(2) The exercise by a person of a power covered by paragraph (7)(b) is authorised only if the person believes on reasonable grounds that exercising the power is necessary to prevent or lessen an immigration detention facility risk.
(3) The exercise by a person of a power covered by paragraph (7)(c) or (d) to seize or request a thing, on the basis that the thing is a prohibited thing determined under paragraph 251A(2)(b), is authorised only if the person believes on reasonable grounds that:
(a) the thing is such a prohibited thing; and
(b) exercising the power is necessary to prevent or lessen an immigration detention facility risk.
Temporary return of seized things
(4) If a prohibited thing determined under paragraph 251A(2)(b) has been seized under a power covered by paragraph (7)(c) of this section, the person who owns the thing, or who last controlled it before its seizure, may make a request to an authorised officer for its return for a particular period.
(5) On a request by a person under subsection (4), an authorised officer must:
(a) return the thing to the person for the period requested; or
(b) if the authorised officer believes on reasonable grounds that it is necessary to do so to prevent or lessen an immigration detention facility risk:
(i) return the thing to the person for a specified period shorter than that requested; or
(ii) refuse to return the thing to the person.
Note: The return of a thing under this subsection for a period does not prevent the further exercise of a power covered by subsection (7) in relation to the thing during that period, subject to this section (see subsection (9)).
Return of seized things if no longer necessary for them to be retained
(6) If a prohibited thing determined under paragraph 251A(2)(b) has been seized under a power covered by paragraph (7)(c) of this section, an authorised officer must take all reasonable steps to return the thing to the person who owns the thing, or last controlled it before its seizure, if the officer no longer believes, on reasonable grounds, that it is necessary to retain the thing to prevent or lessen an immigration detention facility risk.
Note 1: For the return or forfeiture of such prohibited things when the owner or controller ceases to be in detention, see subsections 252(4A), (4D) and (4E) and section 252CB.
Note 2: The return of a thing as a result of this subsection does not prevent the further exercise of a power covered by subsection (7) in relation to the thing, subject to this section (see subsection (9)).
Powers covered
(7) This subsection covers the following powers:
(a) the power of the Minister to make a direction under subsection 251B(6) in relation to the seizure of a prohibited thing determined under paragraph 251A(2)(b);
(b) the power of an authorised officer, or an authorised officer’s assistant, to conduct a search or a screening procedure in relation to any prohibited thing determined under paragraph 251A(2)(b), under the following provisions:
(i) section 252 (searches of detainees etc.—general powers of personal search and seizure);
(ii) section 252AA (searches of detainees—screening procedures);
(iii) section 252A (searches of detainees—strip searches);
(iv) section 252BA (searches of certain immigration detention facilities—general);
(v) section 252BB (searches of certain immigration detention facilities—authorised officers’ assistants);
(c) the power of an authorised officer to seize a prohibited thing determined under paragraph 251A(2)(b), under the following provisions:
(i) paragraph 252(4A)(a) (seizure during searches under section 252);
(ii) subsection 252CA(2) (seizure during screening and strip searches of detainees and searches of facilities);
(d) the following powers of an authorised officer, in relation to an immigration detention facility:
(i) the power, under paragraph 252G(4)(e), to request that a person leave a prohibited thing determined under paragraph 251A(2)(b) in a specified place;
(ii) the power, under subsection 252G(7), to refuse entry to the facility to a person who does not comply with such a request.
(8) In this section, a reference to the exercise of a power under a provision of this Act includes a reference to:
(a) the exercise of any particular aspect of the power under any particular part of that provision, and of any related power (or any particular aspect of such a related power); and
(b) the exercise of the power (or a related power mentioned in paragraph (a)) in any particular way.
Example: A reference in this section to the exercise of a power of the Minister to make a direction under subsection 251B(6) in relation to a prohibited thing determined under paragraph 251A(2)(b) includes a reference to the exercise of that power by the Minister in relation to the following, as specified in the direction:
(a) any particular relevant seizure power (or all such powers);
(b) any particular class of persons, things or immigration detention facilities (or all such persons, things or facilities);
(c) any particular circumstances.
(9) To avoid doubt, but subject to this section:
(a) the return of a thing to a person under subsection (5) for a period does not prevent the further exercise of a power covered by subsection (7) in relation to the thing during that period; and
(b) the return of a thing to a person after taking all reasonable steps under subsection (6) for its return does not prevent the further exercise of a power covered by subsection (7) in relation to the thing.
251AB Searches of detainees etc.—access to alternative means of communication
(1) Without limiting section 256 (person in immigration detention may have access to certain advice, facilities etc.), the Secretary must ensure that a detainee who is detained in an immigration detention facility is given access to an alternative means of communication, which meets the requirements under subsection (2) of this section, if:
(a) a prohibited thing determined under paragraph 251A(2)(b) has been seized from the detainee under:
(i) paragraph 252(4A)(a) (seizure during personal searches under section 252); or
(ii) subsection 252CA(2) (seizure during screening, strip search or facility search); and
(b) the thing is a device that a person may use to communicate with another person; and
(c) the thing has not been returned to the detainee.
(2) The alternative means of communication must be reasonably sufficient to enable the detainee to:
(a) communicate with a member of the family unit of the detainee; or
(b) communicate with any person outside the immigration detention facility for the purposes of:
(i) obtaining legal advice; or
(ii) obtaining support of a prescribed kind; or
(iii) communicating governmental or political matters.
251AC Further limits on certain powers—implied freedom of political communication
Each of the following powers may not be exercised to the extent (if any) that the exercise of the power would infringe any constitutional doctrine of implied freedom of political communication:
(a) the power under subsection 251A(2) (power to determine prohibited things);
(b) a power covered by subsection 251AA(7) (powers relating to certain prohibited things).
251B Searches of detainees etc.—exercise of powers generally
Visibility or intentional concealment of things—search etc. powers
(1) An authorised officer may exercise a power to search for a thing under section 252 or 252BA:
(a) whether or not the thing is visible to the authorised officer:
(i) in the case of a search under section 252—immediately before the start of the search; or
(ii) in the case of a search of an immigration detention facility under section 252BA—immediately before the start of the search of the facility, or of any area of the facility covered by the search; and
(b) if the thing is not visible to the authorised officer at that time—whether or not the thing had been intentionally concealed.
Note: Section 252 covers searches of detainees and certain non‑citizens. Section 252BA covers searches of immigration detention facilities.
(2) An authorised officer may conduct a screening procedure for a thing under section 252AA, or a strip search for a thing under section 252A, whether or not the thing had been intentionally concealed before the screening procedure or strip search was conducted.
Note: Section 252AA covers screening procedures for detainees. Section 252A covers strip searches of detainees. These sections authorise searches for things which are not visible immediately before the procedure or search starts to be conducted.
Visibility or intentional concealment of things—seizure powers
(3) An authorised officer may seize a thing under section 252 in the course of a search under that section, or under section 252C or 252CA in the course of a search under section 252BA:
(a) whether or not the thing was visible to the authorised officer:
(i) in the case of a search under section 252—immediately before the start of the search; or
(ii) in the case of a search of an immigration detention facility under section 252BA—immediately before the start of the search of the facility, or of any area of the facility covered by the search; and
(b) if the thing was not visible to the authorised officer at that time—whether or not the thing had been intentionally concealed.
(4) An authorised officer may seize a thing under section 252C or 252CA, in the course of the conduct of a screening procedure under section 252AA or of a strip search under section 252A, whether or not the thing had been intentionally concealed before the screening procedure or strip search was conducted.
Powers do not limit each other
(5) A power may be exercised under any of sections 252, 252AA, 252A, 252BA, 252C and 252CA in relation to a person, immigration detention facility or thing irrespective of whether any powers are exercised in relation to the person, immigration detention facility or thing under another of those sections.
Directions requiring seizure powers to be exercised
(6) The Minister may, by legislative instrument, direct that an authorised officer (or an authorised officer in a specified class of relevant officers) must seize a thing by exercising one or more specified relevant seizure powers (or all relevant seizure powers) in relation to one or more of the following:
(a) a person in a specified class of persons, or all persons, to whom the relevant seizure power relates;
Example: All detainees in a specified immigration detention facility, or all detainees in such a facility other than those who are unauthorised maritime arrivals.
(b) a specified thing, a thing in a specified class of things, or all things, to which the relevant seizure power relates;
(c) a specified immigration detention facility, an immigration detention facility in a specified class of such facilities, or all immigration detention facilities;
(d) any circumstances specified in the directions.
Example: A direction could specify a particular period during which the direction is to take effect, or the duration of a specified event.
Note 1: The Minister may give a direction under subsection (6) only to prevent or lessen an immigration detention facility risk: see subsection 251AA(1).
Note 2: Despite any direction given under subsection (6), a thing cannot be seized if the seizure is not authorised under subsection 251AA(3) (which relates to preventing or lessening immigration detention facility risks).
(7) A relevant seizure power is a power to seize a thing under any of the following provisions:
(a) paragraph 252(4)(a) or (4A)(a) (searches of detainees etc.—general powers of personal search and seizure);
(b) subsection 252C(1) (screening and strip searches of detainees and searches of facilities—seizure (general));
(c) subsection 252CA(2) (screening and strip searches of detainees and searches of facilities—seizure of certain prohibited things).
(8) Subsection (6) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
252 Searches of detainees etc.—general powers of personal search and seizure
Scope
(1) This section applies in relation to the following persons:
(a) a detainee;
(b) a person who is a non‑citizen, if:
(i) the person has not been immigration cleared; and
(ii) an authorised officer has reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa; and
(iii) the person is not in detention.
Powers of authorised officers
(2) An authorised officer may, without warrant, search a person, the person’s clothing and any property under the immediate control of the person for any thing that may be seized from the person under paragraph (4)(a) or (4A)(a), whether or not the officer has any suspicion that the person has such a thing on the person’s body, in the person’s clothing or in any such property.
(3) An authorised officer may detain a person for the purpose of searching the person in accordance with this section.
Seizure
(4) Subject to subsection (4C), an authorised officer:
(a) may, in the course of a search under this section, seize any of the following:
(i) a weapon or other thing capable of being used to inflict bodily injury or to help any detainee to escape from immigration detention (a weapon or escape aid);
(ii) a document or other thing that is, or may be, evidence for grounds for cancelling the visa of the person who is being searched (visa cancellation evidence in relation to the person);
(iii) a prohibited thing determined under paragraph 251A(2)(a) (other than a prohibited thing that is also a weapon or escape aid, or visa cancellation evidence); and
(b) may retain the thing for such time as the authorised officer thinks necessary for the purposes of this Act.
Note 1: Paragraph 251A(2)(a) covers things the possession of which is unlawful.
Note 2: Subparagraph (a)(iii) of this subsection does not apply in relation to certain detainees and non‑citizens (see subsection (4B)).
(4A) Subject to subsection (4C), an authorised officer:
(a) may, in the course of a search under this section, seize a prohibited thing determined under paragraph 251A(2)(b) (other than a prohibited thing that is also a weapon or escape aid, or visa cancellation evidence); and
(b) must, if it appears that the prohibited thing is owned or was controlled by a detainee, take all reasonable steps, when that detainee ceases to be in detention, to return it to that detainee; and
(c) must, if it appears that the prohibited thing is owned or was controlled by a person other than a detainee, take all reasonable steps to return it to that person.
Note 1: Paragraph 251A(2)(b) covers the determination of a thing as a prohibited thing if the Minister is satisfied that its possession or use 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.
Note 2: Paragraph (a) of this subsection does not apply in relation to certain detainees and non‑citizens (see subsection (4B)).
Note 3: A prohibited thing that is seized under paragraph (a) of this subsection may be returned to a detainee, temporarily or indefinitely, before the detainee ceases to be in detention (see subsections 251AA(4), (5) and (6)).
(4B) The seizure of a prohibited thing under subparagraph (4)(a)(iii) or paragraph (4A)(a) is not authorised if the seizure is from:
(a) a detainee covered by a residence determination who is residing at the place specified in the determination; or
(b) a non‑citizen covered by paragraph (1)(b).
Note: However, if a prohibited thing is also a weapon or escape aid, or visa cancellation evidence, it can be seized from such a person under subparagraph (4)(a)(i) or (ii).
(4C) If an authorised officer has the power to seize a thing under paragraph (4)(a) or (4A)(a), the officer must seize the thing if a direction under subsection 251B(6) has the effect of requiring the officer to seize the thing.
Note 1: An authorised officer does not have the power to seize a prohibited thing under paragraph (4)(a) or (4A)(a) if subsection (4B) applies in relation to the thing.
Note 2: An authorised officer has the power to seize a prohibited thing under paragraph (4A)(a) only if the exercise of the power is authorised under subsection 251AA(3) (which relates to preventing or lessening immigration detention facility risks).
Forfeiture of seized things
(4D) A prohibited thing seized under paragraph (4A)(a) is forfeited to the Commonwealth if the authorised officer considers on reasonable grounds, after taking all reasonable steps to return the thing under paragraph (4A)(b) or (c), that:
(a) its owner or the person who last controlled the thing cannot be identified; or
(b) the thing is abandoned; or
(c) if it appears that the thing is owned or was controlled by a detainee—the thing cannot be returned to that detainee when that detainee ceases to be in detention; or
(d) if it appears that the thing is owned or was controlled by a person other than a detainee—the thing cannot be returned to that person.
(4E) If a prohibited thing is forfeited under subsection (4D), the authorised officer may dispose of it in any way the officer thinks appropriate.
Related matters
(5) This section does not authorise an authorised officer, or another person conducting a search pursuant to subsection (6) to remove any of the person’s clothing, or to require a person to remove any of his or her clothing.
(6) A search under this section of a person, and the person’s clothing, shall be conducted by:
(a) an authorised officer of the same sex as the person; or
(b) in a case where an authorised officer of the same sex as the person is not available to conduct the search—any other person who is of the same sex and: