Migration Legislation Amendment (Immigration Detainees) Act (No. 2) 2001

No. 105, 2001

An Act to amend the law relating to migration, and for related purposes

[Assented to 17 September 2001]

The Parliament of Australia enacts:

This Act may be cited as the Migration Legislation Amendment (Immigration Detainees) Act (No. 2) 2001.

(1) This section and section 1 commence on the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

(3) If a provision of this Act does not commence under subsection (2) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Migration Act 1958

1 At the end of section 252

Add:

(9) To avoid doubt, a search of a person may be conducted under this section irrespective of whether a screening procedure is conducted in relation to the person under section 252AA or a strip search of the person is conducted under section 252A.

2 After section 252

Insert:

252AA Power to conduct a screening procedure

(1) A screening procedure in relation to a detainee, other than a detainee to whom section 252F applies, may be conducted by an authorised officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used:

(a) to inflict bodily injury; or

(b) to help the detainee, or any other detainee, to escape from immigration detention.

(2) An authorised officer who conducts a screening procedure under this section must not use greater force, or subject the detainee to greater indignity, than is reasonably necessary in order to conduct the screening procedure.

(3) This section does not authorise an authorised officer to remove any of the detainee’s clothing, or to require a detainee to remove any of his or her clothing.

(4) To avoid doubt, a screening procedure may be conducted in relation to a detainee under this section irrespective of whether a search of the detainee is conducted under section 252 or 252A.

(5) In this section:

conducting a screening procedure, in relation to a detainee, means:

(a) causing the detainee to walk, or to be moved, through screening equipment; or

(b) passing hand‑held screening equipment over or around the detainee or around things in the detainee’s possession; or

screening equipment means a metal detector or similar device for detecting objects or particular substances.

252A Power to conduct a strip search

(1) A strip search of a detainee, other than a detainee to whom section 252F applies, may be conducted by an authorised officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used:

(a) to inflict bodily injury; or

(b) to help the detainee, or any other detainee, to escape from immigration detention.

Note: Section 252B sets out rules for conducting a strip search under this section.

(2) A strip search of a detainee means a search of the detainee, of his or her clothing or of a thing in his or her possession. It may include:

(a) requiring the detainee to remove some or all of his or her clothing; and

(b) an examination of that clothing and of the detainee’s body (but not of the detainee’s body cavities).

(3) A strip search of a detainee may be conducted by an authorised officer only if:

(a) an officer suspects on reasonable grounds that there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subsection (1); and

(b) the officer referred to in paragraph (a) suspects on reasonable grounds that it is necessary to conduct a strip search of the detainee to recover that weapon or other thing; and

(i) if the detainee is at least 18—the Secretary, or an SES Band 3 employee in the Department (who is not the officer referred to in paragraphs (a) and (b) nor the authorised officer conducting the strip search), authorises the strip search because he or she is satisfied that there are reasonable grounds for those suspicions;

(ii) if the detainee is at least 10 but under 18—a magistrate orders the strip search because he or she is satisfied that there are reasonable grounds for those suspicions.

(3A) An officer may form a suspicion on reasonable grounds for the purposes of paragraph (3)(a) on the basis of:

(a) a search conducted under section 252 (whether by that officer or another officer); or

(b) a screening procedure conducted under section 252AA (whether by that officer or another officer); or

(4) An authorisation of a strip search given for the purposes of paragraph (3)(c):

(a) may be given by telephone, fax or other electronic means; and

(b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.

(5) A failure to comply with paragraph (4)(b) does not affect the validity of a strip search conducted on the basis of that authorisation.

(6) The power to authorise a strip search under paragraph (3)(c) cannot be delegated to any other person.

(6A) A power conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

(6B) The magistrate need not accept the power conferred.

(6C) A magistrate exercising a power under this section has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.

(7) To avoid doubt, a strip search of a detainee may be conducted under this section irrespective of whether a search of the detainee is conducted under section 252 or a screening procedure is conducted in relation to the detainee under section 252AA.

(8) In this section:

business day means a day that is not a Saturday, Sunday or public holiday in the place where the authorisation is given.

SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3.

SES employee has the meaning given by the Public Service Act 1999.

252B Rules for conducting a strip search

(1) A strip search of a detainee under section 252A:

(a) must not subject the detainee to greater indignity than is reasonably necessary to conduct the strip search; and

(b) must be conducted in a private area; and

(d) subject to subsections (2), (3) and (5), must not be conducted in the presence or view of a person who is of the opposite sex to the detainee; and

(e) subject to subsections (2), (3) and (5), must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the strip search; and

(f) must not be conducted on a detainee who is under 10; and

(g) if the detainee is at least 10 but under 18, or is incapable of managing his or her affairs—must be conducted in the presence of:

(i) the detainee’s parent or guardian if that person is in immigration detention with the detainee and is readily available at the same place; or

(ii) if that is not acceptable to the detainee or subparagraph (i) does not apply—another person (other than an authorised officer) who is capable of representing the detainee’s interests and who, as far as is practicable in the circumstances, is acceptable to the detainee; and

(h) subject to subsection (4), if the detainee is at least 18, and is not incapable of managing his or her affairs—must be conducted in the presence of another person (if any) nominated by the detainee, if that other person is readily available at the same place as the detainee, and willing to attend the strip search within a reasonable time; and

(i) must not involve a search of the detainee’s body cavities; and

(j) must not involve the removal of more items of clothing, or more visual inspection, than the authorised officer conducting the search believes on reasonable grounds to be necessary to determine whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subsection 252A(1); and

(k) must not be conducted with greater force than is reasonably necessary to conduct the strip search.

(2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or person present because of subparagraph (1)(g)(ii), if the detainee has no objection to that person being present.

(3) Paragraphs (1)(d) and (e) do not apply to a person nominated by the detainee under paragraph (1)(h) to attend the strip search.

(4) Neither:

(a) a detainee’s refusal or failure to nominate a person under paragraph (1)(h) within a reasonable time; nor

(b) a detainee’s inability to nominate a person under that paragraph who is readily available at the same place as the detainee and willing to attend the strip search within a reasonable time;

prevents a strip search being conducted.

(5) A strip search of a detainee may be conducted with the assistance of another person if the authorised officer conducting the strip search considers that to be necessary for the purposes of conducting it. That person must not be of the opposite sex to the detainee unless:

(a) the person is a medical practitioner; and

(b) a medical practitioner of the same sex as the detainee is not available within a reasonable time.

(6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an authorised officer, assists in conducting a strip search if the person acts in good faith and does not contravene this section.

(7) A detainee must be provided with adequate clothing if during or as a result of a strip search any of his or her clothing is:

(a) damaged or destroyed; or

(b) retained under section 252C.

252C Possession and retention of certain things obtained during a screening procedure or strip search

(1) An authorised officer may take possession of and retain a thing found in the course of conducting a screening procedure under section 252AA or conducting a strip search under section 252A if the thing:

(a) might provide evidence of the commission of an offence against this Act; or

(b) is forfeited or forfeitable to the Commonwealth.

(2) A weapon or other thing described in subsection 252AA(1) or 252A(1) that is found in the course of conducting a screening procedure under section 252AA or a strip search under section 252A is forfeited to the Commonwealth.

(3) An authorised officer must not return a thing that is forfeited or forfeitable to the Commonwealth. Instead, the authorised officer must, as soon as practicable, give the thing to a constable (within the meaning of the Crimes Act 1914).

(4) An authorised officer must take reasonable steps to return any other thing retained under subsection (1) to the person from whom it was taken, or to the owner if that person is not entitled to possess it, if one of the following happens:

(a) it is decided that the thing is not to be used in evidence;

(b) the period of 60 days after the authorised officer takes possession of the thing ends.

(5) However, the authorised officer does not have to take those steps if:

(a) in a paragraph (4)(b) case:

(i) proceedings in respect of which the thing might provide evidence have been instituted before the end of the 60 day period and have not been completed (including an appeal to a court in relation to those proceedings); or

(ii) the authorised officer may retain the thing because of an order under section 252E; or

(b) in any case—the authorised officer is otherwise authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State or Territory) to retain, destroy or dispose of the thing.

252D Authorised officer may apply for a thing to be retained for a further period

(1) This section applies if an authorised officer has taken possession of a thing referred to in subsection 252C(4) and proceedings in respect of which the thing might provide evidence have not commenced before the end of:

(a) 60 days after the authorised officer takes possession of the thing; or

(b) a period previously specified in an order of a magistrate under section 252E.

(2) The authorised officer may apply to a magistrate for an order that the officer may retain the thing for a further period.

(3) Before making the application, the authorised officer must:

(a) take reasonable steps to discover which persons’ interests would be affected by the retention of the thing; and

(b) if it is practicable to do so, notify each person who the authorised officer believes to be such a person of the proposed application.

252E Magistrate may order that thing be retained

(1) The magistrate may order that the authorised officer who made an application under section 252D may retain the thing if the magistrate is satisfied that it is necessary for the authorised officer to do so:

(a) for the purposes of an investigation as to whether an offence has been committed; or

(b) to enable evidence of an offence to be secured for the purposes of a prosecution.

(2) The order must specify the period for which the authorised officer may retain the thing.

(3) A power conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

(4) The magistrate need not accept the power conferred.

(5) A magistrate exercising a power under this section has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.

252F Detainees held in State or Territory prisons or remand centres

(1) This section applies to a detainee if:

(a) he or she is held in immigration detention in a prison or remand centre of a State or Territory; and

(b) a law of that State or Territory confers a power to search persons, or things in the possession of persons, serving sentences or being held in the prison or remand centre.

(2) To the extent that the State or Territory law confers that power, or affects the exercise of that power, it applies to the detainee as though it were a law of the Commonwealth.

(3) Sections 252AA and 252A of this Act do not apply to a detainee to whom this section applies.

[Minister’s second reading speech made in—

House of Representatives on 27 June 2001

Senate on 28 August 2001]

(113/01)