Migration (Prohibited Things) Determination 2025

EXPLANATORY STATEMENT

Issued by authority of the Minister for Home Affairs and Minister for Immigration and Citizenship

Migration Act 1958

The instrument Migration (Prohibited Things) Determination 2025 (departmental reference LIN 25/068) is made under subsection 251A(2) of the Migration Act 1958 (the Migration Act) for the purposes of subsection 251A of the Act.

Purpose

Section 251A of the Migration Act provides that the Minister may determine that a thing is, in certain circumstances, a prohibited thing in relation to a person in detention (whether or not the person is detained in an immigration detention facility) or in relation to an immigration detention facility.

The instrument determines controlled drugs and controlled precursors as prohibited things under paragraph 251A(2)(a) of the Migration Act. The instrument also determines the following things as prohibited things under paragraph 251A(2)(b) of the Migration Act:

alcohol;
a mobile telecommunications device;
a Subscriber Identity Module (SIM) card;
an internet-capable device.

Details

The instrument commences on the later of the following days:

26 November 2025; and
the day after the instrument is registered on the Federal Register of Legislation.

Further details of the instrument are set out in Attachment A.

Conditions

For the Minister to make a legislative instrument under subsection 251A(2) to determine a thing for the purposes of subsection 251A(1), the Minister must be satisfied that either:

possession of the thing is prohibited by law in a place or places in Australia; or
possession or use of the thing in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

The Minister is satisfied of the relevant matters referred to in subsection 251A(2) of the Migration Act in order to exercise the power to make the instrument. For each thing determined in subsection 5(1) of the instrument under paragraph 251A(2)(a) of the Act, the Minister is satisfied that possession of the thing is prohibited by law in a place or places in Australia. For each thing determined in subsection 5(2) of the instrument under paragraph 251A(2)(b) of the Act, the Minister is satisfied that possession or use of the thing in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility. Further detail in relation to these matters is provided in the Explanatory Statement and its Attachments.

Parliamentary scrutiny and other matters

Subsection 251A(4) of the Migration Act provides that despite any regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003 (the Legislation Act), section 42 of that Act (relating to the disallowance of legislative instruments) applies to a legislative instrument made under subsection 251A(2) of the Migration Act.

This has the effect that this instrument is a disallowable legislative instrument. Table item 20 of regulation 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (LEOMR) would otherwise provide that section 42 of the Legislation Act does not apply to the instrument, as an instrument made under Part 2 of the Migration Act.

As the instrument is disallowable, a Statement of Compatibility with Human Rights has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that to the extent that the proposed measures may limit human rights, those limitations are reasonable, necessary and proportionate to achieving the legitimate objective of ensuring a safe and secure environment for those who visit, work at, or are detained in, an immigration detention facility. More information is in the Statement of Compatibility at Attachment B.

Consultation and related matters

The Department of Home Affairs (the Department) consulted the Department of Health, Disability and Ageing regarding the specification of internet-capable devices and mobile devices, particularly in relation to the approach to dealing with internet-enabled medical devices. The outcome of this consultation informed the approach to ensuring appropriate arrangements are in in place to give full effect to a detainee’s access to healthcare, consistent with established departmental policies and practices in immigration detention facilities. The instrument gives effect to provisions in the Migration Act that were inserted by the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Act 2024, which was considered in November 2024 by the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills. The Department’s responses and the outcome of each scrutiny committee is available on the Parliament of Australia website.

The legislative framework established by the Amendment Act, and related matters concerning items determined to be prohibited things, has also been the subject of previous inquiry and report by the Senate Legal and Constitutional Affairs Legislation Committee, in relation to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 and the earlier Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017. Matters from the Committee reports on those earlier Bills also informed the approach to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024, including the inclusion in the Bill of additional safeguards in relation to providing for alternative means of communication in certain circumstances and for certain purposes. Engagement with and reports by the Australian Human Rights Commission (AHRC),the Commonwealth Ombudsman and other bodies have also informed policy development, noting for example the AHRC’s Yongah Hill Immigration Detention Centre Inspection Report (April 2024).[1] No additional external consultation was undertaken in relation to the instrument.

ATTACHMENT A

Details of the Migration (Prohibited Things) Determination 2025

Section 1 – Name of Instrument

This section sets out the name of the instrument, which is the Migration (Prohibited Things) Determination 2025.

Section 2 – Commencement

This section provides that the instrument commences on the later of the following days:

26 November 2025; and
the day after the instrument is registered on the Federal Register of Legislation.

Section 3 – Authority

This section provides that this instrument is made under subsection 251A(2) of the Migration Act 1958 (Migration Act).

Section 4 – Definitions

This section provides definitions for a number of terms that are used in the instrument.

Alcohol and related terms

The term ‘alcohol’ is defined to include any of the following:

an alcoholic beverage;
any liquid containing alcohol;
homemade alcohol;
any container, receptacle or package that is being used, or has recently been used, to contain, hold or package alcohol.

The reference to ‘alcohol’ is intended to include various forms of alcohol such as ethanol and methanol.

The use of the word ‘includes’ in the definition of alcohol indicates that the things set out in paragraphs (a)-(d) of the definition of alcohol are not intended to be exhaustive. In addition, a substance may potentially fall within any one or more of paragraphs (a)-(d). For example, even if a substance may not fall within the term homemade alcohol, it may still potentially fall within the term any liquid containing alcohol.

Alcoholic beverage

The meaning of alcoholic beverage incorporates by reference the meaning given by section 95 of the Customs Regulation 2015 (the Customs Regulation) as in force from time to time. It is noted that the Customs Regulation will sunset on 1 April 2027, at which time the instrument will be updated accordingly.

The term alcoholic beverage is intended to cover commercially made alcoholic beverages wholly or substantially in their original form and container (including any partially consumed amounts). Section 95 of the Customs Regulation defines alcoholic beverage as ‘a good that is classified under tariff heading 2203, 2204, 2205, 2206 or 2208’. These tariff headings refer to the following:

2203: Beer made from malt
2204: Wine of fresh grapes, including fortified wines;
2205: Vermouth and other wine of fresh grapes flavoured with plants or aromatic substances
2206: Other fermented beverages (for example, cider, perry, mead, saké); mixtures of fermented beverages and mixtures of fermented beverages and non-alcoholic beverages, not elsewhere specified or included
2208: Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80% vol; spirits, liqueurs and other spirituous beverages.

Liquid containing alcohol

The term any liquid containing alcohol is intended to cover any alcohol in any liquid form, and any liquid that is a mixture between alcohol and another substance. This includes for example an alcoholic beverage that has been poured into another container such as a water bottle. It also includes alcohol that has been mixed with any other liquid such as water, juice or soft drinks. This term is also intended to cover products containing denatured alcohol.

Homemade alcohol

The term homemade alcohol is defined to mean any substance that consists of or contains any of the things set out in paragraphs (a)-(c) of the definition.

Paragraph (a) of the definition of homemade alcohol mentions any organic substance that has undergone, or is undergoing, a homemade alcohol process.

The term organic substance, in the context of the definition of homemade alcohol, is intended to include:

alcohol (ethanol or methanol);
any fruit or vegetable substances;
any other organic substances that could potentially undergo alcoholic fermentation or facilitate or enable such a process.

Ordinary food and drink items are only intended to be covered by the instrument to the extent they are covered by the definition of alcohol, and particularly under the related definition of homemade alcohol. These items are not intended to be determined as prohibited things outside this context. Importantly, while fruit and vegetables may be used in the production of homemade alcohol, the definition of homemade alcohol in the instrument makes clear that organic substances are only in scope where they have undergone or are undergoing a homemade alcohol process (a term that is also defined in the instrument). Fruit, vegetables etc that have not undergone (or are not undergoing) such a process are not in scope of the instrument, particularly reflecting that fruit forms an important part of a balanced diet and is readily available to detainees.

Paragraph (b) of the definition of homemade alcohol mentions any product, byproduct or resulting substance of a homemade alcohol process. This includes any such substance, whether or not it was the intended outcome of the process. Paragraph (b) includes any alcohol that is produced along any other substances such as waters, sugars or other chemicals. For example, if the product that is produced is homemade beer, then the whole of the product falls within the definition of homemade alcohol.

Paragraph (c) of the definition of homemade alcohol clarifies that the definition includes any mixture between a substance referred to in paragraph (a) or (b) and any other substance. For example, if water, soft drink, juice or any other substance is mixed in with a substance referred to in paragraph (a) or (b) of the definition, the whole of the resulting substance would fall within paragraph (c).

A substance may fall within the definition of homemade alcohol whether it is liquid, solid or in any other form. A substance may be homemade alcohol whether it is for personal consumption or commercial usage.

The definition of homemade alcohol clarifies that a substance may fall within the definition whether or not it contains any alcohol.

Homemade alcohol process

The term homemade alcohol process means any process that is:

wholly or partly improvised, non-professional or non-commercial; and
capable of (or if carried out correctly, would be capable of) causing, enabling or facilitating the production of any substance consisting of, or containing any, alcohol.

The term ‘wholly or partly improvised, non-professional or non-commercial’ refers to any process outside of a professional or commercial alcohol production process. Broadly speaking, this is intended to include any process outside of a process conducted under a licence under the Excise Act 1901. For example, it includes improvised attempts to produce alcohol by placing fruit, vegetables or other organic substances in a container with a substance such as sugar or yeast to encourage alcoholic fermentation. It also includes non-professional or non-commercial methods such as commercially available kits for the production of homemade alcoholic drinks such as beer.

The phrase ‘capable of (or if carried out correctly, would be capable of)’ means that any process may be included, whether or not is capable of producing any alcoholic substance. For example, even if a process of attempted homemade alcohol production was not carried out correctly and would not be capable of making any alcoholic substance, that process may still be a homemade alcohol process under the definition.

The phrase ‘causing, enabling or facilitating the production of any substance consisting of, or containing any, alcohol’ refers to direct causation of alcohol production. It also refers to a process that enables or facilitates the production of alcohol.

The definition of homemade alcohol process clarifies that a process may fall within the definition even if it has not yet reached the stage of, or is unsuccessful in, producing any alcohol.

A process may be a homemade alcohol process whether it occurs inside or outside an immigration detention facility (IDF).

Container, receptacle or package

The definition of alcohol in the instrument includes reference to ‘any container, receptacle or package that is being used, or has recently been used, to contain, hold, or package alcohol’. This is intended to ensure that an authorised officer under the Migration Act is able to search for and seize the container etc, in addition to the material inside.

The reference to the container etc having ‘recently been used’ to contain etc alcohol could cover for example a situation in which a substance falling within the definition of ‘alcohol’ under the instrument had recently been poured out of a container in an attempt to frustrate the exercise of relevant search or seizure powers under the Migration Act.

Controlled drug

The term controlled drug is defined to mean:

a substance (other than a growing plant) of any quantity listed in the table in clause 1 of Schedule 1 to the Criminal Code Regulations 2019 (the Criminal Code Regulations) as in force from time to time (a listed controlled drug); and
a drug analogue of a listed controlled drug.

The definition of controlled drug is intended to reflect the meaning of controlled drug set out in paragraphs 301.1(1)(a)-(b) of the Criminal Code.

The definition of ‘controlled drug’ in this instrument incorporates by reference the table in clause 1 of Schedule 1 to the Criminal Code Regulations as in force from time to time.

The policy intention of this approach is to ensure that the definition of controlled drug for the purposes of this instrument is responsive to any changes that occur over time. The list of substances in clause 1 of Schedule 1 to the Criminal Code Regulations can be amended as appropriate, without the need to make any corresponding amendments to this instrument.

Controlled precursor

The term controlled precursor is defined to mean:

a substance (including a growing plant) of any quantity listed in the table in section 13 of the Criminal Code Regulations as in force from time to time; and
a salt or ester of a substance that is so listed.

The definition of controlled precursor is intended to reflect the meaning of controlled precursor set out in paragraphs 301.3(1)(a)-(b) of the Criminal Code.

The definition of controlled precursor in this instrument incorporates by reference the table in section 13 of the Criminal Code Regulations as in force from time to time.

The policy intention of this approach is to ensure that the definition of controlled precursor for the purposes of this instrument is responsive to any changes that occur over time. The list of precursors in section 13 of the Criminal Code Regulations can be amended as appropriate, without the need to make any corresponding amendments to this instrument.

Internet-capable device

The term internet-capable device is defined to mean a computer or other electronic device that is used, or is capable of being used, in connection with an internet carriage service.

The term internet-capable device means an electronic device that is capable of connecting to the internet in any manner including:

by using Wi-Fi
through a data connection such as 4G or 5G
by using a hard-wired connection such as an Ethernet cable
via a network
using a physical Subscriber Identity Module (SIM) card or an electronic SIM (eSIM)
using a ‘hotspot’ connection via another device (tethering).

For these purposes, the term ‘internet-capable device’ also covers any type of internet connection, including via fibre optic cable such as NBN, phone line, DSL, cable, fixed wireless or satellite.

Examples of internet-capable device intended to be included within the definition include:

smartphones or mobile devices that can connect to the internet;
tablets;
smart watches;
personal computers (whether desktop, tower or laptop);
gaming consoles (whether handheld or console).

The term internet carriage service is defined to take its meaning from that term in section 7 of the Telecommunications Act 1997 (Telecommunications Act). At the time of making of this instrument, it was defined as ‘a carriage service that enables end‑users to access the internet’. Section 7 of the Telecommunications Act defined ‘carriage service’ to mean ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’.

Mobile telecommunications device

The term mobile telecommunications device is defined to take its meaning from that term in section 473.1 of the Criminal Code. Section 473.1 of the Criminal Code defines mobile telecommunications device as ‘an item of customer equipment (within the meaning of the Telecommunications Act 1997) that is used, or is capable of being used, in connection with a public mobile telecommunications service’.

For this instrument, the term mobile telecommunications device is intended to include mobile phones and any other devices that fall within the relevant definition. The term is intended to include smartphones. It is also intended to include ‘dumb phones’, such as phones limited to making and receiving phone calls and text messages.

This is consistent with the note to subsection 251A(2) of the Migration Act. Paragraph (a) of that note gives ‘mobile phone’ as an example of a thing that may be determined to be a prohibited thing under paragraph 251A(2)(b) of the Act.

Smart watches that can connect to public mobile telecommunications services are also intended to be included as ‘mobile telecommunications devices’.

It is intended that where there is any overlap between the definitions of ‘internet-capable device’ and ‘mobile telecommunications device’, an authorised officer under the Migration Act could search for and/or seize the thing as falling within either or both categories (assuming the relevant requirements of the Migration Act were met).

For the purposes of this instrument, a device may be a ‘mobile telecommunications device’ even if it cannot connect to the internet. A device may also be a ‘mobile telecommunications device’ whether it uses a physical Subscriber Identity Module (SIM) card or an electronic SIM (eSIM).

Section 5

Section 5 of the instrument determines certain things as prohibited things for the purposes of subsection 251A(1) of the Migration Act under subsection 251A(2) of the Migration Act.

Section 251A was inserted into the Migration Act by the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Act 2024.

Section 251A of the Migration Act 1958

Subsection 251A(1) of the Migration Act provides for when a thing is a prohibited thing in relation to a person in detention (whether or not the person is detained in an immigration detention facility (IDF)), or in relation to an IDF.

Under subsection 251A(1) of the Migration Act, a thing will be a prohibited thing if:

possession of that thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained or in which the facility is located and the thing is determined by a legislative instrument under paragraph 251A(2)(a) of the Act; or
that thing is determined by the Minister by legislative instrument under paragraph 251A(2)(b) of the Act.

Subsection 251A(2) of the Migration Act enables the Minister to determine, by legislative instrument, a thing as a prohibited thing for the purposes of subsection 251A(1) if the Minister is satisfied that:

possession of the thing is prohibited by law in a place or places in Australia; or
possession or use of the thing in an immigration detention facility might be a risk… to the health, safety or security of persons in the facility, or to the order of the facility.

The effect of the determination of a thing as a prohibited thing is to enliven relevant powers under the Migration Act (including powers under Division 13 of Part 2 of the Act), which provide that an authorised officer ‘may’ search for and seize the thing in relation to a person in detention or in relation to an immigration detention facility.

Determination under paragraph 251A(2)(a) of the Migration Act

Paragraph 251A(2)(a) of the Migration Act provides that the Minister may, by legislative instrument, determine a thing as a prohibited thing if the Minister is satisfied that possession of the thing is prohibited by law in a place or places in Australia.

Subsection 5(1) of the instrument determines that, for the purposes of subsection 251A(1) of the Migration Act, controlled drugs and controlled precursors are prohibited things. The terms controlled drug and controlled precursor are defined in section 4 of the instrument.

Subsection 308.1(1) of the Criminal Code provides that:

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance is a controlled drug, other than a determined controlled drug.

Subsection 308.2(1) of the Criminal Code provides that:

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the person intends to use any of the substance to manufacture a controlled drug; and

It is noted that paragraph 308.2(1)(b) of the Criminal Code provides that possession of a controlled precursor is only prohibited if the person intends to use any of the substance to manufacture a controlled drug. Accordingly, the power to search for and/or seize a controlled precursor as a prohibited thing under the Migration Act may only be exercised where the person intends to use any of the substance to manufacture a controlled drug.

Accordingly, the Minister is satisfied that possession of a controlled drug is prohibited by law across the whole of the Commonwealth under section 308.1 the Criminal Code. The Minister is also satisfied that possession of a controlled precursor is prohibited by law across the whole of the Commonwealth under section 308.2 of the Criminal Code.

As noted in paragraph 24 of the Explanatory Memorandum for the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024 (the Bill EM):

Controlled drugs are introduced to detention facilities by visitors, through mail, in person, or by throwing items over the fences of the facilities. Distribution and use of controlled drugs within the immigration detention network involves dangerous substances such as methamphetamine, heroin, cocaine and fentanyl. The prevalence of controlled drug use and trafficking in IDFs presents a serious health and safety risk to detainees, Australian Border Force and contracted service provider staff who encounter unknown substances or interact with substance affected detainees.

The considerations set out in paragraph 24 of the Bill EM in relation to controlled drugs also apply in relation to controlled precursors.

Determination under paragraph 251A(2)(b) Migration Act

Paragraph 251A(2)(b) of the Migration Act provides that the Minister may, by legislative instrument, determine a thing as a prohibited thing if the Minister is satisfied that possession or use of the thing in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

Subsection 5(2) of the instrument determines that, for the purposes of subsection 251A(1) of the Migration Act the following things in the table are prohibited things:

alcohol;
a mobile telecommunications device;
a Subscriber Identity Module (SIM) card (ie. a physical SIM card);
an internet-capable device.

The terms alcohol, mobile telecommunications device and internet-capable device are defined in section 4 of the instrument.

As noted in paragraph 18 of the Bill EM:

In relation to prohibited things determined under paragraph 251A(2)(b), even though the Minister’s satisfaction is based on the possession or use of the thing in an immigration detention facility, a determination that a thing is a prohibited thing will apply in relation to detainees who are not detained in, or not about to enter, an IDF, as well as in relation to detainees who are detained in an IDF. Detainees who are the subject of a residence determination will not be subject to the search and seizure provisions in relation to prohibited things.

Determination of alcohol

The consumption of alcohol by detainees in the immigration detention network has consistently proven to be a risk to the health, safety or security of persons in the facility, or to the order of the facility. This risk has manifested through alcohol-fuelled antisocial and violent behaviour in the immigration detention network.

Alcohol has been introduced and used by detainees and in IDFs generally both in the form of commercially produced alcoholic beverages and in the form of alcohol poured into other containers or mixed with other liquids.

Alcohol abuse may also of itself constitute a risk to health of persons engaging in alcohol abuse.

Detainees within the IDFs have also engaged in the production of homemade alcohol. Homemade alcohol provides additional volumes of alcohol, the consumption of which may cause antisocial and violent behaviour in the immigration detention network. In addition, homemade alcohol might be a risk to health if not produced correctly. For example, poorly produced alcohol may involve a risk of causing methanol poisoning.

The production (or attempted production) of homebrew alcohol necessarily involves the use of organic substances such as fruit and vegetable matter and other organic substances that may potentially be used to produce homemade alcohol, or to enable or facilitate such production.

Any kind of alcohol, whether commercially made, mixed with other substances, or homemade, must necessarily be put into package, container or receptacle of some kind. It is reasonably necessary for an authorised officer to be able to seize the container in order to seize any alcohol contained within it.

The Minister is therefore satisfied that possession or use of any of the following items in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility:

an alcoholic beverage;
any liquid containing alcohol;
homemade alcohol;
any container, receptacle or package that is being used, or has recently been used, to contain, hold or package alcohol.

Determination of mobile telecommunications devices, SIM cards and internet-capable devices

Mobile phones, internet-capable devices and SIM cards (which can enable use of mobile phones and internet-capable devices) continue to be used to engage in and facilitate activities that pose a risk to the health, safety or security of persons in an IDF, or to the order of an IDF.

These activities have involved use of one or more of voice, text and internet communications services on mobile telecommunications device and internet-capable devices.

As noted on page 3 of the Bill’s Explanatory Memorandum:

Over recent years, the Department has observed a significant increase in the orchestration of criminal activities using electronic devices in immigration detention centres, including child exploitation and grooming, money laundering and domestic violence. Immigration detention facilities now accommodate an increasing number of higher-risk detainees awaiting removal from Australia, often having entered immigration detention directly from a correctional facility, including members of outlaw motorcycle gangs and other organised crime groups. Evidence indicates that detainees are using mobile phones and other internet-capable devices to organise criminal activities inside and outside immigration detention facilities; to coordinate and assist escape efforts; as a commodity of exchange; to aid the movement of contraband; and to convey threats to other detainees and staff.

Such activities may be undertaken using any type of device that falls within the definition of mobile telecommunications device, including devices that are only capable of voice or text, without being able to connect to the internet.

Such activities may also be conducted using any internet-capable device. In addition, such activities may potentially be conducted regardless of the method of connection to the internet.

Accordingly, the Minister is satisfied that possession or use of mobile telecommunications devices, subscriber identity mobile (SIM) cards and internet-capable devices in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

The determination of mobile telecommunications devices, SIM cards and internet-capable devices as prohibited things is consistent with the note to subsection 251A(2) of the Migration Act. That note gives examples of things that may be determined to be prohibited things if the Minister is satisfied that they pose a risk mentioned in paragraph 251A(2)(b) of the Act. The note refers to mobile phones, SIM cards, computers and other electronic devices designed to be capable of being connected to the internet. As noted in paragraph 25 of the Bill EM, the list in the note to subsection 251A(2) ‘is non-exhaustive and only an indicator’.

Paragraph 26 of the Bill EM notes that if a mobile phone, a SIM card, a computer or other electronic communication device (which is designed to be capable of being connected to the internet) has been determined as a prohibited thing under paragraph 251A(2)(b) and has been searched for and seized, the detainee will continue to have reasonably sufficient access to alternative communication facilities in order to main contact with their families or with their support networks.

This is consistent with subsection 251AB(1) of the Migration Act, which relevantly provides that the Secretary is required to ensure that a detainee detained in an IDF is given access to alternative means of communication if a communications device is seized under the Act on the basis it is a prohibited thing pursuant to paragraph 251A(2)(b) of the Act. This means of communication must meet the requirements set out in subsection 251AB(2).

As noted in paragraph 27 of the Bill EM, to meet the requirements of subsection 251AB(2) of the Migration Act ‘contact will be provided via landline telephones, facsimile, internet access in compliance with the Conditions of Use of Internet agreement, postal services and visits’.

Paragraph 28 of the Bill EM also notes that:

Detainees will also continue to have access to reasonable facilities and certain administrative and legal support under section 256 of the Migration Act. Migration agents or legal representatives will continue to be able to contact their clients. The Department will ensure that communication avenues are maintained and enhanced, to enable detainees to progress their immigration status resolution in a timely fashion. Detainees and legal representatives remain able to schedule telephone interviews ahead of time if they require access to a desk or private space.

Policy guidance and implementation

It is noted that relevant provisions under Division 13 of Part 2 of the Migration Act provide that an authorised officer ‘may’ search for and/or seize prohibited items in relation to detainees or IDFs if the requirements of the Act are met. This means that the powers are discretionary, and do not constitute an absolute prohibition in IDFs on anything determined to be a prohibited thing. The management and implementation of these discretionary powers will be determined in policy guidance documents to be developed by the Department.

As noted on page 3 of the Bill EM:

Authorised officers exercising the new powers to search, screen and seize items will be provided with appropriate and regular training and guidance. This will include training and policy and procedural guidance in relation to the exercise of powers covered by new subsection 251AA(7).

Before exercising any of these powers, authorised officers must be satisfied of relevant requirements set out in the Migration Act, as summarised in page 5 of the Bill EM.

And as noted in paragraph 30 of the Bill EM:

The amendments in the Bill will not prohibit authorised officers (including Departmental officers, Detention operational service providers and Detention health services providers) from possessing and using prohibited things in IDFs during the course of their duties. This means that authorised officers will continue to be able to possess and use mobile phones, SIM cards and computers in the course of their official duties at IDFs.

The determination in the instrument of mobile telecommunications devices, SIM cards and internet-capable devices as prohibited things therefore does not prohibit authorised officers from possessing and using these things in IDFs in the course of their official duties.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration (Prohibited Things) Determination 2025

This Disallowable Legislative Instrument has been assessed against the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of Legislative Instrument

The legislative instrument Migration (Prohibited Things) Determination 2025 is made under subsection 251A(2) of the Migration Act 1958 (the Act). It follows from the amendments of the Migration Act made by the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Act 2024, which commenced on 4 June 2025. This amended the Act to allow the Minister under subsection 251A(2) to determine, by a disallowable legislative instrument, that a thing is a ‘prohibited thing’ in relation to a person in detention or in relation to an immigration detention facility, where the Minister is satisfied that:

possession of the thing is prohibited by law in a place or places in Australia; or
possession or use of the thing in an immigration detention facility might be a risk (an immigration detention facility risk) to the health, safety or security of persons in the facility, or to the order of the facility.

The current immigration detention population predominantly comprises a higher-risk criminal cohort who have had their visa cancelled or refused on character grounds due to their criminal histories. Consequently, the behavioural culture in immigration detention facilities is increasingly characterised by the infiltration of illicit substances, alcohol abuse, and an increase in the number of substance-related incidents, including threats and acts of violence against detainees, staff and contractors.

The Commonwealth has a duty of care for the safety and security of immigration detainees, staff working in, or visitors to, immigration detention facilities. The infiltration of illicit or controlled drugs presents a significant risk to the order of immigration detention facilities and the safety of people in them.

To ensure the safety and security of people within the immigration detention environment, and the good order of immigration detention facilities, the following items will be determined as ‘prohibited things’ pursuant to subsection 251A(2)(a) of the Act:

Alcohol within the meaning of s 4 of the Migration (Prohibited Things) Determination 2025 includes an alcoholic beverage, any liquid containing alcohol, homemade alcohol, and any container, receptacle or package used to contain, hold, or package alcohol. Alcoholic beverage has the meaning given by regulation 95 of the Customs Regulation 2015 as in force from time to time.
Controlled drugs within the meaning of s 301.1 of the Criminal Code Act 1995 (Criminal Code), as a substance, other than a growing plant, listed in Schedule 1 of the Criminal Code Regulations 2019 (Criminal Code Regulations). This also includes any drug analogue of a listed controlled drug.
Controlled precursors within the meaning of s 301.3 of the Criminal Code, as a substance, including a growing plant, listed in the table in regulation 13 of the Criminal Code Regulations, or a salt or ester of a listed controlled precursor. Possession of a controlled precursor will only be unlawful because of s 308.2 of the Criminal Code where ‘the person intends to use any of the substance to manufacture a controlled drug’ (read with the presumption in s 308.2(3)).

Once in effect, the legislative instrument will enable authorised officers to exercise powers to screen, search for (without warrant) and seize the specific items that are determined as ‘prohibited things’ under subsection 251A(2)(a) of the Act.

As part of the Commonwealth’s duty of care to all persons in immigration detention, including staff and detainees, reasonable steps must be taken to mitigate risks to safety and welfare in immigration detention facilities.

Subsection 251A(2)(b) of the Act allows the Minister to determine in an instrument that a thing, not otherwise unlawful to possess, is also a ‘prohibited thing’ where its possession or use in an immigration detention facility might be an immigration detention facility risk to the health, safety or security of persons in the facility, or to the order of the facility.

Pursuant to subsection 251A(2)(b) of the Act, the instrument will also determine the following items, that are not otherwise unlawful to possess, as ‘prohibited things’ because their possession or use in an immigration detention facility might be a risk to the health, safety, or security of persons in the facility or the order of the facility:

alcohol
a mobile telecommunications device
a Subscriber Identity Module (SIM) card
an internet-capable device.

Section 251AA of the Act prescribes conditions on authorised officers and officers’ assistants for exercising search and seizure powers in relation to ‘prohibited things’, including things determined under subsection 251A(2)(b). An authorised officer may only exercise search and seizure powers for things determined under subsection 251A(2)(b) in circumstances where they believe on reasonable grounds that it is necessary to prevent or lessen an immigration detention facility risk.

Human rights implications

This legislative instrument engages the following rights:

The right to privacy (Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR));
The right not to be subjected to arbitrary interference with family (Articles 17(1) and 23(1) of the ICCPR);
The right to freedom of expression (Article 19(2) of the ICCPR);
Rights relating to the treatment of persons deprived of their liberty (Article 10(1) of the ICCPR); and
The right to the enjoyment of the highest attainable standard of physical and mental health – Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Right to Privacy

Article 17 (1) of the ICCPR states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Pursuant to Article 17(1) of the ICCPR, an interference with an individual’s privacy must have a lawful basis and not be arbitrary.

The right to privacy may be subject to permissible limitations. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ such that any interference with privacy is proportional to the end sought and be necessary in the circumstances. Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity. In essence, this will require that limitations:

serve a legitimate objective;
adopt a means that is rationally connected to that objective; and
the means adopted are not more restrictive than they need to be to achieve that objective.

Under s 251A(2)(b) of the Act, a thing will be determined as a ‘prohibited thing’ by way of legislative instrument if the Minister is satisfied that possession or use of the thing in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility. The ‘prohibited thing’ measure contained in the proposed amendments will impact on the right to privacy, as it will enable authorised officers or an authorised officer’s assistant as per s 251AA(7)(b) in certain cases, to search detainees for ‘prohibited things’ determined by the Minister, if the person believes on reasonable grounds that the thing is indeed a ‘prohibited thing’ as set out in this instrument. An authorised officer will also be able to seize things determined to be ‘prohibited things’ under subsection 251A(2)(b), and exercise powers outlined in s 252G(4) and (7).

The primary aim of the instrument is to ensure the safety of detainees and staff at detention centres, particularly given the current demographic of the detention population, with increasing numbers of individuals with criminal and violent offending histories.

The right to privacy is not absolute. The remit of the search, seizure and screening powers that will be expanded upon as a consequence of the legislative instrument determining certain things to be ‘prohibited things’ are commensurate with the nature of risk that currently exists in immigration detention facilities. There are incidents of immigration detainees using personal internet capable devices and mobile telecommunication devices with associated SIM cards, including dedicated encrypted devices, to conduct a broad range of criminal activities, including child exploitation and grooming, money laundering and fraud, as well as the orchestration of domestic violence. There are incidents of alcohol abuse and substance-related incidents involving threats and acts of violence against detainees, staff and contractors.

Once the Minister has reached the requisite level of satisfaction about the types of items which are determined to be ‘prohibited things’, the authorised officer’s decision to conduct a search and seizure of prospective ‘prohibited things’ could be informed by a range of considerations that relate to the nature of the particular risk identified and may include, but are not limited to, records of prior incidents in immigration detention facilities, police recommendations or relevant court orders in relation to the detainee, and whether the detainee is, for example, a registered sex offender or has a history of child sex offences. For risks that are otherwise characterised, such as illicit trafficking of controlled substances, or the making of threats of violence, the considerations supporting the reasonable belief that the authorised officer must hold, may include, but are not limited to, records of prior like incidents in immigration detention facilities, police recommendations, relevant court orders in relation to the detainee and related intelligence.

For example, the power to search for and seize a mobile telecommunications device or SIM card, once these have been determined to be a ‘prohibited thing’, can only be exercised if the person believes on reasonable grounds that exercising the power is necessary to prevent or lessen a risk to the health, safety or security of persons in the facility, or to the order of the facility, because the detainee is using that device for criminal or risky behaviour, such as consuming or circulating child exploitation material.

The Department has a Procedural Instruction in place, and is also developing more detailed guidance for authorised officers and authorised officer’s assistants about the exercise of the search, seizure and screening powers.

To the extent that the legislative instrument limits the right to privacy through the expansion of things determined to be ‘prohibited things’, and searching for and seizing such items as a consequence, the limitation is a proportionate and necessary response to mitigate the serious consequences of injury to staff and detainees where these risks are not properly managed. Any limitations on this right are considered reasonable, necessary and proportionate and directed at the legitimate objective of protecting the health, safety and security of people in immigration detention facilities and the order of these facilities.

Right not to be subjected to arbitrary interference with family

Article 17(1) of ICCPR states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 23(1) of ICCPR states:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Facilitating regular contact with family and friends is necessary in order to give effect to these rights, and supports detainee resilience and mental health.

Under subsection 251A(2)(b), the Minister may determine a thing is a ‘prohibited thing’ where the Minister is satisfied that the possession or use of the thing might be an immigration detention facility risk. Items which the Minister is satisfied might pose a risk to the health, safety or security of an immigration detention facility are set out in the legislative instrument. The proposed instrument specifies internet capable devices, including a mobile telecommunications device, or SIM device, as a ‘prohibited thing’ pursuant to this provision.

Once things have been determined to be ‘prohibited things’ under subsection 251A(2)(b), under section 251AA, the exercise of search and seizure powers by authorised officers in relation to internet capable devices, is conditional upon the authorised officer holding a belief on reasonable grounds that the detainee is in possession of the thing, or is using the thing, in a manner such that it poses a risk within the immigration detention facility, and that the search and seizure is necessary to prevent or lessen that risk. Additionally, authorised officers will be guided by robust policy and procedural materials for the purpose of exercising these powers.

Sections 251AA(4)-(6) of the Act also requires that any ‘prohibited thing’ which is seized under subsection 251A(2)(b) must be returned to the requesting detainee who controlled it, if it is no longer necessary to retain the thing to prevent or lessen an immigration detention facility risk, or pursuant to subsections 252(4A), (4D) and (4E), and section 252CB, return the ‘prohibited thing’ when that person is no longer in detention. A detainee may also request the temporary return of the thing for a particular period. Where requested, an authorised officer must return the thing for the period requested unless they believe on reasonable grounds that it is necessary to refuse to do so to prevent or lessen an immigration detention facility risk.

Additionally, the Act expressly requires that, in the event a communication device is seized from a detainee, the Department must ensure their access to alternative means of communication for continued access to family members, as well as to obtain legal advice, and/or to obtain other support of a prescribed kind, governmental or political communication. This contact will continue to be facilitated through alternative means of communication, as provided under section 251AB of the Act.

The Department has reviewed, and continues to review, the availability of landline telephones, internet access and other facilities for use by detainees across the immigration detention network to ensure these facilities are adequate to facilitate contact with family, as well as friends and legal representatives. This guarantees the availability of a base channel for facilitating communication with these parties as required by detainees.

To the extent that the instrument represents an interference with family, there are provisions within the Act which provide safeguards against a uniform or general seizure of such items determined to be ‘prohibited things’ for all detainees, and across all immigration detention facilities, and help to ensure that any resulting interference with the family unit as a result of seizure of any communication devices determined as ‘prohibited things’ is reasonable, necessary and proportionate to the legitimate aim of ensuring the safety and security of immigration detention facilities and the persons in them.

Freedom of expression

Article 19(2) of ICCPR states:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Section 251A(2)(b) of the Act allows the Minister to determine (via a disallowable legislative instrument) that an item, not otherwise unlawful to possess, is a ‘prohibited thing’ where its possession or use in an immigration detention facility might be a risk to the health, safety or security of persons, or the order of the facility. The exercise of a search and seizure power by authorised officers in relation to these items is conditioned upon an authorised officer’s reasonable belief that the detainee is in possession of the thing and that it poses an immigration detention facility risk. Mobile phones and other internet-capable devices can only be searched for and seized where an officer holds a reasonable belief that they pose an immigration detention facility risk. This provides a safeguard against a uniform or general seizure of such items for all detainees and across all immigration detention facilities.

The Department is committed to meaningfully complying with its obligations around detainees’ implied freedom of political communication (freedom of expression). To this end, in the event a communication device is seized from a detainee by an authorised officer, subject to subsection 251A(2)(b), the Act expressly requires the Department to provide to the detainee whose device has been seized, access to a reasonably sufficient alternative means of communication, to enable the detainee to communicate with a member of the family unit of the detainee, obtain legal advice, obtain other support of a prescribed kind, or communicate political or governmental matters. To this end a detainee impacted by a seizure under subsection 251A(2)(b) will be able to exercise their right to communication by having ready access alternative communication options. These options include, although are not limited to, landline telephones for detainee use for outgoing calls and ensuring detainees have access to incoming telephone calls at any time, internet access, postal services, incoming and outgoing facsimiles, and other reasonably available communication device options, for communicating with visitors/advocates.

To the extent that the instrument may amount to a limitation on the right to freedom of expression, the various other avenues of communication that will continue to be readily available to detainees mitigate the effects of any such limitation which is reasonable, necessary, and proportionate to the objective of protecting the health, safety and security of people in immigration detention facilities or to the order of the facility.

Treatment of persons in detention

Article 10(1) of ICCPR states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

This obligation has been interpreted to mean that States have a positive duty to provide detainees and prisoners with a minimum of services to satisfy their basic needs including food, clothing, medical care, sanitary facilities, communication, light, the opportunity to move about, and privacy. The Department provides a number of readily available means of communication that include landline telephones, internet access, access to incoming and outgoing facsimile machines transmissions, and postal services. The potential restriction relating to the possession of a mobile phone or internet capable device in immigration detention facilities does not represent a limitation on the obligation under Article 10 because of the availability of, and legislative requirement on the Department to provide, reasonably sufficient alternative means of communication.

The exercise of a search and seizure power by authorised officers in relation to an item determined under subsection 251A(2)(b) to be a ‘prohibited thing’, is conditioned upon holding reasonable belief that the detainee is in possession of the item and that it poses an immigration detention facility risk. This provides a safeguard against a uniform or general seizure of such items for all detainees and across all immigration detention facilities.

A screening procedure undertaken by an authorised officer exercising a power at subsection 252AA(1) must be conducted in accordance with Ministerial Direction 60 made under section 499 of the Act. Specifically, the screening procedure must not subject the detainee to greater indignity than is reasonably necessary to conduct the screening procedure nor involve the use of greater force than is reasonably necessary to conduct the screening procedure or be conducted for any reason other than those provided for in subsection 252AA(1).

To the extent that detainees may be subject to strip searches under section 252A of the Act in relation to ‘prohibited things’, authorisation must continue to be obtained from the Departmental Secretary or Australian Border Force Commissioner (or a Senior Executive Service Band 3 level employee in the Department) prior to a strip search of a detainee who is at least 18 years old being undertaken. Authorisation must be obtained from a magistrate prior to a strip search of a detainee who is at least 10 years old but under 18 years old being undertaken. Strip searches will also remain subject to rules currently set out at section 252B of the Act, which include (but are not limited to):

(1) A strip search of a detainee under section 252A:

a) must not subject the detainee to greater indignity than is reasonably necessary to conduct the strip search;

b) must be conducted in a private area;

c) must not be conducted on a detainee who is under 10;

d) must not involve a search of the detainee’s body cavities;

e) must not be conducted with greater force than is reasonably necessary to conduct the strip search.

Ministerial Direction 51 made under s 499 of the Act also provides a framework for safeguards for the rights of detainees undergoing a strip search and reflects community expectations of the preservation of the dignity and privacy entitlements of detainees.

The legislative framework includes provisions to protect detainees and their property. This includes subsection 252BA(7), which requires that an authorised officer who conducts a search must not use more force against a person or property, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

To the extent the legislative instrument may limit rights regarding the treatment of persons in detention, there are sufficient protections provided by law to ensure that respect for detainees’ inherent dignity is maintained during the conduct of searches under provisions of the Act.

Right to health

Article 12 of the ICESCR relevantly states:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

[…]

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

This Disallowable Instrument supports Article 12 of the ICESCR by assisting staff at immigration detention facilities to carry out searches which aim to protect the health and safety of all detainees, detention staff and visitors. By allowing authorised officers to seize items which are determined by the Minister to be ‘prohibited things’ based on their reasonable belief that the possession of such things poses a risk to the health and safety of detainees, staff, and visitors, this mitigates any risk of potential harm resulting from their possession. Determining items which may be constituted as ‘prohibited things’ contributes to the realisation of the right to the highest attainable standard of physical and mental health.

To the extent that there is a risk that a detainee’s internet capable device, mobile telecommunications device, or SIM device, contains a medical device, the Department has established arrangements in place with its contracted Health Services Provider (HSP) to give full effect to a detainee’s access to healthcare. Following a health risk assessment, a detainee’s health is monitored and managed, in consultation with the Department, by the contracted provider, including in circumstances where a detainee has complex, chronic or serious healthcare needs and where treatment may from time to time be required in circumstances of urgency.

These measures provide assurance that, notwithstanding that a detainee’s internet capable device, mobile telecommunications device, or SIM device, containing a medical device, has been lawfully seized, the detainee will be provided with a level of health care that is appropriately and sufficiently responsive to the detainee’s health risks. The level of health care will be ascertained by a health professional who is familiar with the person’s condition and what the medical device is being used for. Additionally, authorised officers will be guided by robust policy and procedural materials for the purpose of ensuring detainees’ health is monitored and managed, due to the exercising of these powers.

Conclusion

The Disallowable Instrument has been assessed against the international instruments. To the extent that the proposed measures may limit human rights, those limitations are reasonable, necessary and proportionate to achieving the legitimate objective of ensuring a safe and secure environment for those who visit, work at, or are detained in, an immigration detention facility.

The Hon Tony Burke MP

Minister for Home Affairs
Minister for Immigration and Citizenship

[1] Yongah Hill Immigration Detention Inspection Report | Australian Human Rights Commission

Administered by Department of Home Affairs

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