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Crimmigration in Australia pp 197–220Cite as

Strip Searching: Seeking the Truth ‘in’ and ‘on’ the Regular Migrant’s Body

Abstract

This chapter examines the statutory powers of border migration officers in Australia with an emphasis on the coercive power exerted via the external body search (strip search) and internal body search (cavity search) of regular migrants. The chapter argues that the securitisation narrative allows the body to be positioned as the truth-definer. The body becomes a site of proof and trust, while documentation and oral explanation are deemed insufficient for revealing the truth, even when documents evidence belonging through citizenship. In this context, immigration officers are ‘border truth producers’ and the suspect community’s ‘non-white body’ is the main target. The Australian legislation underpinning external and internal body searches is compared to the equivalent US regime to highlight the need for checks and balances in the Australian context. This requirement for more balanced statutory powers is justified by the lack of an evidence-based approach and the secrecy surrounding the border control regime, eroding de facto the existing protection of human rights. The chapter concludes with a reflection on the digitalisation of body searches via new technology, such as body scanners. It is claimed that such a procedure normalises the search for truth in/on the body, rendering anyone a member of the suspect community.

Keywords

  • Border officials
  • Statutory body search powers
  • Secrecy
  • Accountability
  • Border technologies

The author would like to thank the anonymous reviewers for the insightful comments and the editor of the book A./Prof Peter Billings for his vision and work on the crimmigration theme.

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Notes

  1. 1.

    Understood as a traveller with regular documents, including those attesting citizenship, as opposed to an undocumented migrant.

  2. 2.

    Senator Hinch 2018.

  3. 3.

    The need to identify the smuggling of drugs and other substances appears to be the primary rationale behind such searches (see Wetter 2013), rather than terrorism as such, even if the rhetoric is usually about the terrorist threat.

  4. 4.

    Hillyard 1993.

  5. 5.

    Apart from the Australian Protective Service Officers who are employees of the Australian Federal Police (AFP).

  6. 6.

    For a full overview of provisions conferring coercive power on ABF officers, see ANAO 2017, Appendix 2. This ANAO report states that ABF officers ‘can exercise coercive powers under 35 Acts and more than 500 empowering provisions’: ANAO 2017, para. 1.7.

  7. 7.

    In more recent years, we have seen a surge in the number of enactments further empowering the ABF in relation to dealing with the airport environment – such as counter-terrorism measures, the Anti-Terrorism Act 2005 (Cth) and Border Security Legislation Amendment Act 2002 (Cth) (see also Parliamentary Joint Committee on Intelligence and Security 2006).

  8. 8.

    This chapter focuses on the airport as a space of interest and does not discuss the impact of the Australian Border Force Act in the area of irregular migration, although this is undoubtedly another area in which the ramping up of the criminal law aspect of administrative regulations is evident.

  9. 9.

    Pratt and Thompson 2008.

  10. 10.

    Salter 2008a.

  11. 11.

    Salter 2008b.

  12. 12.

    Agamben 1995.

  13. 13.

    On Radio 3AW, Prime Minister Malcolm Turnbull asserted, ‘There was a couple of people that came very close to blowing up an A380, with the best part of 400 people the other day’ and the radio host Neil Mitchell added, ‘so it is alleged’. This refers to an alleged plot to bring down an Etihad A380 from Sydney in July 2016. In the same interview, Turnbull also refers to ‘dangerous times’ and the ‘safety of the Australian people’ as justification for the increased security measures at airports (Prime Minister radio interview 2018; see also Remeikis 2018).

  14. 14.

    US General Accounting Office 2000; see also Gibeaut 1999.

  15. 15.

    Vine 2011a, p. 54, saying that 54% of total strip searches involved female passengers; in Vine 2011b, while the we see an equal distribution of strip searches between male and female passengers, it is noted than none of them presented clear grounds to support the immigration officers’ call for such an intrusive search.

  16. 16.

    Mason 2017.

  17. 17.

    There is significant historical evidence that the Global North immigration control system is built on a distrust of the regular migrant based on racialised and gendered profiling of the ‘suspect community’, and there is also historical evidence of the persistence and normalisation of the aggressive ‘search of the body’, even of travellers who are in possession of valid papers of entry. Exemplary of such violence on the ‘othered’ body at the border is the practice of ‘virginity testing’ (see Marmo and Smith 2012; Smith and Marmo 2014). Historical examples serve as a basis to suggest that the scrutiny of the body under contemporary crimmigration policies is a practice that has evolved over time, rather than a new tool for surveillance.

  18. 18.

    Aas and Bosworth 2013; McCulloch and Pickering 2012.

  19. 19.

    Gerard 2014; Weber and Pickering 2011.

  20. 20.

    Lyon 2005; Lyon 2006; Nagra and Maurutto 2016.

  21. 21.

    Said 1985.

  22. 22.

    Stumpf 2006.

  23. 23.

    Pratt and Thompson 2008, p. 627.

  24. 24.

    Muller 2004; Aas 2011.

  25. 25.

    Pratt and Thompson 2008, p. 627.

  26. 26.

    Lyon 2003.

  27. 27.

    Stumpf 2006.

  28. 28.

    Villegas 2015, p. 2357.

  29. 29.

    Friedman 2010, p. 173.

  30. 30.

    van Houtum 2011.

  31. 31.

    Pratt and Thompson 2008, p. 625.

  32. 32.

    Ibid.

  33. 33.

    Pratt 1999.

  34. 34.

    Juss 1997, p. 2.

  35. 35.

    Sassen 2006.

  36. 36.

    The International War Crimes Tribunals Act 1995 (Cth) will not be discussed further as it does not apply to the focus of this chapter. Strip search powers were later extended to include irregular migrants, under the Migration Act 1958, s 252a via the Migration Legislation Amendment (Immigration Detainees) Act 2001 (Cth) (which excludes cavity searches) introduced under the Howard government. This is a highly controversial subject. A November 2017 Parliamentary Inquiry obtained information that: ‘Since July 2015, there have been 204 strip searches conducted in Immigration Detention Centres (IDCs). One hundred ninety-eight were conducted at Christmas Island IDC, three at Villawood IDC, two at Maribyrnong IDC, and one at Perth IDC’ (Parliamentary Inquiry 2017, unpaginated). Further, there have been claims of strip searches being conducted on irregular migrants in the most inhumane conditions and in violation of the current legislation. For example, see a post by a refugee woman who was strip searched on Nauru, which was posted on the Australian barrister and refugee advocate Julian Burnside’s website in December 2015 – http://www.julianburnside.com.au/strip-searches-on-nauru/. The question of inhumane strip searches was denied by the government – see Parliamentary Inquiry 2017.

  37. 37.

    Immigration and Nationality Act 1952 s 287(c).

  38. 38.

    ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized’ (United States Constitution, amend IV).

  39. 39.

    Camara v Municipal Court, p. 528.

  40. 40.

    ‘Custom inspectors need not seek a search warrant to perform either an x-ray search of person or any other type of border search’ – in United States v Vega-Barvo p. 1349.

  41. 41.

    United States v Ramsey, p. 616.

  42. 42.

    United States v Montoya de Hernandez, pp. 536–544.

  43. 43.

    United States v McMurray.

  44. 44.

    United States v Sandler.

  45. 45.

    United States v Purvis.

  46. 46.

    United States v Sosa.

  47. 47.

    United States v Hill, p. 936; and, Almeida-Sanchez v United States, p. 273.

  48. 48.

    US v Forbicetta, p. 646.

  49. 49.

    Rochin v California.

  50. 50.

    For example, see DOE v El Paso County Hospital District et al.; Cervantes v US.

  51. 51.

    This chapter does not include a discussion on strip searching and cavity searching of irregular migrants at the US border, but there is plenty of research suggesting that such searches are even more problematic when carried out on undocumented migrants (see Carpenter 2006).

  52. 52.

    Cervantes v US.

  53. 53.

    DOE v El Paso County Hospital District et al..

  54. 54.

    Bustillos v El Paso County Hospital Dist.

  55. 55.

    See, for example, the case of a woman detained at the Port of Roosville, Montana (on the US–Canada border), and subjected to an improper strip search and internal body cavity search by immigration officers (Soloducha 2016). See also Goodyear 2012.

  56. 56.

    Newsome 2003.

  57. 57.

    Carpenter 2006.

  58. 58.

    In line with what has already been reported a few years back, see US General Accounting Office 2000.

  59. 59.

    Newsome 2003; see also Pratt and Thompson 2008.

  60. 60.

    Yu Hsi Lee 2015. And ABC report also includes a report of abuse of minors at the border (Frey and Epstein 2017).

  61. 61.

    Senator Hinch 2018.

  62. 62.

    Occasionally, there is a trace in the media and blogs. For example, in 2011, a media article stated that: ‘Customs has confirmed it does video-record travellers during strip-searches if they are suspected of carrying prohibited substances, with 48 travellers subjected to the process in 2010–11’ (Harvey 2011, unpaginated).

  63. 63.

    An officer authorised by the Border Force Commissioner to detain a person, Customs Act, ss 219L, 219Q and 219S).

  64. 64.

    ANAO 2017, table. 3.1.

  65. 65.

    ANAO 2017, para. 3.4.

  66. 66.

    Ibid. para. 3.6.

  67. 67.

    See, for example, Commonwealth Ombudsman 2010.

  68. 68.

    ANAO 2017, para. 7.

  69. 69.

    Ibid. para 3.18, citing the 2010 Commonwealth Ombudsman report.

  70. 70.

    Ibid. para. 8.

  71. 71.

    Ibid. para. 3.8.

  72. 72.

    Holloway v Commonwealth of Australia.

  73. 73.

    Identified by the Guardian and other newspapers as Melbourne public figure and racing car driver Greg Holloway (Davey 2016).

  74. 74.

    Those ‘scribbles’ on the passengers’ incoming card, one would assume, together with some further comments on their database.

  75. 75.

    Holloway v Commonwealth of Australia, para. 94.

  76. 76.

    Ibid. para. 113.

  77. 77.

    Ibid. para. 114.

  78. 78.

    Which reads:

    Secrecy

    1. (1)

      A person commits an offence if:

      1. (a)

        the person is, or has been, an entrusted person; and

      2. (b)

        the person makes a record of, or discloses, information; and

      3. (c)

        the information is Immigration and Border Protection information.

    Penalty: Imprisonment for 2 years.

    1. (1A)

      If the information is Immigration and Border Protection information because of the operation of subsection 4(5) or (6), the fault element of recklessness for paragraph (1)(c) of this section is taken to be satisfied if the person is reckless as to whether or not whichever of the following applies:

      1. (a)

        the information has a security classification;

      2. (b)

        the information originated with, or was received from, an intelligence agency;

      3. (c)

        the information was provided to the Commonwealth pursuant to a statutory obligation or otherwise by compulsion of law.

    (..)

    Exception

    1. (2)

      Subsection (1) does not apply if:

      1. (a)

        the making of the record or disclosure is authorised by section 43, 44, 45, 47, 48 or 49; or

      2. (b)

        the making of the record or disclosure is in the course of the person’s employment or service as an entrusted person; or

      3. (c)

        the making of the record or disclosure is required or authorised by or under a law of the Commonwealth, a State or a Territory; or

      4. (d)

        the making of the record or disclosure is required by an order or direction of a court or tribunal.

  79. 79.

    Private correspondence with Home Affairs Department, 24 July 2018.

  80. 80.

    Heilbronn 2008.

  81. 81.

    Dennis 2013, p. 12.

  82. 82.

    Heilbronn 2008, p. 225.

  83. 83.

    Ibid.

  84. 84.

    See, for example, R v Rondo (2001) 126 A Crim R 562.

  85. 85.

    Heilbronn 2008.

  86. 86.

    Ibid. 227–8.

  87. 87.

    Mowery et al. 2014.

  88. 88.

    Prime Minister radio interview 2018, unpaginated; Hatch 2018; Remeikis 2018.

  89. 89.

    For example, Harris 2002, suggests officers are uncomfortable in touching passengers’ body parts.

  90. 90.

    Ainsworth 2003.

  91. 91.

    Additional body scanner screening at airports are a ‘window dressing’ because, for example, scanners cannot detect plastic explosives (ABC 2017). In the case of plastic explosives, the manual search, such as the pat-down, is still considered the most effective means of detection (see Mitchener-Nissen et al. 2012; Sweet 2009.

  92. 92.

    Mitchener-Nissen et al. 2012; Wetter, 2013.

  93. 93.

    Mitchener-Nissen et al. 2012.

  94. 94.

    See also Dennis 2013 p. 12.

  95. 95.

    Amir and Kotef 2018.

  96. 96.

    Kirschenbaum 2013.

  97. 97.

    Citing the 2012 Europe Airport Council International Europe data, Kirschenbaum 2013 claims that airport security such as screening would amount to over one-quarter of all airport security costs, which is a relatively high proportion.

  98. 98.

    See also Perry and Hasisi 2018. Indeed, on the subject of consent, the new provision 41a of the 2018 Aviation Transport Security Amendment Bill contains reference to a ‘presumed consent’ of any person who presents at an aviation security screening point, unless they expressly withdraw such consent. This in itself is problematic.

  99. 99.

    Aas 2011.

  100. 100.

    Balibar 2010, p. 316.

  101. 101.

    Salter 2008a.

  102. 102.

    Agamben 1995.

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  1. College of Business, Government and Law, Flinders University, Adelaide, Australia

    Marinella Marmo

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  1. TC Beirne School of Law, The University of Queensland, Brisbane, QLD, Australia

    Peter Billings

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Marmo, M. (2019). Strip Searching: Seeking the Truth ‘in’ and ‘on’ the Regular Migrant’s Body. In: Billings, P. (eds) Crimmigration in Australia. Springer, Singapore. https://doi.org/10.1007/978-981-13-9093-7_9

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