Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 234 (27 November 2024)

• Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 202441
• Undue trespass on rights and liberties42
• Significant matters in delegated legislation55
• Broad discretionary powers Significant matters in delegated legislation Broad delegation of administrative powers57
• Delegation of administrative powers65

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Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024^[41]

Purpose	The bill seeks to amend the Migration Act 1958 to expand on search and seizure powers exercised by authorised officers. These powers would be able to be exercised to seize ‘prohibited things’, which is to be determined by the minister (examples include mobile phones or other communication devices). The bill also seeks to expand circumstances in which search and seizure powers may be exercised by authorised officers without warrant or reasonable suspicion both within and without detention facilities.
Portfolio	Home Affairs
Introduced	House of Representatives on 21 November 2024
Bill status	Before the House of Representatives

Undue trespass on rights and liberties^[42]

1.34 The bill seeks to amend the Migration Act 1958 (Migration Act) to allow the minister to determine, by legislative instrument, 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). The minister may make such a determination if satisfied that possession is prohibited by law, or 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’ (known as an ‘immigration detention facility risk’).^[43] An example is given in the bill of the ‘things’ that may be determined to be a prohibited thing, including mobile phones, SIM cards or computers and other internet-capable electronic devices.^[44] The explanatory memorandum states that prescription and non-prescription medications, as well as health care supplements, may also be determined to be prohibited things if the person in possession of them is not the person to whom they have been prescribed or supplied for use.^[45]

1.35 If a thing is determined to be a prohibited thing, the bill sets out (or amends) powers enabling an authorised officer to search for the prohibited thing if they believe on reasonable grounds that it is necessary to prevent or lessen an immigration detention facility risk,^[46] including 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;

• require a detainee to be strip-searched or to require their possessions be screened by screening equipment to find out whether a prohibited thing is hidden on the person, in their clothing or in their possessions;

• 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); and

• require authorised officers to seize a prohibited thing, weapon or escape aid or any documents or other thing that may be evidence or grounds for cancelling the visa of the person being searched.

1.36 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.^[47]

1.37 The explanatory memorandum states that immigration detention facilities accommodate an increasing number of ‘higher risk detainees’, including members of organised crime groups with serious criminal histories. Accordingly, it notes that the amendments sought to be made by the bill are intended to prevent the use of 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 for exchange, to aid the movement of contraband, and to convey threats to other detainees and staff.^[48] The statement of compatibility further explains that the existing search and seizure powers in the Migration Act are not sufficient to prevent the increasing prevalence of illegal and anti-social behaviour in immigration detention facilities.^[49]

1.38 The committee notes that the bill seeks to introduce powers substantially similar to those introduced and considered by the committee in 2020.^[50] The committee notes that this bill, while including some additional safeguards, raises substantially the same scrutiny concerns as raised by the earlier bill. In particular, the committee considers that the proposed amendments, in expanding search powers and thereby effectively restricting the possessions a detainee may have inside immigration detention facilities, and further empowering authorised officers to search without a warrant (including strip searches and searches of a detainee's room and personal effects), may unduly trespass on the detainee's rights and liberties, particularly their right to privacy (and if mobile phones are unduly limited, also potentially their right to freedom of expression).^[51]

1.39 While the committee acknowledges the stated difficulties posed by detainees with serious criminal histories and that 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. While the committee notes that searches may only be conducted if the authorised officer believes that exercising the power is necessary to prevent or lessen an ‘immigration detention facility risk’, the committee notes that this is defined broadly to include searching for any prohibited thing that ‘might be a risk’ to the ‘order of the facility’. As such, this does not specify that possession of the thing by a specific detainee poses a risk, just that there might be a risk to the general order of the facility by a detainee possessing the prohibited thing. 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.

1.40 The explanatory memorandum sets out the government’s intention regarding the use of these powers:

It is the Government’s intention that the search and seizure powers in relation to prohibited things will not be exercised in relation to all detainees by way of a blanket application, and will only be exercised where a detainee possesses a prohibited thing, determined by the Minister in an instrument in writing, that poses a risk to the health, safety or security of persons in the facility or to the order of the facility.^[52]

1.41 While the committee notes this intention, it is not clear to the committee that this is appropriately provided for in the bill itself. As set out above, a thing will be prohibited for all detainees regardless of the risk that detainee may pose. All detainees would be subject to searches (including potentially strip searches and the use of force) if an authorised officer believed there might be a risk to the good order of the facility. For example, it may be that all low-risk detainees will be prevented from possessing mobile phones on the basis that to have mobile phones in the facility might cause a risk to the good order of the facility. There appears to be nothing on the face of the bill that would prevent such a scenario from occurring, despite the advice in the explanatory memorandum that there will be no blanket application. This concern is heightened by the minister’s broad power to direct authorised officers to seize a thing (as described below), that could apply to all persons in a specified facility or all persons in a specified class of persons.^[53]

1.42 The committee also considers the bill provides authorised officers with broad discretionary powers to search for and seize prohibited things. While the committee considers the bill provides some additional safeguards (compared to those originally introduced in 2020), the committee considers the risk of arbitrariness in how these powers are administered remains.

1.43 The committee notes it has previously considered the effect of very similar proposed measures on personal rights and liberties.^[54] The committee retains concerns as to the breadth of the proposed powers and as such seeks the minister’s advice as to:

• why the power to search or seize 'prohibited things' applies to all detainees, regardless of whether possession of such a thing by that individual detainee poses a specific risk;

• would the legislation enable authorised officers to seize prohibited things (such as mobile phones) from all detainees, even where only certain detainees pose a risk of possessing them, on the basis that the authorised officer considers seizing the thing to be necessary to lessen a risk to the good order of the facility;

• when would the search or seizure of a prohibited thing be likely to be considered necessary to prevent or lessen a risk to ‘the order of the immigration detention facility’, and why is it appropriate to include ‘order of the detention facility’ in addition to risks to health, safety or security or persons;

• why the bill does not provide that strip searches to seize 'prohibited items' are only conducted when absolutely necessary;

• why there is no requirement that the authorised officer have formed a reasonable suspicion that the person to be searched possesses them prior to the search occurring; and

• whether there exists any monitoring and oversight of 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.

Significant matters in delegated legislation^[55]

1.44 As noted above, proposed subsection 251A(2) provides that the minister may, by disallowable legislative instrument, determine that a ‘thing’ is prohibited in an immigration detention facility. While proposed subsection 251A(3) provides that a medication or health care supplement prescribed or supplied for a detainee’s individual use may not be determined to be a prohibited thing, there is otherwise no limit on the type of things that the minister may determine to be prohibited.

1.45 The committee notes that the terms in proposed subsection 251A(2) are not defined and it is not clear on the face of the primary legislation what might constitute an item that might pose a risk to the ‘order of the facility’. While the bill provides certain examples, it does not directly prohibit any ‘thing’ but leaves it to the discretion of the minister to determine these details in delegated legislation.

1.46 The committee’s general 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 instance, the explanatory memorandum notes that the list of examples in the bill is non-exhaustive and only an indicator and that specifying prohibited things in delegated legislation will give the minister flexibility to respond quickly if operational requirements change.^[56]

1.47 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. The committee considers that determining what are prohibited in immigration detention facilities delegates to the executive important policy decisions, which have not been adequately justified in the explanatory materials. In this regard, the committee does not generally consider that administrative flexibility alone justifies the inclusion of such significant policy matters in delegated legislation.

1.48 The committee’s scrutiny concerns in this instance are heightened by the potential consequences flowing from declaring an item to be a prohibited item. As set out above, 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.

1.49 Noting the above, the committee requests the minister’s more detailed 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 why is it not appropriate to set these out in primary legislation.

Broad discretionary powers
Significant matters in delegated legislation
Broad delegation of administrative powers^[57]

1.50 Proposed subsection 251B(6) provides that the minister may, by non-disallowable legislative instrument, direct an authorised officer (or an authorised officer in a specified class of relevant officers) to seize a prohibited thing by exercising the relevant seizure powers when conducting searches of facilities and screenings and strip searches of detainees. The minister may give a direction, to prevent or lessen an immigration detention facility risk,^[58] in relation to:

• a person in a specified class of persons, or all persons, to whom the relevant seizure power relates;

• a specified thing, a thing in a specified class of things, or all things, to which the relevant seizure power relates;

• a specified immigration detention facility, an immigration detention facility in a specified class of such facilities, or all immigration detention facilities; or

• any circumstances specified in the directions.

1.51 The committee considers that this provision^[59] provides the minister with broad discretionary powers to authorise the seizure of items from persons in immigration detention in circumstances where there is limited guidance on the face of the bill as to when those powers may be exercised. The committee acknowledges that proposed section 251AA, which is new to this version of the bill, provides some guidance to the minister – namely that the exercise of the power must be to prevent or lessen an immigration detention facility risk. However, as set out above, this includes a risk to the good order of the facility, which is so broad that it does not appear likely to greatly constrain the exercise of the minister’s powers.

1.52 The committee expects that the inclusion of broad discretionary powers should be justified in the explanatory memorandum. In this instance, the explanatory memorandum contains no information regarding why such a broad discretionary power has been provided to the minister to direct an authorised officer to exercise the relevant seizure powers.

1.53 The committee also notes that the minister’s determination under this provision would be made the via a non-disallowable legislative instrument.^[60] Disallowance plays a key role in the review of legislative power delegated to the executive by the Parliament. Disallowance is the primary manner by which the Parliament exercises control of its delegated power.

1.54 As a body, the Senate acknowledged, in June 2021, the significant implications exemptions from disallowance have for parliamentary scrutiny and resolved that delegated legislation should be subject to disallowance unless exceptional circumstances can be shown which would justify an exemption. In addition, the Senate resolved that any claim that circumstances justify such an exemption will be subject to rigorous scrutiny, with the expectation that the claim will only be justified in rare cases.^[61]

1.55 The Senate's resolution is consistent with concerns about the inappropriate exemption of delegated legislation from disallowance expressed by this committee in its recent review of the Biosecurity Act 2015,^[62] and by the Senate Standing Committee for the Scrutiny of Delegated Legislation in its inquiry into the exemption of delegated legislation from parliamentary oversight.^[63]

1.56 In cases of disallowance, the committee expects the explanatory memorandum to outline the circumstances that justify the limit on parliamentary oversight and scrutiny. In this regard, the explanatory memorandum simply states that it is appropriate for this to be non-disallowable ‘as it provides immediate certainty for an authorised officer in relation to the effect and status of a direction given by the Minister’.^[64] However, any action by an authorised officer would be taken under a determination that was in effect. Merely being disallowable would not create any uncertainty for an authorised officer taking action under a valid determination. Should the legislative instrument be disallowed by a house of the Parliament authorised officers would be made aware of this before exercising such powers.

1.57 Noting the above, the committee requests the minister’s more detailed 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; and

• why is it appropriate that the minister’s determination should not be subject to disallowance.

Delegation of administrative powers^[65]

1.58 Proposed section 252BA provides that an authorised officer may, without a warrant, conduct a search of a wide range of areas in immigration detention facilities operated by or on behalf of the Commonwealth, including of detainees' personal effects and rooms, to find out whether certain things, including a prohibited thing, are at the facility. Proposed sections 252C, 252CA and 252CB further provide for the seizure (and return) of prohibited things found during a search, strip search or screening procedure.

1.59 Proposed section 252BB provides that an authorised officer may be assisted by other persons in exercising powers or performing functions or duties in conducting a search of an immigration detention facility under section 252BA (other than subsection 252BA(4)) or in relation to the seizure of prohibited things found during a search, strip search or screening of a detainee under sections 252C, 252CA or 252CB, if that assistance is necessary and reasonable. Proposed subsection 252BA(7) 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.

1.60 The explanatory memorandum provides no information as to the persons that will be authorised to exercise 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. The explanatory memorandum states in general terms that authorised officers ‘will be provided with training and guidance in relation to the circumstances and conditions for exercising the search and seizure powers’,^[66] but there is no requirement in the legislation regarding this.

1.61 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.

1.62 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 Attorney-General’s Departments Guide to Framing of Commonwealth Offences, Infringement Notices and Enforcement Powers^[67] 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 provided relate to the need to appoint technical specialists in the collection of certain types of information.

1.63 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 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 specific 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.

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^[41] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024, Scrutiny Digest 15 of 2024; [2024] AUSStaCSBSD 234.

^[42] Schedule 1. The committee draws senators’ attention to this Schedule pursuant to Senate standing order 24(1)(a)(i).

^[43] Schedule 1, item 2, proposed section 251A.

^[44] Schedule 1, item 2, proposed subsection 251A(2) example.

^[45] Explanatory memorandum, p. 11.

^[46] Schedule 1, item 2, proposed section 251AA.

^[47] Schedule 1, item 19, proposed subsection 252BA(7).

^[48] Explanatory memorandum, p. 3.

^[49] Explanatory memorandum, p. 52.

^[50] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2020 (10 June 2020) pp. 16–21 and Scrutiny Digest 11 of 2020 (2 September 2020) pp. 19–28.

^[51] It is noted that Schedule 1, item 2, proposed section 251AB provides that if a prohibited things used to communicate with a person has been seized from a detainees, they must be given access to an alternative means of communication sufficient to enable them to communicate with a member of the family unit or for the purpose of obtaining legal advice or communicating governmental or political matters. This assists with ensuring freedom of expression is not unduly limited, but it is noted that this does not apply to detainees communicating with friends or their wider family, and much will depend on how this is applied in practice.

^[52] Explanatory memorandum, p. 5.

^[53] See Schedule 1, item 2, proposed subsection 251B(6).

^[54] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2020 (10 June 2020) pp. 16–21 and Scrutiny Digest 11 of 2020 (2 September 2020) pp. 19–28.

^[55] Schedule 1, item 2, proposed subsection 251A(2). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv).

^[56] Explanatory memorandum, p. 10.

^[57] Schedule 1, item 2, proposed subsection 251B(6). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii) and (iv).

^[58] See Schedule 1, item 2, proposed subsection 251AA(1).

^[59] Along with proposed subsection 251A(2).

^[60] This is on the basis that the provisions are to be inserted into Part 2 of the Migration Act 1958 which are not subject to disallowance: see Legislation Act 2003, paragraph 44(2)(b) and table item 20 in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.

^[61] Senate resolution 53B. See Journals of the Senate, No. 101, 16 June 2021, pp. 3581–3582.

^[62] See Chapter 4 of Senate Standing Committee for the Scrutiny of Bills, Review of exemption from disallowance provisions in the Biosecurity Act 2015: Scrutiny Digest 7 of 2021 (12 May 2021) pp. 33–44; and Scrutiny Digest 1 of 2022 (4 February 2022) pp. 76-86.

^[63] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report (December 2020); and Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report (March 2021).

^[64] Explanatory memorandum, p. 22.

^[65] Schedule 1, item 19, proposed sections 252BA and 252BB. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).

^[66] Explanatory memorandum, p. 49.

^[67] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, May 2024, pp. 68–70.