(7) An approved officer or other person who conducts a search under this clause must not use more force, or subject a detainee to greater indignity, than is reasonably necessary in order to conduct the search.
(8) To avoid doubt, a search of a detainee may be conducted under this clause irrespective of whether a screening procedure is conducted in relation to the detainee under clause 16 or a strip search of the detainee is conducted under clause 17.
Note: This clause corresponds closely to section 252 of the Migration Act 1958.
Division 2—Screening of detainees
16 Power to conduct a screening procedure
(1) A screening procedure in relation to a detainee, other than a detainee to whom clause 23 applies, may be conducted by an approved officer, without warrant, to find out whether 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, capable of being used:
(a) to inflict bodily injury; or
(b) to help the detainee, or any other detainee, to escape from detention.
(2) An approved officer who conducts a screening procedure under this clause must not use greater force, or subject the detainee to greater indignity, than is reasonably necessary in order to conduct the screening procedure.
(3) This clause does not authorise an approved officer to remove any of the detainee’s clothing, or to require a detainee to remove any of his or her clothing.
(4) To avoid doubt, a screening procedure may be conducted in relation to a detainee under this clause irrespective of whether a search of the detainee is conducted under clause 15 or 17.
(5) In this clause:
conducting a screening procedure, in relation to a detainee, means:
(a) causing the detainee to walk, or to be moved, through screening equipment; or
(b) passing hand‑held screening equipment over or around the detainee or around things in the detainee’s possession; or
(c) passing things in the detainee’s possession through screening equipment or examining such things by X‑ray.
screening equipment means a metal detector or similar device for detecting objects or particular substances.
Note: This clause corresponds closely to section 252AA of the Migration Act 1958.
Division 3—Strip searches of detainees
17 Power to conduct a strip search
(1) A strip search of a detainee, other than a detainee to whom clause 23 applies, may be conducted by an approved officer, without warrant, to find out whether 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, capable of being used:
(a) to inflict bodily injury; or
(b) to help the detainee, or any other detainee, to escape from detention.
Note: Clause 18 sets out rules for conducting a strip search under this clause.
(2) A strip search of a detainee means a search of the detainee, of his or her clothing or of a thing in his or her possession. It may include:
(a) requiring the detainee to remove some or all of his or her clothing; and
(b) an examination of that clothing and of the detainee’s body (but not of the detainee’s body cavities).
(3) A strip search of a detainee may be conducted by an approved officer only if:
(a) an authorised officer or detention officer suspects on reasonable grounds 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 subclause (1); and
(b) the authorised officer, or detention officer, referred to in paragraph (a) suspects on reasonable grounds that it is necessary to conduct a strip search of the detainee to recover that weapon or other thing; and
(c) the strip search is authorised as follows:
(i) if the detainee is at least 18—the Secretary, the Director, the Chief Executive Officer of the Great Barrier Reef Marine Park Authority or an SES Band 3 employee in the Department (who is not the authorised officer referred to in paragraphs (a) and (b) nor the approved officer conducting the strip search), authorises the strip search because he or she is satisfied that there are reasonable grounds for those suspicions;
(ii) if the detainee is at least 10 but under 18—a magistrate orders the strip search because he or she is satisfied that there are reasonable grounds for those suspicions.
(4) An authorised officer or detention officer may form a suspicion on reasonable grounds for the purposes of paragraph (3)(a) on the basis of:
(a) a search conducted under clause 15 (whether by that authorised officer or detention officer or by another authorised officer or detention officer); or
(b) a screening procedure conducted under clause 16 (whether by that authorised officer or detention officer or by another authorised officer or detention officer); or
(c) any other information that is available to the authorised officer or detention officer.
(5) An authorisation of a strip search given for the purposes of subparagraph (3)(c)(i):
(a) may be given by telephone, fax or other electronic means; and
(b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.
(6) A record made under paragraph (5)(b) is not a legislative instrument.
(7) A failure to comply with paragraph (5)(b) does not affect the validity of a strip search conducted on the basis of that authorisation.
(8) The power to authorise a strip search under subparagraph (3)(c)(i) cannot be delegated to any other person.
(9) A power conferred on a magistrate by this clause is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(10) The magistrate need not accept the power conferred.
(11) A magistrate exercising a power under this clause has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.
(12) To avoid doubt, a strip search of a detainee may be conducted under this clause irrespective of whether a search of the detainee is conducted under clause 15 or a screening procedure is conducted in relation to the detainee under clause 16.
(13) In this clause:
SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3.
Note: This clause corresponds closely to section 252A of the Migration Act 1958.
18 Rules for conducting a strip search
(1) A strip search of a detainee under clause 17:
(a) must not subject the detainee to greater indignity than is reasonably necessary to conduct the strip search; and
(b) must be conducted in a private area; and
(c) must be conducted by an approved officer of the same sex as the detainee; and
(d) subject to subclauses (2), (3) and (5), must not be conducted in the presence or view of a person who is of the opposite sex to the detainee; and
(e) subject to subclauses (2), (3) and (5), must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the strip search; and
(f) must not be conducted on a detainee who is under 10; and
(g) if the detainee is at least 10 but under 18, or is incapable of managing his or her affairs—must be conducted in the presence of:
(i) the detainee’s parent or guardian if that person is in detention with the detainee and is readily available at the same place; or
(ii) if that is not acceptable to the detainee or subparagraph (i) does not apply—another person (other than an approved officer) who is capable of representing the detainee’s interests and who, as far as is practicable in the circumstances, is acceptable to the detainee; and
(h) subject to subclause (4), if the detainee is at least 18, and is not incapable of managing his or her affairs—must be conducted in the presence of another person (if any) nominated by the detainee, if that other person is readily available at the same place as the detainee, and willing to attend the strip search within a reasonable time; and
(i) must not involve a search of the detainee’s body cavities; and
(j) must not involve the removal of more items of clothing, or more visual inspection, than the approved officer conducting the search believes on reasonable grounds to be necessary to determine whether 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 subclause 17(1); and
(k) must not be conducted with greater force than is reasonably necessary to conduct the strip search.
(2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or person present because of subparagraph (1)(g)(ii), if the detainee has no objection to that person being present.
(3) Paragraphs (1)(d) and (e) do not apply to a person nominated by the detainee under paragraph (1)(h) to attend the strip search.
(4) Neither:
(a) a detainee’s refusal or failure to nominate a person under paragraph (1)(h) within a reasonable time; nor
(b) a detainee’s inability to nominate a person under that paragraph who is readily available at the same place as the detainee and willing to attend the strip search within a reasonable time;
prevents a strip search being conducted.
(5) A strip search of a detainee may be conducted with the assistance of another person if the approved officer conducting the strip search considers that to be necessary for the purposes of conducting it. That person must not be of the opposite sex to the detainee unless:
(a) the person is a medical practitioner; and
(b) a medical practitioner of the same sex as the detainee is not available within a reasonable time.
(6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an approved officer, assists in conducting a strip search if the person acts in good faith and does not contravene this clause.
(7) A detainee must be provided with adequate clothing if during or as a result of a strip search any of his or her clothing is:
(a) damaged or destroyed; or
(b) retained under clause 19.
Note: This clause corresponds closely to section 252B of the Migration Act 1958.
Division 4—Keeping of things found by screening or strip search of detainees
19 Possession and retention of certain things obtained during a screening procedure or strip search
(1) An approved officer may take possession of and retain a thing found in the course of conducting a screening procedure under clause 16 or conducting a strip search under clause 17 if the thing:
(a) might provide evidence of the commission of an offence against an environmental law, or an offence against section 6 of the Crimes Act 1914 relating to such an offence; or
(b) is forfeited or forfeitable to the Commonwealth.
(2) A weapon or other thing described in subclause 16(1) or 17(1) that is found in the course of conducting a screening procedure under clause 16 or a strip search under clause 17 is forfeited to the Commonwealth.
(3) An approved officer must not return a thing that is forfeited or forfeitable to the Commonwealth. Instead, the approved officer must, as soon as practicable, give a thing that is forfeited under subclause (2) to a constable (within the meaning of the Crimes Act 1914).
Note: See sections 450 and 451 of this Act, which deal with court‑ordered forfeiture and how forfeited items are to be dealt with.
(4) An approved officer must take reasonable steps to return anything that is not forfeited or forfeitable but is retained under subclause (1) to the person from whom it was taken, or to the owner if that person is not entitled to possess it, if one of the following happens:
(a) it is decided that the thing is not to be used in evidence;
(b) the period of 60 days after the approved officer takes possession of the thing ends.
(5) However, the approved officer does not have to take those steps if:
(a) in a paragraph (4)(b) case:
(i) proceedings in respect of which the thing might provide evidence have been instituted before the end of the 60 day period and have not been completed (including an appeal to a court in relation to those proceedings); or
(ii) the approved officer may retain the thing because of an order under clause 21; or
(b) in any case—the approved officer is otherwise authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State or Territory) to retain, destroy or dispose of the thing.
Note: This clause corresponds closely to section 252C of the Migration Act 1958.
20 Approved officer may apply for a thing to be retained for a further period
(1) This clause applies if an approved officer has taken possession of a thing referred to in subclause 19(4) and proceedings in respect of which the thing might provide evidence have not commenced before the end of:
(a) 60 days after the approved officer takes possession of the thing; or
(b) a period previously specified in an order of a magistrate under clause 21.
(2) The approved officer may apply to a magistrate for an order that the approved officer may retain the thing for a further period.
(3) Before making the application, the approved officer must:
(a) take reasonable steps to discover which persons’ interests would be affected by the retention of the thing; and
(b) if it is practicable to do so, notify each person who the approved officer believes to be such a person of the proposed application.
(4) A notice under paragraph (3)(b) is not a legislative instrument.
Note: This clause corresponds closely to section 252D of the Migration Act 1958.
21 Magistrate may order that thing be retained
(1) The magistrate may order that the approved officer who made an application under clause 20 may retain the thing if the magistrate is satisfied that it is necessary for the approved officer to do so:
(a) for the purposes of an investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence to be secured for the purposes of a prosecution.
(2) The order must specify the period for which the approved officer may retain the thing.
(3) A power conferred on a magistrate by this clause is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(4) The magistrate need not accept the power conferred.
(5) A magistrate exercising a power under this clause has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.
Note: This clause corresponds closely to section 252E of the Migration Act 1958.
Division 5—Screening detainees’ visitors
22 Powers concerning entry to premises where detainee is detained
(1) An authorised officer or detention officer may request that a person about to enter premises where a detainee is in detention do one or more of the following:
(a) walk through screening equipment;
(b) allow an authorised officer or detention officer to pass hand‑held screening equipment over or around the person or around things in the person’s possession;
(c) allow things in the person’s possession to pass through screening equipment or to be examined by X‑ray.
(2) Screening equipment means a metal detector or similar device for detecting objects or particular substances.
(3) If an approved officer suspects on reasonable grounds that a person about to enter premises where a detainee is in detention has in the person’s possession a thing that might:
(a) endanger the safety of the detainees, staff or other persons on the premises; or
(b) disrupt the order or security arrangements on the premises;
the approved officer may request that the person do some or all of the things in subclause (4) for the purpose of finding out whether the person has such a thing. A request may be made whether or not a request is also made to the person under subclause (1).
(4) An approved officer may request that the person do one or more of the following:
(a) allow the approved officer to inspect the things in the person’s possession;
(b) remove some or all of the person’s outer clothing such as a coat, jacket or similar item;
(c) remove items from the pockets of the person’s clothing;
(d) open a thing in the person’s possession, or remove the thing’s contents, to allow the approved officer to inspect the thing or its contents;
(e) leave a thing in the person’s possession, or some or all of its contents, in a place specified by the approved officer if he or she suspects on reasonable grounds that the thing or its contents are capable of concealing something that might:
(i) endanger the safety of the detainees, staff or other persons on the premises; or
(ii) disrupt the order or security arrangements on the premises.
(5) A person who leaves a thing (including any of its contents) in a place specified by an approved officer is entitled to its return when the person leaves the premises.
(6) However, if possession of the thing, or any of those contents, by the person is unlawful under a Commonwealth, State or Territory law applying to the premises:
(a) the thing or the contents must not be returned to the person; and
(b) an approved officer must, as soon as practicable, give the thing or the contents to a constable (within the meaning of the Crimes Act 1914).
(7) A person who is about to enter premises where a detainee is detained may be refused entry if the person does not comply with a request under this clause.
Note: This clause corresponds closely to section 252G of the Migration Act 1958.
Division 6—Law applying to detainee in State or Territory prison etc.
23 Detainees held in State or Territory prisons or remand centres
(1) This clause applies to a detainee if:
(a) the detainee is held in detention in a prison or remand centre of a State or Territory; and