Customs Legislation Amendment (Airport, Port and Cargo Security) Act 2004 (111 of 2004)
Schedule 1 Detaining persons for purposes of law enforcement co-operation
Customs Act 1901
1 After Division 1B of Part XII
Insert:
Division 1BA - Detention and search of persons for purposes of law enforcement co-operation
Subdivision A - Preliminary
219ZJA Definitions
In this Division, unless the contrary intention appears:
Commonwealth offence has the same meaning as in Part 1C of the Crimes Act 1914.
frisk search has the same meaning as in Division 1 of Part XII.
ordinary search has the same meaning as in Division 1 of Part XII.
prescribed State or Territory offence means an offence prescribed for the purposes of section 219ZJAA.
serious Commonwealth offence has the same meaning as in section 15HB of the Crimes Act 1914.
219ZJAA Prescribed State or Territory offences
(1) The regulations may prescribe offences against the laws of a State or a Territory that are punishable on conviction by imprisonment for a term of at least 3 years.
(2) An offence against a law of a State or Territory must not be prescribed unless:
(a) the Attorney-General of that State or Territory and the Minister ( Police Minister ) responsible for the administration of that State’s or Territory’s police force have jointly requested the Minister that the offence be prescribed for the purposes of this Division; or
(b) 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 this Division.
Subdivision B - Powers to detain
219ZJB Detention of person suspected of committing serious Commonwealth offence or prescribed State or Territory offence
(1) An officer may detain a person if:
(a) the person is in a designated place; and
(b) the officer has reasonable grounds to suspect that the person has committed, or is committing, a serious Commonwealth offence or a prescribed State or Territory offence.
(2) The officer must advise a police officer of the person’s detention as soon as practicable after detaining the person.
(3) An officer who is detaining a person under this section must ensure that the person is delivered, as soon as practicable, into the custody of a police officer to be dealt with according to law.
(4) If an officer who is detaining a person under this section 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.
(5) Subject to subsection (7), if a person is detained under this section for a period of greater than 45 minutes, an officer who is detaining the person under this section must inform the person of the right of the person to have a family member or another person notified of the person’s detention.
(6) Where a person detained under this section wishes to have a family member or another person notified of the person’s detention, the officer must take all reasonable steps to notify the family member or another person.
(7) An officer who is detaining the person under this section may refuse to notify a family member or another person of the person’s detention if the officer believes on reasonable grounds that such notification should not be made in order to:
(a) safeguard the processes of law enforcement; or
(b) protect the life and safety of any person.
219ZJC Detention of person subject to warrant or bail condition
(1) An officer may detain a person if:
(a) the person is in a designated place; and
(b) the officer has reasonable grounds to suspect that the person intends to leave the designated place; and
(c) either:
(i) there is a warrant for the arrest of the person in relation to a Commonwealth offence or a prescribed State or Territory offence; or
(ii) 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.
(2) The officer must advise a police officer of the person’s detention as soon as practicable after detaining the person.
(3) An officer who is detaining a person under this section must ensure that the person is delivered, as soon as practicable, into the custody of a police officer to be dealt with according to law.
(4) Subject to subsection (6), if a person is detained under this section for a period of greater than 45 minutes, an officer who is detaining the person under this section must inform the person of the right of the person to have a family member or another person notified of the person’s detention.
(5) Where a person detained under this section wishes to have a family member or another person notified of the person’s detention, the officer must take all reasonable steps to notify the family member or another person.
(6) An officer who is detaining the person under this section may refuse to notify a family member or another person of the person’s detention if the officer believes on reasonable grounds that such notification should not be made in order to:
(a) safeguard the processes of law enforcement; or
(b) protect the life and safety of any person.
Subdivision C - Matters affecting detention generally
219ZJD Search of person detained under this Division
(1) An officer may, in relation to a person detained under this Division:
(a) conduct a frisk search or an ordinary search of the person; and
(b) 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 purposes of:
(c) 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
(d) 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.
(2) A search under this section must be conducted:
(a) as soon as practicable after the person is detained; and
(b) by an officer of the same sex as the detained person.
(3) An officer who conducts a search under this section may seize:
(a) any weapon or thing mentioned in paragraph (1)(c); and
(b) anything the officer has reasonable grounds to believe is a thing:
(i) with respect to which an offence has been committed; or
(ii) that will afford evidence of the commission of an offence; or
(iii) that was used, or intended to be used, for the purpose of committing an offence.
(4) 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) or 219ZJC(3).
219ZJE CEO must give directions about detaining persons under this Division
(1) Without limiting subsection 4(4) of the Customs Administration Act 1985, the CEO must give directions in writing under that subsection:
(a) identifying places at which an officer is permitted to detain a person under this Division (whether by their character under this Act, the amenities available at the places or any other matters); and
(b) specifying such other matters relating to the detention of persons under this Division as the CEO considers appropriate.
(2) A direction given for the purposes of subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
219ZJF Detainees to be given reasons for detention and shown identification on request
(1) An officer who detains a person under this Division must inform the person, at the time the officer detains the person, of the reason for the person’s detention.
(2) Subsection (1) does not apply if the person, by the person’s own actions, makes it impracticable for the officer to inform the person of the reason.
(3) An officer exercising powers under this Division in relation to a person must produce identification that he or she is an officer when requested by the person to do so.
219ZJG Use of force in relation to detention
(1) An officer exercising powers under this Division in relation to a person must not use more force, or subject the person to greater indignity, than is reasonable and necessary.
(2) Without limiting the generality of subsection (1), an officer must not, in detaining or attempting to detain a person under this Division, or preventing or attempting to prevent a detained person from escaping from detention under this Division, do an act likely to cause death or grievous bodily harm to the person, unless the officer believes on reasonable grounds that doing the act is necessary to protect life or prevent serious injury to the officer or any other person.
219ZJH Moving detained persons
(1) While a person is being taken to a particular place under this Division (except under subsection (2)), the person is regarded as being detained under this Division.
(2) If:
(a) a person detained under this Division is released at any place other than the place at which he or she was first detained; and
(b) the person so requests;
the person must immediately be returned free of charge to the place of the first detention.
219ZJI Detainees not fluent in English
Section 219ZD applies to an officer detaining a person under this Division as if the detention under this Division were detention under Division 1B of this Part.
Note: Section 219ZD requires the officer to take reasonable steps to ensure that a competent interpreter is available for the purposes of communication.
219ZJJ Detention of minors
(1) Subject to subsection (2), an officer who under this Division detains a person who is known or believed to be a minor must:
(a) inform the minor of the right for a parent or guardian or person described in paragraph (c) to be notified of the minor’s detention; and
(b) upon the request of the minor, take all reasonable steps to notify such person and inform them of:
(i) the fact that the minor has been detained; and
(ii) the place in which the minor is being held; and
(iii) the place to which the minor is to be transferred by police, if that place is known at the time of contacting the minor’s parent or guardian; and
(iv) the reason for the minor’s detention; and
(c) if a parent or guardian is not acceptable to the detained minor under this subsection, the detained minor may request that another person who is capable of representing the interests of the minor be notified.
(2) An officer who under this Division detains a person who is known or believed to be a minor may refuse to notify a parent or guardian or person described in paragraph (1)(c) of the person’s detention if the officer believes on reasonable grounds that such notification should not be made in order to:
(a) safeguard the processes of law enforcement; or
(b) protect the life and safety of any person.
(3) If at the time of notifying the parent or guardian, the officer is not aware of the place referred to in subparagraph (1)(b)(iii), the officer must:
(a) contact the parent or guardian or other person described in paragraph (1)(c) immediately after that place becomes known to the officer; and
(b) inform the parent or guardian of that place.
(4) An officer who under this Division detains a person who is known or believed to be a minor must, at the time of advising a police officer of the minor’s detention in accordance with subsection 219ZJB(2) or 219ZJC(2), advise the police officer of the fact that the detained person is a minor, or is believed to be a minor.
(5) For the purposes of this section, a minor is considered to be any person under the age of 18 years.