MIGRATION ACT 1958
DIRECTION UNDER SECTION 499
POWERS CONCERNING THE ENTRY OF PERSONS TO IMMIGRATION DETENTION CENTRES
Direction no. 20
PREAMBLE:
This Direction gives guidance to officers who pursuant to section 252G of the Migration Act 1958 (the Act) may request a person about to enter a detention centre established under the Act to:
- allow themselves or an item in their possession to be screened with equipment such as a metal detector;
- allow an inspection of certain things in their possession;
- remove some or all of their outer layers of clothing or remove items from their pockets; or
- leave certain items in a specified place for the duration of their visit.
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 screening and searches of persons prior to their entry into a detention centre, as required;
- 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 persons seeking to enter detention centres;
- provides safeguards for the rights of persons being screened and searched; and
- provides appropriate levels of protection for officers in the execution of their duties.
When section 252G of the Act was drafted, a draft Protocol concerning the use of these powers was agreed to with the Attorney General. I undertook to incorporate appropriate elements of this 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.
- This direction may be cited as Direction no. 20.
RESPECT AND DIGNITY:
2. An officer exercising powers under section 252G of the Act must treat all persons seeking to enter detention centres with respect and dignity.
PRIVACY:
3. An officer exercising powers under section 252G of the Act must respect the privacy of all persons seeking to enter detention centres.
4. An officer authorised to search a person about to enter a detention centre and things in his or her possession must comply with the requirements contained in section 252G of the Act as well as with other relevant legislation, such as the Commonwealth Privacy Act 1988 (the Privacy Act).
5. In accordance with Information Privacy Principle 2 of the Privacy Act, an officer should ensure that before any personal information is obtained as a result of the exercise of powers under section 252G of the Act, a person 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. 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].
7. The use or disclosure of any personal information collected as a result of a search of a person pursuant to section 252G of the Migration Act should only be in accordance with Information Privacy Principles 10 and 11 of the Privacy Act.
8. Every reasonable effort should be made to ensure a search of a person under subsection 252G(4) is conducted in a private area if the visitor so wishes.
9. When carrying out an inspection under subsection 252G(4) of the Act, an authorised officer must not:
- frisk a person. This means that the authorised officer must not run his or her hands over a person’s outer garments while he or she is wearing those clothes nor examine anything that is contained in a person’s outer garments while he or she is wearing those clothes;
- request a person to remove an item of clothing (such as a shirt, blouse, trousers, skirt, or underwear) that would result in a compromise of the privacy and dignity of the person;
- take a photo of a person during a search or inspection; or
- pass on personal information about a person, except in accordance with the disclosure and use of personal information under the Privacy Act 1988 or any other relevant law.
10. If another officer assists with the exercise of the powers under section 252G of the Act, then he or she must also adhere to these directions.
EXERCISE OF POWERS CONCERNING THE ENTRY OF PERSONS TO DETENTION CENTRES UNDER SECTION 252G OF THE MIGRATION ACT:
11. Subject to compliance by a person with any requests made under section 252G and any other applicable law or rules, and subject to the protection of the security and good order of the centre, the privacy of detainees and the integrity of the visa decision-making process, officers should make every reasonable effort to facilitate the entry of a person to a detention centre during visiting hours.
12. Before requesting a person to do one or more of the things listed in subsection 252G(4), an authorised officer must:
- ensure that he or she is an authorised officer for the purpose of subsections 252G(3), (4), (5) and (6);
- ensure that he or she suspects on reasonable grounds that the person about to enter a detention centre has in his or her possession a thing that might endanger the safety of the detainees, staff or other persons at the detention centre; or a thing that might disrupt the order or security arrangements at the detention centre [252G(3)];
- explain to the person the reason or reasons for making the request;
- if practicable, provide access to written information to the person in a language he or she understands or, if it is practicable to do so in the circumstances, provide assistance to the person to enable him or her to understand the entry requirements for a detention centre; and
- make every reasonable effort to conduct a search in a private area if the person so wishes.
13. An authorised officer who requests a person to do one or more of the things listed in subsection 252G(4) must not:
- frisk the person. This means that the authorised officer must not run his or her hands over the person’s outer garments while he or she is wearing those clothes nor examine anything that is contained in the person’s outer garments while he or she is wearing those clothes; or
- request the person to remove an item of clothing (such as a shirt, blouse, trousers, skirt, or underwear) that would result in a compromise of the privacy and dignity of the person.
14. A person must not be forced to comply with a request made under section 252G of the Act and must not be forced to give reasons why he or she does not wish to comply with such a request.
15. If a person indicates at any stage during the screening or search processes, that he or she does not wish to proceed, the officer or officers concerned must immediately cease to exercise the powers under section 252G of the Act. In such cases the person may be refused entry pursuant to subsection 252G(7).
16. If an officer is considering refusing entry to a person who has not complied with a request made under section 252G, he or she should explain to the person the reason or reasons for refusing entry and provide him or her with an opportunity to respond.
17. If a person is refused entry to a detention centre the officer involved should inform the detainee whom the person was intending to visit, in a language that the detainee understands, of the reasons for the refusal and give the detainee an opportunity to comment.
ACCESS TO WRITTEN INFORMATION TO BE PROVIDED TO PERSONS ABOUT TO ENTER A DETENTION CENTRE:
18. A person about to enter a detention centre must, if practicable, be given access to written information in a language that he or she can understand which explains:
- the screening process;
- if he or she is requested to undergo a search, the legislative requirements for conducting a search;
- the process to be used for the search;
- the person’s rights under law with regard to the search, such as the right of the person not to undergo screening or, if requested, a search on the understanding he or she may therefore be refused entry to the centre; and
- the power to retain items the possession of which is unlawful under a Commonwealth law or in the State or Territory in which the detention centre is located.
19. If a person has reading difficulties, as far as is practicable under the circumstances, every effort should be made to provide assistance to the person so that he or she understands the detention centre entry requirements.
RECORD KEEPING REQUIREMENTS:
20. Any refusal under section 252G of the Act to allow a person to enter a detention centre must be recorded in an accurate and timely manner by the officer who makes the refusal. This includes instances where a person seeking to enter a detention centre refuses to undergo screening or, if requested, a search and, as a result, is refused entry to the centre.
DATE OF EFFECT
21. This Direction has effect from the date of signature.
Dated 27 July 2001
PHILIP RUDDOCK
Minister for Immigration and Multicultural Affairs