Supplmentary Explanatory Memorandum relating to sheet JC574
(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural Affairs, the Honourable David Coleman MP)Outline
The Government amendments amend the Migration Act 1958 (Migration Act) to allow the Minister to determine a thing as prohibited. Such a thing will be a prohibited thing in relation to immigration detention facilities and detainees. These things may include narcotic drugs, mobile phones, Subscriber Identity Module (SIM cards), child pornography and other things of concern. The amendments also strengthen search and seizure powers, including the use of detector dogs for screening of detainees and visitors and a new statutory power to search facilities operated by or for the Commonwealth, in order to enforce both the existing and new prohibitions.
The profile of the detainee caseload across the immigration detention network has changed significantly over the past two years. Immigration detention facilities now accommodate an increasing number of higher risk detainees awaiting removal, often having entered immigration detention directly from a correctional facility, including child sex offenders and members of outlaw motorcycle gangs or other organised crime groups.
Evidence indicates that detainees are using mobile phones to coordinate and assist escape efforts, as a commodity of exchange, to aid the movement of contraband, and to convey threats. There are also reports that mobile phones have contributed to:
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- abusive and aggressive altercations between detainees with mobile phones and Unauthorised Maritime Arrival detainees who are already prohibited from accessing mobile phones;
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- use of force incidents resulting from the removal of controlled item have included, but are not limited to, detainees being held while trying to abscond from a search and the use of mechanical restraints after death threats were made to an officer; and
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- efforts to coordinate internal demonstrations to coincide with external protests.
The presence of narcotic drugs and other dangerous things in the immigration detention network poses a risk to the ongoing safety, security and order across the network. For example, razor blades have been used to disrupt and delay transfer operations and food has been used to conceal contraband including narcotic drugs.
The existing search and seizure powers in the Migration Act are not sufficient to manage narcotic drugs, mobile phones, SIM cards or other things that are of concern within the context of immigration detention facilities. The amendments seek to improve these powers in order to enhance the health, safety and security of persons within immigration detention facilities and the order of these facilities.
Specifically, the amendments amend the Migration Act to:
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- insert new definitions under subsection 5(1) to define section 273 detention centres and places approved in writing by the Minister or under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1) of the Migration Act (otherwise known as Alternative Places of Detention (APODs)) collectively as 'immigration detention facilities' and to define a 'prohibited thing';
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- insert new section 251A 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 pornography and things that present a risk within immigration detention facilities including mobile phones and SIM cards;
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- insert new sections 252BA and 252BB to allow authorised officers and officers' assistants 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;
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- strengthen the screening and seizure powers in relation to detainees in sections 252, 252AA, 252A, 252B, 252C and 252CA;
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- strengthen the powers under section 252G in relation to a person 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
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- enable the use of detector 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.
Financial Impact Statement
These amendments will 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 and assesses that the amendments are compatible with Australia's human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A.