Customs Amendment (Strengthening Border Controls) Act 2008 (74 of 2008)

Schedule 2   Search powers on certain ships and aircraft

Customs Act 1901

8   Subsections 185AA(1), (2) and (3)

Repeal the subsections, substitute:

People found on ships and aircraft boarded under section 185

(1) A person may be searched for the purposes set out in subsection (1A) if:

(a) the person is found on a ship or aircraft that has been boarded under paragraph 185(2)(a); or

(b) the person has been placed on a ship or aircraft under subsection 185(3AA).

(1A) If a person may be searched for the purposes set out in this subsection, the person, the person's clothing and any property under the immediate control of the person, may, without warrant, be searched to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property:

(a) a weapon or other thing capable of being used to inflict bodily injury or to help the person escape; or

(b) a document, or other thing, that the officer or other person has reasonable grounds to believe may afford evidence of the commission of a relevant offence.

Note: Division 1B of this Part provides search powers in respect of certain persons suspected of unlawfully carrying prohibited goods.

(1B) For the purposes of subsection (1A), a document, or other thing, carried or hidden on a person, in a person's clothing or in a person's property, may afford evidence of the commission of a relevant offence only if:

(a) in a case where the person is found on a ship in Australia - the document or other thing may afford evidence of the commission of an offence, either in or outside Australia, against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or

(b) in a case where the person is found on a ship outside Australia - the document or other thing may afford evidence of the commission of an offence:

(i) in Australia against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or

(ii) in Australia's exclusive economic zone against an Act prescribed by the regulations; or

(c) in a case where the person is found on an aircraft in Australia - the document or other thing may afford evidence of the commission of an offence, either in or outside Australia, against this Act or section 72.13 or Division 307 of the Criminal Code.

People found on ships boarded under section 185A

(2) A person may be searched for the purpose set out in subsection (2A) if the person is found on a ship that has been boarded under paragraph 185A(2)(a).

(2A) If a person may be searched for the purpose set out in this subsection, the person, the person's clothing and any property under the immediate control of the person, may, without warrant, be searched to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property a weapon or other thing capable of being used to inflict bodily injury.

Power to examine things found

(3) If a search is conducted under this section, an officer may examine any thing found in the course of the search (including, if the thing is a document, by reading the document directly or with the use of an electronic device).

(3A) In exercising the power to examine things, an officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the things.

(3B) However, when examining a thing found in the course of a search, an officer must not damage the thing by forcing it, or a part of it, open unless:

(a) the person being searched has been given a reasonable opportunity to open the thing or part; or

(b) it is not reasonably practicable to give the person such an opportunity.

Powers to take possession and retain things found

(3C) If, in the course of a search for a purpose set out in subsection (1A) or (2A), a weapon, document or other thing referred to in that subsection is found, then:

(a) in the case of a search conducted by an officer - an officer may take possession of the weapon, document or thing; and

(b) in the case of a search conducted by a person who is not an officer - the person must take possession of the weapon, document or thing and give it to an officer.

Note 1: The following heading to subsection 185AA(4) is inserted "Limit on removal of clothing during search".

Note 2: The following heading to subsection 185AA(5) is inserted "Limit on who may conduct search".