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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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The bill (now Act) amends the Migration Act 1958 to expand on search
and seizure powers exercised by authorised officers. These powers are 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 expands circumstances in which search and seizure powers may be
exercised by authorised officers without warrant or reasonable
suspicion both
within and without detention facilities.
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Portfolio
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Home Affairs
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Introduced
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House of Representatives on 21 November 2024
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Bill status
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Received Royal Assent on 4 December 2024
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2.51 The bill (now Act) amends 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’).[186] 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.[187] 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.[188]
2.52 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,[189] 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, 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;
• 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.
2.53 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.[190]
2.54 In Scrutiny Digest 15 of 2024 the committee requested the minister’s advice as to the following:
• 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 does the bill not provide that strip searches to seize 'prohibited items' are only conducted when absolutely necessary;
• why is there 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 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.[191]
2.55 The minister restated the operation of the provisions in the bill and the Migration Act. The minister advised that it may be necessary to seize mobile phones, SIM cards and internet capable devices from detainees in certain circumstances to ensure the health, safety and security of detainees, staff and visitors and ‘the stability of the facility’. The minister advised that the Commonwealth has a duty of care to avoid reasonably foreseeable risks of harm to people in the facilities, and the amendments in the bill are appropriate and necessary to support the Commonwealth to discharge this duty.
2.56 The minister advised that the amendments make clear that a search power may be exercised, or a screening procedure conducted for a thing, whether or not the thing is visible or intentionally concealed. The minister advised that the amendments will reduce the Australian Border Force’s (ABF) reliance on State and Federal police to attend immigration detention facilities and support searches of a detainee’s person.
2.57 The minister advised that the amendments in the bill do not change the authorisations currently in place for strip searches, or any safeguards in sections 252A and 252B of the Migration Act. The minister advised that strip searches ‘must only be conducted as a matter of last resort and where absolutely necessary’.
2.58 The committee thanks the minister for this response. However, the committee notes that the minister’s response only addressed one out of the committee’s six specific questions. The only question addressed related to the why the bill does not provide that strip searches to seize prohibited things are only conducted when absolutely necessary. The minister advised that there are no amendments to the safeguards in sections 252A and 252B of the Migration Act. However, the committee notes that prior to these amendments, strip searches were only empowered to find out if there was hidden, or in a detainee’s possession, a weapon, or other thing, capable of being used to inflict bodily injury or to help a detainee escape.[193] The bill amends section 252A to provide that a strip search can occur, without the need to find out if the item is hidden, for a weapon or escape aid as well as ‘a prohibited thing’.[194] This thereby expands the strip search powers so that instead of searching for a weapon that the officer suspects on reasonable grounds is hidden on the detainee or their clothing, the strip search can now occur if the officer suspects on reasonable grounds a mobile phone or SIM card is on the detainee’s body or clothing. Further, the existing safeguards in the Migration Act require the officer to suspect on reasonable grounds that it is necessary to conduct a strip search to recover that thing.[195] This is not, contrary to the minister’s advice, a requirement to conduct the strip search only as a last resort and only when absolutely necessary.
2.59 The committee considers that these amendments, in expanding the search and seizure 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), unduly trespasses 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).[196]
2.60 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 reiterates that the amendments in the bill 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 it. 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 is nothing in the bill that would prevent such a scenario from occurring. 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.[197] In this regard, the committee reiterates 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.
2.61 The committee also notes the minister’s advice that these amendments will reduce the ABF’s reliance on police attending immigration detention facilities to support searches and seize items from detainees. The committee notes that the use of non-police personnel to undertake strip searches of detainees, and potentially use force, compounds its concerns, noting that police are specifically trained in such powers, whereas it is not clear that employees of detention service providers would have equivalent training. The committee notes that the minister failed to answer its question as to 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. The committee remains concerned that these broad discretionary and coercive powers may be used arbitrarily without sufficient oversight.
2.62 From a scrutiny perspective, the committee also notes with concern the speed with which this bill passed the Parliament. The bill was introduced in the House of Representatives on 21 November 2024 and passed both Houses of Parliament four sitting days later on 28 November 2024. In the Senate it was introduced one day prior to its passage. The committee notes that the truncated time between introduction of the bill and its passage may have impacted the ability of senators to meaningfully engage with the bill, in order to scrutinise the bill to the fullest extent.
2.63 The committee notes that the timeline for the passage of the bill also impacts the ability of this committee to undertake its usual scrutiny process, including to engage in meaningful dialogue with the Executive in order to address any possible concerns. The committee notes the minister’s response to its queries was received after the bill had received the Royal Assent.
2.64 The committee is of the view that truncated parliamentary processes by their nature limit parliamentary scrutiny and debate. This is of particular concern in relation to bills that may seriously impact on personal rights and liberties.
2.65 The committee is concerned that the minister’s response failed to address the specific questions raised by the committee. The committee considers the amendments made by this bill are likely to unduly trespass on personal rights and liberties, particularly noting the breadth of the search and seizure powers that apply regardless of the individual risk posed by a detainee and can be exercised on the imprecise basis of preventing or lessening a risk to the ‘order of the facility’.
2.66 The committee also reiterates its consistent scrutiny view that while the procedure to be followed in the passage of legislation is ultimately a matter for each house of the Parliament, legislation, particularly legislation that may trespass on personal rights and liberties, should be subject to a high level of parliamentary scrutiny.
2.67 However, in light of the fact that the bill has already passed, the committee makes no further comment.
2.68 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.
2.69 In Scrutiny Digest 15 of 2024, the committee requested the minister’s advice as to the necessity and appropriateness of allowing the minister to determine, by legislative instrument, what things are prohibited in immigration detention facilities and why these matters are not appropriate to be set out in primary legislation.[199]
2.70 The minister advised that determining what is a prohibited thing in delegated legislation affords the necessary flexibility to designate new or different things from time to time, informed by intelligence and incident reporting. The minister advised that it would also provide capacity for the minister to revise the instrument to de-list items determined to no longer pose a risk. Specifying prohibited things in primary legislation would not afford the necessary level of responsiveness to address new and emerging risks.
2.71 The committee thanks the minister for this response. The committee acknowledges the potential need to amend the listing of a prohibited thing. However, the committee notes the serious consequences flowing from declaring an item to be prohibited. As set out above, the bill provides authorised officers with broad coercive powers to search for and seize prohibited things, and the exercise of the minister’s power to determine a prohibited thing can expand the scope of what an authorised officer may search for or seize.
2.72 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, particularly where such measures could trespass on personal rights and liberties. The committee considers that determining what are prohibited things in immigration detention facilities delegates to the executive important policy decisions and enables the executive to set the scope of coercive powers.
2.73 The committee understands the importance of being able to designate things as being prohibited from time to time based on intelligence and risk assessments, but remains concerns that highly coercive powers are enlivened by what is, or is not, specified in delegated legislation.
2.74 However, in light of the fact that the bill has now passed both Houses of Parliament, the committee makes no further comment.
2.75 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,[202] 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.
2.76 In Scrutiny Digest 15 of 2024 the committee requested the minister’s advice as to the necessity and appropriateness of providing the minister with broad discretionary powers requiring an authorised officer to exercise seizure powers and why the minister’s determination is not subject to disallowance.[203]
2.77 The minister advised that this new ministerial direction power will allow for the implementation of a targeted, intelligence-led, risk-based approach in relation to the seizure of certain things in certain facilities. The minister advised that such a direction could be based on risk assessment of security or safety concerns prevalent at a specific facility. The minister advised that it is expected that this power will only be exercised in relation to the most serious circumstances.
2.78 The minister advised that the direction will not be disallowable in order to provide appropriate and immediate operational effect and certainty for officers in relation to the status of the minister’s direction.
2.79 The committee thanks the minister for this response. The committee reiterates that that subsection 251B(6)[205] 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, 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.
2.80 The committee does not consider the minister’s response adds any additional information as to why such a broad discretionary power has been provided to the minister to direct an authorised officer to exercise the relevant seizure powers. The committee notes that it is ‘expected’ that the power will only be exercised in relation to the most serious circumstances but notes that this is not a legislative requirement.
2.81 The committee also notes the minister’s advice of the need for immediate operational effect and certainty for officers in relation to the status of the minister’s direction. However, it is not clear to the committee how subjecting the instrument to disallowance creates uncertainty as to the effect of the instrument. An instrument can have effect from the day it is registered and will continue to have effect unless it is disallowed within the disallowance period.
2.82 The committee reiterates that 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.[206] 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.
2.83 The committee does not consider the need for certainty in this context to be an indication of exceptional circumstances that warrant an exemption from disallowance. The committee also notes the point made by the Senate Standing Committee for the Scrutiny of Delegated Legislation in its final report into the exemption of delegated legislation from parliamentary oversight:
A well-formed instrument that is made according to its enabling legislation and enjoys broad support will not be disallowed, and is thus unlikely to manifest any of the consequences suggested by departments. Many rationales that point to the possibility of negative outcomes call for such a significant stretch to the credulity of the Parliament that they cannot be seriously considered.[207]
2.84 The committee reiterates its view that a need for certainty as to the status of the minister’s direction is not an exceptional circumstance that, in and of itself, justifies an exemption from disallowance.
2.85 The committee considers that new subsection 251B(6) provides the minister with a broad discretionary power to authorise the exercise of coercive powers. The committee remains concerned that this direction is not subject to disallowance, and the committee does not consider it has been adequately justified as to why such a direction should be exempt from parliamentary oversight.
2.86 However, in light of the fact that the bill has now passed both Houses of Parliament, the committee makes no further comment.
2.87 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.
2.88 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.
2.89 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 the seizure of prohibited things found during a search, strip search or screening of a detainee under section 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.
2.90 In Scrutiny Digest 15 of 2024, the committee requested the minister’s advice as to the following matters:
• who is intended for authorisation as an ‘authorised officer’ and an ‘authorised officer’s assistant’ to exercise coercive powers and if these include non-government employees;
• the necessity of conferring coercive powers on ‘other persons’ to assist authorised persons and how such persons are appointed; and
• training and qualifications required of persons conferred these powers, and why the bill does not provide legislative guidance on appropriate training and qualifications required of authorised officers and assistants. [209]
2.91 The minister advised that authorised officers may be employees of the department or the detention services provider. The minister advised that authorised officers will receive training and guidance on the exercise of the relevant seizure powers; specific training relevant to carrying out searches of detainees (including in cultural awareness, civil rights and liberties, and the pre-conditions and procedures for strip searches); and the use of detector dogs for searches.
2.92 In relation to authorised officers’ assistants, the minister advised that they must follow directions of the officer but can exercise any of their functions and powers. The minister gave examples of where the use of an assistant may be necessary and reasonable including the search of the whole facility where numerous officers are necessary in order for the search to be conducted, or where a locksmith is required on a one-off basis. In such instances an assistant will be deployed as and when assistance is necessary.
2.93 The committee thanks the minister for this response. The committee notes the minister’s advice that persons authorised to exercise these coercive powers can include staff of detention service providers, who will be private contractors.
2.94 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 Commonwealth Offences[211] 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. The conferral of coercive search and seizure powers on the employees of a detention service provider is therefore not aligned with the general approach suggested by the Guide to Framing Commonwealth Offences, and does not accord with the committee’s consistent scrutiny position.
2.95 The committee notes that, in practice, such officers are provided with specific training in the exercise of search and seizure powers. However, there is no legislative requirement to this effect, and it is noted that the minister’s advice does not refer to whether training is provided in relation to the use of force (which such officers are authorised to use). The committee is also concerned that there appears to be no training required to be provided to assistants, even though the minister’s response envisaged such assistants helping to conduct a search of the whole facility.
2.96 The committee retains scrutiny concerns that this bill grants non-government employees highly coercive powers, and that assistants can exercise the same powers without any requirement to satisfy any training or qualifications.
2.97 However, in light of the fact that the bill has now passed both Houses of Parliament, the committee makes no further comment on this matter.
[184] 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 1 of 2025; [2025] AUSStaCSBSD 12.
[185] Schedule 1. The committee draws senators’ attention to this Schedule pursuant to Senate standing order 24(1)(a)(i) and (v).
[186] Schedule 1, item 2, proposed section 251A.
[187] Schedule 1, item 2, proposed subsection 251A(2) example.
[188] Explanatory memorandum, p. 11.
[189] Schedule 1, item 2, proposed section 251AA.
[190] Schedule 1, item 19, proposed subsection 252BA(7).
[191] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2024 (27 November 2024), pp. 11–15.
[192] The minister responded to the committee’s comments in a letter dated 13 December 2024. A copy of the letter is available on the committee’s webpage (see correspondence included with the committee’s assessment of this bill).
[193] Migration Act 1958, subsection 252A(1).
[194] See Schedule 1, items 11–14.
[195] Migration Act 1958, paragraph 252A(3)(b).
[196] 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.
[197] See Schedule 1, item 2, proposed 251B(6).
[198] 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).
[199] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2024 (27 November 2024), pp. 15–16.
[200] The minister responded to the committee’s comments in a letter dated 13 December 2024. A copy of the letter is available on the committee’s webpage (see correspondence included with the committee’s assessment of this bill).
[201] 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).
[202] See Schedule 1, item 2, proposed subsection 251AA(1).
[203] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2024 (27 November 2024), pp. 16–18.
[204] The minister responded to the committee’s comments in a letter dated 13 December 2024. A copy of the letter is available on the committee’s webpage (see correspondence included with the committee’s assessment of this bill).
[205] Together with proposed subsection 251A(2).
[206] Senate resolution 53B. See Journals of the Senate, No. 101, 16 June 2021, pp. 3581–3582.
[207] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: final report (16 March 2021) p. 109.
[208] Schedule 1, item 2, proposed sections 252BA and 252BB. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).
[209] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2024 (27 November 2024), pp. 18–19.
[210] The minister responded to the committee’s comments in a letter dated 13 December 2024. A copy of the letter is available on the committee’s webpage (see correspondence included with the committee’s assessment of this bill).
[211] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, May 2024, pp 68–70.
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