Senate

Supplmentary Explanatory Memorandum relating to sheet JC574

(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural Affairs, the Honourable David Coleman MP)

Attachment A - Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

The 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 Amendments

The amendments 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 amendments also strengthen search and seizure powers, including through the use of detector dogs for screening procedures for detainees and visitors and searching facilities, in order to enforce these prohibitions.

The amendments 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.

Specifically the amendments propose to amend 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'.

A new section, 251A, will be inserted to enable the Minister to determine, by legislative instrument, things to be prohibited, in relation to persons in immigration detention and the immigration detention facilities. These things will include illegal things, specifically narcotic drugs and child pornography, and things that are dangerous within immigration detention facilities including mobile phones and SIM cards.

Additionally there are amendments directed towards strengthening the search and seizure powers in the Migration Act, that is, section 252. These include:

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the ability to search a person, the person's clothing and any property under the immediate control of the person for a prohibited thing as defined by the Migration Act (amendments to section 252(2) of the Migration Act);

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the ability to take possession and retain a prohibited thing where it was found during the course of a search under section 252 of the Migration Act (amendments to section 252(4) of the Migration Act);

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the ability to use screening equipment or a detector dog to screen a detainee's person or their possessions to search for prohibited things (amendments to section 252AA of the Migration Act);

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the ability to use a detector dog to screen persons entering an immigration detention facility (amendments to section 252G of the Migration Act);

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an authorised officer's ability to ask a person entering an immigration detention facility to do something where the authorised officer suspects on reasonable grounds that the person might have in their possession something that might endanger the safety of detainees, staff or other persons, might disrupt the order or security arrangements or a prohibited thing (new section 252G(3) and amended section 252(g)(4)(e) of the Migration Act);

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the ability to conduct strip searches to search for prohibited things (amendments to section 252A of the Migration Act);

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the ability to search an immigration detention facility, including accommodation areas, administrative areas, common areas, detainee's personal effects, detainee's rooms, medical examination areas and storage areas, for the purposes of determining whether there are weapons, other things capable of being used to inflict bodily injury, things capable of assisting a detainee to escape from immigration detention and prohibited things, and to use detector dogs to do so (new section 252BA of the Migration Act);

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the ability to allow a person to assist an authorised officer to conduct the searches described above (new section 252BB of the Migration Act); and

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the ability to take possession and retain things found as a result of a screening of a detainee or their possessions, a strip search or a search of the immigration detention facility where the thing might provide evidence of the commission of an offence against the Migration Act or forfeitable to the Commonwealth (which includes prohibiting things as set out in new section 252C(2) of the Migration Act).

Human rights implications

Right to Privacy

Article 17 (1) of the International Covenant on Civil and Political Rights (ICCPR) states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

More than half of the detainee population consists of high-risk individuals who do not hold a visa, pending their removal from Australia. This includes members of outlaw motorcycle gangs and other organised crime groups whose visas have been cancelled or refused.

The change to the demographics of the detention population is due to the Government's successful border protection policy and the increase in visa refusal or cancellation on character grounds resulting from implementing the Government's commitment to protecting the Australian community from non-citizens of serious character concern. However, the changing nature of the detention population has seen an increase in illegal activities in immigration detention facilities across Australia. These amendments will enable the Department, to target this type of activity more effectively, and to better manage the risks posed by criminal activity to the safety of people in immigration detention.

Currently mobile phones are enabling criminal activity within the immigration detention network. Activity facilitated or assisted by mobile phone usage includes:

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drug distribution

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maintenance of criminal enterprises in and out of detention facilities

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commodity of exchange or currency

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owners of mobile phones being subjected to intimidation tactics (including theft of the phone)

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threats and /or assaults between detainees including an attempted contract killing.

In addition to the above mobile phones have been used to coordinate disturbances and escapes.

The existing search and seizure powers in the Migration Act need clarification and are not sufficient to manage the increasing prevalence of illegal and anti-social behaviour in immigration detention facilities. The presence of narcotic drugs and other contraband such as mobile poses a risk to the health, safety, security and order of the immigration detention network.

The amendments seek to strengthen the search and seizure powers, including the use of detector dogs, in order to provide for a safe and secure environment for people accommodated at, visiting or working at an immigration detention facility.

The strengthened and new search powers do represent a limitation to the right to detainees' privacy. However, the right to privacy is not absolute. The search and seizure powers that the amendments are seeking to introduce are commensurate to the risk that currently exists in immigration detention facilities, that is as discussed above, the risk of drug distribution, violence and the facilitation of other criminal activities. The greater security of the immigration detention facility environment and persons with them that these amendments provide for are necessary to appropriately manage these risks, especially given that current search and seizure powers are limited in their ability to manage these risks . Currently in relation to searches (including strip searches) of persons detained in Australia, the Department can only search for a weapon or other thing capable or being used to inflict bodily injury, or to help the person to escape from immigration detention; not any other things that may facilitate criminal activities.

Additionally, a person about to enter a detention centre can currently only be screened for a thing that might:

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endanger the safety of the detainees, staff or other persons at the detention centre; or

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disrupt the order or security arrangements at the detention centre.

Currently the Department cannot screen for things that may facilitate criminal activities.

Officers must increasingly rely on common law as the basis for taking certain action designed to manage risks and keep control of immigration detention facilities.

These amendments are also proportionate to the serious consequences of injury to staff and detainees, and the greater Australian community if these risks are not properly managed. Any limitations on this right, through the search and seizure for things which are prohibited in immigration detention facilities, are reasonable, necessary and proportionate and are directed at the legitimate objective of protecting the health, safety and security of people in immigration detention and or to the order of the facility.

Right not to be subjected to arbitrary interference with family

Article 17(1) of ICCPR states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 23(1) of ICCPR states:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The Minister will specify by legislative instrument under the proposed new power in section 251A that mobile phones and Subscriber Identity Module (SIM) cards will be 'prohibited things'.

The Department acknowledges that regular contact with family and friends supports detainee resilience and mental health and is committed to ensuring detainees have reasonable access to means of maintaining contact with their support networks. This contact will continue to be facilitated through the availability of landline telephones, internet access, access to facsimile machines and postal services. Additionally, immigration detention facilities will continue to facilitate visits by detainees' family members and other visitors.

The Department has, and continues to, review the availability of telephone, internet and facsimile facilities for use by detainees across the immigration detention network, to ensure these facilities are adequate to contact and be contacted by family, friends and legal representatives. As a result of reviews, additional landline telephones have been installed at most immigration detention facilities. This has meant that detainees have even greater and more readily available access to means of communication with their families.

The amendments do not represent an interference with family, given detainees have other readily available communication channels at their disposal to communicate with their families.

Freedom of expression

Article 19(2) of ICCPR states:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The amendments seek to restrict certain things that can be brought into and/or possessed in an immigration detention facility. As per the discussion above regarding Articles 17 and 23(1) of the ICCPR, these 'prohibited things' will be things that the Minister so specifies as 'prohibited things' and that are unlawful to possess, or things that might be a risk to the health, safety or security of persons in an immigration detention facility, or to the order of the facility (including mobile phones and SIM cards).

Although mobile phones and SIM cards will be specified as 'prohibited things', a number of alternative communication avenues will remain available to detainees. These include landline telephones, access to the internet, access to facsimile machines and postal facilities. The Department has, and continues to, review the availability of these communication facilities for use by detainees across the immigration detention network to ensure these facilities are adequate to contact and be contacted by family, friends and legal representatives. As a result of reviews, additional landline telephones have been installed at most immigration detention facilities. Detainees therefore have even greater access to means of communication. Additionally, immigration detention facilities will continue to facilitate visits by detainees' family members and other visitors.

The amendments do not limit the right to freedom of expression, given the various other avenues of communication that are readily available to detainees.

Treatment of persons in detention

Article 10(1) of ICCPR states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

This obligation has been interpreted to mean that States have a positive duty to provide detainees and prisoners with a minimum of services to satisfy their basic needs including food, clothing medical care, sanitary facilities, communication, light, the opportunity to move about and privacy. As discussed above, the Department provides a number of readily available means of communication that include landline telephones, internet access, access to facsimile machines and postal services. In this respect, the potential restriction of mobile phone possession in immigration detention facilities does not represent a limitation on the obligation under Article 10 because these readily available facilities allow detainees appropriate and sufficient means of communication.

In relation to the conduct of the searches authorised by section 252 of the Migration Act, there are current provisions and a number of additional protections set out in the amendments that are designed to protect detainees and their property.

Current provisions

With regard to strip searches under section 252A of the Migration Act, authorisation must continue to be obtained from the departmental Secretary or Australian Border Force Commissioner (or a Senior Executive Service Band 3 level delegate) prior to a strip search being undertaken. Strip searches will also remain subject to rules currently set out at section 252B of the Migration Act, which include (but are not limited to):

(1)

A strip search of a detainee under section 252A:

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

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must be conducted in a private area;

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must not be conducted on a detainee who is under 10;

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must not involve a search of the detainee's body cavities;

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

Additional protections

Additionally, the amendments seek to introduce a number of provisions to protect detainees and their property. These include section 252BA - Searches of certain immigration detention facilities - general. This section includes sub-paragraph 252BA(6) - an authorised officer who conducts a search under this section must not use more force against a person or property, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

The use of detector dogs will be subject to a number of protections. For example, section 252AA(3A) provides that if an authorised officer uses a dog in conducting a screening procedure, the officer must:

(a)

take all reasonable precautions to prevent the dog touching any person (other than the officer); and

(b)

keep the dog under control while conducting the screening procedure.

The amendments also set out a number of provisions that seek to return certain 'prohibited things' to detainees on their release from detention. For example, section 252CA(2) will provide that an authorised officer must take all reasonable steps to return a 'prohibited thing' seized during a screening procedure, a strip search or a search of an immigration detention facility to the detainee on their release from detention, if it appears that the thing is owned or was controlled by the detainee.

To the extent that the amendments may engage Article 10, there are sufficient protections provided by law to ensure that respect for detainees' inherent dignity is maintained during the conduct of searches under section 252. Therefore, the amendments are consistent with the right under Article 10.

Conclusion

The amendments are compatible with human rights because where there are limits to human rights, such as with respect to privacy, those limitations are reasonable, necessary and proportionate to achieving the legitimate objective of ensuring a safe and secure environment for those who visit, work at or are detained in, an immigration detention facility.