(a) he or she is held in immigration detention in a prison or remand
centre of a State or Territory; and
(b) a law of that State or Territory confers a power to search persons, or
things in the possession of persons, serving sentences or being held in the
prison or remand centre.
(2) To the extent that the State or Territory law confers that power, or
affects the exercise of that power, it applies to the detainee as though it were
a law of the Commonwealth.
(3) Section 252A of this Act does not apply to a detainee to whom
this section applies.
(1) An officer may request that a person about to enter a detention centre
established under this Act do one or more of the following:
(a) walk through screening equipment;
(b) allow an officer to pass hand-held screening equipment over or around
the person or around things in the person’s possession;
(c) allow things in the person’s possession to pass through
screening equipment or to be examined by X-ray.
(2) Screening equipment means a metal detector or similar
device for detecting objects or particular substances.
(3) If an authorised officer suspects on reasonable grounds that a person
about to enter a detention centre established under this Act has in his or her
possession a thing that might:
(a) endanger the safety of the detainees, staff or other persons at the
detention centre; or
(b) disrupt the order or security arrangements at the detention
centre;
the authorised officer may request that the person do some or all of the
things in subsection (4) for the purpose of finding out whether the person
has such a thing. A request may be made whether or not a request is also made to
the person under subsection (1).
(4) An authorised officer may request that the person do one or more of
the following:
(a) allow the authorised officer to inspect the things in the
person’s possession;
(b) remove some or all of the person’s outer clothing such as a
coat, jacket or similar item;
(c) remove items from the pockets of the person’s
clothing;
(d) open a thing in the person’s possession, or remove the
thing’s contents, to allow the authorised officer to inspect the thing or
its contents;
(e) leave a thing in the person’s possession, or some or all of its
contents, in a place specified by the authorised officer if he or she suspects
on reasonable grounds that the thing or its contents are capable of concealing
something that might:
(i) endanger the safety of the detainees, staff or other persons at the
detention centre; or
(ii) disrupt the order or security arrangements at the detention
centre.
(5) A person who leaves a thing (including any of its contents) in a place
specified by an authorised officer is entitled to its return when the person
leaves the detention centre.
(6) However, if possession of the thing, or any of those contents, by the
person is unlawful under a Commonwealth law or in the State or Territory in
which the detention centre is located:
(a) the thing or the contents must not be returned to the person;
and
(b) an authorised officer must, as soon as practicable, give the thing or
the contents to a constable (within the meaning of the Crimes Act
1914).
(7) A person who is about to enter a detention centre established under
this Act may be refused entry if he or she does not comply with a request under
this section.
8 Section 491
Repeal the section.