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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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This bill seeks to amend the Migration Act 1958 to allow the
Minister to determine that a thing is a prohibited thing in relation to
immigration detention facilities and detainees.
These things may include drugs,
mobile phones, SIM cards, and internet-capable devices
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Portfolio
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Home Affairs
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Introduced
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House of Representative on 14 May 2020
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Bill status
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Before the House of Representatives
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2.2 In Scrutiny Digest 7 of 2020 the committee requested the minister's advice as to why it is necessary and appropriate to broadly extend powers for the search and seizure of items in immigration detention facilities, including by allowing the use of force, noting that doing so may trespass on the personal rights and liberties of all detainees, including those detainees that are not 'higher risk' and have never been convicted of an offence.[2]
Minister's response[3]
2.3 The minister advised:
I consider the safety, security and well-being of all people in immigration detention facilities as well as staff working in Immigration Detention Facilities a high priority.
Controlled drugs are being introduced to detention facilities by visitors, through mail, in person, or by throwing items over the fences of the facilities. Mobile phones have been used to coordinate escape efforts, to bring drugs into detention facilities, and organise criminal activity including the grooming of children by sexual predators. Detainees have also used phones to post photos and videos of staff on social media. These have identified staff and include threatening and defamatory allegations.
The Bill clarifies and enhances the power in the Migration Act to manage the increasing prevalence of illegal and anti-social behaviour in immigration detention facilities. The presence of controlled drugs and other contraband such as mobile phones poses a risk to the health, safety, security and order of the immigration detention network.
I consider that the greater security of the immigration detention facility environment and persons in them that these amendments provide for are necessary to appropriately manage these risks, especially given that current search and seizure powers are limited in their ability to manage these risks. Currently in relation to searches (including strip searches) of persons detained in Australia, the Department can only search for a weapon or other thing capable or being used to inflict bodily injury, or to help the person to escape from immigration detention; not any other things that may facilitate criminal activities.
If the Bill were to pass, the powers would also ensure that authorised officers can also search for and seize things that are concealed with no intention to hide them, or that are visible, in addition to things that are intentionally concealed.
I am not proposing the introduction of a blanket ban on mobile phones in detention. Detainees who are not using their mobile phones for criminal activities or activities that affect the health, safety and security of staff, detainees and the facility would be able to retain their mobile phones under the proposed policy approach.
Across immigration detention facilities, detainees have access to 227 landline phones and 242 computers with internet.
The Bill does not prohibit the possession of goods by detainees or in detention centres. The Bill only creates the category of goods that are prohibited things, which can then, in the exercise of discretion, be searched for and seized by authorised officers. Therefore, there is no prohibition on the possession of prohibited things that applies to all detainees. In the exercise of discretionary search and seizure powers, the focus will be on whether the possession of such a thing by an individual detainee poses any risk.
For the reasons set out above, I do not consider that these amendments will unduly trespass on personal rights and liberties of all detainees.
Committee comment
2.4 The committee thanks the minister for this response. The committee notes the minister's advice that the bill does not prohibit the possession of goods by detainees or in detention centres and that the bill only creates the category of goods that are prohibited things, which can then, in the exercise of discretion, be searched for and seized by authorised officers. The committee also notes the minister's advice that therefore, there is no prohibition on the possession of prohibited things that applies to all detainees and that in the exercise of discretionary search and seizure powers, the focus will be on whether the possession of such a thing by an individual detainee poses any risk.
2.5 The committee reiterates that the amendments in the bill, in operating to restrict the possessions a detainee may have inside immigration detention facilities and empowering authorised officers to search a detainee without a warrant (including strip searches and searches of a detainee's room and personal effects), may trespass on the detainee's rights and liberties, particularly their right to privacy. While 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, the committee notes that the proposed amendments in the bill would apply to all immigration detainees equally, irrespective of whether they are considered a high-risk detainee. In this regard, 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 and not as punishment for having committed a crime.
2.6 The committee’s scrutiny concerns are further heightened, noting the broad discretionary nature of the powers conferred on authorised officers to search for and seize prohibited things and the risk of arbitrariness in how these powers are administered. The committee does not consider that either the explanatory memorandum or the minister's response adequately address these scrutiny concerns.
2.7 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of broadly extending powers for the search and seizure of items in immigration detention facilities, including by allowing the use of force, noting that doing so may trespass on the personal rights and liberties of all detainees, including those detainees that are not 'higher risk' and have never been convicted of an offence.
2.8 In Scrutiny Digest 7 of 2020 the committee requested the minister's advice as to why it is considered necessary and appropriate to allow the minister to determine, by legislative instrument, what things are to be prohibited in immigration detention facilities, and whether the bill can be amended to include additional high-level guidance regarding when the power in subsection 251A(2) may be exercised, including providing a definition for ‘order of the facility’.[5]
Minister's response
2.9 The minister advised:
The Bill is designed to mitigate risks across the Immigration Detention Network (IDN) and a legislative instrument is the appropriate means to ensure public accountability, transparency and consistency is maintained across the IDN. It is anticipated that the Bill will maintain and assure the safety of all cohorts within Immigration Detention Facilities.
A significant percentage of the current IDN cohort have criminal histories or have been convicted of criminal offences in Australia and are pending removal from Australia. There is significant risk associated with this cohort. As such, appropriate mitigation strategies need to be implemented to ensure they do not pose a risk to other detainees, staff employed by the Department of Home Affairs (the Department) or themselves.
Specific examples of mobile phones and other things being a risk to the health, safety or security of persons in the facility or to the order of the facility include:
• Four people were arrested at Villawood Immigration Detention Centre as part of a criminal syndicate that NSW Police allege used stolen credit cards to purchase motor vehicles, and also distribute illicit drugs within immigration detention. Mobile phones were used to facilitate the alleged crimes. During a search of the detainees ' rooms, police located an amount of white powder and several mobile phones. During further searches inside the detention centre, police located a small amount of cannabis, methylamphetamine, prescription medication and an improvised weapon.
• A detainee downloads extremist material on his iPad and is showing it to other detainees. The ABF is powerless to confiscate the detainee's iPad.
• ABF officers see a visitor hand over a bag containing a white substance to a detainee. The detainee places the bag in his pocket. The ABF is powerless to search the detainee for the suspected drugs.
• A detainee uploads a photo to social media of a contracted medical officer falsely accusing her of criminal acts. The comments on the post include abusive and violent messages towards the medical officer. The ABF is powerless to remove the detainee's internet enabled devices.
The examples set out above highlight the need for me to have the ability to determine things to be prohibited things where I am satisfied that possession or use of the thing might be a risk to the health, safety or security of persons in an immigration detention facility or to the order of an immigration detention facility. A legislative instrument provides me with greater flexibility and immediacy to determine a thing as prohibited thing as issues are identified and will be done in a considered and responsible way.
Committee comment
2.10 The committee thanks the minister for this response. The committee notes the minister's advice that a legislative instrument is the appropriate means to ensure public accountability, transparency and consistency is maintained across the immigration detention network. The committee also notes the minister's advice that a legislative instrument provides greater flexibility and immediacy to determine a thing as a prohibited thing as issues are identified and will be done in a considered and responsible way.
2.11 The committee reiterates that it 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. The committee considers that determining what is prohibited in immigration detention facilities delegates important policy decisions, which have not been adequately justified in the minister's response or in the explanatory materials. In this regard, the committee does not generally consider that a desire for administrative flexibility alone justifies the inclusion of such significant policy matters in delegated legislation.
2.12 The committee's scrutiny concerns in this instance are heightened by the potential consequences flowing from declaring an item to be a prohibited item. The committee notes that the bill provides authorised officers with broad coercive powers to search for and seize prohibited items, and that the exercise of the minister's power to determine a prohibited thing may have the effect of expanding the scope of the discretion that an authorised officer may use in exercising these coercive powers.
2.13 Additionally, the committee notes that the minister's advice did not address whether the bill could be amended to include additional high-level guidance regarding when the power in subsection 251A(2) may be exercised, including providing a definition for 'order of the facility'.
2.14 Noting the limited explanation provided in the explanatory materials and the minister's response, the committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing the minister to determine, by legislative instrument, what things are to be prohibited in immigration detention facilities.
2.15 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.
Broad discretionary power
Significant matters in non-disallowable delegated legislation[6]
2.16 In Scrutiny Digest 7 of 2020 the committee requested the minister's advice as to why it is considered necessary and appropriate to provide the minister with broad discretionary powers to require an authorised officer to exercise seizure powers via non-disallowable legislative instrument in circumstances where there is limited guidance on the face of the primary legislation as to when the powers may be exercised.[7]
Minister's response
2.17 The minister advised:
The exercise of the powers in the Bill by officers will be guided by the Department's operational policy framework. This framework provides detailed guidance on the powers available to officers under the Migration Act 1958 (Migration Act), how and when those powers should be utilised, and record keeping and reporting requirements.
The Bill proposes to provide the power for me to direct officers to seize certain prohibited items from detainees in prescribed circumstances, which will override the exercise of the discretion by authorised officers. It is expected that this power will only be exercised in relation to the most serious circumstances, where there is no question that it is appropriate that things should be seized from detainees. For example, convicted child sex offender who is looking at child abuse material on his phone in plain sight.
A non-disallowable instrument provides my Department with greater flexibility and immediacy to update directions as issues are identified and will be done in a considered and responsible way. The delegation is held at a Ministerial level to provide proper parliamentary scrutiny.
Committee comment
2.18 The committee thanks the minister for this response. The committee notes the minister's advice that the exercise of the powers in the bill by officers will be guided by the department's operational policy framework and that the framework provides detailed guidance on the powers available to officers under the Migration Act 1958, how and when those powers should be utilised, and record keeping and reporting requirements.
2.19 The committee also notes the minister's advice that a non-disallowable instrument provides the department with greater flexibility and immediacy to update directions as issues are identified and will be done in a considered and responsible way and that the delegation is held at a ministerial level to provide proper parliamentary scrutiny.
2.20 While noting this advice, the committee reiterates its view that the inclusion of broad discretionary powers should be accompanied by a sound justification, especially where that power may trespass on a person's rights and liberties. The committee notes that neither non-legislative operational policy guidance nor the fact that an instrument will be made by a minister allows the Parliament to have any oversight over the exercise of the minister's discretionary power in this instance.
2.21 The committee considers that the minister's response does not address the committee's questions regarding why it is considered necessary and appropriate to provide the minister with a broad discretionary power to require an authorised officer to exercise seizure powers via non-disallowable legislative instrument. As a result, the committee continues to have significant scrutiny concerns regarding proposed section 251B(6).
2.22 Noting the limited explanation provided in the explanatory materials and the minister's response, the committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of providing the minister with broad discretionary powers to require an authorised officer to exercise seizure powers via non-disallowable legislative instrument in circumstances where there is limited guidance on the face of the primary legislation as to when the powers may be exercised.
2.23 In Scrutiny Digest 7 of 2020 the committee requested the minister's advice as to:
• who it is intended will be authorised as an 'authorised officer' and an 'authorised officer's assistant' to exercise coercive powers 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 persons are 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 officers and assistants.[9]
Minister's response
2.24 The minister advised:
The established authorisation process of authorised officers under section 5 of the Migration Act will continue to ensure that an appropriate level of control is applied to determine who is an authorised officer. Under this section an authorised officer is a person authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of the relevant provision.
The Migration Act already provides for 'other persons' or authorised officers' assistants to perform certain roles. The Bill would provide for additional powers under subsection 252BB that an authorised officer may be assisted by other persons in exercising powers or performing functions or duties. This would be if the assistance is necessary and reasonable and for the purposes of a search under section 252BA or in relation to seizing and retention of things found in the course of a screening process or search under sections 252C, 252CA and 252CB. The assistant must exercise these powers in accordance with any directions given by the authorised officer. By including the wording 'necessary and reasonable' this restricts the use of officers' assistants to situations where such assistance is necessary to ensure the authorised officer can carry out their powers, functions or duties.
The current Facilities and Detainee Services Contract (Serco) requires that training is provided by a Registered Training Organisation and delivered by a level IV accredited trainer, covering the proper exercise of these duties. Persons completing this training are issued with a certificate that demonstrates that the person has the competencies required to exercise the power.
Officers authorised to carry out strip searches of detainees will be subject to satisfying training and qualification requirements in the following areas:
• civil rights and liberties
• cultural awareness
• the grounds for conducting a strip search
• the pre-conditions for a strip search
• the role of officers involved in conducting a strip search
• the procedures for conducting a strip search
• the procedures relating to items retained during a strip search.
Officers authorised to use detector dogs for searches will also be required to undergo specific training in relation to handling detector dogs to ensure the dog is prevented from touching any person and is kept under control for the duration of the search.
Committee comment
2.25 The committee thanks the minister for this response. The committee notes the minister's advice that the established authorisation process of authorised officers under section 5 of the Migration Act 1958 will continue to ensure that an appropriate level of control is applied to determine who is an authorised officer.
2.26 The committee also notes the minister's advice that the current Facilities and Detainee Services Contract (Serco) requires that training is provided by a Registered Training Organisation and delivered by a level IV accredited trainer, covering the proper exercise of coercive powers and that persons completing this training are issued with a certificate that demonstrates that the person has the competencies required to exercise the powers. The committee further notes the minister's advice in relation to training requirements for officers authorised to use detector dogs or to carry out strip searches. However, the committee notes that these requirements do not exist on the face of the bill.
2.27 The committee's reiterates its consistent scrutiny position 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[10] 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.
2.28 Noting the limited explanation provided in the explanatory materials and the minister's response, the committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing authorised officers and authorised officer's assistants to exercise coercive powers in circumstances where there is no legislative guidance requiring such persons to have the appropriate qualifications and expertise.
[1] Items 2, 4, 5, 8, 11-14, 19, 21-23, 29-32, 37. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2020, pp. 16-18.
[3] The minister responded to the committee's comments in a letter dated 31 August 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 11 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest
[4] Item 2, proposed subsection 251A(2). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).
[5] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2020, pp. 18-19.
[6] Item 2, proposed subsection 251B(6). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii) and (v).
[7] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2020, pp. 19-20.
[8] Items 19-23 The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).
[9] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2020, pp. 20-21.
[10] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers, September 2011, pp. 73-75.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2020/144.html