Migration Act 1958

The exercise of a power covered by subsection (7) is authorised only if the purpose of exercising the power is to prevent or lessen an immigration detention facility risk.

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.

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:

the thing is such a prohibited thing; and

exercising the power is necessary to prevent or lessen an immigration detention facility risk.

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.

On a request by a person under subsection (4), an authorised officer must:

return the thing to the person for the period requested; or

if the authorised officer believes on reasonable grounds that it is necessary to do so to prevent or lessen an immigration detention facility risk:

return the thing to the person for a specified period shorter than that requested; or

refuse to return the thing to the person.

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)).

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.

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.

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)).

This subsection covers the following powers:

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);

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:

section 252 (searches of detainees etc.—general powers of personal search and seizure);

section 252AA (searches of detainees—screening procedures);

section 252A (searches of detainees—strip searches);

section 252BA (searches of certain immigration detention facilities—general);

section 252BB (searches of certain immigration detention facilities—authorised officers’ assistants);

the power of an authorised officer to seize a prohibited thing determined under paragraph 251A(2)(b), under the following provisions:

paragraph 252(4A)(a) (seizure during searches under section 252);

subsection 252CA(2) (seizure during screening and strip searches of detainees and searches of facilities);

the following powers of an authorised officer, in relation to an immigration detention facility:

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;

the power, under subsection 252G(7), to refuse entry to the facility to a person who does not comply with such a request.

In this section, a reference to the exercise of a power under a provision of this Act includes a reference to:

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

the exercise of the power (or a related power mentioned in paragraph (a)) in any particular way.

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:

any particular relevant seizure power (or all such powers);

any particular class of persons, things or immigration detention facilities (or all such persons, things or facilities);

any particular circumstances.

To avoid doubt, but subject to this section:

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

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.