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MIGRATION ACT 1958 - SECT 252A

Power to conduct a strip search

             (1)  A strip search of a detainee, other than a detainee to whom section 252F applies, may be conducted by an authorised 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 immigration detention.

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, 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 authorised officer only if:

                     (a)  an 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 subsection (1); 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.

             (7)  To avoid doubt, a strip search of a detainee may be conducted under this section irrespective of whether a search of the detainee is conducted under section 252 or a screening procedure is conducted in relation to the detainee under section 252AA.

             (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.



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