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Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020

The submission to the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) in relation to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the Bill) was prepared by the Law Council of Australia. 

The Migration Act 1958 (Cth) (the Migration Act) already permits authorised officers, without a warrant, to search, screen and strip search detainees, in order to find out if there is hidden on the person, or in their clothing or possessions, a weapon or escape aid (including a thing capable of being used as a weapon or escape aid). The use of such force as is reasonably necessary to conduct these searches, screening procedures or strip searches is already permitted, as is the seizure of these items. These existing powers incorporate fewer safeguards than comparable police powers to search a person or premises.

The Law Council supports effective management of safety in immigration detention facilities. However, this must occur in accordance with the rule of law. The powers granted to the Minister and authorised officers must be justified and subject to appropriate oversight and safeguards.

If there are criminal activities taking place in immigration detention facilities, then the Law Council suggests that police should be notified and standard criminal law processes should be followed, including police obtaining a warrant to search for and seize evidentiary material that may be used to commit a criminal offence. This is the normal occurrence across Australian jurisdictions. The Law Council does not agree with the Bill’s proposed response to dealing with criminal activity, which would allow the Minister to prevent whole populations from possessing everyday items - particularly items which are critical to the provision of legal information and advice, such as mobile phones.

The Law Council’s position is that the Bill should not be passed, as the case has not been made that it is necessary, reasonable or proportionate.

You can read the full submission below.

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