Government can’t seize detainees’ mobile phones, Full Court says
Class Actions June 26, 2018 3:30 pm By Miklos Bolza | Sydney

The Full Court has invalidated a blanket policy by the Secretary of the Department of Home Affairs to seize mobile phones from detainees held within immigration detention centres, in a class action filed on behalf of detainees.

Writing for the Full Court, Justice Steven Rares said Section 252 of the Migration Act, which deals with search and seizure rules regarding detained immigrants, could only be used to search for and seize hidden items which could be used to inflict bodily harm on others or to help a person escape from detention.

“The fallacy of the respondents’ argument is to conflate a potential nefarious use to which a mobile phone can be put by a person who has hidden it with the ordinary and innocent use of that device as a commonplace feature of modern daily life around the world,” Judge Rares said.

Even everyday objects such as pens, bedsheets and belts found in detention facilities could be used for nefarious purposes, he said.

“Human ingenuity can convert most everyday objects that have innocent uses into ones capable of inflicting bodily injury or being used to escape from detention,” the judge said.

Justices Geoffrey Flick and Darryl Rangiah also sat on the Full Court panel.

The contested policy, which was approved and implemented on November 15, 2016, amended the Detention Services Manual to include mobile phones and SIM cards under its list of controlled items.

“For security and safety purposes all mobile phones are classified as controlled items and are not permitted in [immigration detention facilities], except under conditions specified by the Department,” the DSM reads.

Two separate proceedings were filed against the Minister for Immigration and Border Protection, Commonwealth of Australia and the Secretary contesting the new policy — a representative proceeding launched by a detainee known as ARJ17, and an appeal against a prior judgment by Justice Justin Smith of the Federal Circuit Court launched by a detainee known as SZSZM.

The detainees, both of whom were held at the Villawood Detention Centre outside of Sydney, argued the Migration Act did not permit the implementation of the approved blanket policy as it lay outside of the search and seizure provisions of Section 252.

Judge Rares ordered the two cases be heard concurrently by the Full Court.

All parties were told to file agreed orders giving effect to the court’s judgment on or before June 29.

The National Justice Project represented the applicants while the Australian Government Solicitor represented the respondents in both proceedings.

The class action is ARJ17 v Minister for Immigration and Border Protection & Ors while the appeal is SZSZM v Minister for Immigration and Border Protection & Ors.

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Miklos Bolza

Miklos Bolza has been a journalist for three years. He has written for a variety of publications, including NZ Lawyer, HRD Australia, and Australian Broker. He is currently the Sydney court reporter for Lawyerly.