Fresh miseries from Dutton
Monday, October 16, 2017
Justinian in Immigration detention, Migration Act, Peach Melba

New Migration Act amendments ... Strip searching detainees in immigration detention ... Prohibited "things" to be determined by the minister ... Use of dogs to search detainees ... More humiliations ... Peach Melba files 

OCTOBER 1 marked the deadline to lodge applications for protection visas by boat arrivals seeking asylum. 

Announced in May this year by the Turnbull government, the deadline applies to people who arrived between August 13, 2012 and January 1, 2014 and who are part of the "Fast Track Assessment" process for protection visa applications. 

Failure to apply for a visa by the deadline means the government will not consider that person's protection claim. 

The fast track process restricts merits reviews of application decisions. An individual whose protection visa is refused can only apply for review to a specifically-established entity, the Immigration Assessment Authority. They are ineligible to apply to the Refugee Review Tribunal. 

The IAA either affirms the decision or remits it for reconsideration (with directions or recommendations). 

The Migration Act stipulates which rules of natural justice are to be applied by the IAA, excluding the right to common law procedural fairness - according to the Australian Law Reform Commission

A concerning new infringement of human rights come with proposed amendments to the Migration Act. It expands the reasons for which an officer can "strip search" detainees in immigration detention. 

Where they have the authority to carry out a strip search, the officer can ask a detainee to remove their clothing so that their body can be examined.

In the current version of the Migration Act, strip searches can only be conducted without a warrant if an officer has reasonable grounds for suspecting that an individual has a concealed weapon or an object that could be used to inflict injury or aid in escaping detention. 

The amendment adds as an additional ground for a strip search, "finding out whether a prohibited thing" is hidden on the person, in their clothing or in their property. 

The amendment grants discretion to the minister to determine what constitutes a prohibited thing. Such a determination can be made if the minister is satisfied that possession of the thing is prohibited by law in Australia, or possession or use of the thing in an immigration detention facility might pose a risk to the health, safety or security of people or to the order of the facility. 

Examples of potentially prohibited items as set out in the amendment include SIM cards, computers and electronic devices, and medications or health care supplements. 

This means minister Dutton has the discretion to decide whether or not asylum seekers can possess mobile phones. 

By way of comparison, Victoria Police officers can only strip search someone without a warrant in relatively limited circumstances - if they have reasonable grounds to suspect that someone is carrying a weapon, or is in possession of a drug of dependence in a public place. 

It is a heavily regulated police power because it is so intrusive and has even been deemed a form of state-sanctioned sexual assault.

The Migration Act amendment would also authorise the use of dogs when searching a detainee. 

Detection dogs are used by Corrections Victoria to intercept drugs, alcohol and weapons in prison. But immigration detention centres are not supposed to be prisons and asylum seekers are not criminals, despite the government designating them as "unauthorised maritime arrivals". 

Under the amendment, the use of dogs will not be rendered unlawful regardless of how the dog behaves, so long as the officer took reasonable precautions to prevent the dog touching the person being searched and kept the dog under control (the statute does not elucidate further). 

Dogs can be wild and recently we had the controversy over a dog licking a baby at an off-leash beach. The use of dogs in immigration detention would contribute to the dehumanising of detainees. 

It's a further attack on the dignity of these people in our care. 

From: Elif Sekercioglu 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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