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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
AMENDMENTS TO THE MIGRATION AMENDMENT (PROHIBITING ITEMS IN
IMMIGRATION DETENTION FACILITIES) BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Home Affairs and the Minister for Immigration
and Border Protection, the Honourable Peter Dutton MP)
AMENDMENTS TO THE MIGRATION AMENDMENT (PROHIBITING ITEMS IN
IMMIGRATION DETENTION FACILITIES) BILL 2017
OUTLINE
The Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2017 (the Bill)
will amend several provisions in the Migration Act 1958 (the Migration Act) to prohibit
narcotic drugs, mobile phones, SIM cards and other things of concern in relation to persons in
detention and immigration detention facilities. The Bill also strengthens search and seizure
powers, including through the use of dogs for screening procedures for detainees and visitors
and searching facilities, in order to enforce these prohibitions.
Specifically, the Bill amends the Migration Act to:
insert new definitions under subsection 5(1) to define Detention Centres and
Alternative Places of Detention collectively as 'immigration detention facilities' and
to define a 'prohibited thing';
insert new section 251A to enable the Minister to determine, by legislative instrument,
things to be prohibited, in relation to persons in detention and immigration detention
facilities. These things will include illegal things, specifically narcotic drugs and child
exploitation material, and things that pose a risk to the health safety or security of
people within an immigration detention facility, or the order of the facility, including
mobile phones and SIM cards;
insert new section 252BA to allow authorised officers and persons assisting to search
immigration detention facilities operated by or on behalf of the Commonwealth
without a warrant, including accommodation areas, administrative areas, common
areas, detainees' rooms, detainees' personal effects, medical examination areas and
storage areas;
strengthen the screening and seizure powers in relation to detainees in sections 252,
252AA, 252A, 252B and 252C;
strengthen the search and seizure powers under section 252G in relation to persons
about to enter an immigration detention facility operated by or on behalf of the
Commonwealth to expressly allow an authorised officer to screen and search for
narcotic drugs and other prohibited things; and
enable the use of dogs for screening detainees, and persons about to enter an
immigration detention facility operated by or on behalf of the Commonwealth, and for
searching these facilities, in order to enforce the new prohibitions.
Government amendments to the Bill are proposed to:
provide that a legislative instrument that determines things as prohibited things in
relation to immigration detention facilities is subject to disallowance;
remove the provisions from the Bill that would have authorised the use of dogs for
searches of detainees and their possessions, and persons about to enter an immigration
detention facility; and
prevent the application of the new search and screening powers in relation to
medications and health care supplements where these have been prescribed or
supplied to a detainee for their individual use by a health services provider contracted
by the Department. This approach will ensure that medications and health care
supplements that have been appropriately supplied to a detainee will not be subject to
the new search and seizure powers provided in the Bill for prohibited things.
The amendment will allow for the screening or search of a person for medications that
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Amendments to the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2017
have not been appropriately supplied to that person for their individual use, and for
the seizure of such things when found. The purpose of this amendment is to prevent
the abuse of medications and health care supplements by detainees within
immigration detention facilities.
FINANCIAL IMPACT STATEMENT
The amendments have no financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to
the amendments proposed to the Bill and assessed the amendments to be compatible with
Australia's human rights obligations. A copy of the Statement of Compatibility with Human
Rights is at Attachment A.
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Amendments to the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2017
AMENDMENTS TO THE MIGRATION AMENDMENT (PROHIBITING ITEMS IN
IMMIGATION DETENTION FACILITIES) BILL 2017
NOTES ON AMENDMENTS
Amendment (1) - Schedule 1, item 2, page 4 (lines 3 and 4), omit paragraph (d) of the
note
1. This amendment will remove paragraph (d) to the note that lists "medications or health care
supplements, in specified circumstances" as an example of things that might be considered to
pose a risk to the health, safety or security of persons in an immigration detention facility, or
to the order of that facility.
2. This amendment is consequential to Amendment (2).
Amendment (2) - Schedule 1, item 2, page 4 (after line 6), after subsection 251A(2)
3. The Bill proposes to insert new section 251A into the Migration Act to enable the Minister to
determine, by legislative instrument, prohibited things in relation to immigration detention
facilities. These things will include illegal things, specifically, narcotic drugs and child
exploitation material and things that present a risk within immigration detention facilities
including mobile phones and SIM cards.
4. Things prescribed under legislative instrument for the purpose of subsection 251A(2)(b) may
also include prescription and non-prescription medications as well as health care supplements
where the person in possession of these things is not the person to whom they have been
appropriately supplied for use within the immigration detention facility.
5. There has been a significant increase of prescription medication such as Xanax and Suboxone
being found in the possession of detainees who do not hold a prescription for these
medications. The misuse of medications is a serious risk to the health and safety of detainees
and they are also being used as a form of currency, which poses a risk to the order of the
facilities.
6. It is not intended that the new search and seizure powers provided by the Bill will apply to a
detainee who is in possession of a medication or health care supplement prescribed or
supplied for that person's individual use by an authorised health service provider. The
purpose of this amendment is to clarify this intention.
7. This amendment will insert new subsection 251A(2A) to have the positive effect of
preventing the application of the new search and seizure powers in the Bill in relation to a
medication or health care supplement prescribed or supplied for a person's individual use by
an authorised health service provider. This will mean that medications and health care
supplements appropriately supplied to, and in the possession of, a detainee will not be a
prohibited thing under new section 251A.
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Amendments to the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2017
8. The amendment will support the management of medications within immigration detention
facilities by ensuring that safe and appropriate health care continues to be provided to
detainees, while the misuse of medications by some people within these facilities can be
responded to appropriately.
Amendment (3) - Schedule 1, item 2, page 4 (before line 7), before subsection 251A(3)
9. Legislative instruments made under new section 251A would be exempt from disallowance
due to the operation of paragraph 44(2)(b) of the Legislation Act 2003 (the Legislation Act)
and section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015.
10. This amendment will extend section 42 of the Legislation Act to a legislative instrument
made under new section 251A that determines things as prohibited things in relation to
immigration detention facilities, despite regulations made for the purposes of paragraph
44(2)(b) of the Legislation Act. The effect of this amendment is that such an instrument
would be subject to disallowance.
Amendment (4) - Schedule 1, item 12, page 6 (line 27) to page 7 (line 9), to be opposed
11. This amendment opposes Schedule 1, item 12, which proposes new subsections 252AA(3A)
and (3AA). Subsection 252AA(3A) would have required an authorised officer using a dog to
conduct a screening procedure in respect of a person to:
take all reasonable precautions to prevent the dog touching any person (other than the
officer); and
keep the dog under control while conducting the screening procedure.
12. Subsection 252(3AA) would have clarified that if an authorised officer uses a dog in
accordance with subsection 252AA(3A) in conducting a screening procedure, that the use of
the dog is not unlawful only because of the behaviour of the dog (including the touching of
any person by the dog).
13. Subsections 252AA(3A) and (3AA) would have been consequential to the amendment made
by item 14 of Schedule 1 to the Bill, which would have inserted new paragraph (d) at the end
of the definition of conducting a screening procedure in subsection 252AA(5). That
provision would have authorised the use of a dog to search a detainee or things in the
detainee's possession. As paragraph 252AA(5)(d) would be omitted by Amendment (5)
below, these provisions are no longer required.
Amendment (5) - Schedule 1, item 14, page 7 (lines 21 to 25), to be opposed
14. This amendment opposes Schedule 1, item 14 which proposes paragraph 252AA(5)(d) of the
Bill, which would have amended the definition of conducting a screening procedure to allow
the use of a dog to search a detainee or things in the detainee's possession.
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Amendments to the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2017
Amendment (6) - Schedule 1, item 25, page 12 (after line 31), after subsection 252CA(1)
15. Item 25 of the Bill will insert new subsection 252CA "Screening and strip searches of
detainees, and searches of facilities--retention of certain prohibited things". This new
subsection provides for how an authorised officer must deal with a prohibited thing if found
in the course of a screening or strip search of a detainee, or in the course of a search of the
immigration detention facility.
16. This amendment will insert new subparagraph 252CA(1A). The effect of this new subsection
is that the retention powers provided in 252CA do not apply to a medication or supplement
found in the course of a search of an immigration detention facility under subsection 252BA
(inserted by item 21 of the Bill) if there are reasonable grounds for the authorised officer
conducting the search to consider that:
the medication or supplement is possessed or controlled by a particular detainee; and
the medication or supplement is not a prohibited thing in relation to the particular
detainee because of subsection 251A(2A), as inserted by Amendment (2), (which
covers medications and health care supplements that are prescribed or supplied for a
person's individual use).
17. The amendment will support the management of medications and supplements within
immigration detention facilities by ensuring that the new search and seizure powers in
relation to immigration detention facilities, as provided by the Bill, do not apply to
medications or supplements that have been prescribed or supplied to a detainee for their
individual use by a health service provider.
Amendment (7) - Schedule 1, items 28 and 29, page 13 (line 32) to page 14 (line 15)
18. Item 28 of the Bill would have added paragraph 252G(1)(d) to allow an authorised officer to
use a dog for the purposes of screening persons entering an immigration detention facility
operated by or on behalf of the Commonwealth for a thing mentioned in subsection 252G(3).
These are things that might endanger the safety of the detainees, staff or other persons at the
facility, or might disrupt the order or security arrangements at the facility, or a prohibited
thing under new section 251A.
19. Item 29 of the Bill would have inserted new sections 252G(2A) and (2B) as consequential
amendments to paragraph 252G(1)(d). Those provisions would have required an authorised
officer using a dog to screen persons entering an immigration detention facility to take all
reasonable precautions to prevent the dog touching any person (other than the officer) and to
keep the dog under control while conducting the search.
20. This amendment opposes Schedule 1, items 28 and 29 so that an authorised officer cannot use
a dog for the purpose of searching a person about to enter an immigration detention facility
for a thing to which subsection 252G(3) applies.
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Amendments to the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2017
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017
These amendments are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017
(the Bill) will amend several provisions in the Migration Act 1958 (the Migration Act) to
prohibit narcotic drugs, mobile phones, SIM cards and other things of concern in relation to
persons in immigration detention and the immigration detention facilities. The Bill also
strengthens search and seizure powers, including through the use of dogs for screening
procedures for detainees and visitors and searching facilities, in order to enforce these
prohibitions.
The amendments in the Bill seek to clarify the Department's ability to regulate the possession
of particular items in immigration detention facilities in order to ensure that the Department
can provide a safe and secure environment for people accommodated at, visiting or working
in an immigration detention facility.
Government Amendments
Government amendments to the Bill are proposed to:
provide that a legislative instrument that determines things as prohibited things in
relation to immigration detention facilities is subject to disallowance;
remove provisions from the Bill that would have authorised the use of dogs for
searches of detainees and their possessions, and persons about to enter an immigration
detention facility; and
prevent the application of the new search and screening powers in relation to
medications and health care supplements where these have been prescribed or
supplied to a detainee for their individual use by a health services provider contracted
by the Department. This approach will ensure that medications and health care
supplements that have been appropriately supplied to a detainee will not be subject to
the new search and seizure powers provided in the Bill for prohibited things.
The amendment will allow for the screening or search of a person for medications that
have not been appropriately supplied to that person for their individual use, and for
the seizure of such things when found. The purpose of this amendment is to prevent
the abuse of medications and health care supplements by detainees within
immigration detention facilities.
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Amendments to the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2017
Amendments relating to medications and health care supplements
Amendments are proposed to remove the words 'medications or health care supplements, in
specified circumstances' from the list in the note after new paragraph 251A(2)(b).
New subsections 251A(2A) and 252CA(1A) will be inserted to have the positive effect of
preventing the application of the new search and seizure powers in relation to medications
and health care supplements where these have been prescribed or supplied to a detainee for
their individual use by a health services provider contracted by the Department in the relevant
circumstances. The amendments will support the management of medications within
immigration detention facilities by ensuring that safe and appropriate health care continues to
be provided to detainees, while the misuse of medications can be responded to appropriately.
Amendments relating to legislative instruments that prohibit things in relation to
immigration detention facilities
New section 251A of the Migration Act will enable the Minister to determine, by legislative
instrument, items which will be 'prohibited things' in relation to immigration detention
facilities. It is anticipated that 'prohibited things' will include illegal things, specifically,
narcotic drugs, child exploitation material and other things that present a risk within
immigration detention facilities including mobile phones and SIM cards.
Legislative instruments made under new section 251A would ordinarily be exempt from
disallowance due to the operation of paragraph 44(2)(b) of the Legislation Act 2003 (the
Legislation Act) and section 9 of the Legislation (Exemptions and Other Matters) Regulation
2015.
This amendment would extend section 42 of the Legislation Act to a legislative instrument
made under new section 251A that determines things as 'prohibited things' in relation to
immigration detention facilities, despite regulations made for the purposes of paragraph
44(2)(b) of the Legislation Act. The effect of this amendment is that such an instrument
would be subject to disallowance.
Amendments relating to the use of dogs for searching and screening people
Amendments are proposed to remove new subsections 252AA(3A), 252AA(3AA),
252AA(5)(d), 252G(1)(d), 252G(2A) and (2B) from the Bill, which would have allowed for
the use of dogs for searching and screening people.
Human rights implications
The Department notes that it prepared a Statement of Compatibility for the Bill as introduced
prior to the making of Government amendments, and the Parliamentary Joint Committee on
Human Rights reported their comments in Report 11 of 2017 and Report 13 of 2017.
As such, this Statement of Compatibility only addresses the Government's amendments to
the Bill. To the extent that these amendments engage the same rights addressed in the
previous Statement of Compatibility the Department prepared, the amendments are rights
positive as they will:
provide for greater Parliamentary scrutiny and will act as an additional safeguard by
making the instrument specifying the 'prohibited things' subject to the disallowance
scheme under the Legislation Act;
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Amendments to the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2017
narrow the scope of situations where the use of dogs will be permitted, namely in
relation to the searching of persons; and
support the management of medications within immigration detention facilities by
ensuring that safe and appropriate health care continues to be provided to detainees.
Conclusion
These amendments are compatible with human rights.
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Amendments to the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2017
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