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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This bill seeks to amend the Migration Act 1958 to:
• enable the minister to determine that a thing is a prohibited thing
in relation to immigration detention facilities and detainees
(whether or not
they are in an immigration detention facility); and
• amend existing search and seizure powers, including to allow
authorised officers and their assistants to search, without a
warrant,
immigration detention facilities for a 'prohibited thing', and to allow the
minister to issue binding written directions
that make it mandatory for officers
to seize certain items
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Portfolio
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Home Affairs
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Introduced
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House of Representatives, 14 May 2020
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Rights
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Privacy; family; freedom of expression; security of the person; torture and
other cruel, inhuman and degrading treatment or punishment;
humane treatment in
detention; children's rights
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Status
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Seeking additional information
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2.114 This bill seeks to amend the Migration Act 1958 (the Migration Act) to regulate the possession of certain items in relation to immigration detention facilities and detainees (whether or not they are in an immigration detention facility). Proposed section 251A(2) would enable the minister to determine, by legislative instrument,[2] that an item is a 'prohibited thing'[3] if the minister is satisfied that:
(a) possession of the thing is prohibited by law in a place or places in Australia; or
(b) 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.
2.115 The bill includes examples of things that might be considered to pose a risk for the purposes of section 251(2)(b): mobile phones, SIM cards, computers and other electronic devices designed to be capable of being connected to the internet. The bill also provides that the power to make a thing a 'prohibited thing' (which officers are then generally authorised to search for and seize) applies to immigration detention facilities as well as other places approved by the minister as an alternative place of detention.[4]
2.116 Prohibiting the possession of certain things by detainees in immigration detention facilities and other places of detention, engages a number of human rights. The measure is designed to 'ensure that the Department can provide a safe and secure environment for staff, detainees and visitors in an immigration detention facility'.[5] As such, if the measure is able to achieve this objective it could promote the right to security of the person. The right to security of the person[6] requires the state to take steps to protect people against interference with personal integrity by others. This includes protecting people who are subject to death threats, assassination attempts, harassment and intimidation.
2.117 However, the measures also appear to engage and limit a number of other human rights, including the right to privacy, the right to protection of the family, and the right to freedom of expression.
2.118 The bill states that the items that will be declared as 'prohibited things' will be set out in a legislative instrument. However, both the bill itself and the explanatory memorandum give examples of things that might be 'prohibited things', as being mobile phones, SIM cards and computers or other devices capable of being connected to the internet.[7] The explanatory memorandum also states that 'things' to be determined may include prescription and non-prescription medications as well as health care supplements, where the person in possession is not the person to whom they are prescribed.[8] Therefore, while the precise items to be prohibited remain to be determined by legislative instrument, by setting up the mechanism in which the minister may declare certain items to be prohibited, the bill engages and limits the right to privacy. In particular, prohibiting the possession of mobile phones may interfere with detainees' private life and their right to correspond with others without interference. The right to privacy prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home.[9] A private life is linked to notions of personal autonomy and human dignity. It includes the idea that individuals should have an area of autonomous development; a 'private sphere' free from government intervention and excessive unsolicited intervention by others.
2.119 Additionally, for persons in detention, the degree of restriction on a person's right to privacy must be consistent with the standard of humane treatment of detained persons.[10] Article 10 of the International Covenant on Civil and Political Rights provides extra protection for persons in detention, who are particularly vulnerable as they have been deprived of their liberty, and imposes a positive duty on states to provide detainees with a minimum of services to satisfy basic needs, including means of communication and privacy.[11] Persons in detention have the right to correspond under necessary supervision with families and reputable friends on a regular basis.[12]
2.120 Further, as the bill and explanatory materials make it clear that the power to determine prohibited things will include mobile phones, SIM cards and computers and other devices capable of accessing the internet, it would appear the measure is likely to have an impact on the ability of detainees to be in regular contact with any family that is not detained with them. This may limit the right to respect for the family, which requires the state not to arbitrarily or unlawfully interfere in family life.[13] It would also appear to limit the right to freedom of expression insofar as it would limit the ability of detainees to seek, receive and impart information. The right to freedom of expression includes the freedom to seek, receive, and impart information and ideas of all kinds, either orally, in writing or in print or through any other media of a person's choice.[14]
2.121 These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.122 The statement of compatibility notes that the objective of the bill is to:
strengthen the Department of Home Affairs' ability to regulate the possession of particular items in immigration detention facilities in order to ensure that the Department can provide for a safe and secure environment for people accommodated at, visiting or working at an immigration detention facility.[15]
2.123 The explanatory memorandum also explains that evidence indicates that:
detainees are using mobile phones and other internet-capable devices to organise criminal activities inside and outside immigration detention facilities, to coordinate and assist escape efforts, as a commodity of exchange, to aid the movement of contraband, and to convey threats to other detainees and staff.[16]
2.124 Protecting the health, safety and security of people in immigration detention is likely to be a legitimate objective for the purposes of international human rights law. Prohibiting certain items that may enable criminal activity within the immigration detention network also appears to be rationally connected to that objective.
2.125 However, there are questions as to whether giving the minister the power to prohibit any thing that the minister is satisfied might be a risk to the health, safety or security of persons in the facility, or 'to the order of the facility', is proportionate to the objective sought to be achieved. To be a proportionate limitation on these rights, the limitation should only be as extensive as is strictly necessary to achieve its legitimate objective and must be accompanied by appropriate safeguards.
2.126 For immigration detention, supervision of detainees' modes of communication must be understood in the context that detainees are not being detained while serving a term of imprisonment but rather are in administrative detention pending the processing of their application for a visa or for removal from Australia. It is not clear why it is necessary to prohibit items in immigration detention for all detainees (whether in the facility or not). The explanatory memorandum notes that immigration detention facilities accommodate a number of higher risk detainees who have entered immigration detention directly from a correctional facility, including members of outlaw motorcycle gangs and other organised crime groups.[17] However, the bill applies to all detainees regardless of whether or not they pose a risk. This appears to include, for example, persons detained while awaiting determination of their refugee status, or those who have overstayed their visa and are detained prior to removal, who may not pose any risk of the kind described in the statement of compatibility. Yet as the bill is currently drafted this measure would prohibit even those who pose no risk from having things such as mobile phones that allow them to communicate with family and friends.
2.127 Another relevant consideration in determining the proportionality of the broad rule-making power conferred on the minister is whether there are adequate safeguards or controls over the measures. International human rights law jurisprudence states that laws conferring discretion or rule-making powers on the executive must indicate with sufficient clarity the scope of any such power or discretion conferred on competent authorities and the manner of its exercise.[18] This is because, without sufficient safeguards, broad powers may be exercised in such a way as to be incompatible with human rights.
2.128 In particular, laws that interfere with rights must specify in detail the precise circumstances in which such interferences may be permitted.[19] As noted earlier, proposed section 251A(2) enables the minister to make a legislative instrument that can determine that any 'thing' is prohibited in an immigration detention facility or for a detainee. The power can be exercised where the minister is satisfied that possession of the thing is prohibited by law or possession or use of the thing in the detention facility 'might be a risk to the health, safety or security of persons in the facility, or to the order of the facility'.[20] The bill provides that if a medication or health care supplement is determined to be prohibited, it will not be prohibited in relation to a particular person if it was prescribed or supplied for their individual use.[21] There is otherwise no limit on the type of 'things' that the minister may prescribe as being prohibited; the bill does not directly prohibit any thing, and the actual things that are to be prohibited are left to be determined by delegated legislation. No information is provided in the statement of compatibility as to how, and under what circumstances, the minister may be satisfied that an item 'might' pose such a risk. In particular, it is not clear what 'things' could pose a risk to the 'order' of the facility, and what evidence the minister would need to have to satisfy themselves that a thing would reasonably result in any such risk.
2.129 If a determination is made prohibiting access to mobile phones and other electronic devices that connect to the internet, it is not clear that detainees would have sufficient access to maintaining contact with their family and friends, or to exercise their freedom of expression. The statement of compatibility states that a number of alternative communication avenues will remain available to detainees, including landline telephones, access to the internet, access to facsimile machines and postal facilities.[22] However, the statement of compatibility also sets out a number of factors that apply to detainees using such facilities:
• while landline phones are available 24 hours a day without monitoring, private interview rooms may not always be available after hours. In addition, the statement of compatibility states that additional landline telephones have been installed at 'most' immigration detention facilities, which implies that not all facilities have additional landlines; and
• internet is available, however, an officer monitors the room, filters may block specific websites and immigration officials will retrospectively search any websites that have been accessed by detainees, and the internet search history of detainees.[23] The statement of compatibility also states that there is a booking system to access the internet and there are 'usually' no delays in the process (implying that there sometimes are delays).[24]
2.130 It would seem that although telephone and internet use is made available to detainees, this may not provide a similar degree of privacy to the use of a personal mobile phone or device connected to the internet, which could be used in a private location. It has also not been established that it is necessary to monitor the internet usage of all detainees, regardless of the level of risk they pose. In addition, mobile telephones have a range of functions that are not available on a landline phone, such as taking photos and videos that may also be used to exercise a detainee's right to freedom of expression (including in relation to conditions of detention). Access to a mobile telephone may also allow detainees more ready access (including via text messages) to family and friends, legal advisors or other support persons, than alternative means of communication. It is also not clear that should a determination be made prohibiting these things that the amount of landlines and internet facilities available would be sufficient to meet demand, or what the cost is to use such facilities (noting that landline calls to mobiles and international calls may be cost prohibitive).
2.131 In addition, the explanatory memorandum states that when a detainee is being removed from Australia,[25] requests by detainees to access legal assistance during their removal 'will be facilitated until such time as it is no longer reasonably practicable to do so', which will depend on the particular operational requirements in the facility.[26] This suggests there may be circumstances in which access to landline phones or the internet may not be available at all times prior to a person's removal from Australia (which could potentially prevent a detainee from obtaining urgent injunctive relief in relation to their removal from Australia). This raises further questions as to the proportionality of the measure.
2.132 It is also noted that the bill would not only apply to persons who are in immigration detention facilities, but also to those in Alternative Places of Detention (APOD). The explanatory memorandum explains that 'an APOD is a place of immigration detention used by the Department to meet the specific needs of detainees that cannot be adequately catered for' in an immigration detention facility.[27] This includes immigration transit accommodation and places in the broader community (e.g. hotels and motels). It is not clear what alternative communication options are available to persons in such alternative places of detention, and how this is connected to the stated legitimate objective of ensuring safety in immigration detention facilities.
2.133 In order to assess the compatibility of this measure with the rights to privacy, protection of the family, and freedom of expression, further information is required, as to:
• whether the measure is sufficiently circumscribed; in particular why the prohibition on possessing 'prohibited things' applies to all detainees, regardless of whether possession of such a thing by that individual detainee poses any risk;
• noting that the bill does not itself prohibit any 'things', what things (other than those listed in the explanatory materials) are likely to be prohibited on the basis that they 'might' be a risk to the health, safety or security of persons in the facility or to the order of the facility, and what type of evidence the minister would need to have to satisfy themselves that a thing would reasonably result in any such risk;
• whether there are sufficient alternative means of communication available to detainees if mobile phones and devices which can access the internet are prohibited, in particular:
• whether there is a cost for detainees in using landline phones or internet facilities;
• if private rooms are not available for using landline phones, whether a detainee will have any other means of ensuring their communications are private;
• whether there will be sufficient access to landline phones and internet facilities if all mobile phones and internet devices are prohibited (noting the likely increased demand);
• why it is appropriate that the internet usage and search history of all detainees will be monitored when using the internet facilities in the detention centres;
• whether detainees will have other means to take photographs or videos within the detention facility and send such images to those outside the facility (noting the potential impact on the right to freedom of expression);
• whether there will be circumstances in which a person who is subject to removal action from Australia will not be able to contact legal assistance during this process if they are not able to have access to a mobile phone; and
• what communication facilities are available to those in Alternative Places of Detention.
2.134 The committee notes that the bill seeks to enable the minister to make a determination that detainees are prohibited from having access to certain things, such as mobile phones and internet enabled devices in an immigration detention environment.
2.135 The committee notes that the measure is designed to ensure that the Department of Home Affairs can provide a safe and secure environment for staff, detainees and visitors in an immigration detention facility. As such, if the measure is able to achieve this objective, the committee considers it would likely promote the right to security of the person. However, the committee notes that the measure is also likely to engage and may limit the rights to privacy, protection of the family and freedom of expression. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
2.136 In order to assess the human rights compatibility of this measure, the committee seeks the minister's advice as to the matters set out at paragraph [2.133].
2.137 The bill seeks to strengthen the search and seizure powers in the Migration Act to allow for searches, without a warrant, for a 'prohibited thing', as well as to continue to search for a weapon or other thing capable of being used to inflict bodily injury or to help a detainee escape.[28] This includes the ability to search a person, the person's clothing and any property under the immediate control of the person for a weapon or escape aid or 'prohibited thing' (even if the officer has no suspicion the detainee has such an item),[29] the ability to take and retain possession of such items if found pursuant to a search,[30] and the ability to conduct strip searches to search for such items.[31] There is also an amendment to the powers to search and screen persons entering the immigration detention facility (such as visitors), including a power to request persons visiting centres to remove outer clothing (such as a coat) if an officer suspects a person has a weapon or escape aid or a prohibited thing in his or her possession, and to leave the prohibited thing in a place specified by the officer while visiting the immigration detention facility.[32] The bill also proposes to allow for 'other persons' to assist authorised officers in carrying out their search of an immigration detention facility.[33] Such a person would have the most of the same powers as an authorised officer (including the power to strip search detainees), subject to any directions given by the authorised officer.[34]
2.138 The bill would also give the minister the power to make a legislative instrument (which would not be subject to disallowance by the Parliament), that directs authorised officers to seize such items from certain classes of persons, specified things, specified immigration detention facilities (or all facilities) and could specify any circumstances in which such a direction could apply.[35]
2.139 A further search power introduced by the bill is the power for an authorised officer, without a warrant, to conduct a search of an immigration detention facility including accommodation areas, common areas, detainees' personal effects, detainees' rooms, and storage areas.[36] In conducting such a search, an authorised officer 'must not use force against a person or property, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search'.[37]
2.140 By providing authorised officers, and their assistants, with the power to conduct strip searches to find out whether there is a 'prohibited thing' or weapon or escape device hidden on a detainee,[38] or to use force to search them,[39] the prohibition against torture, cruel, inhuman and degrading treatment or punishment may be engaged. Article 7 of the International Covenant on Civil and Political Rights provides that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.[40] This is an absolute right, and no limitation on this right is permissible under international human rights law. The aim of article 7 is to protect both the dignity and the physical and mental integrity of the individual.[41]
2.141 The amended search and seizure powers may also engage the right to humane treatment of persons in detention,[42] which provides that all people deprived of their liberty must be treated with humanity and dignity. It applies to everyone in any form of state detention, including immigration detention, and to privately run detention centres where they are administered under the law and authority of the state. The right provides extra protection for persons in detention, who are particularly vulnerable as they have been deprived of their liberty. This right complements the prohibition on torture, cruel, inhuman and degrading treatment or punishment,[43] such that there is a positive obligation on Australia to take actions to prevent the inhumane treatment of detained persons.[44]
2.142 The UN Human Rights Committee has indicated that United Nations standards applicable to the treatment of persons deprived of their liberty are relevant to the interpretation of articles 7 and 10 of the International Covenant on Civil and Political Rights.[45] In this respect, the United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) state that intrusive searches (including strip searches) should be undertaken only if absolutely necessary, that prison administrations shall be encouraged to develop and use appropriate alternatives to intrusive searches, and that intrusive searches shall be conducted in private and by trained staff of the same sex as the prisoner.[46] Further, the European Court of Human Rights (ECHR) has found that strip searching of detainees may violate the prohibition on torture and cruel, inhuman or degrading treatment or punishment where it involves an element of suffering or humiliation going beyond what is inevitable for persons in detention.[47] While the court accepted that
strip-searches may be necessary on occasion to ensure prison security or to prevent disorder or crime, the court emphasised that prisoners must be detained in conditions which are compatible with respect for their human dignity.[48] While the jurisprudence of the ECHR is not binding on Australia, the views of the court in relation to the prohibition on torture, cruel, inhuman or degrading treatment or punishment may be instructive in determining the scope of Australia's human rights obligations.
2.143 The statement of compatibility does not acknowledge whether the right to freedom from torture, cruel, inhuman and degrading treatment or punishment is engaged, but does acknowledge that the amendments to the search and seizure powers may engage the right to be treated humanely. However, it states that existing provisions and amendments in the bill contain protections designed to protect detainees and their property.[49] It notes that strip searches must first be authorised by a departmental official or the Australian Border Force Commissioner, or for a child 10 to 17 years old, by a magistrate. It also notes that the Migration Act[50] requires that a strip search of a detainee:
(a) must not subject the detainee to greater indignity than is reasonably necessary to conduct the strip search;
(b) must be conducted in a private area;
(c) must not be conducted on a detainee who is under 10;
(d) must not involve a search of the detainee’s body cavities;
(e) must not be conducted with greater force than is reasonably necessary to conduct the strip search.
2.144 It also notes that the bill introduces a requirement that an authorised officer who conducts a search must not use more force against a person, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search. As such, the statement of compatibility states that the amendments are consistent with the right to humane treatment in detention as there are sufficient protections provided by law to ensure that respect for detainees' inherent dignity is maintained during the conduct of searches.[51]
2.145 The safeguards set out in the statement of compatibility and contained in section 252A of the Migration Act indicate that there is some oversight over the conduct of strip searches. However, it is noted that the current power to conduct strip searches is limited to circumstances where there are reasonable grounds to suspect a detainee may have hidden in his or her clothing a weapon or other thing capable of being used to inflict bodily injury or to help the detainee escape from detention.[52] The amendments will extend this power to where an officer suspects on reasonable grounds that a person may have hidden on the person a 'prohibited thing', including a mobile telephone.[53] Given the broad power of the minister to declare an item a 'prohibited thing' (as discussed above), this considerably expands the bases on which strip searches can be conducted, which raises questions as to whether the expanded powers to conduct strip searches are consistent with the requirement under international human rights law that strip searches only be conducted when absolutely necessary.
2.146 In relation to the power of authorised officers to use force to conduct searches of immigration detention facilities, while the power limits the use of force to no more force than is reasonably necessary in order to conduct the search, no information is provided in the statement of compatibility as to whether there is any oversight over the exercise of that power, such as consideration of any particular vulnerabilities of the detainee who is subjected to the use of force, and any access to review to challenge the use of force.
2.147 There is also no information in the statement of compatibility as to what training a person who conducts a strip search, or search involving the use of force, must have in the use of such powers.[54] An 'authorised officer' is defined in the Migration Act to mean an officer authorised in writing by the minister, the secretary of the department or the Australian Border Force Commissioner.[55] There does not appear to be any legislative requirement that such officers be trained in the use of force or how to conduct strip searches. Further, the extension of authorised officers' powers to an assistant[56] raises concerns as to whether there are adequate safeguards. Proposed subsection 252BB(2) sets out the powers that an authorised officer's assistant would have in relation to a search of an immigration facility, to enter and to exercise most of the same functions and duties as are conferred on the authorised officer, including the power under section 252A to conduct strip searches. However, no information is provided in the explanatory materials about who the authorised officers' assistants will be, or what training or qualifications they will be required to have.
2.148 In order to assess whether the proposed amendments to the search and seizure powers are compatible with the prohibition on torture, cruel, inhuman and degrading treatment or punishment and the right to humane treatment in detention, further information is required; in particular:
• whether strip searches to seize 'prohibited items' are only conducted when absolutely necessary;
• whether there exists any monitoring and oversight over the use of force by authorised officers and their assistants, including access to review for detainees to challenge the use of force and the strip search powers;
• why coercive search powers are granted to authorised officers' 'assistants'; and
• what training and qualifications, if any, will 'authorised officers' and their 'assistants' require in order to exercise these powers.
2.149 The statement of compatibility states that enabling the search and seizure of items that are prohibited in immigration detention facilities will improve the health and safety of detainees and others in the facility.[57] As such, if the measure is able to achieve this objective it could promote the right to security of the person. The right to security of the person[58] requires the state to take steps to protect people against interference with personal integrity by others. This includes protecting people who are subject to death threats, assassination attempts, harassment and intimidation.
2.150 However, the screening of detainees,[59] conducting strip searches of detainees,[60] and searches of immigration detention facilities[61] also engage and limits the right to privacy. For persons in detention, the degree of restriction on a person's right to privacy must be consistent with the standard of humane treatment of detained persons.[62]
2.151 The right to privacy extends to protecting a person's bodily integrity. Bodily searches, and in particular strip searches, are an invasive procedure and may violate a person's legitimate expectation of privacy. The amendments to allow searches of persons, including strip searches, to seize prohibited items therefore engage and limit the right to bodily integrity. The UN Human Rights Committee has emphasised that personal and body searches must be accompanied by effective measures to ensure that such searches are carried out in a manner consistent with the dignity of the person who is being searched, and further that persons subject to body searches should only be examined by persons of the same sex.[63]
2.152 While the Migration Act prohibits strip searches of children under the age of 10,[64] children detained in immigration facilities between the ages of 10 and 18 may be subject to the search and seizure powers, including strip searches, under specified conditions.[65] In this respect, a number of Australia's obligations under the Convention on the Rights of the Child (CRC) are engaged. In particular, the amended search and seizure powers may engage article 16 of the CRC, which provides that no child shall be subject to arbitrary or unlawful interference with his or her privacy. The bill may also engage article 37 of the CRC which provides (relevantly) that children must not be subjected to torture or other cruel, inhuman or degrading treatment or punishment,[66] and that every child deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person.[67]
2.153 The right to privacy (including the right to bodily integrity) and many of the rights of the child may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[68]
2.154 The statement of compatibility does not specifically acknowledge that the rights of the child in particular are engaged or limited by the bill. It does acknowledge that the new search and seizure powers engage and 'represent a limitation on the right to detainees' privacy'.[69] In this respect, the statement of compatibility notes that the objective of the bill is to 'provide for a safe and secure environment for people accommodated at, visiting or working at an immigration detention facility'. The statement of compatibility explains that immigration detention facilities now accommodate 'an increasing number of higher risk detainees' awaiting removal, who have often 'entered immigration detention directly from a correctional facility, including members of outlaw motorcycle gangs and other organised crime groups'.[70] As such, the statement of compatibility states that the limitation on the right to privacy is proportionate as it is 'commensurate to the risk that currently exists in immigration detention facilities'.[71]
2.155 Protecting the health, safety and security of people in immigration detention is likely to be a legitimate objective for the purposes of human rights law, and it may be that broadening the search and seizure powers may be effective to achieve (that is, rationally connected) to that objective. However, the measure must also be demonstrated to be proportionate to the objective sought to be achieved, and this requires that it be the least rights restrictive way to achieve the stated objective and that there be sufficient safeguards in place to protect vulnerable people.
2.156 As set out at paragraph [2.126], it is not clear why it is necessary to prohibit items in immigration detention, and search for and seize such items, from all detainees (whether in the facility or not), regardless of the level of risk they may pose. The level of risk posed by persons detained due to the exercise of the minister's character-ground visa cancellation powers is likely to be very different to that posed by people seeking to be recognised as refugees or a tourist having overstayed their visa. The statement of compatibility does not explain why it is necessary to enable authorised officers to search all detainees without a warrant (including strip-searches and searches of a detainee's room and personal effects), for 'prohibited things' such as mobile phones.
2.157 In relation to the power to strip search to locate and seize a 'prohibited thing', no information is provided in the statement of compatibility as to whether consideration has been given to alternative and less-intrusive methods of searching for prohibited items prior to conducting a strip search. For example, in relation to mobile telephones, it is unclear why it would be necessary to undertake a strip search when alternative and less intrusive screening methods, such as a
walk-through metal detector, may adequately identify if a mobile phone is in a person's possession. It would appear that a strip search is not necessarily a method of last resort, as proposed subsection 251B(5) provides that strip searches may be conducted irrespective of whether a search or screening procedure is conducted under sections 252 and 252AA[72] (which are less intrusive). This raises concerns as to whether this aspect of the bill is the least rights restrictive option available.
2.158 It is also noted that while there are limitations placed on the power to conduct strip searches (such as a requirement that an officer must suspect 'on reasonable grounds' that a person may have items hidden on them, and it is necessary to conduct a strip search to recover the item[73]), the bases on which an officer may form a suspicion on reasonable grounds are broad. In particular, one of the bases on which an officer may form a suspicion on reasonable grounds is based on 'any other information that is available to the officer'.[74] The statement of compatibility does not explain what 'any other information' may entail.
2.159 In light of the broad nature of the power to prohibit, search for and seize 'prohibited things' that is introduced by the bill, and the obligation under international human rights law that limitations on privacy are appropriately circumscribed, there are concerns as to whether this aspect of the bill is a proportionate limitation on the right to privacy (including the right to bodily integrity), and is compatible with the rights of the child.
2.160 In addition, the bill would enable authorised officers and their assistants to conduct searches without the need for any suspicion that a detainee has in their possession any such item.[75] This could enable searches to occur at any time, regardless of any assessment of whether a detainee has such a thing on their body, in their clothing or in their property. While the ability to search for 'prohibited things' does not apply to detainees who are living in residential detention,[76] the search and seizure powers would allow an authorised officer to search such residences, without any need for suspicion, to try to find evidence of any 'document or other thing' that may be evidence for grounds for cancelling the person's visa.[77] It is not clear why it is necessary and appropriate that such warrantless powers should apply, including to those living in residential detention, without any need for the officer to have formed a reasonable suspicion that the persons possess such items.
2.161 In order to assess whether the proposed amendments to the search and seizure powers are compatible with the right to privacy and the rights of the child, further information is required, in particular:
• why the search and seizure powers in the bill apply to all detainees regardless of the level of risk they pose, and whether in practice all detainees (regardless of risk) will be searched for 'prohibited items';
• why the search powers enable authorised officers to search a detainee without any requirement that the officer suspects the detainee possesses a relevant thing;
• whether the power to conduct a strip search is appropriately circumscribed; and
• whether the amended search and seizure powers (in particular the power to strip search) are compatible with the rights of the child, in particular articles 16 and 37 of the Convention on the Rights of the Child.
2.162 The committee notes that the bill seeks to amend the existing search and seizure powers in the Migration Act 1958, including to allow authorised officers and their assistants to strip search, without a warrant, immigration detainees and to search for 'prohibited things' (such as mobile phones).
2.163 The committee notes that the measure is designed to ensure that the Department of Home Affairs can provide a safe and secure environment for staff, detainees and visitors in an immigration detention facility'. As such, if the measure is able to achieve this objective the committee considers it would likely promote the right to security of the person.
2.164 However, the committee notes that the measure may engage the prohibition on torture, cruel, inhuman and degrading treatment or punishment and the right to humane treatment in detention. It may engage and limit the rights to privacy and the rights of the child, and these rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
2.165 In order to assess the human rights compatibility of this measure, the committee seeks the minister's advice as to the matters set out at paragraphs [2.148] and [2.161].
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, Report 7 of 2020; [2020] AUPJCHR 99.
[2] Schedule 2, item 2, proposed subsection 251A(4) provides that such a legislative instrument would be subject to disallowance under section 42 of the Legislation Act 2003.
[3] Schedule 1, item 2, proposed subsection 251A(1) provides that a thing is a prohibited thing 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, if: (a) both: (i) 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 (ii) the thing is determined under paragraph (2)(a); or (b) the thing is determined under paragraph (2)(b).
[4] Schedule 1, item 2, proposed subsection 251A(5). See also example 2 under proposed subsection 251A(1) which states that a mobile phone may, if determined under paragraph (2)(b), be a prohibited thing in relation to a person in detention even if the person is not detained in an immigration detention facility.
[5] Explanatory memorandum, p. 2.
[6] International Covenant on Civil and Political Rights, article 9(1).
[7] Schedule 1, item 2, example listed under proposed subsection 251A(2).
[8] Explanatory memorandum, p. 8.
[9] International Covenant on Civil and Political Rights, article 17.
[10] Under Article 10(1) of the ICCPR; see Angel Estrella v Uruguay, UN Human Rights Committee Communication No. 74/80, UN Doc.CCPR/C/18/D/74/1980 (1983), [9.2].
[11] See UN Human Rights Committee, General Comment No.21: Article 10 (Humane Treatment of Persons Deprived of their Liberty) (1992).
[12] Angel Estrella v Uruguay, UN Human Rights Committee Communication No. 74/80, UN Doc.CCPR/C/18/D/74/1980 (1983), [9.2].
[13] International Covenant on Civil and Political Rights, articles 17 and 23, and the International Covenant on Economic, Social and Cultural Rights, article 10.
[14] International Covenant on Civil and Political Rights, article 19(2).
[15] Statement of compatibility, p. 35.
[16] Explanatory memorandum, p. 2.
[17] Explanatory memorandum, p. 2.
[18] Hasan and Chaush v Bulgaria, European Court of Human Rights App No.30985/96 (2000), [84].
[19] UN Human Rights Committee, General Comment No.16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, (1988), [8].
[20] Schedule 1, item 2, proposed section 251A.
[21] Schedule 1, item 2, proposed subsection 251A(3).
[22] Statement of compatibility, p. 39.
[23] The statement of compatibility states that the monitoring of internet usage by detainees currently only occurs on Christmas Island, but that the Department is in the process of replicating the monitoring in mainland facilities, see statement of compatibility, p. 40.
[24] Statement of compatibility, pp. 39-40.
[25] Migration Act 1958, section 198.
[26] Explanatory memorandum, p. 8.
[27] Explanatory memorandum, p. 10.
[28] Section 252A of the Migration Act 1958.
[29] Schedule 1, item 7, proposed subsections 252AA(1) and (1A).
[30] Schedule 1, item 5, proposed subsections 252(4) and (4A).
[31] Schedule 1, item 11, proposed subsection 252A(1).
[32] Schedule 1, item 32, proposed paragraph 252G(4)(e).
[33] Schedule 1, item 19, proposed section 252BB.
[34] Schedule 1, item 19, proposed subsection 252BB(2).
[35] Schedule 1, item 2, proposed subsection 251B(6).
[36] Schedule 1, item 19, proposed section 252BA.
[37] Schedule 1, item 19, proposed subsection 252BA(7).
[38] Schedule 1, items 11-14.
[39] Schedule 1, item 19, proposed subsection 252BA(7).
[40] The prohibition against torture, cruel, inhuman or degrading treatment or punishment is also protected by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[41] UN Human Rights Committee, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) (1992), [2].
[42] International Covenant on Civil and Political Rights, article 10.
[43] International Covenant on Civil and Political Rights, article 7.
[44] UN Human Rights Committee, General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of their Liberty) (1992), [3].
[45] UN Human Rights Committee, General Comment No. 21: Article 10 (Humane Treatment of Persons Deprived of their Liberty) (1992), [10].
[46] Rule 52(1) of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
[47] Frerot v France, European Court of Human Rights Application No.70204/01, 12 June 2007, [35]-[49].
[48] Frerot v France, European Court of Human Rights Application No.70204/01, 12 June 2007, [35]-[49].
[49] Statement of compatibility, p. 41.
[50] Migration Act 1958, subsection 252B(1).
[51] Statement of compatibility, p. 41.
[52] Migration Act, subsection 252A(1).
[53] Schedule 1, item 14.
[54] The statement of compatibility states that authorised officers 'will be provided with training and guidance in relation to the exercise of their new seizure powers', but does not provide any explanation of any training required for the use of search powers, see statement of compatibility, p. 35.
[55] Migration Act 1958, section 5.
[56] Schedule 1, item 19, proposed section 252BB.
[57] Statement of compatibility, p. 38.
[58] International Covenant on Civil and Political Rights, article 9(1).
[59] Schedule 1, item 8.
[60] Schedule 1, items 11-14.
[61] Schedule 1, item 19, proposed section 252BA.
[62] Under Article 10(1) of the International Covenant on Civil and Political Rights; see Angel Estrella v Uruguay, UN Human Rights Committee Communication No. 74/80, UN Doc.CCPR/C/18/D/74/1980 (1983), [9.2].
[63] UN Human Rights Committee, General Comment No.16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, (1988), [8].
[64] Migration Act 1958, paragraph 252B(1)(f).
[65] For example, for a detainee who is at least 10 but under 18, only a magistrate may order a strip search: subparagraph 252A(3)(c)(ii).
[66] Convention on the Rights of the Child, article 37(a).
[67] Convention on the Rights of the Child, article 37(c).
[68] However, the prohibition of torture (enshrined in Article 37(a) of the Convention on the Rights of the Child) is an absolute right, which cannot be derogated from, or limited, for any reason.
[69] Statement of compatibility, p. 37.
[70] Statement of compatibility, p. 36.
[71] Statement of compatibility, p. 37.
[72] Migration Act 1958, sections 252 (searches of detainees) and 252AA (screening of detainees).
[73] Migration Act 1958, paragraphs 252A(3)(a) and (b), as amended by Schedule 1, item 14.
[74] Migration Act 1958, paragraph 252A(3A)(c). The other grounds upon which suspicion on reasonable grounds may be formed are based on a search conducted under section 252 or a screening procedure conducted under section 252AA: section 252A(3A)(a) and (b).
[75] Schedule 1, item 4, proposed subsection 252(2). Reasonable suspicion is needed for strip searches.
[76] Migration Act 1958, subsection 252(4B).
[77] Schedule 1, item 5, proposed subsection 252(4).
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