Revised Explanatory Memorandum - Extracts Only
Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC
Schedule 3 - Customs' detention powers
Customs Act 1901
Item 1 - Section 219ZJA
1238. This item amends section 219ZJA to insert a new definition for the purposes of Division 1BA of Part XII of the Customs Act. The definition is national security. This term has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004 which is Australia's defence, security, international relations or law enforcement interests.
Item 2 - Section 219ZJA (definition of serious Commonwealth offence )
1239. This item repeals and substitutes the definition of serious Commonwealth offence for the purposes of Division 1BA of Part XII of the Customs Act. Currently this definition is linked to the definition of this term in section 15GE of the Crimes Act, which is limited to offences that relate to specified subject matters and that is punishable by imprisonment for 3 years or more. The new definition will mean an offence against a law of the Commonwealth that is punishable on conviction by imprisonment for 12 months or more. Therefore, the detention powers in section 219ZJB will be able to be exercised in relation to a greater range of Commonwealth offences.
1240. The expanded and new detention powers, including the new definition of 'serious Commonwealth offence,' are part of the targeted response to the threat posed by foreign fighters. The extension of the detention power, which is only a temporary power, is aimed at the Australian Customs and Border Protection Service facilitating other law enforcement agencies to exercise their powers to address national security threats. The current power may limit this facilitation across the full range of offences that are relevant to addressing national security threats. The new definition of 'serious Commonwealth offence' will, for example, allow officers of Customs to detain a person in respect of an offence under the Australian Passports Act 2005 of using a passport that was not issued to the person. The enhanced detention powers will also assist law enforcement agencies more generally in relation to the detection and investigation of serious Commonwealth offences.
Item 3 - Paragraph 219ZJB(1)(b)
1241. This item amends paragraph 219ZJB(1)(b) by extending its operation to where a person is intending to commit a serious Commonwealth offence.
1242. At present, section 219ZJB of the Customs Act empowers officers of Customs to detain persons in a designated place (which includes an international airport or seaport) in certain circumstances. Under section 219ZJB, a person can be detained if an officer has reasonable grounds to suspect that a person has committed, or is committing, a serious Commonwealth offence or a prescribed State or Territory offence.
1243. In exercising these powers, the current thresholds whereby an officer of Customs can detain a person if the officer has reasonable grounds to suspect that the person has committing or is committing a serious Commonwealth offence may result in situations where despite information received from partner agencies or the behaviour or documentation presented by the passenger, detention may not be possible.
1244. It is therefore proposed to extend the operation of section 219ZJB to include where an officer has reasonable grounds to suspect that a person is intending to commit a serious Commonwealth offence.
Item 4 - Subsection 219ZJB(3)
1245. This item amends subsection 219ZJB(3) to replace the statutory requirement that a person detained under section 219ZJB be delivered into the custody of a police officer with the requirement that the person be made available. This amendment reflects current practice whereby the person is made available to a police officer from Customs' detention.
Item 5 - Subsection 219ZJB(4)
1246. This item amends subsection 219ZJB(4) by extending its operation to where a person is intending to commit a Commonwealth offence, as a consequence of the amendment in item 3. Under subsection 219ZJB(4), an officer must release a person from detention immediately where the original grounds for the detention cease. This amendment extends this obligation to where an officer ceases to have reasonable grounds to suspect a person is intending to commit a serious Commonwealth offence.
Item 6 - Subsection 219ZJB(5)
1247. This item amends subsection 219JZB(5) by increasing the time period mentioned in this section from 45 minutes to 2 hours.
1248. Under current subsection 219ZJB(5), if a person is detained for a period of greater than 45 minutes, the person has the right to have a family member or another person notified of the person's detention. However, under subsection 219ZJB(7) of the Customs Act, an officer may refuse to notify a family member or other person if the officer believes on reasonable grounds that the notification should not be made to safeguard law enforcement processes or to protect the life and safety of another person.
1249. It is considered that there may also be vulnerabilities with regard to the time and opportunity for the officer of Customs to undertake sufficient enquiries once a person is detained, especially in order to determine whether the notification to a family member or other person should or should not be made. Therefore, it is proposed to amend subsection 219ZJB(5) to increase the timeframe from 45 minutes to 2 hours. This item gives effect to Recommendation 32 of the Report of the Parliamentary Joint Committee on Intelligence and Security. The Committee recommended that the allowable period of detention by a Customs officer without notification to a family member or other person be extended from 45 minutes to a maximum of two hours
Item 7 - Paragraphs 219ZJB(7)(a) and 219ZJC(6)(a)
1250. As referred to above, under subsection 219ZJB(7) of the Customs Act, an officer may refuse to notify a family member or other person if the officer believes on reasonable grounds that the notification should not be made to safeguard law enforcement processes or to protect the life and safety of another person.
1251. This item amends paragraph 219ZJB(7)(a) to include additional circumstances that an officer may take into account in deciding whether the notification should or should not be made. These are to safeguard national security (as defined above) or the security of a foreign country.
1252. Under section 219ZJC of the Customs Act, an officer of Customs may detain a person in a designated place if there is a warrant for the arrest of a person in relation to a Commonwealth offence or prescribed State and Territory offence or the person is on bail in relation to such an offence subject to a condition that prevents the person from leaving Australia. This power may only be exercised if the officer of Customs has reasonable grounds to suspect that the person intends to leave the designated place.
1253. Section 219ZJC contains similar provisions to section 219ZJB including the person having the a right to have a family member or another person notified of the person's detention if a person is detained for a period of greater than 45 minutes. Similar to subsection 219ZJB(7), subsection 219ZJB(6) provides that an officer may refuse to notify a family member or other person if the officer believes on reasonable grounds that the notification should not be made to safeguard law enforcement processes or to protect the life and safety of another person.
1254. This item also amends paragraph 219ZJB(6)(a) to include additional circumstances that an officer may take into account in deciding whether the notification should or should not be made. These are to safeguard national security (as defined above) or the security of a foreign country.
Item 8 - At the end of Subdivision B of Division 1BA of Part XII
1255. This item inserts new section 219ZJCA into Part XII of the Customs Act. This new section sets out additional circumstances in which an officer of Customs can detain a person in a designated place.
1256. The current detention powers in section 219ZJB and 219ZJC only apply in respect of Commonwealth offences and prescribed State and Territory offences. However, recent national security incidents have highlighted the need for a broader set of circumstances in which a detention power can be exercised at the border environment. These broader circumstances, which relate to national security issues, are set out in new section 219ZJCA.
1257. New subsection 219JZCA(1) provides that an officer of Customs may detain a person if the person is in a designated place and the officer suspects on reasonable grounds that the person is, or is likely to be, involved in an activity that is a threat to national security or the security of a foreign country. 'National security' is defined in the new definition in section 219ZJA.
1258. New subsection 219ZJCA(2) provides that the detaining officer must ensure that the detainee made available, in person, to a police officer as soon as practicable to be dealt with according to law.
1259. It is not considered appropriate that a person be given reasons for detention under section 219ZJCA because the grounds upon which the relevant suspicion is based may rely on information from a range of sources which may include highly classified material. If a person was entitled to be given the reasons for their detention, this may require the disclosure to the person of this highly classified material which could compromise the activities of other agencies.
1260. The remaining provisions of new section 219ZJCA are similar in operation to the remaining provisions of section 219ZJB as proposed to be amended as set out above. For example, subsection 219ZJCA(4) sets out the circumstances in which an detained person must be released from detention by an officer. Also, under subsection 219ZJCA(5), if a person is detained for a period of greater than 2 hours, the person has the right to have a family member or another person notified of the person's detention. However, under subsection 219ZJCA(7), an officer may refuse to notify a family member or other person if the officer believes on reasonable grounds that the notification should not be made to safeguard national security (as defined above) or the security of a foreign country, law enforcement processes or to protect the life and safety of another person.
Item 9 - At the end of subsection 219ZJD(1)
1261. This item amends subsection 219ZJD(1) to insert a new circumstance in which a search of a detained person may be conducted under section 219ZJD. Under this section, a frisk or ordinary search of a detained person may be undertaken as well as a search of any clothing worn by the person and any property under the person's immediate control. However, these searches may only be undertaken if the officer believes on reasonable grounds that the search is necessary for specified purposes.
1262. This item will insert a new purpose in relation to a person detained under new section 219ZJCA, being to prevent the concealment, loss or destruction of material of interest for national security or the security of a foreign country.
Item 10 - At the end of paragraph 219ZJD(3)(b)
1263. Under subsection 219ZJD(3), an officer may seize any relevant thing found as a result of a search conducted under subsection 219ZJD(1).
1264. This item will insert a reference to anything that is of interest for national security or the security of a foreign country, thus allowing these things to also be seized if found under the new search power set out in item 9.
Item 11 - Subsection 219ZJD(4)
1265. Under subsection 219ZLD(4), anything that is seized under subsection 219ZJD(3) must be delivered to the police officer into whose custody a detainee is required to be delivered under subsections 219ZJB(3) or 219ZJC(3).
1266. This item will extend this requirement in relation to the new detention power under section 219ZJCA, such that anything seized under new paragraph 219ZJD(3)(b) must be made available the police officer to whom the person is required to be made available under new subsection 219JZCA(2). This item will also reflect the changes made to section 219ZJB(3) above.
Item 12 - Subsection 219ZJF(1)
1267. Subsection 219ZJF(1) provides that a person detained under section 219ZJB or 219ZJC must be informed of the reason for their detention. The amendments in this item will ensure that this obligation does not apply in relation to a person detained under new section 219ZJCA because it is not considered appropriate that a person be given reasons for their detention under section 219ZJCA at this point.
Item 13 - Subparagraph 219ZJJ(1)(b)(iv)
1268. Subsection 219ZJJ(1) of the Customs Act sets out additional obligations in relation to a detained person who is known or believed to be a minor. A minor is considered to be any person under the age of 18 years. The amendment in this item will ensure that this obligation does not apply in relation to a minor detained under new section 219ZJCA because it is not considered appropriate that a person be given reasons for their detention under section 219ZJC at this point.
Item 14 - Paragraph 219ZJJ(2)(a)
1269. Under subsection 219ZJJ(1), one of the obligations is to inform the minor of the right to have a parent or guardian notified of the minor's detention.
1270. Similar to current subsection 219ZJB(6), subsection 219ZJJ(2) provides that an officer may refuse to notify a family member or other person if the officer believes on reasonable grounds that the notification should not be made to safeguard law enforcement processes or to protect the life and safety of another person.
1271. Similar to item 7 above, this item amends paragraph 219ZJJ(2)(a) to include additional circumstances that an officer may take into account in deciding whether the notification should or should not be made. These are to safeguard national security (as defined above) or the security of a foreign country.