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17 April 2024

Provisions about searches: Migration Act 1958

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JB Solicitors

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Discusses provisions about searches under the Migration Act – s251, s252, s252AA, s252A, s252B & s252C.
Australia Immigration
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This article will outline provisions about searches under the Migration Act 1958. In general, legal searches refer to the government's authority to examine people, their property, or places to find evidence of wrongdoing. There are different types of searches with varying rules depending on the situation. One of these types is immigration searches which are important for:

  1. Security: Stopping threats at borders and airports by searching for weapons and evidence of crimes.
  2. Immigration Law: Enforcing visa rules to prevent people from overstaying or working illegally.
  3. Border Control: Catching people who entered illegally or have fake documents.
  4. Public Safety: Finding dangerous items to prevent violence or crime.

However, these searches must be balanced with individual rights. They can't be overly intrusive and need a good reason. Overall, these searches help secure Australia's borders, enforce immigration laws, and keep people safe. Read on to learn more about provisions about searches.

Section 251: Powers of Entry and Search

Section 251 of provisions about searches gives certain officers broad powers to search for unauthorised immigrants. Here's a breakdown:

1. Board and Search Vessels: If an officer suspects there are unlawful immigrants on board a vessel, they can board and search it (section 1). The ship's captain must cooperate with the search (section 2).

2. Search Warrants: The Migration Authority can issue search warrants to officers, allowing them to enter and search buildings, vehicles, and other places where they believe they might find:

  • Unlawful immigrants
  • People who need to be removed or deported
  • People on temporary visas with work restrictions
  • Documents related to unauthorised entry attempts
  • Passports, ID documents, or travel tickets of unauthorised immigrants (sections 4 & 6)

3. Force and Stopping Vehicles: Officers can use reasonable force to conduct searches and may stop vehicles for this purpose (sections 7 & 8).

Section 251 of provisions about searches is just a summary, and the full legal meaning might require a lawyer's interpretation. The section also defines "unlawful non-citizens". This refers to people who are not Australian citizens and are in the country without valid permission.

The concept of "reasonable suspicion" is important. Officers need a reasonable basis to believe there's something wrong before they can search a vessel or apply for a warrant.

Section 252: Searches of Persons

Section 252 of provisions about searches outlines when and how immigration officials can search people detained in Australia or non-citizens who haven't been immigration cleared.

When Can a Search Occur?

  • The person is detained in Australia (e.g., held in immigration custody).
  • The person is a non-citizen who hasn't been immigration cleared, and an authorized officer suspects there's a good reason to cancel their visa.

What Can Be Searched?

  • The alleged person.
  • Their clothing.
  • Any property they have immediate control over (like a bag they're carrying).

Why Can a Search Occur?

  • To find hidden weapons or objects that could cause harm or help the person escape.
  • To find documents or evidence related to possible reasons to cancel the person's visa.

How is the Search Conducted?

  • An authorised officer can detain the person for the search.
  • If something incriminating is found (weapon, document, etc.), the officer can take and hold it for as long as they believe it's necessary under the Act.
  • The search must be conducted by someone of the same sex as the person being searched unless no officer of the same sex is available.
  • People asked to conduct searches (if not authorised officers) are protected from lawsuits as long as they act in good faith and follow the rules.
  • Officers cannot use excessive force or cause unnecessary humiliation during the search.

This type of search can happen even if the person has already undergone a:

  • Screening procedure (using equipment like metal detectors); or
  • Strip search (more invasive search requiring written approval).

Section 252AA: Power to Conduct a Screening Procedure

Section 252AA of provisions about searches deals with the authority to conduct screening procedures on immigration detainees. So how does this section define a "screening procedure"? It's a search method used on detainees (people held in immigration custody) to find hidden weapons or objects that could be used for:

  • Inflicting bodily injury (causing harm).
  • Helping the detainee or others escape immigration detention.

How is a Screening Procedure Conducted?

Authorised officers can conduct it without a warrant. The detainee is moved through or near screening equipment (like metal detectors) or the equipment is used around them and their belongings. X-rays might be used on the detainee's possessions.

Important Limitations

  • Officers cannot use more force or cause more humiliation than is necessary.
  • Officers cannot remove the detainee's clothing or ask them to take it off themselves.
  • Screening procedures can be done even if a separate search under other sections (252 or 252A) has already occurred.

Key Terms:

  • Detainee: Someone held in immigration custody (not in prison).
  • Authorised Officer: An official with the power to conduct these procedures under the Act.
  • Screening Equipment: Devices like metal detectors that detect objects.

Section 252A: Powers to Conduct a Strip Search

Section 252A of provisions about searches of the Migration Act (Australia) explains how immigration officers can conduct strip searches on detainees (people in immigration custody).

What is a Strip Search?

It's a more revealing search compared to a regular search. It can involve an officer or authorised person to require a detainee to remove some or all of their clothes. Officers or authorised people may also examine the detainee's clothes and body (but not body cavities). A strip search can happen when:

  • Only authorised officers can perform them.
  • The officer must have a good reason to suspect the detainee is hiding a weapon or something that could hurt someone or help them escape.
  • They must also believe a strip search is necessary to find this hidden object.
  • Depending on the detainee's age, authorisation is needed from either a senior official (Secretary or Border Force Commissioner) or a high-level Department employee if the detainee is 18 or older. A judge (magistrate) may also approve authorisation if the detainee is between 10 and 18 years old.

Additional Points:

  • The officer's suspicion can be based on previous searches, screening procedures, or other available information.
  • Strip search authorisation can be given electronically and needs to be documented later, but this doesn't affect the search's validity if not done immediately.
  • The authorisation cannot be delegated to someone else.
  • Judges involved have legal protections similar to those in court cases.
  • This type of search can occur even if the detainee has already undergone a regular search or screening procedure.

Key terms under Section 252A of provisions about searches:

  • Detainee: Someone held in immigration custody, not prison.
  • Authorised Officer: An official with the power to conduct these procedures under the Act.

Section 252B: Rules for Conducting a Strip Search

Section 252B of provisions about searches sets out the rules for conducting strip searches on immigration detainees. Here's a breakdown in simpler terms:

Respecting the Detainee's Privacy:

The search should be conducted with minimal humiliation beyond what's necessary. It must happen in a private area, away from others. Same-sex officers must perform the search whenever possible. Only people essential for the search can be present unless exceptions apply.

Who Can Be Present During the Search?

  • Detainees under 18 or those unable to manage their affairs can have a parent/guardian or another suitable person present (if available and agreeable).
  • Detainees 18 and older can have someone they choose present if that person is available.

However, there are exceptions to this rule of Section 252B of provisions about searches. If the detainee is okay with it, a parent/guardian or a designated person can be present regardless of same-sex rules.

Search Limitations:

  • No searching of body cavities.
  • Officers can only remove clothing/inspect areas they believe are necessary to find the hidden object.
  • Only reasonable force can be used.

Additional Points:

  • Even if a detainee doesn't nominate someone to be present, the search can still proceed.
  • If a detainee needs help searching due to safety reasons, another person (potentially of the opposite sex) can assist, but only if a same-sex medical professional isn't readily available.
  • People assisting the search in good faith and following the rules are protected from lawsuits.
  • Detainees must be given suitable replacement clothes if theirs are damaged or taken during the search.

Section 252C: Possession and Retention of Certain Things Obtained During a Screening Procedure or Strip Search

Section 252C of provisions about searches deals with what happens to things found during searches of immigration detainees. Here's a simpler explanation:

What Can Officers Take During Searches?

  • Officers can take and hold onto items found during screening procedures (using equipment like metal detectors) or strip searches if:
  • The item might be evidence of a crime under this Act (immigration law).
  • The item is considered illegal and should be taken by the government (forfeited).

What Happens to Forfeited Items?

Weapons or other dangerous objects found during searches are automatically forfeited (taken by the government). These items must be given to the police as soon as possible.

What Happens to Other Items Taken?

Officers generally need to return other seized items if the item won't be used as evidence in a case or 60 days have passed since the item was taken.

Exceptions to Returning Items:

Officers don't have to return the item if:

  • A legal case involving the item is still ongoing (including appeals).
  • A court order allows them to keep the item for another reason (explained in section 252E).
  • They have legal permission from another source (like another law or court order) to keep, destroy, or get rid of the item.

Basically, Section 252C of provisions about searches ensures officers can keep evidence and dangerous items. However, they generally require them to return other seized belongings after a reasonable time, unless there's a legal reason to hold onto them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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