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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend the Migration Act 1958 to prohibit narcotic
drugs, mobile phones, SIM cards and other things of concern in relation to
persons in immigration detention
facilities
The bill also amends the search and seizure powers, including the use of
detector dogs for screening procedures
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Portfolio
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Immigration and Border Protection
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Introduced
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House of Representatives on 13 September 2017
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Scrutiny principles
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Standing Order 24(1)(a)(i), (ii), (iv) and (iv)
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1.94 This bill seeks to amend the Migration Act 1958 (Migration Act) to enable the Minister to determine, by legislative instrument, that any 'thing' is prohibited in an immigration detention centre, if 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'.[64] A note in the bill gives examples of the things that might be considered to pose such a risk as including mobile phones; SIM cards; computers and tablets; medications or health care supplements in specified circumstances and publications or other material that could incite violence, racism or hatred.
1.95 The bill also proposes to give or extend powers to:
• search a detainee's person, clothing and property to find out whether a prohibited thing is hidden on the person, in the clothing or in their property;[65]
• require a detainee, or their possessions, to be strip-searched or screened by screening equipment to find out whether a prohibited thing is hidden on the person, in their clothing or in their possession;[66] and
• enable authorised officers and their assistants to search, without a warrant, the rooms and personal effects of immigration detainees to find out if a prohibited thing, weapon or other thing capable of being used to inflict injury or help a detainee escape is in the detention facility (and to use detector dogs for this purpose).[67]
1.96 The bill also indirectly empowers authorised officers to use force against a person or property when conducting a search so long as it is reasonably necessary in order to conduct the search.[68]
1.97 The explanatory memorandum gives the reason for the amendments as being because the profile of the detainees in immigration detention facilities has changed significantly over the past two years, with facilities now accommodating a number of higher risk detainees, including child sex offenders and members of organised crime groups.[69] The explanatory memorandum also states that evidence indicates 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'.[70] It also states that the existing search and seizure powers in the Migration Act are not sufficient to manage narcotic drugs, mobile phones, SIM cards or other things that are of concern in immigration detention facilities, and the amendments in the bill seek to enhance the health, safety and security of persons within the facilities.[71]
1.98 The committee notes that the amendments in the bill, in restricting the possessions a detainee may have inside immigration detention and empowering authorised officers to search a detainee without a warrant (including strip-searches and searches of a detainee's room and personal effects), trespass on the detainee's rights and liberties, particularly their right to privacy. The committee's terms of reference require it to consider whether provisions unduly trespass on rights and liberties.[72] In this instance, the committee acknowledges the difficulties posed by detainees with serious criminal histories, and appreciates there may be a need to restrict access for high-risk detainees to items that could be used to attempt to commit offences.
1.99 However, the committee notes that persons detained in immigration detention facilities are detained on the basis that they are non-citizens who do not possess a valid visa. They are not detained, as is the case for those in prisons, as punishment for having committed a crime. 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. Yet, the proposed amendments in the bill would apply to all immigration detainees equally, despite the fact that around half the detention population is not made up of high-risk individuals.[73]
1.100 As the amendments in the bill would apply regardless of the level of risk posed by different detainees, the committee considers that the bill, in restricting individual privacy and autonomy by denying detainees the ability to possess things, such as mobile phones or computers, and the extensive search powers (without the need to obtain a warrant), unduly trespasses on personal rights and liberties. The committee notes these scrutiny concerns are heightened by the broad power given to the Minister to prescribe any 'thing' as being prohibited so long as the Minister is satisfied that possession or use of the thing 'might' be a risk to the health, safety or security of persons in the facility or to the order of the facility (as noted below at paragraphs [1.102] to [1.106]).
1.101 The committee draws these scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of the amendments impacting on individual liberties made by this bill.
1.102 As noted above, proposed subsection 251A(2) of the bill enables the Minister to make a legislative instrument that can determine that any 'thing' is prohibited in an immigration detention facility. 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'.[75] There is otherwise no limit on the type of 'things' that the Minister may prescribe as being prohibited.
1.103 The committee's view is that significant matters, such as what is prohibited in immigration detention facilities, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this case the explanatory memorandum states that the instrument will give the Minister flexibility to respond quickly if operational requirements change and, as a result, the things determined by the Minister and the things to be prohibited need to be amended'.[76] The explanatory memorandum also provides that it is currently intended to determine that narcotic drugs and child pornography will be prohibited using the power to prohibit unlawful things, and that the broader power to prohibit any thing that the Minister is satisfied might pose a risk is clarified by the note in the bill that gives examples of the things that might be considered to pose a risk. However, the committee notes that the bill does not directly prohibit any things; the actual things that are to be prohibited are left to be determined in delegated legislation. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.
1.104 Generally the committee expects that matters left to be dealt with in delegated legislation should be technical or administrative in nature and should not involve substantive policy questions. In this case the question of what is appropriate to be prohibited in an immigration detention facility would appear to differ depending on the risk factor posed by the individual detainee. As noted above, the risk posed by a person seeking asylum or a tourist having overstayed their visa, in possessing things such as mobile phones, is likely to be much lower than the risk posed by those with serious criminal records (who have had their visa cancelled on character grounds). As such, any decision to determine that certain things are to be prohibited for possession by all immigration detainees appears to be an important policy consideration. From a scrutiny perspective, the committee considers that giving this power to the Minister delegates important policy, as opposed to operational, decisions, which has not been appropriately justified in the explanatory materials.
1.105 In addition, where the Parliament delegates its legislative power in relation to significant matters the committee considers that it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) are included in the bill and that compliance with these obligations is a condition of the validity of the legislative instrument. The committee notes that section 17 of the Legislation Act 2003 sets out the consultation to be undertaken before making a legislative instrument. However, section 17 does not strictly require that consultation be undertaken before an instrument is made. Rather, it requires that a rule-maker is satisfied that any consultation, that he or she thinks is appropriate, is undertaken. In the event that a rule maker does not think consultation is appropriate, there is no requirement that consultation be undertaken. In addition, the Legislation Act 2003 provides that consultation may not be undertaken if a rule-maker considers it to be unnecessary or inappropriate; and the fact that consultation does not occur cannot affect the validity or enforceability of an instrument.[77]
1.106 The committee's scrutiny view is that significant matters, such as the type of things that are prohibited within an immigration detention facility, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this regard, the committee requests the Minister's detailed advice as to:
• why it is considered necessary and appropriate to delegate to the Minister the decision as to what items are to be prohibited in immigration detention facilities, particularly where such prohibitions will apply to all detainees regardless of their risk level; and
• the type of consultation that it is envisaged will be conducted prior to the making of the instrument and whether specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) can be included in the legislation (with compliance with such obligations a condition of the validity of the legislative instrument).
1.107 Proposed section 252BA provides that an authorised officer may, without warrant, conduct a search of a wide range of areas in immigration detention facilities, including of detainees' personal effects and rooms to find out whether certain things, including 'a prohibited thing', are at the facility. Proposed section 252BB provides that an authorised officer may be assisted by other persons in exercising these search powers if that assistance is necessary and reasonable. This is a new general statutory search power. The explanatory memorandum explains that currently common law is relied on to search for prohibited items within an immigration detention facility to ensure the safety and security of people within the facility.[79] Proposed subsection 252BA also effectively gives an authorised officer the power to use force against a person or property, but no more than is reasonably necessary in order to conduct the search.
1.108 The explanatory memorandum provides no information as to the persons that will be authorised to use these coercive powers. The committee notes that section 5 of the Migration Act defines 'authorised officer' as an officer authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner. An 'officer' is defined in the same section as including any person, or classes of persons, authorised in writing by the Minister to be an officer. There is no requirement that these are to be government employees. In relation to an authorised officer's assistant, there appears to be no legislative guidance as to who these persons are, whether they are to have any particular expertise or training, or how they are to be appointed.
1.109 The committee's consistent scrutiny position is that coercive powers should generally only be conferred on government employees with appropriate training. This is particularly so when powers authorise the use of force against persons. Limiting the exercise of such powers to government employees has the benefit that the powers will be exercised within a particular culture of public service and values, which is supported by ethical and legal obligations under public service or police legislation. Although the Guide to Framing of Commonwealth Offences[80] indicates that there may be rare circumstances in which it is necessary for an agency to give coercive powers to non-government employees, it is noted that this will most likely be where special expertise or training is required. The examples given relate to the need to appoint technical specialists in the collection of certain sorts of information.
1.110 The committee therefore requests the Minister's advice as to:
• who it is intended will be authorised as an 'authorised officer' and an 'authorised officer's assistant' to carry out coercive searches in immigration detention facilities and whether these will include non-government employees;
• why it is necessary to confer coercive powers on 'other persons' to assist an authorised person and how such a person is to be appointed; and
• what training and qualifications will be required of persons conferred with these powers, and why the bill does not provide any legislative guidance about the appropriate training and qualifications required of authorised persons and assistants.
[63] General comment. The committee draws Senators' attention to the bill pursuant to principle 1(a)(i) of the committee's terms of reference.
[64] See item 2, proposed section 251A.
[65] See items 3-7.
[66] See items 10-14 and 15-18.
[67] Items 21, proposed section 252BA and 252BB.
[68] Item 21, proposed subsection 252BA(6).
[69] Explanatory memorandum, p. 2.
[70] Explanatory memorandum, p. 2.
[71] Explanatory memorandum, p. 2.
[72] Senate Standing Order 24(1)(a)(i).
[73] Statement of compatibility, p. 24.
[74] Item 2, proposed subsection 251A(2). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iv) and (v) of the committee’s terms of reference.
[75] See item 2, proposed section 251A.
[76] Explanatory memorandum, p. 6.
[77] See sections 18 and 19 of the Legislation Act 2003.
[78] Item 21, proposed sections 252BA and 252BB. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(ii) of the committee’s terms of reference.
[79] Explanatory memorandum, p. 14.
[80] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 73-75.
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