Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)Schedule 1 - detaining persons for purposes of law enforcement co-operation
Item 1 - After Division 1B of the Part XII
39. Item 1 inserts new Division 1BA into Part XII of the Customs Act which will allow Customs officers to detain a person in two circumstances:
- 39.1.1.
- where an officer suspects on reasonable grounds that the person has committed or is committing a serious Commonwealth offence or a prescribed State or Territory offence (new section 219ZJB); or
- 39.1.2.
- where there is a warrant for the arrest of the person in relation to a Commonwealth offence or a prescribed State or Territory offence or the person is on bail subject to a condition that the person not leave Australia and the bail relates to a Commonwealth offence or a prescribed State or Territory offence (new section 219ZJN).
Subdivision A - Preliminary
40. New section 219ZJA contains definitions for the purposes of Division 1BA as follows.
41. Commonwealth offence has the same meaning as in Part 1C of the Crimes Act 1914 (the Crimes Act). Currently, that is an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982.
42. This definition is proposed to be amended by item 9 of Schedule 3 to the Australian Federal Police and Other Legislation Amendment Bill 2003. It would be amended to include a State offence that has a federal aspect. Whether a State offence has a federal aspect would be determined in accordance with section 3AA of the Crimes Act (see item 6 of Schedule 3 to that Bill).
43. Frisk search has the same meaning as in Division 1 of Part XII of the Customs Act. This means:
- 43.1.
- a search of a person conducted by quickly running the hands over the person's outer garments; and
- 43.2.
- an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
44. Ordinary search has the same meaning as in Division 1 of Part XII of the Customs Act. This means a search of a person or of articles in the possession of a person that may include:
- 44.1.
- requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes or hat; and
- 44.2.
- an examination of those items.
45. Prescribed State or Territory offence means an offence prescribed for the purposes of new section 219ZJAA.
46. Serious Commonwealth offence has the same meaning as in section 15HB of the Crimes Act. This means an offence against a law of the Commonwealth:
- 46.1.
- that involves theft, fraud, tax evasion, currency violations, illegal drug dealings, illegal gambling, obtaining financial benefit by vice engaged in by others, extortion, money laundering, perverting the course of justice, bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory, bankruptcy and company violations, harbouring of criminals, forgery including forging of passports, armament dealings, illegal importation or exportation of fauna into or out of Australia, espionage, sabotage or threats to national security, misuse of a computer or electronic communications, people smuggling, slavery, piracy, the organisation, financing or perpetration of sexual servitude or child sex tourism, dealings in child pornography or material depicting child abuse, importation of prohibited imports or exportation of prohibited exports, or that involves matters of the same general nature as one or more of the foregoing or that is of any other prescribed kind; and
- 46.2.
- that is punishable on conviction by imprisonment for a period of 3 years or more.
47. New subsection 219ZJAA(1) will allow State or Territory offences to be prescribed for the purposes of new Division 1BA. Those offences must be punishable on conviction by imprisonment for a term of at least 3 years. This will ensure that the power to detain will not be used to detain a person suspected of committing minor offences, eg parking infringements. It is expected that serious offences such as murder would be prescribed for this purpose. This also mirrors the imprisonment restriction in the definition of 'serious Commonwealth offence' in the Crimes Act.
48. New subsection 219ZJAA(2) provides that an offence must not be prescribed unless:
48.1. the Attorney-General of a State or Territory and the Minister responsible for the administration of that State's or Territory's police force (the Police Minister) have jointly requested the Minister that the offence be prescribed for the purposes of new Division 1BA; or
48.2. if the Attorney-General of the State or Territory is also the Police Minister of the State or Territory - the Attorney-General has requested the Minister that the offence be prescribed for the purposes of that Division.
49. This will ensure that Customs is focused on those offences that the relevant State or Territory Police Minister and Attorney-General consider serious enough that a person should be prevented from leaving a designated place (eg airport, port etc) if they have committed, or are committing, that offence, are on bail, subject to a condition that they not leave Australia, for that offence or are subject to an arrest warrant in respect of that offence.
Subdivision B - Powers to detain
50. New subsection 219ZJB(1) allows a Customs officer to detain a person if the officer suspects on reasonable grounds that the person who is in a designated place has committed or is committing a serious Commonwealth offence or a prescribed State or Territory offence.
51. Designated place is defined in subsection 4(1) of the Customs Act to mean:
- 51.1.
- a port, airport or wharf; or
- 51.2.
- a place that is the subject of a permission under subsection 58(2) while the ship or aircraft to which the permission relates remains at that place; or
- 51.3.
- a boarding station; or
- 51.4.
- a place from which a ship or aircraft that is the subject of a permission under section 175 is required to depart, between the grant of that permission and the departure of the ship or aircraft; or
- 51.5.
- a place to which a ship or aircraft that is the subject of a permission under section 175 is required to return, while that ship or aircraft remains at that place; or
- 51.6.
- a section 234AA place that is not a place, or a part of a place, referred to above.
52. The power to detain may be exercised in respect of both incoming and outgoing passengers or crew at a designated place. The officer may form the suspicion based on answers given to questions asked by an officer, by things found on the person or in the persons baggage that have been searched under Division 1B of Part XII or section 186 of the Customs Act.
53. The suspicion may be based on information provided by another agency.
54. New subsection 219ZJB(2) requires the officer to advise a police officer of the person's detention as soon as practicable after detaining the person. The officer must then ensure that the person is delivered, as soon as practicable, into the custody of a police officer to be dealt with according to law (new subsection 219ZJB(3) refers). This may include the police officer arresting the person or questioning the person.
55. New subsection 219ZJB(4) provides that if an officer who is detaining a person under section 219ZJB ceases to have reasonable grounds to suspect that the person has committed, or was committing, a serious Commonwealth offence or a prescribed State or Territory offence, the officer must release the person from detention immediately.
56. Subsection 3Y(1) of the Crimes Act provides that a "constable may, without warrant, arrest a person who has been released on bail if the constable believes on reasonable grounds that the person has contravened or is about to contravene a condition of a recognisance on which bail was granted to the person in respect of an offence, even though the condition was imposed in a State or Territory other than the one in which the person is."
57. It is often a condition of a person's bail that they not leave Australia. If a person is about to contravene such a condition, ie is about to leave Australia, they may be arrested by a constable under subsection 3Y(1).
58. Section 3 of the Crimes Act defines 'constable' to mean a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory. Customs officer are not constables for the purposes of the Crimes Act.
59. Hence if a person is about to leave Australia in contravention of his or her bail conditions, a Customs officer cannot arrest the person.
60. Similarly, Customs officers have no powers to arrest under a warrant for the arrest of the person. Therefore, if a person the subject of a warrant is about to leave Australia, Customs officers cannot prevent their departure.
61. Further a person who is subject to an arrest warrant may arrive in Australia and a Customs officer is not able to prevent the person's departure from their place of arrival, eg an airport, before a police officer arrives to arrest the person.
62. Under new section 219ZJC, an officer of Customs may detain such persons if the person is in a designated place, the officer has reasonable grounds to suspect that the person intends to leave the designated place and there is a warrant for the arrest of the person in relation to a Commonwealth offence or a prescribed State or Territory offence or the person is on bail subject to a condition that the person not leave Australia and the bail relates to a Commonwealth offence or a prescribed State or Territory offence.
63. Before an officer may detain a person, the officer must have reasonable grounds to suspect that the person intends to leave the designated place. In the case of people leaving the designated place on a journey leaving Australia, these grounds will usually include that the person has a ticket for a flight or voyage that is leaving Australia, the person has checked in for that flight or voyage and has come to the Customs barrier for outwards processing.
64. The warrant or bail must be in relation to a Commonwealth offence or a prescribed State or Territory offence.
65. Once the person has been detained, the Customs officer must advise a police officer (as defined in the Customs Act) of the person's detention as soon as practicable after detaining the person (subsection 219ZJC(2) refers).
66. Subsection 219ZJC(3) provides that the person is to be delivered, as soon as practicable, into the custody of a police officer to be dealt with according to law. If the person is on bail and was about to breach a bail condition, they will be arrested under section 3Y of the Crimes Act. If there was a warrant for the person's arrest, they will be arrested pursuant to that warrant.
67. Customs will be notified by police forces or other agencies that a person is on bail and it is a condition of that bail that a person not leave Australia or that there is a warrant for a person's arrest.
Subdivision C - Matters affecting detention generally
68. This section inserts a power to search a person who has been detained under new Division 1BA under either section 219ZJB or section 219ZJC. Subsection 219ZJD(1) provides that an officer may, in relation to such a person,
- 68.1.
- conduct either a frisk search or an ordinary search of the person;
- 68.2.
- search the clothing that the person is wearing and any property under the person's immediate control, if the officer believes on reasonable grounds that it is necessary to do so
for the purpose of:
- 68.3.
- determining whether there is concealed on the person, or in the person's clothing or property, a weapon or other thing capable of being used to inflict bodily injury or to assist the person to escape from detention; or
- 68.4.
- in the case of a person detained under section 219ZJB, preventing the concealment, loss or destruction of evidence of, or relating to the offence concerned.
69. Subsection 219ZJD(2) provides that the search must be conducted as soon as practicable after the person is detained and by an officer of the same sex as the detained person.
70. Subsection 219ZJD(3) provides that an officer who conducts a search under this section may seize;
- 70.1.
- any weapon or thing capable of being used to inflict bodily injury or to assist the person to escape from detention; and
- 70.2.
- anything that the officer has reasonable grounds to believe is a thing:
- a.
- with respect to which an offence has been committed; or
- b.
- that will afford evidence of the commission of an offence; or
- c.
- that was used, or intended to be used, for the purposes of committing an offence.
71. Subsection 219ZJD(4) provides that an officer who seizes a weapon or other thing under subsection (3) must ensure that it is delivered to the police officer into whose custody the person is delivered under subsection 219ZJB(3).
72. The search and seizure powers set out in this section are similar to the search powers that are conferred on protective service officers.
73. New subsection 219ZJE(1) provides that, without limiting subsection 4(4) of the Customs Administration Act 1985, the Chief Executive Officer of Customs may give directions in writing under that subsection:
- 73.1.
- identifying places at which an officer is permitted to detain a person under new Division 1BA (whether by their character under this Act, the amenities available at the places or any other matters; and
- 73.2.
- specifying such other matters relating to the detention of persons under new Division 1BA as the CEO considers appropriate.
74. Subsection 219ZJE(2) provides that a direction given for the purposes of subsection (1) is a disallowable instrument for the purposes of section 46A of the Act Interpretation Act 1901.
75. New subsection 219ZJF(1) provides that an officer who detains a person under new Division 1BA must inform the person, at the time of the detention of the person, of the reason for the person's detention. However, subsection 219ZJF(2) provides that subsection (1) does not apply if the detained person, by their own actions, makes it impracticable for the officer to inform the person of the reason.
76. New subsection 219ZJF(3) provides that an officer exercising power under new Division 1BA in relation to a person must produce identification that he or she is an officer when requested by the person to do so.
77. New subsection 219ZJG(1) provides that an officer exercising powers under new Division 1BA in relation to a person must not use more force, or subject the person to greater indignity, than is reasonable and necessary.
78. New subsection 219ZJG(2) provides that, without limiting the generality of subsection (1), an officer must not, in detaining or attempting to detain a person under Division 1BA or preventing or attempting to prevent a detained person from escaping from detention under Division 1BA, do an act likely to cause death or grievous bodily harm to the person. This is qualified by the circumstance where the officer believes on reasonable grounds that doing the act is necessary to protect life or prevent serious injury to the officer or another person.
79. Subsection 219ZJH(1) provides that while a person is being taken to a particular place under Division 1BA (except under subsection (2)), the person is regarded as being detained under this Division.
80. Subsection 219ZJH(2) provides that if:
- 80.1.1.
- a person detained under Division 1BA is released at any place other than the place at which he or she was first detained; and
- 80.1.2.
- the person so requests;
the person must immediately be returned free of charge to the place of the first detention.
81. For example, if the person is detained at a wharf, taken to the nearest Customs House as this is the place that the CEO has directed that such people be taken and then released because the officer no longer has the relevant suspicion, the person may request that he or she be returned to the wharf.
82. This section provides that section 219ZD of the Customs Act applies to an officer detaining a person under new Division 1BA as if the detention under the new Division were detention under Division 1B of Part XII of the Customs Act.
83. Section 219ZD of the Customs Act applies to a person who has been detained for a personal search and who, because of inadequate knowledge of the English language or for any other reason, is unable to communicate orally with reasonable fluency in the English language. In these circumstances, an officer must take all reasonable steps to ensure that a person competent to act as interpreter is present at all times during the person detention and acts as interpreter for the purposes of communication.