Note 1: An authorised officer does not have the power to seize a medication or health care supplement under subsection (2) if subsection (3) applies in relation to the medication or supplement.
Note 2: An authorised officer has the power to seize a prohibited thing under subsection (2) only if the exercise of the power is authorised under subsection 251AA(3) (which relates to preventing or lessening immigration detention facility risks).
Note 3: A prohibited thing that is seized under subsection (2) may be returned to a detainee, temporarily or indefinitely, before the detainee ceases to be in detention (see subsections 251AA(4), (5) and (6)).
Return of seized things
(5) Section 252CB applies to a thing that is seized under subsection (2) of this section.
Note: Section 252CB provides for the return of things seized under this section and of certain things seized under section 252C.
252CB Screening and strip searches of detainees and searches of facilities—return of seized things
Reasonable steps to return seized things
(1) If this section applies, because of subsection 252C(4) or 252CA(5), in relation to a thing that has been seized under paragraph 252C(1)(d) or subsection 252CA(2), an authorised officer:
(a) must, if it appears that the thing is owned or was controlled by a detainee, take all reasonable steps to return it to the detainee when that detainee ceases to be in detention; and
(b) must, if it appears that the thing is owned or was controlled by a person other than a detainee, take all reasonable steps to return it to the person.
Note 1: This section applies to a thing seized under paragraph 252C(1)(d) because it might provide evidence of the commission of an offence under this Act. This section also applies to a prohibited thing determined under paragraph 251A(2)(b) that is seized under subsection 252CA(2).
Note 2: A prohibited thing that is seized under subsection 252CA(2) may be returned to a detainee, temporarily or indefinitely, before the detainee ceases to be in detention (see subsections 251AA(4), (5) and (6)).
Forfeiture and disposal of seized things if they cannot be returned
(2) However, the thing is forfeited to the Commonwealth if, after taking all reasonable steps to return it under paragraph (1)(a) or (b) of this section, the authorised officer considers on reasonable grounds 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 the detainee when the 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 the person.
(3) If a prohibited thing is forfeited under subsection (2), the authorised officer may dispose of it in any way the officer thinks appropriate.
252D Retention of certain seized things for extended period—application for order by magistrate
(1) This section applies if an authorised officer seized a thing under paragraph 252C(1)(d) and proceedings in respect of which the thing might provide evidence have not commenced before the end of:
(a) 60 days after the authorised officer seizes the thing; or
(b) a period previously specified in an order of a magistrate under section 252E.
(2) The authorised officer may apply to a magistrate for an order that the officer may retain the thing for a further period.
(3) Before making the application, the authorised 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 authorised officer believes to be such a person of the proposed application.
252E Retention of certain seized things for extended period—order by magistrate
(1) The magistrate may order that the authorised officer who made an application under section 252D may retain the thing if the magistrate is satisfied that it is necessary for the authorised 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 authorised officer may retain the thing.
(3) 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.
(4) The magistrate need not accept the power conferred.
(5) 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.
252F Detainees held in State or Territory prisons or remand centres
(1) This section applies to a detainee if:
(a) he or she is held in immigration detention in a prison or remand centre of a State or Territory; and
(b) a law of that State or Territory confers a power to search persons, or things in the possession of persons, serving sentences or being held in the prison or remand centre.
(2) To the extent that the State or Territory law confers that power, or affects the exercise of that power, it applies to the detainee as though it were a law of the Commonwealth.
(3) Sections 252AA and 252A of this Act do not apply to a detainee to whom this section applies.
(1) An officer may request that a person about to enter an immigration detention facility operated by or on behalf of the Commonwealth do one or more of the following:
(a) walk through screening equipment;
(b) allow an 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.
(1A) An officer may make a request to a person under subsection (1) whether or not, before making the request, the officer has any suspicion that there is in the person’s possession a thing mentioned in subsection (3).
(2) Screening equipment means a metal detector or similar device for detecting objects or particular substances.
(3) An authorised officer may request that a person do something under subsection (4) if the person is about to enter an immigration detention facility operated by or on behalf of the Commonwealth, and the officer suspects on reasonable grounds that there is in the person’s possession:
(a) a thing that:
(i) might endanger the safety of the detainees, staff or other persons at the facility; or
(ii) might disrupt the order or security arrangements at the facility; or
(b) a prohibited thing.
(3A) A request may be made under subsection (4) that a person do something whether or not a request is also made under subsection (1) that the person do something.
(4) An authorised officer may request that the person do one or more of the following:
(a) allow the authorised 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 authorised 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 authorised officer, if the officer suspects on reasonable grounds that the thing or anything in its contents:
(i) might endanger the safety of the detainees, staff or other persons at the immigration detention facility; or
(ii) might disrupt the order or security arrangements at the facility; or
(iii) is a prohibited thing.
(5) Subject to subsections (6) and (6A), a person who leaves a thing (including any of its contents) in a place specified by an authorised officer is entitled to its return when the person leaves the immigration detention facility.
(6) If possession of the thing, or any of those contents, by the person is unlawful under a Commonwealth law or in the State or Territory in which the immigration detention facility is located:
(a) the thing or the contents must not be returned to the person; and
(b) an authorised officer must, as soon as practicable, give the thing or the contents to a constable (within the meaning of the Crimes Act 1914).
(6A) If a person leaves a prohibited thing determined under paragraph 251A(2)(b) in a place as mentioned in subsection (5) of this section, it is forfeited to the Commonwealth if an authorised officer considers on reasonable grounds, after taking all reasonable steps to return the thing to the person for the purposes of subsection (5), that:
(a) its owner or a person who controls the thing cannot be identified; or
(b) the thing is abandoned; or
(c) the thing otherwise cannot be returned to the person.
Note: 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.
(6B) If a prohibited thing is forfeited under subsection (6A), the authorised officer may dispose of it in any way the officer thinks appropriate.
(7) A person who is about to enter an immigration detention facility may be refused entry if he or she does not comply with a request under this section.
253 Detention of deportee
(1) Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person.
(2) A person detained under subsection (1) or (10) may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8).
(3) Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order.
(4) If a person detained under this section (in this subsection called the detained person) claims, within 48 hours after the detention and while the detained person is detention, that he or she is not the person in respect of whom the deportation order is in force, the person to whom the claim is made shall:
(a) if that last‑mentioned person is an officer—ask the detained person; or
(b) in any other case—cause an officer to ask the detained person;
to make a statutory declaration to that effect, and, if the person detained makes such a declaration, the officer who asked him or her to make the declaration shall take him or her before a prescribed authority within 48 hours after the making of the declaration, or, if it is not practicable to take him or her before a prescribed authority within that time, as soon as practicable after the expiration of that period.
(5) If a detained person who is required under subsection (4) to be brought before a prescribed authority within a particular period, is not so brought before a prescribed authority, the person shall be released.
(6) Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a deportee and, if the prescribed authority is satisfied that there are such reasonable grounds, the prescribed authority shall, by writing under his or her hand, declare accordingly.
(7) Where a prescribed authority makes a declaration in accordance with subsection (6), the detained person may be held in detention as a deportee in accordance with subsection (8), but otherwise the prescribed authority shall direct the release of that person and he or she shall be released accordingly.
(8) A deportee may be kept in immigration detention or such detention as the Minister, Secretary or Australian Border Force Commissioner directs:
(a) pending deportation, until he or she is placed on board a vessel for deportation;
(b) at any port or place in Australia at which the vessel calls after he or she has been placed on board; or
(c) on board the vessel until its departure from its last port or place of call in Australia.
(9) In spite of anything else in this section, the Minister, Secretary or Australian Border Force Commissioner may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section.
(10) An officer may, without warrant, detain a person who:
(a) has been released from detention under subsection (9) subject to conditions; and
(b) has breached any of those conditions.
(11) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from detention of a person held in detention under this section where the Court finds that there is no valid deportation order in force in relation to that person.
254 Removees and deportees held in other custody
(1) This section applies if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act.
(2) The Secretary or Australian Border Force Commissioner may give the person written notice:
(a) if the person is a deportee:
(i) stating that a deportation order has been made; and
(ii) setting out particulars of the deportation order; and
(b) if the person is a removee—stating that the person is to be removed; and
(c) in any case—stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (the custody transfer time), the person will be kept in immigration detention.
(2A) If a removee is given notice under subsection (2):
(a) the authority who has custody of the removee immediately before the custody transfer time is taken from the custody transfer time to be an officer for the purposes of the application of Division 7 of Part 2 in relation to the removee; and
(b) the removee is taken from the custody transfer time to be detained by the authority in the capacity of such an officer in the exercise of the powers conferred by that Division.
(3) If a deportee is given notice under subsection (2):
(a) the authority who has custody of the deportee immediately before the custody transfer time is taken from the custody transfer time to be an officer for the purposes of the application of subsection 253(1) in relation to the deportee; and
(b) the deportee is taken from the custody transfer time to be detained by the authority in the capacity of such an officer in the exercise of the powers conferred by subsection 253(1); and
(c) subsection 253(3) does not apply in relation to the deportee.
255 Prescribed authorities
(1) The Minister may appoint as a prescribed authority for the purposes of section 253 a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory or a barrister or solicitor of the High Court or of the Supreme Court of a State of not less than 5 years’ standing.
(2) The Governor‑General may arrange with the Governor‑in‑Council of a State for the performance by persons who hold office as Police, Stipendiary or Special Magistrates in that State of the functions of a prescribed authority under section 253.
(3) Notice of an arrangement under subsection (2) shall be published in the Gazette.
(4) Where an arrangement under subsection (2) is in force, a person who holds an office specified in the arrangement is a prescribed authority for the purposes of section 253.
(5) A person who holds office as a Police, Stipendiary or Special Magistrate of a Territory is a prescribed authority for the purposes of section 253.
(6) A prescribed authority shall make a thorough investigation of the matter which he or she is required to inquire into, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit.
256 Person in immigration detention may have access to certain advice, facilities etc.
Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.
257 Persons may be required to answer questions
(1) For the purpose of determining whether a person who is in immigration detention under this Act is an unlawful non‑citizen, a removee or a deportee, an officer may put to that person such questions as the officer considers necessary and may move that person from place to place.
(2) Where an officer puts a question to a person in accordance with subsection (1) after having informed that person that he or she is required to answer the question, that person shall not:
(a) refuse or fail to answer the question; or
(b) in answer to the question, make a statement which is false or misleading in a material particular.
Penalty: Imprisonment for 6 months.
(2A) An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.