Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017
The Bill seeks to impose more stringent measures governing those housed in immigration detention facilities (IDFs). Broadly, it provides for:
- A definition of ‘immigration detention facility’ as a ‘detention centre’ under section 273 Migration Act 1958 (Cth) (Migration Act), or another place ‘approved by the Minister in writing’;
- Ministerial determination, by legislative instrument, of what will be considered a ‘prohibited thing’ within IDFs. This confers a wide discretion on the Minister to determine what items may be confiscated after screening and search;
- Search of persons and immigration detention facilities without a warrant or reasonable suspicion; and
- Strengthening of screening, search and seizure powers, including by way of strip search and use of detector dogs.
The Law Council supports the effective management of IDFs that operate in accordance with the rule of law. It also recognises the many challenges the Australian Government faces as it seeks to address difficulties that might arise regarding immigration detention and appreciates that the development of solutions requires careful consideration.
However, the Law Council does not support the Bill in its current form for the following reasons:
- The broad approach to defining a ‘prohibited thing’ does not appear to be necessary or proportionate when considered in the context of the objectives of the measure.
- The discretion granted to the Minister to declare by legislative instrument a ‘prohibited thing’ raises a concern that these aspects may amount to an inappropriate delegation of legislative power.
- The proposed new coercive powers in the Bill are similar to powers that apply in a criminal law context. It is not proportionate to apply such powers in the case of immigration detention where detainees are innocent and vulnerable people, including asylum seekers and refugees to whom Australia may owe protection obligations under international law.
- There is no requirement for there to be, as a minimum, a reasonable suspicion before the proposed coercive powers in the Bill are exercised.
You can read the full submisson below.