ARJ17 v Minister for Immigration and Border Protection

ARJ17 and SZSZM, individuals detained in Australian immigration detention facilities, challenged the legality of a policy implemented by the Minister for Immigration and Border Protection, which mandated the confiscation of all mobile phones and SIM cards from detainees. The policy was enacted to mitigate risks such as detainee escape, contraband importation, and exposure to inappropriate content. The applicants argued that the policy was not authorised by the Migration Act 1958 (Cth) and was therefore invalid, as well as being an unconstitutional exercise of executive power. The court was required to determine whether the blanket policy for confiscating mobile phones and SIM cards from detainees was authorised by the Migration Act, and whether the blanket policy constituted a valid direction under the Public Service Act 1999 (Cth).

The court found that the blanket policy was not authorised by the Migration Act. The provisions of the Act that might be thought to confer power to confiscate detainees’ mobile phones and SIM cards were examined and found to be insufficient. The court noted that Section 252 of the Act allows for searches of detainees for weapons or items capable of assisting with escape, but does not authorise the confiscation of mobile phones and SIM cards as a blanket policy. The court also found that the power to maintain detention centres under Section 273 of the Act was not intended to authorise the blanket confiscation of detainees’ property. Furthermore, the power to detain under Section 5(1) of the Act was not broad enough to justify the confiscation of mobile phones and SIM cards as part of a blanket policy. The blanket policy, therefore, did not fall within the ambit of the powers conferred by the Act, rendering it invalid.

The court concluded that the blanket policy was invalid as it was not authorised by the Migration Act. The compulsory confiscation of mobile phones and SIM cards from detainees in compliance with the policy would constitute a trespass or conversion of the detainees’ property. As a result, the application was successful, and the appeal was allowed. The parties were directed to provide draft orders to give effect to the court's reasons for judgment. The court also noted that the name of the third respondent should be amended to the Secretary of the Department of Home Affairs.