Border Protection (Validation and Enforcement Powers) Act 2001 - (Extract Only) (126 of 2001)

Schedule 1   Amendment of the Customs Act 1901

4   After section 185A

Insert:

185AA Searches of people on certain ships or aircraft

(1) For the purposes set out in subsection (2), a person, and the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched if the person:

(a) is on a ship or aircraft that has been detained under subsection 185(3); or

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

(2) The purpose for which a person, and the person’s clothing and any property under the immediate control of the person, may be searched under this section is 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 or to help the person to escape.

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

(3) If, in the course of a search under this section, a weapon or other thing referred to in subsection (2) is found, an officer:

(a) may take possession of the weapon or other thing; and

(b) may retain the weapon or other thing for such time as he or she thinks necessary for the purposes of this Act.

(4) This section does not authorise an officer, or another person conducting a search pursuant to subsection (5), to remove any of the person’s clothing, or to require a person to remove any of his or her clothing, except the person’s outer garments (including but not limited to the person’s overcoat, coat, jacket, gloves, shoes and head covering).

(5) A search under this section of a person, and the person’s clothing, must be conducted by:

(a) an officer of the same sex as the person; or

(b) in a case where an officer of the same sex as the person is not available to conduct the search - any other person who is of the same sex and:

(i) is requested by an officer; and

(ii) agrees;

to conduct the search.

(6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (7).

(7) An officer or other person who conducts a search under this section must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

(8) In this section, officer has the same meaning as it has in section 185.

185AB Returning persons to ships

(1) An officer, or a person assisting an officer, may return to a ship that is detained under section 185 a person who:

(a) was on the ship when it was initially detained under section 185; and

(b) later leaves the ship.

For this purpose, reasonable means, including reasonable force, may be used by the officer or another person.

(2) A person may only be returned to a ship under subsection (1) if the officer or person assisting is satisfied that it is safe to return the person to the ship.

(3) In this section, officer has the same meaning as it has in section 185.