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)

AMENDMENTS TO THE HOME AFFAIRS LEGISLATION AMENDMENT (MISCELLANEOUS MEASURES) BILL 2018

ITEM 1 Page 10 (after line 13), at the end of the Bill, add:

Schedule 6-Prohibiting Items in Immigration Detention Facilities

Item 1 - Subsection 5(1)

1. This item inserts two new definitions into subsection 5(1).

2. The item provides that the new definition 'immigration detention facility' will have the meaning given by new section 251A inserted by item 2 of this Schedule.

3. Item 1 also provides that the new definition 'prohibited thing' will have the meaning given by new section 251A inserted by item 2 of this Schedule.

Item 2 - After section 251

4. This item inserts new section 251A "Search of detainees etc. - prohibited things in immigration detention facilities".

5. The purpose of this new section is to provide a head of power for the Minister, by legislative instrument, to determine a thing for the purposes of subsection (1) and to provide a definition of prohibited thing and immigration detention facility.

6. The powers to search and screen detainees, and to screen persons about to enter a facility, for prohibited things will be amended by other items in the amendments. The amemdments also includes a new power to search immigration detention facilities operated by or on behalf of the Commonwealth for prohibited things and other things. This amendment will enable the Minister to respond quickly and flexibly to emerging threats to the health, safety or security of persons in an immigration detention facility and maintain the order of these facilities.

7. Subsection 251A(1) defines a prohibited thing in relation to a person in detention, or in relation to an immigration detention facility. In these circumstances a thing will be a prohibited thing if:

(a)

both:

(i)

possession of the thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained or in which the facility is located; and

(ii)

the thing is determined by the Minister by legislative instrument under subsection 251A(2)(a); or

(b)

the thing is determined by the Minister by legislative instrument under paragraph 251A(2)(b).

8. New subsection 251A(2) enables the Minister to determine, by legislative instrument, a thing for the purposes of subsection 251A(1) if the Minister is satisfied that:

(a)

possession of the thing is prohibited by law in a place or places in Australia; or

(b)

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.

9. Something may be determined under paragraph 251A(2)(a) because its possession is prohibited by law in one State or Territory, but not be a prohibited thing that is the subject of a search of a person in detention in another State or Territory. For example, a thing may be prohibited by the law of New South Wales and therefore determined as a prohibited thing in relation to a person in immigration detention in this State, but not prohibited by the law of Western Australia and therefore not a prohibited thing in relation to a person in detention in that State.

10. This instrument will give the Minister flexibility to respond quickly if operational requirements change and, as a result, the things determined by the Minister and the things to be prohibited need to be amended.

11. It is currently intended that under paragraph 251A(2)(a) the Minister will determine narcotic drugs and child pornography for the purposes of subsection (1).

12. To clarify the operation of new subsection 251A(2), a note has been included at the end of subsection 251A(2) to provide examples of things that might be considered to pose a risk to the health, safety or security of persons in the facility, or to the order of the facility. These things include, but are not limited to: mobile phones, Subscriber Identity Module (SIM cards), computers and other electronic devices, such as tablets, medications or health care supplements, in specified circumstances, or publications or other material that could incite violence, racism or hatred.

13. Medications or health care supplements in specified circumstances as listed in the note are intended to capture circumstances where a person in an immigration detention facility may be in possession of medication that has been prescribed for another person.

14. Publications or other material that could incite violence, racism or hatred as listed in the note are intended to capture things which could pose a serious risk to the safety, security of persons in the facility and to the order of facilities.

15. Detainees will continue to have reasonable access to communication facilities in order to maintain contact with their support networks. Regular contact with family and friends is acknowledged as supporting detainees' resilience and mental health. Contact will be provided via landline telephones, facsimile, internet access in compliance with the Conditions of Use of Internet agreement, postal services and visits.

16. Migration Agents or legal representatives will continue to be able to contact their clients. The Department of Immigration and Border Protection (the Department) will ensure that communication avenues are maintained and enhanced, to enable detainees to progress their immigration status resolution in a timely fashion. Detainees and legal representatives remain able to schedule telephone interviews ahead of time if they require access to a desk or private space.

17. The amendments will not prohibit authorised officers (including Departmental officers, Serco officers and Detention Health Services Providers) from possessing and using prohibited things in immigration detention facilities during the course of their duties. This means that authorised officers will continue to be able to possess and use mobile phones, SIM cards and computers in the course of their official duties at immigration detention facilities.

18. Subsection 251A(3) defines an immigration detention facility as either a detention centre established under section 273 of the Migration Act or another place approved by the Minister in writing for the purposes of subparagraph (b)(v) of the definition of 'immigration detention' in subsection 5(1).

19. The purpose of this new definition is to ensure that the power to conduct personal searches of detainees and searches of facilities for prohibited things will apply to detention centres established under section 273 (otherwise known as an Immigration Detention Centre (IDCs)) and also to a place approved in writing by the Minister or a 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)).

20. An APOD is a place of immigration detention used by the Department to meet the specific needs of detainees that cannot be adequately catered for in an IDC.

21. APODs include certain facilities operated the Department, known as facility-based APODs. Currently there are three facility-based APODs approved by the Minister. These are:

•

Phosphate Hill (Christmas Island)

•

Construction Camp (Christmas Island)

•

Northern APOD (Darwin)

22. In addition to these three facility-based APODs, there are also currently three Immigration Transit Accommodation (ITA) facilities that are authorised as APODs and controlled by the Department:

•

Brisbane Immigration Transit Accommodation (BITA)

•

Melbourne Immigration Transit Accommodation (MITA)

•

Adelaide Immigration Transit Accommodation (AITA)

23. Non-facility-based places of accommodation in the broader community that have been approved as places of immigration detention are also types of APODs. These places include leased private housing, hotel and motel accommodation, hospitals and schools.

24. The new search and seizure powers provided by this Schedule will apply in relation to persons detained in all types of APODs but these new powers will not extend search and screening powers to non-facility-based places of accommodation or visitors to these type of APODs.

Item 3 - Section 252 (heading)

25. This item repeals the heading for section 252 "Searches of persons" and substitutes a new heading for this section "Searches of detainees, and non-citizens in immigration clearance - general powers".

26. This new heading more clearly indicates the scope of the search powers under this section by making express reference to searches of detainees.

Item 4 - At the end of subsection 252(2)

27. This item adds a new paragraph (c) to subsection 252(2).

28. Section 252 provides the power for an authorised officer to search a person detained in Australia, or a person who is a non-citizen who has not been immigration cleared where there are reasonable grounds for suspecting a person's visa should be cancelled. This section allows an authorised officer to search the person and any of the person's clothing and property under their immediate control, for example a person's bags or outer clothing. The purpose of these searches is to establish whether a person is carrying hidden weapons or other things that may be used to inflict bodily injury or to help the person to escape from immigration detention, to ensure the personal safety of authorised officers and other detainees. This provision does not empower an authorised officer to remove the person's clothing or require the person to remove their clothing.

29. New paragraph 252(2)(c) specifies that for subsection 252(1)(a), the purposes for searching a person detained in Australia also includes to find out whether a prohibited thing (other than a prohibited thing to which paragraph (a) and (b) applies), is hidden on the person, in the clothing or in the property. This new purpose is in addition to those purposes already articulated in paragraphs 252(2)(a) and (b).

30. This new search power does not apply to searches of persons in immigration clearance referred to in subsection 252(1)(b).

Item 5 - Subsection 252(4)

31. This item amends subsection 252(4) to include the new category of prohibited thing determined for the purposes of new paragraph 251A(2)(a) in the list of things that may be found by an authorised officer in the course of a search conducted under section 252. This will therefore apply only in relation to prohibited things whose possession is prohibited by a law in a place or places in Australia. New subsections 242(4A) and (4B) set out below will apply to the other category of prohibited thing.

32. The effect of this item is to expand the range of things that an authorised officer may take possession of, and retain, under subsection 252(4) if found in the course of a search conducted under subsection 252(1).

Item 6 - Paragraphs 252(4)(a) and (b)

33. This item makes a technical amendment to paragraphs 252(4)(a) and (b) to omit the word "other" from the phrase "other thing".

34. Following this amendment, a "thing" in paragraphs 252(4)(a) and (b) will include an "other thing referred to in paragraph (2)(b)" and "a prohibited thing" as defined by subsection 251A(1) at item 2 of this Schedule.

Item 7 - At the end of subsection 252(4)

35. This item adds a note at the end of subsection 252(4).

36. The purpose of the note is to give context to the reference made to paragraph 251A(2)(a) in subsection 252(4) introduced by the amendment in item 5 of this Schedule.

Item 8 - After subsection 252(4)

37. This item inserts new subsections 252(4A), (4B) and (4C) which together address the retention, return, forfeiture and disposal of prohibited things determined under paragraph 251A(2)(b).

38. The purpose of subsection 252(4A) is to specify how an authorised officer is to deal with a thing determined as a prohibited thing for the purposes of paragraph 251A(2)(b), which is found in the course of a search in relation to a detained person.

39. This section specifies that the authorised officer conducting the search may: (a) take possession of the prohibited thing; and (b) retain the prohibited thing.

40. Paragraphs (c) and (d) further state that if it appears that the thing is owned or was controlled by a detainee or by a person other than the detainee, the officer must take all reasonable steps to return it to the detainee when he or she ceases to be in detention, or to the person who owned or controlled the thing.

41. The note to paragraph (d) provides that subsection 252(4A) applies in relation to prohibited things determined by legislative instrument under paragraph 251A(2)(b) where the Minister is satisfied that possession or use of such a 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.

42. Subsection 252(4B) provides that where an officer retains a prohibited thing under paragraph 252(4A)(b), after having taken all reasonable steps to return the thing, this thing is forfeited to the Commonwealth if one of the circumstances listed in the provision is satisfied. These circumstances are:

(a)

the thing's owner or the person who last controlled the thing cannot be identified; or

(b)

the thing is abandoned; or

(c)

if it appears that the thing is owned or was controlled by a detainee - the thing cannot be returned to the detainee when he or she ceases to be in detention.

43. Paragraphs 252(4A)(d) and (4B)(d) apply in circumstances where the prohibited thing is clearly not the property of a detainee, and is owned or was controlled by someone else (for example, the thing may have been stolen from a departmental officer or visitor). Under paragraph 252(4A)(d), if the true owner or controller of the thing can be identified, it is intended that the thing be returned to that person. Under paragraph 252(4B)(d), the thing is forfeited to the Commonwealth if the thing cannot be returned to the true owner or controller.

44. Specific reference is made to both owners and former controllers of things in this item to clarify where ownership of a thing may not be immediately clear, however control of this thing can be easily established.

45. New subsection 252(4C) allows an authorised officer to dispose of a thing forfeited to the Commonwealth under subsection 252(4B). This provision gives the authorised officer the authority to dispose of the thing in any way the officer thinks appropriate.

Item 9 - Subsection 252(9)

46. This item repeals and substitutes subsection 252(9).

47. This purpose of this item is to make clear that an authorised officer who undertakes a type of search in relation to a detainee or immigration detention facility is not precluded from undertaking a different type of search in relation to the detainee or the facility, specifically searches under: section 252AA (searches of detainees - screening procedures); section 252A (searches of detainees - strip searches) and section 252BA (searches of certain immigration detention facilities - general).

48. This amendment incorporates an express reference to new section 252BA which is inserted by item 21 of this Schedule and which allows for searches of immigration detention facilities operated by or on behalf of the Commonwealth.

Item 10 - Section 252AA (heading)

49. This item repeals the heading for section 252AA "Power to conduct a screening procedure" and substitutes the new heading for this section "Searches of detainees - screening procedures".

50. This new heading more clearly indicates the scope of the search powers under this section by making express reference to searches of detainees.

Item 11 - Subsection 252AA(1)

51. This item makes a technical amendment to subsection 252AA(1) to include the new category of prohibited thing (other than a weapon or other thing to which paragraph (a) applies) in the list of things that a detainee may be screened for by an authorised officer.

Item 12 - After subsection 252AA(3)

52. This item inserts new subsections 252AA(3A) and 252AA(3AA).

53. The purpose of new subsection 252AA(3A) is to provide an appropriate safety measure for detainees where a dog is used by an authorised officer to conduct a screening procedure under this section. The use of a dog in conducting a screening procedure is to be inserted by item 14 below.

54. The subsection requires an authorised officer using a dog to conduct a screening procedure under this section to take all reasonable precautions to prevent the dog from touching any person (other than the officer) during the screening procedure and that the officer keep the dog under control while conducting the screening procedure.

55. New subsection 252AA(3AA) provides that using a dog for a screening procedure under this section, in accordance with subsection 252(3A) is not unlawful only because of the behaviour of the dog, as long as the other precautions in new subsection 252AA(3A) are complied with. This provision will ensure that a search is not rendered unlawful if, for example, the dog touches a person during the search.

56. These amendments will give authorised officers under the Migration Act the ability to use highly trained detector dogs to search detainees in immigration detention facilities when conducting a screening procedure. Detector dogs are specifically trained to find concealed things such as narcotics, and are routinely used at Australian international airports and seaports and mail centres. The dogs are trained to give a passive or "sit" response where they detect a person may be carrying or concealing something or a pawing or scratching response to areas where things may be hidden. Departmental officers involved in using a dog to conduct a screening procedure will be specifically authorised for the purpose of handling a dog and will have undergone extensive training in handling detector dogs.

57. Expanding the search and screening powers in immigration detention facilities to include the use of detector dogs will ensure the Department has the ability to efficiently and effectively search and screen for, and retain, things that pose a risk to the health, safety, security of people in immigration detention facilities or that undermine the order of these facilities.

Item 13 - Subsection 252AA(4)

58. The purpose of new subsection 252AA(4) is to make clear that an authorised officer who undertakes a screening procedure in relation to a detainee is not precluded from undertaking a different type of search in relation to the detainee or an immigration detention facility, specifically searches under: section 252 (searches of detainees, and non-citizens in immigration in immigration clearance - general powers); section 252A (searches of detainees - strip searches) and section 252BA (searches of certain immigration detention facilities - general).

59. This amendment incorporates an express reference to new section 252BA which is inserted by item 21 of this Schedule and which allows for searches of immigration detention facilities operated by or on behalf of the Commonwealth.

Item 14 - Subsection 252AA(5) (at the end of the definition of conducting a screening procedure )

60. This item amends the section 252AA(5) definition of conducting a screening procedure to add using a dog for the purposes of searching a detainee or things in the detainee's possession.

Item 15 - Section 252A (heading)

61. This item repeals the heading for section 252A "Power to conduct a strip search" and substitutes the new heading for this section "Searches of detainees - strip searches".

62. This new heading more clearly indicates the scope of the search powers under this section by making express reference to searches of detainees.

Item 16 - Subsection 252A(1)

63. This item makes a technical amendment to subsection 252A(1) to include the new category of prohibited thing (other than a weapon or other thing to which paragraph (a) applies) in the list of things that a strip search of a detainee may be conducted by an authorised officer to find.

Item 17 - Paragraph 252A(3)(a)

64. This item makes a technical amendment to paragraph 252A(3)(a) to include the new category of prohibited thing in the list of things that an authorised officer must reasonably suspect is hidden on the detainee in order for the authorised officer to be able to conduct a strip search.

Item 18 - Subsection 252A(7)

65. This item repeals and substitutes subsection 252A(7).

66. The purpose of new subsection 252A(7) is to make clear that an authorised officer who undertakes a strip search of a detainee is not precluded from undertaking a different type of search in relation to the detainee or an immigration detention facility, specifically searches under: section 252 (searches of detainees, and non-citizens in immigration in immigration clearance - general powers); section 252AA (searches of detainees - screening procedures) and section 252BA (searches of certain immigration detention facilities - general).

67. This amendment incorporates an express reference to new section 252BA which is inserted by item 21 of this Schedule, which allows for searches of immigration detention facilities operated by or on behalf of the Commonwealth.

Item 19 - Section 252B (heading)

68. This item repeals the heading for section 252B "Rules for conducting a strip search" and substitutes the new heading for this section "Searches of detainees - rules for conducting a strip search".

69. This new heading more clearly indicates the scope of the search powers under this section by making express reference to searches of detainees.

Item 20 - Paragraph 252B(1)(j)

70. Paragraph 252B(1)(j) states that an authorised officer must not remove more pieces of clothing or use more visual inspection than the authorised officer conducting the search believes reasonably 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).

71. This item makes a technical amendment to paragraph 252B(1)(j) to include the new category of prohibited thing as a thing that the authorised officer may seek to determine is hidden on the detainee in his or her clothing, or in a thing in his or her possession.

Item 21 - After section 252B

72. This item inserts new section 252BA "Searches of certain immigration detention facilities - general" and new section 252BB "Searches of certain immigration detention facilities - authorised officers' assistants".

73. Currently common law is relied on to search for prohibited items in areas within an immigration detention facility, including detainee accommodation and common areas, to ensure the safety and security of detainees, departmental staff, contractors and other persons.

74. New section 252BA "Searches of certain immigration detention facilities - general" provides a clear and express statutory power for an authorised officer to undertake a search of an immigration detention facility operated by or on behalf of the Commonwealth. This provision will allow an authorised officer to search accommodation areas, administrative areas, common areas, detainees' personal effects, detainees' rooms, medical examination areas and storage areas to find prohibited things.

75. This power will only allow for searches of detention centres established under section 273 and facility-based APODs, and will not be used to search non-facility-based APODs such as hotels, motels, schools or hospitals.

76. Under subsection 252BA(2), a search of the immigration detention facility may be conducted under this section only to find out whether any of the following are at the facility:

(a)

a weapon or other thing capable of being used to inflict bodily injury or to help a detainee to escape from immigration detention;

(b)

a prohibited thing, other than a weapon or other thing to which paragraph (a) applies.

77. Subsections 252BA(3) to (6) set out specific conditions in relation to the conduct of a search of the immigration detention facility operated by or on behalf of the Commonwealth.

78. Subsection 252BA(3) allows an authorised officer to use a dog to conduct a search of the immigration detention facility. This power is in addition to the search powers of an authorised officer under subsection 252BA(1) and does not limit these powers.

79. New subsection 252BA(4) provides that where a dog is used by an authorised officer to conduct a search of an immigration detention facility under section 252BA, appropriate safety measures must be complied with. The measures are that an authorised officer must take all reasonable precautions to prevent the dog from touching any person (other than the officer) during the search and that the officer keep the dog under control while conducting the search.

80. New subsection 252BA(5) further clarifies that using a dog for a search under section 252BA is not unlawful only because of the behaviour of the dog, as long as the other precautions in new subsection 252BA(4) are complied with. This provision will ensure that a search is not rendered unlawful if, for example, the dog touches a person during the search.

81. These amendments will give authorised officers under the Migration Act the ability to use highly trained dogs to search immigration detention facilities operated by or on behalf of the Commonwealth. Departmental officers conducting these searches will be specifically authorised for the purpose of handling a dog and will have undergone extensive training in the handling of detector dogs.

82. Subsection 252BA(6) provides that the force that an authorised officer can use when conducting a search of a facility under this section must not be more than is reasonably necessary in order to conduct the search. This restriction applies in relation to force used against a person or property.

83. For example, a person may need to be moved from the entrance to a room to enable the area to be searched, or a locked door or storage unit may need to be opened in the course of the search of the facility.

84. Subsection 252BA(7) makes clear that exercising the search powers available under section 252BA in relation to an immigration detention facility does not preclude the other searches in relation to the detainee or the facility, including searches under: section 252 (searches of detainees, and non-citizens in immigration in immigration clearance - general powers); section 252AA (searches of detainees - screening procedures) and section 252A (searches of detainees - strip searches).

85. The purpose of new section 252BB "Searches of certain immigration detention facilities - authorised officers' assistants" is to allow other persons to assist authorised officers in carrying out a search of an immigration detention facility operated by or on behalf of the Commonwealth under section 252BA.

86. Subsection 252BB(1) provides that an authorised officer may be assisted by other persons in exercising powers or performing functions or duties for the purposes of a search under section 252BA, or in relation to retention of things found in the course of a screening process or search under sections 252C and 252CA if that assistance is necessary and reasonable. By including the wording 'necessary and reasonable' this restricts the use of officers' assistants to situations where such the assistance is necessary to ensure the authorised officer can carry out their powers, functions or duties to complete the search of the facility.

87. Subsection 252B(1) explains that in these circumstances the person providing assistance to an authorised officer is considered to be an 'officer's assistant'.

88. The note at the end of subsection 252BB(1) mentions the operation of subsection 252BA(3) and sections 252C and 252CA as these provisions are directly referenced in new section 252BB.

89. New subsection 252BB(2) sets out the powers that an officer's assistant will have in relation to a search of an immigration detention facility operated by or on behalf of the Commonwealth under section 252BA. These powers are outlined in paragraphs 252BB(2)(a) and (b) and allow an officer's assistant to enter the facility and to exercise powers and perform functions and duties in relation to which subsection 252BB(1) applies in relation to anything found in the course of a search or screening procedure. Paragraph 252BB(2)(c) limits these powers so that the officers' assistant must carry out the powers in subsection 252BB(1)(a) and (b) in accordance with a direction given to them by the authorised officer.

90. Subsection 252BB(3) provides that a power exercised by an officer's assistant under subsection 252BB(2) is taken for all purposes to have been exercised by the authorised officer themselves. This provision gives the same authority to the powers exercised by the officers' assistant as those exercised by the authorised officer.

91. Subsection 252BB(4) provides that a function or duty performed by an officer's assistant under subsection 252BB(2) is taken for all purposes to have been performed by the authorised officer themselves. This provision gives the same authority to the functions and duties performed by the officers' assistant as those performed by the authorised officer.

92. Subsection 252BB(5) provides that if a direction is given to a person assisting by an authorised officer under paragraph 252BB(2)(c) and the authorised officer gives the direction in writing, this direction is not a legislative instrument. This provision is merely declaratory of the law, confirming that a written direction under this provision is not legislative, rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003.

Item 22 - Section 252C (heading)

93. This item repeals the heading for section 252C "Possession and retention of certain things obtained during a screening procedure or strip search" and substitutes the new heading for this section "Screening and strip searches of detainees, and searches of facilities-retention of seized things (general)".

94. This new heading more clearly indicates the scope of the powers under this section to take possession and retain things by making express reference to searches of detainees and searches of facilities.

Item 23 - Subsection 252C(1)

95. This amendment adds new section 252BA (searches of certain immigration detention facilities - general) to the list of searches included in this provision. This will mean that an authorised officer may take possession and retain a thing found in the course of a search under section 252AA (which deals with screening procedures), 252A (which deals with strip searches) or 252BA (which deals with immigration detention facility searches) if the thing: might provide evidence of the commission of an offence under the Migration Act, or is forfeited or forfeitable to the Commonwealth.

96. This amendment incorporates an express reference to new section 252BA which is inserted by item 21 of this Schedule which allows for searches of immigration detention facilities operated by or on behalf of the Commonwealth

Item 24 - Subsection 252C(2)

97. This item repeals and substitutes subsection 252C(2).

98. The purpose of this subsection is to specify the type of things that are forfeited to the Commonwealth if found in the course of any of the searches mentioned in new subsection 252C(1).

99. Under paragraph 252C(2)(b), only prohibited things determined for the purposes of paragraph 251A(2)(a) (other than a weapon or other thing to which paragraph (a) applies) are forfeited to the Commonwealth if found in the course of a search mentioned in subsection 252C(1). This is because things determined under paragraph 251A(2)(a) are things that are illegal to possess such as narcotic drugs and child pornography. However, prohibited things determined by paragraph 252C(2)(b) are not forfeited or forfeitable, but may be retained under section 252C if they provide evidence of an offence against the Migration Act, or under new section 252CA (inserted by item 25 below).

100. The Note after paragraph 252C(2)(b) provides that a prohibited thing for the purposes of paragraph 251A(2)(a) found during a search of a detainee must be unlawful because of a law of the Commonwealth or the State or Territory in which that person is being detained.

Item 25 - After section 252C

101. This item inserts new section 252CA "Screening and strip searches of detainees, and searches of facilities-retention of certain prohibited things".

102. This new section applies in relation to a prohibited thing determined under paragraph 251A(2)(b), unless subsection 252C(1) applies in relation to the prohibited thing such that the thing is retained as it might provide evidence of the commission of an offence against the Migration Act.

103. Subsection 252CA(2) allows an authorised officer to: (a) take possession of the prohibited thing; and (b) retain it.

104. Under paragraphs 252CA(2)(c) and (d) if it appears that the thing is owned or was controlled by a detainee, the officer must take all reasonable steps to return the thing to the detainee when he or she ceases to be in detention. An example of taking reasonable steps to return a thing would be where food has been taken and retained, and the food has spoiled during their time in detention. In that circumstance, it would not be reasonable to return the food.

105. Subsection 252CA(3) provides for forfeiture to the Commonwealth of a prohibited thing found by an authorised officer during a search under 252AA (screening procedure), 252A (strip search) or 252BA (search of an immigration detention facility) and retained in accordance with paragraph 252CA(2)(b). This subsection allows for these things to be forfeited to the Commonwealth if the officer has taken all reasonable steps to return the thing to the person under paragraph 252CA(2)(c) or (d) and considers on reasonable grounds that one of the circumstances listed in the provision are satisfied. These circumstances are that:

(a)

the thing's owner or person who last controlled the thing cannot be identified; or

(b)

the thing is abandoned; or

(c)

if it appears that the thing is owned or was controlled by a detainee - the thing cannot be returned to the detainee when he or she ceases to be in detention.

106. Paragraphs 252CA(2)(d) and (3)(d) are inserted for circumstances in which the prohibited thing is clearly not the property of a detainee, and is, or was, owned or controlled by someone else (for example, it may have been stolen from a Departmental officer or visitor). Under paragraph 252CA(2)(d), if the true owner or controller of the thing can be identified, it is intended that the thing be returned to that person if practicable. Under paragraph 252CA(3)(d), it is intended that if it is not practicable to return the thing to the person who owned or controlled it then the thing is forfeited to the Commonwealth.

107. Subsection 252CA(4) allows for an authorised officer to dispose of a prohibited thing forfeited to the Commonwealth under subsection 252CA(3) in any way he or she thinks appropriate.

Item 26 - Section 252G (heading)

108. This item repeals the heading for section 252G "Powers concerning entry to a detention centre" and substitutes the new heading for this section "Persons entering immigration detention facilities-screening powers".

109. This new heading more clearly indicates the scope of the powers under this section by making express reference to screening powers in relation to persons entering immigration detention facilities.

Item 27 - Subsection 252G(1)

110. Section 252G provides certain powers relating to the entry of a person to an immigration detention facility operated by or on behalf of the Commonwealth and is required to maintain the order and security of these facilities as well as the safety and security of detainees, officers and other persons at the facility. This section will allow authorised officers to screen visitors entering an immigration detention facility and is required to prevent the entry of things that visitors may seek to bring with them that might pose a risk to the health, safety and security of persons at the facility or undermine the order of these facilities.

111. This item amends subsection 252G(1) to omit the wording "a detention centre established under this Act" and substitutes "an immigration detention facility operated by or on behalf of the Commonwealth".

112. The purpose of this amendment is to ensure that the powers under this section apply in relation to the immigration detention facilities as defined by the new definition inserted by item 1 of thisSchedule. This will extend this provision to cover APODs in addition to detention centres established under section 273 of the Migration Act.

113. The amendment also limits this definition to those immigration detention facilities operated by or on behalf of the Commonwealth. The purpose of this limitation is to ensure that the search powers provided by section 252G only apply to persons entering a facility-based APOD or ITA as described at paragraphs 25-27 above. It is not intended that this section apply to people entering a non-facility-based APOD such as a hotel or motel, school or hospital as described in paragraph 28 above.

Item 28 - Subsection 252G(1)

114. This item amends subsection 252G(1) to insert new paragraph 252G(1)(d).

115. This new paragraph allows an authorised officer to use a dog for the purpose of searching a person entering an immigration detention facility for a thing to which subsection 252G(3) applies.

Item 29 - After subsection 252G(2)

116. This item inserts new subsections 252G(2A) and 252G(2B).

117. The purpose of new subsection 252G(2A) is to provide appropriate safety measures for persons entering an immigration detention facility where a dog is used to search a person.

118. The subsection requires an authorised officer to take all reasonable precautions to prevent the dog from touching any person (other than the officer) during the search and that the officer keep the dog under control while conducting the search.

119. New subsection 252G(2B) provides that using a dog to search a person in accordance with section 252G is not unlawful only because of the behaviour of the dog, as long as the other precautions in this new subsection are complied with. This provision will ensure that a search is not rendered unlawful if, for example, the dog touches a person during the search.

120. These amendments will give authorised officers under the Migration Act the ability to use highly trained detector dogs to search a person entering an immigration detention facility that is operated by or on behalf of the Commonwealth.

Item 30 - Subsection 252G(3)

121. This item repeals and substitutes subsection 252G(3) and inserts new subsection 252G(3A).

122. Subsection 252G(3) expands the circumstances in which an authorised officer may request a person do something under subsection 252G(4) if the person is about to enter an immigration detention facility operated by or on behalf of the Commonwealth. These changes will allow an authorised officer who suspects on reasonable grounds that a person about to enter an immigration detention facility has in his or her possession a prohibited thing to request that the person do one or more of the following:

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allow the authorised officer to inspect things in the person's possession;

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remove some or all of the person's outer clothing such as a oat, jacket or something similar;

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remove items from the pockets of the person's clothing;

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open a thing in the person's possession, or remove the thing's contents, to allow the authorised officer to inspect the thing or its contents;

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leave a thing, or some or all of its contents, in a place specified by the authorised officer.

123. Subsection 262G(3A) makes clear that an authorised officer may make a request for a person to do one of the things listed in subsection 252G(4) whether or not the a request has also been made under subsection 252G(1) for the person to undergo a screening procedure.

Item 31 - Paragraph 252G(4)(e)

124. This item amends paragraph 252G(4)(e).

125. The amendment expands the circumstances which an authorised officer may request a person to leave a thing in their possession if they are about to enter an immigration detention facility operated by or on behalf of the Commonwealth, to include where an officer suspects on reasonable grounds that the thing or its contents are capable of concealing a prohibited thing.

Item 32 - Subsection 252G(5)

126. This item makes a technical amendment to subsection 252G(5) to refer to subsection 252G(6) and to new subsection 252G(6A) as inserted by Item 33 of thisSchedule.

Item 33 - Subsections 252G(5) and (6)

127. This item amends subsections 252G(5) and (6) to omit the wording "detention centre" and substitute the words "immigration detention facility", as a consequence of the amendment to subsection 252G(1)

Item 34 - After subsection 252G(6)

128. This item inserts new subsections 252G(6A) and (6B).

129. The purpose of these amendments is to specify how things left in a place specified by an authorised officer by a person entering an immigration detention facility are to be dealt with where the owner or controller of the thing cannot be found, the thing is abandoned, or the thing can otherwise not be returned.

130. This subsection provides that if these circumstances apply and the authorised officer has taken all reasonable steps to return the prohibited thing to the person for the purposes of that subsection, the prohibited thing will be forfeited to the Commonwealth. Similar to section 252CA, an example of where reasonable steps to return a thing may apply would be where food has been left and the owner has been given a reasonable amount of time and has not collected the food, and the food has spoiled during this time. In this case, it would not be reasonable to return the food.

131. Where the prohibited thing has been forfeited under subsection 252G(6A), subsection 252G(6B) gives the authorised officer the power to dispose of it in any way they think appropriate.

Item 35 - Subsection 252G(7)

132. This item amends subsection 252G(7) to omit the wording "detention centre" and substitute the words "immigration detention facility", as a consequence of the amendment to subsection 252G(1).