(7) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an authorised officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (8).
(8) An authorised officer or other person who conducts a search under this section shall not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.
252AA Searches of detainees—screening procedures
(1) An authorised officer may, without warrant, conduct a screening procedure in relation to a detainee, other than a detainee to whom section 252F applies, for any of the following things on the detainee’s body, in the detainee’s clothing or in a thing in the detainee’s possession:
(a) a weapon or escape aid;
(b) a prohibited thing.
(1A) An authorised officer may conduct a screening procedure under subsection (1) in relation to a detainee for a thing mentioned in that subsection whether or not the officer has any suspicion that the detainee has such a thing on the detainee’s body, in the detainee’s clothing or in a thing in the detainee’s possession.
(2) An authorised officer who conducts a screening procedure under this section 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 section does not authorise an authorised officer to remove any of the detainee’s clothing, or to require a detainee to remove any of his or her clothing.
(5) In this section:
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.
252A Searches of detainees—strip searches
(1) An authorised officer may, without warrant, conduct a strip search of a detainee, other than a detainee to whom section 252F applies, for any of the following things on the detainee’s body, in the detainee’s clothing, or in a thing in the detainee’s possession:
(a) a weapon or escape aid;
(b) a prohibited thing.
Note: Section 252B sets out rules for conducting a strip search under this section.
(2) A strip search of a detainee means a search of the detainee’s body or clothing or of a thing in the detainee’s possession. It may include:
(a) requiring the detainee to remove some or all of the detainee’s 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 authorised officer only if:
(a) an officer suspects on reasonable grounds that there is on the detainee’s body, in the detainee’s clothing or in a thing in the detainee’s possession any of the following things:
(i) a weapon or escape aid;
(ii) a prohibited thing; and
(b) the 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 or Australian Border Force Commissioner, or an SES Band 3 employee in the Department (who is not the officer referred to in paragraphs (a) and (b) nor the authorised 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.
(3A) An officer may form a suspicion on reasonable grounds for the purposes of paragraph (3)(a) on the basis of:
(a) a search conducted under section 252 (whether by that officer or another officer); or
(b) a screening procedure conducted under section 252AA (whether by that officer or another officer); or
(c) any other information that is available to the officer.
(4) An authorisation of a strip search given for the purposes of paragraph (3)(c):
(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.
(5) A failure to comply with paragraph (4)(b) does not affect the validity of a strip search conducted on the basis of that authorisation.
(6) The power to authorise a strip search under paragraph (3)(c) cannot be delegated to any other person.
(6A) A power conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(6B) The magistrate need not accept the power conferred.
(6C) A magistrate exercising a power under this section 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.
(8) In this section:
business day means a day that is not a Saturday, Sunday or public holiday in the place where the authorisation is given.
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.
252B Searches of detainees—rules for conducting a strip search
(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; and
(b) must be conducted in a private area; and
(c) must be conducted by an authorised officer of the same sex as the detainee; and
(d) subject to subsections (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 subsections (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 immigration 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 authorised 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 subsection (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 authorised officer conducting the search believes on reasonable grounds to be necessary to determine whether there is on the detainee, in the detainee’s clothing or in a thing in the detainee’s possession any of the following things:
(i) a weapon or escape aid;
(ii) a prohibited thing; 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 authorised 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 authorised officer, assists in conducting a strip search if the person acts in good faith and does not contravene this section.
(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) seized under section 252C or 252CA.
252BA Searches of certain immigration detention facilities—general
Search
(1) An authorised officer may, without warrant, conduct a search of an immigration detention facility operated by or on behalf of the Commonwealth, including, without limitation, a search covering any or all of the following:
(a) accommodation areas;
(b) administrative areas;
(c) common areas;
(d) detainees’ personal effects;
(e) detainees’ rooms;
(f) medical examination areas;
(g) storage areas.
(2) An authorised officer may conduct a search of the facility for any of the following things:
(a) a weapon or escape aid;
(b) a prohibited thing.
(3) An authorised officer may search the facility for a thing under subsection (2) whether or not the officer has any suspicion that there is such a thing at the facility.
Note: See also sections 252C and 252CA in relation to the seizure of things in the course of a search under this section.
Conduct of search
(4) Without limiting subsections (1) and (2), an authorised officer may use a dog in conducting a search under this section.
(5) If an authorised officer uses a dog in conducting a search under this section, the officer must:
(a) take all reasonable precautions to prevent the dog touching any person (other than the officer); and
(b) keep the dog under control while conducting the search.
(6) If an authorised officer uses a dog in accordance with subsection (5) in conducting a search under this section, that use of the dog is not unlawful only because of the behaviour of the dog (including the touching of any person by the dog).
(7) An authorised officer who conducts a search under this section 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.
252BB Searches of certain immigration detention facilities—authorised officers’ assistants
Authorised officers may be assisted by other persons
(1) An authorised officer may be assisted by other persons in exercising powers or performing functions or duties in conducting a search under section 252BA (other than under subsection 252BA(4)), or under section 252C, 252CA or 252CB in relation to such a search, if that assistance is necessary and reasonable. A person giving such assistance is the authorised officer’s assistant.
Note: Subsection 252BA(4) provides for an authorised officer to use a dog to conduct a search of an immigration detention facility. Sections 252C, 252CA and 252CB deal with the seizure of things in the course of a search under section 252BA and their return in certain circumstances.
Powers of an authorised officer’s assistant
(2) In connection with a search of an immigration detention facility under section 252BA, an authorised officer’s assistant:
(a) may enter the facility; and
(b) may exercise any of the same powers, and perform any of the same functions and duties, as are conferred on the authorised officer in relation to the search under that section (other than under subsection 252BA(4)) and sections 252C, 252CA and 252CB; and
(c) must do so in accordance with any directions given to the assistant by the authorised officer.
(3) A power exercised by an authorised officer’s assistant as mentioned in subsection (2) is taken for all purposes to have been exercised by the authorised officer.
(4) A function or duty performed by an authorised officer’s assistant as mentioned in subsection (2) is taken for all purposes to have been performed by the authorised officer.
(5) Section 251B applies in relation to the exercise of a power, or the performance of a function or duty, by an authorised officer’s assistant in the same way as it applies in relation to such an exercise or performance by the authorised officer.
(6) If a direction is given under paragraph (2)(c) in writing, the direction is not a legislative instrument.
252C Screening and strip searches of detainees and searches of facilities—seizure (general)
Seizure
(1) Subject to subsection (2), in the course of the conduct of a screening procedure under section 252AA, or of a search under section 252A or 252BA, an authorised officer may seize a thing that:
(a) is a weapon or escape aid; or
(b) is a prohibited thing determined under paragraph 251A(2)(a); or
(c) is forfeitable to the Commonwealth (otherwise than under subsection (2A)); or
(d) in any other case—might provide evidence of the commission of an offence against this Act.
Note 1: Section 252AA deals with screening detainees, section 252A deals with strip searches of detainees and section 252BA deals with searches of certain immigration detention facilities.
Note 2: Paragraph 251A(2)(a) covers things the possession of which is unlawful.
(2) If an authorised officer has the power to seize a thing under subsection (1), the officer must seize the thing if a direction under subsection 251B(6) has the effect of requiring the officer to seize the thing.
Forfeiture of seized things
(2A) The following things are forfeited to the Commonwealth if seized under subsection (1):
(a) a weapon or escape aid;
(b) a prohibited thing determined under paragraph 251A(2)(a).
(3) An authorised officer must not return a thing that is forfeited or forfeitable to the Commonwealth. Instead, the authorised officer must, as soon as practicable, give the thing to a constable (within the meaning of the Crimes Act 1914).
Return of seized things
(4) Section 252CB applies to any thing seized under paragraph (1)(d) after the earliest of the following events happens:
(a) the end of the period of 60 days after the thing was seized, or at the end of a longer period ordered by a magistrate under section 252E, unless proceedings mentioned in paragraph (b) of this subsection are instituted before the end of that period (or that longer period);
(b) proceedings in respect of which the thing might provide evidence (including any appeal to a court in relation to those proceedings) are completed;
(c) it is decided that the thing is not to be used in evidence.
Note: Section 252CB provides for the return of things seized under paragraph (1)(d) of this section and section 252CA.
(5) Despite subsection (4), section 252CB does not apply to a thing if an authorised officer is authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State or Territory), otherwise than under this section, to retain, destroy or dispose of the thing.
252CA Screening and strip searches of detainees and searches of facilities—seizure of certain prohibited things
Scope—certain prohibited things
(1) This section applies in relation to a prohibited thing determined under paragraph 251A(2)(b), unless subsection 252C(1) applies in relation to the prohibited thing.
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: For the seizure of other things obtained by screening detainees, by a strip search of detainees or by a search of certain immigration detention facilities, see section 252C.
Seizure
(2) Subject to subsection (4), in the course of the conduct of a screening procedure under section 252AA, or of a search under section 252A or 252BA, an authorised officer may seize a thing to which this section applies.
(3) However, subsection (2) does not authorise the seizure of a medication or health care supplement in the course of a search under section 252BA if there are reasonable grounds for an authorised officer conducting the search to consider that:
(a) the medication or supplement is possessed or controlled by a particular detainee; and
(b) the medication or supplement is not a prohibited thing in relation to the particular detainee because of subsection 251A(3).
Note: Section 252BA deals with searches of certain immigration detention facilities. Subsection 251A(3) deals with medications and health care supplements that are prescribed or supplied for a person’s individual use.
(4) If an authorised officer has the power to seize a thing under subsection (2), the officer must seize the thing if a direction under subsection 251B(6) has the effect of requiring the officer to seize the thing.