Migration Act 1958 Direction under section 499 Strip Search of Immigration Detainees (Direction No. 25 of 2001) (Cth)

MIGRATION ACT 1958

DIRECTION UNDER SECTION 499

STRIP SEARCH OF IMMIGRATION DETAINEES

Direction No. 25

PREAMBLE

This Direction gives guidance to officers and magistrates who pursuant to sections 252A, 252B, 252C and 252D of the Migration Act 1958 (the Act) may:

·    authorise a strip search of immigration detainees; or

·    conduct a strip search of immigration detainees; or

·take possession of, and retain, a thing found in the course of a strip search.

The legislative provisions and this Direction reflect the need to provide a sound framework which:

·recognises the need for the Department of Immigration and Multicultural Affairs (the Department), in furtherance of the duty of care owed to, and its responsibilities for the safety and security of, all immigration detainees, staff and other persons at detention centres, to lawfully conduct strip searches of detainees if and when the circumstances require it;

·    provides the Department with the powers to meet its obligations with regard to managing and maintaining the good order or security arrangements of detention centres; 

·    reflects community expectations of the preservation of the dignity and privacy entitlements of detainees; 

·    provides safeguards for the rights of detainees undergoing a strip search; and 

·provides appropriate levels of protection for officers in the execution of their duties.

The power to strip search a detainee is necessarily intrusive and can be an extremely embarrassing experience for the detainee. As such, it is a measure of last resort. It is not a power that will be used lightly nor as a routine procedure.

When sections 252A, 252B, 252C and 252D of the Act were drafted, a draft Protocol concerning the use of these powers was agreed with the Attorney-General. I undertook to incorporate appropriate elements of that draft Protocol into a written Direction pursuant to section 499 of the Act.

THEREFORE I, Philip Maxwell Ruddock, the Minister for Immigration and Multicultural Affairs, hereby give the following Direction pursuant to section 499 of the Act.

1.      This direction may be cited as Direction No. 25.

RESPECTANDDIGNITY

2. An authorised officer conducting a strip search of a detainee under sections 252A and 252B of the Act must treat the detainee with respect and dignity as far as it is possible to do so.

PRIVACY

3. An authorised officer conducting a strip search of a detainee under sections 252A and 252B of the Act must respect the privacy of detainee as far as it is possible to do so.

4.      An authorised officer conducting a strip search of a detainee must comply with the Commonwealth Privacy Act 1988 (the Privacy Act) as well as other relevant legislation.

5. In accordance with Information Privacy Principle 2 contained in section 14 of the Privacy Act, an authorised officer should ensure that before any personal information is obtained as a result of the exercise of the power under section 252A of the Act, a detainee is made aware of:

-      the purpose for which the personal information is being collected;

-      any legal authority for the collection; and

-      any person, body or agency to which the information to be collected is normally disclosed.

6. An authorised officer must not use or disclosure any personal information collected as a result of a search of a person pursuant to section 252A of the Act other than in accordance with Information Privacy Principles 10 and 11 of the Privacy Act.

7.      For the purposes of clause 5 and clause 6, personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion (Privacy Act, s.6).

8. When conducting a strip search of a detainee under section 252A of the Act an authorised officer must not do any of the following:

·    request a detainee to adopt certain postures or positions during the strip search that compromise the privacy and dignity of the detainee;

·    take a photo of a detainee when he or she has been stripped;

·pass on personal information about the detainee, except in accordance with the disclosure and use of personal information under the PrivacyActand other relevant laws.

9. If another officer or person assists with the conduct of a strip search of a detainee pursuant to subsection 252B(5) of the Act, then he or she must also adhere to these directions.

CONDUCTING A STRIP SEARCH

10.      A strip search must be conducted:

i.      on the grounds of reasonable suspicion pursuant to subsections 252A(3) and (3A);

ii.      in a private area;

iii.     by an officer authorised to conduct strip searches;

iv.     by an authorised officer of the same sex as the detainee;

v.      for a detainee aged 18 years and over, after appropriate authorisation has been obtained from the Secretary of the Department (the Secretary) or a Senior Executive Service (SES) Band 3 employee such as the Deputy Secretary or an officer who has been temporarily assigned these duties;

vi.     for a detainee aged at least 10 but under 18 years, after appropriate authorisation by an Order of a Magistrate; and

vii.    according to the rules for conducting a strip search as set out in the Act (s252B).

11.      A strip search must not:

i.      subject the detainee to greater indignity than is reasonably necessary to conduct the search;

ii.     be conducted as a matter of routine;

iii.     be conducted other than on the grounds of reasonable suspicion referred to in subsection 252A(3) and (3A) of the Act;

iv.     be conducted without the appropriate authority;

v.      be conducted on a detainee under 10 years old;

vi.     be conducted by an officer who is not an authorised officer for the purposes of conducting the strip search;

vii.    be conducted in an area that is not private;

viii.    be conducted in the presence or view of another person unless:

(a)      that person is the parent or guardian of a detainee who is at least 10 and under 18 years of age or who is incapable of managing his or her affairs and that parent or guardian is in immigration detention with the detainee and is readily available at the same place; or

(b)      in the absence of the parent or guardian of a detainee referred to in paragraph (a), that person is another person who can represent the interests of the detainee, who has agreed to be present, and, as far as practicable in the circumstances, is acceptable to the detainee (s252B(1)(g)(ii)); or

(c)      for a detainee over 18 years and capable of managing his or her affairs, that person has been nominated by the detainee to attend the strip search and is readily available at the same place as the detainee and is willing to attend the search within a reasonable time; or

(d)      that person is assisting with the search because the authorised officer conducting the search believes his or her assistance is necessary;

ix.      be conducted by an authorised officer who is not of the same sex as the detainee;

x.      be conducted in the presence of someone who is not of the same sex as the detainee unless:

(a)      that person is the parent or guardian of a detainee who is at least 10 and under 18 years of age or who is incapable of managing his or her affairs and that parent or guardian is in immigration detention with the detainee and is readily available at the same place; or

(b)      in the absence of the parent or guardian of a detainee referred to in paragraph (a), that person is another person who can represent the interests of the detainee, who has agreed to be present, and, as far as practicable in the circumstances, is acceptable to the detainee (s252B(1)(g)(ii)); or

(c)      for a detainee over 18 years and capable of managing his or her affairs, that person has been nominated by the detainee to attend the strip search and is readily available at the same place as the detainee and is willing to attend the search within a reasonable time; or

(d)      that person is a medical practitioner who is assisting with the search because the authorised officer conducting the search believes his or her assistance is necessary and a medical practitioner of the same sex as the detainee is not available within a reasonable time;

xi.     involve a search of the detainee’s body cavities;

xii.    involve the removal of more items of clothing, or more visual inspection, than is necessary;

xiii.   involve the use of greater force than is reasonably necessary; and

xiv.   contravene the requirements set out at Clause 8 of this Direction.

12.      Prior to seeking authorisation for a strip search, every reasonable effort should be made by an officer to advise another officer – such as one of the officer’s line managers or an officer authorised to conduct strip searches – of his or her suspicions and of any course of action he or she believes it is necessary to take.

13.      An officer authorising a strip search for a detainee aged over 18 years must:

i.      be the Secretary or an SES Band 3 employee of the Department such as the Deputy Secretary or an officer who has been temporarily assigned duties that have been allocated a classification of SES Band 3;

ii.      have undergone the appropriate training set out at clause 33 of this Direction;

iii.      be satisfied that there are reasonable grounds for suspecting that:

·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); and 

·it is necessary to conduct a strip search of the detainee to recover that weapon or other thing;

after hearing in detail (whether in writing or orally) the grounds for those suspicions;

iv.     be satisfied that the officer who will conduct the strip search is authorised for the purpose; and

v.      record the authorisation in writing and sign it within one business day after it is given. Authorisation for a strip search to be conducted may be given by telephone, fax or other electronic means.

14.      A magistrate authorising a strip search for a detainee who is at least 10 and under 18 years of age must:

i.      be satisfied that there are reasonable grounds for suspecting that:

·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); and

·it is necessary to conduct a strip search of the detainee to recover that weapon or other thing;

after hearing in detail (whether in writing or orally) the grounds for those suspicions;

ii.      be satisfied that the officer who will conduct the strip search is authorised for the purpose; and

iii.     record the authorisation in writing and sign it within one business day after it is given. Authorisation for a strip search to be conducted may be given by telephone, fax or other electronic means.

15.      An officer conducting a strip search must:

i.      be an officer authorised to conduct strip searches;

ii.      ensure he or she has the appropriate authorisation for the search before conducting it;

iii.     ensure the rules for conducting a strip search as set out in the Act (s252B) are followed;

iv.     ensure the procedures concerning the provision of information as set out in clauses 22-29 are complied with prior to conducting the strip search;

v.      ensure that the search is properly and accurately recorded;

vi.     ensure that, if he or she takes possession of and retains an item or items found during the search, then the relevant provisions of the Act are followed (s252C); and

vii.    ensure that the detainee is given a copy of the Acknowledgment Form and of a receipt should an item or items found during the search be retained.

16.      A detainee who is at least 10 but under 18, or is incapable of managing his or her affairs, and who has undergone a strip search is to be offered counselling after the search has been conducted.

17.      If considered necessary, every effort should be made on the part of an officer authorised to conduct a strip search to seek the assistance of another person during the search. Apart from assisting the officer with the strip search, that person can also act as a witness to the proceedings. This is important to help ensure that correct procedures are followed at all stages of the search. Such a person might include another officer in the detention centre, an interpreter or a medical practitioner.

18.      A person who authorises a strip search must not be the officer who forms the suspicion on reasonable grounds referred to in paragraphs 252A(3)(a)&(b) or participate in conducting a strip search of the detainee.

SUSPICION ON REASONABLE GROUNDS

19.      The bases on which an officer may form a suspicion on reasonable grounds under paragraph 252A(3)(a) that there is hidden on the detainee, in his or her clothing, or in his or her possession a weapon, or other thing specified in subsection 252A(1), are provided in subsection 252A(3A) as the following:

(a)      a search conducted under section 252 (whether by that officer or another officer); or

(b)      a screening procedure conducted under section 252AA (whether by that officer or another officer); or 

(c)      any other information that is available to the officer.

20.      For the purposes of subsection 252A(3A), other information available to the officer may include, but is not limited to:

i.      information from a witness that the detainee has such a weapon or other such thing hidden on his or her person.

A witness could, for example, be an eyewitness or someone otherwise able to give detailed information;

ii.      unusual behaviour of a detainee who has in the past been found with a weapon or other such thing; for example, a detainee who has self-harmed in the past with a hidden razor blade;

iii.     answers given to questions asked by an officer in performing his or her functions under the Act;

iv. the visible outline of something weapon-like hidden in the person’s clothes that the detainee will not reveal on request and which cannot be checked or removed using the frisk search power at section 252 of the Act.

21.      Reasonable grounds for suspicion under paragraph 252A(3)(b) that it is necessary to conduct the strip search of the detainee to recover the weapon or thing could include but is not limited to:

·refusal by a detainee on request to identify or hand over to an officer a weapon or thing reasonably suspected to be hidden on his or her person.

ACCESS TO WRITTEN INFORMATION TO BE PROVIDED TO DETAINEES TO BE STRIP SEARCHED

22.      A detainee who is to undergo a strip search must be provided with information, in writing and in a language that he or she understands, which explains:

·the reason for the strip search;

·the process for conducting a strip search;

·that, if the detainee so wishes, an interpreter will be made available where at all possible in person or by telephone; and

·the detainee’s rights under law with regard to the strip search.

23.      If a detainee is illiterate, has difficulties reading or processes information better when it is given orally, an interpreter must be provided to explain the written information to the detainee. Access to the interpreter may be by telephone.

24.      The officer authorised to conduct the strip search must give the detainee adequate time to read the information and to ask any questions about the strip search.

25.      Every effort should be made by the officer authorised to conduct the strip search to assist the detainee in order to ensure that he or she either reads the written information or, with the assistance of an interpreter, is made aware of the information.

26.      Before a strip search is conducted, a detainee should be asked to sign an Acknowledgment Form acknowledging that he or she has been given:

i. information explaining the effect of sections 252A and 252B of the Act; and

ii.     adequate time to read the information.

27.      If the detainee refuses to sign the form, this refusal does not prevent the strip search from proceeding.

28.      A copy of the Acknowledgment Form is to be offered to the detainee, in writing and in a language that he or she understands, even if he or she has refused to sign it.

29.      If the detainee refuses to sign the Acknowledgment Form, the officer authorised to conduct the strip search must record the refusal on the Form and the grounds for the refusal if those grounds are given.

USE OF REASONABLE FORCE WHEN CONDUCTING A STRIP SEARCH

30. If a detainee refuses to undergo a strip search under section 252A of the Act and it appears that reasonable force may be required, the authorised officer conducting the strip search must:

i.      advise the detainee that paragraph 252B(1)(k) allows reasonable force to be used in order to conduct a strip search;

ii.      advise the detainee that unless cooperation is forthcoming, the authorised officer intends to use reasonable force in order to conduct the strip search;

iii.     allow the detainee a reasonable period in which to voluntarily remove any items of clothing that are necessary for the conduct of the strip search;

iv.     if necessary, seek the assistance of another person prior to conducting the strip search.

31. If reasonable force is required in order to conduct a strip search under section 252A of the Act, an authorised officer who intends to use reasonable force must have regard to the following principles when deciding the level of force required:

i.      it is a matter for the judgement of the authorised officer as to the level of force required in each particular situation but the level of force used must be objectively justifiable as reasonable;

ii.      the amount of force used will not be reasonable unless it is proportionate to the amount of resistance offered by the detainee;

iii.     reasonable force should only be used when no other options are available (refer to clause 30).

32.      If reasonable force is used during the conduct of a strip search, the authorised officer who conducted the strip search should record in an accurate and timely manner the circumstances surrounding his or her use of reasonable force (refer to clause 36(ix) under “Record Keeping Requirements”).

TRAINING

33.      The Secretary or an SES Band 3 employee must not authorise a strip search pursuant to subparagraph 252A(3)(c)(i) unless he or she has received training in the relevant legislative and policy requirements, including:

i.      the power to conduct a strip search;

ii.     the grounds for authorising and conducting a strip search;

iii.    the pre-conditions for a strip search;

iv.    the role of officers authorising a strip search;

v.      record keeping; and

vi.     reporting requirements.

34.      An officer must not be made an authorised officer for the purpose of conducting a strip search under section 252A unless he or she has received and satisfactorily completed training in the relevant legislative and policy requirements, including:

i.      civil rights and liberties;

ii.     cultural awareness;

iii.    the grounds for conducting a strip search;

iv.     the pre-conditions for a strip search;

v.      the role of officers involved in conducting a strip search;

vi.     the procedures for conducting a strip search;

vii.    the procedures relating to items retained during a search;

viii.   record keeping; and

ix.     reporting.

POLICE CLEARANCES

35.      An officer must not be made an authorised officer for the purpose of conducting a strip search under section 252A unless he or she has had his or her police clearance updated.

RECORD KEEPING REQUIREMENTS

36.      An authorised officer must maintain an accurate record of all strip searches. The following information should be included in that record:

i.      the name of the detainee who underwent the strip search;

ii.      where and when the strip search was conducted;

iii.     why the strip search was conducted;

iv.     the names of the officers who:

(a)      formed the reasonable suspicion (s.252A(3)(a) and (b));

(b)      sought the authorisation for the strip search; and

(c)      conducted the strip search (s.252A(1)).

v.      if the detainee is aged at least 18 years, the name of the officer who authorised the strip search and the record of authorisation by that officer (s.252A(3)(c)(i));

vi.     if the detainee is aged at least 10 but under 18 years, a copy of the Order of a Magistrate authorising a strip search of that detainee (s.252A(3)(c)(ii));

vii.     whether a partial or full strip search was conducted;

viii.    whether a weapon or other thing was obtained from the strip search and, if so, what was done with them;

ix.      whether the detainee co-operated or not and, if reasonable force was used, the circumstances surrounding his or her use of reasonable force; and

x.      any other matters relevant to the conduct of the strip search

37. Personal information contained in a record of a strip search must be handled in accordance with the Privacy Act. Any statistical information derived from the record of strip searches must only be disclosed in an aggregated, de-identified form unless otherwise required by law.

REPORTING REQUIREMENTS

38. An authorised officer must report to the DIMA Business Manager, as soon as reasonably practicable, on the use of the powers under section 252A of the Act so the DIMA Business Manager can notify the Minister and the Secretary within 24 hours of the authorisation for the strip search being given.

DATE OF EFFECT

This Direction has effect from 28 September 2001.

Dated 27th September 2001

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs