House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Honourable Brendan O'Connor MP)

SCHEDULE 1 - AMENDMENTS TO THE CUSTOMS ACT 1901

Customs Act 1901

Background

7.Currently, under Subdivision C of Division 1B of Part XII of the Customs Act 1901 (the Customs Act) (Subdivision C) a person can be detained by an authorised officer of Customs (a detention officer) or a police officer where the officer suspects on reasonable grounds that the person is internally concealing a suspicious substance. 'Suspicious substance' is defined as a narcotic substance that relates to an offence under Divisions 307 of the Criminal Code that is punishable by imprisonment for 7 years or more (subsection 4(1) of the Customs Act).

8.Once detained, an application can be made to a Judge for an order for an internal search of the detainee by a medical practitioner. Internal searches can be carried out by various means, including by conducting a scan of a person's internal cavities. A detainee can also consent in writing to be subject to an internal search. The amendments in this Bill allow, in addition to the existing internal searches by medical practitioners, internal non-medical scans to be done, in limited circumstances, by an officer of Customs using prescribed equipment. The former search will be renamed 'medical internal search' and the latter will be called 'non-medical internal scan'.

Part 1 - Amendments

Item 1 - Section 4(1)

9.This item amends section 4(1) of the Customs Act by inserting a definition of 'internal medical search' which is defined as an internal medical search carried out under section 219Z (internal medical search by a medical practitioner).

Item 2 - Section 4(1)

10.This item amends section 4(1) by inserting a definition of 'internal non-medical scan' which is defined as an internal search carried out under new section 219SA (internal non-medical scan using prescribed equipment).

Item 3 - Section 4(1)

11.This item repeals the existing definition of 'internal search' and substitutes a new definition in terms which covers both internal medical and internal non-medical examinations, but includes the recovery of any concealed substance only where there is an internal medical search.

Item 4 Subsection 219R(2)

12.This item inserts a Note at the end of s.219R(2) stating that a copy of the order (being an order to carry out an external search) is to be given to the detainee under new section 219ZAD.

13.This item also inserts appropriate headings to subsections of section 219R (where relevant).

Item 5 - Subsection 219R(11A)

14.This item omits the reference to section 219RAB in subsection 219R(11A) and substitutes a reference to section 219ZAA. This amendment is the consequence of the repeal of section 219RAB (see item 12 below) and its re-enactment as section 219ZAA (see item 32 below).

Item 6 Subsection 219R(11A) (note)

15.This item omits the reference to section 219RAC in the Note to subsection 219R(11A) and substitutes a reference to section 219ZAB. Similar to item 5, this amendment is a consequence of the repeal of section 219RAC (see item 12 below) and its re-enactment as section 219ZAB (see item 32 below).

Item 7 At the end of subsection 219R(11A)

16.This amendment inserts two Notes at the end of the subsection 219R(11A) which, for administrative convenience, cross references to provisions that are associated with subsection 219R(11A) (which deals with the conduct of an external search using prescribed equipment).

Item 8 At the end of subsection 219R(11B)

17.This item inserts a Note at the end of the subsection 219R(11B) which, for administrative convenience, cross references to provisions that are associated with subsection 219R(11B) (which also deals with the conduct of an external search using prescribed equipment). This item also inserts appropriate headings to subsections of section 219R.

Item 9 At the end of subsection 219RAA(1)

18.This item inserts a Note at the end of the subsection 219RAA(1) which, for administrative convenience, cross references to provisions that are associated with subsection 219RAA(1) (which deals with the recording of an external search).

Item 10 At the end of subsection 219RAA(2)

19.This item inserts a Note at the end of the subsection 219RAA(2) which, for administrative convenience, cross references to provisions that are associated with subsection 219RAA(2) (which deals with the recording of an invitation to consent, and the giving of consent, to an external search).

Item 11 At the end of subsection 219RAA(5)

20.This item inserts a Note at the end of the subsection 219RAA(5) which for administrative convenience cross references to provisions that are associated with subsection 219RAA(5) (which deals with the taking of photographs of any prohibited goods found in carrying out an external search).

Item 12 Sections 219RAB to 219RAF

21.This item repeals sections 219RAB to 219RAF as a consequence of the amendments set out at item 32 below.

22.These sections set out requirements relating to prescribed equipment for use in carrying out an external search of a detainee, including conditions that must be met before a piece of equipment can be prescribed for the purposes of carrying out external searches and, who is authorised to carry out such searches using prescribed equipment. These provisions are being consolidated in new Subdivision CA of Division 1B of Part XII of the Customs Act, so that they equally apply to the use of prescribed equipment in carrying out the new internal non-medical scan of a detainee.

Item 13 Subsection 219S(1)

23.This item repeals the subsection and substitutes a new subsection. The new subsection permits a Customs officer or a police officer to detain a person for the purposes of carrying out an internal non-medical scan or to enable an application for a detention order to be made under section 219T.

24.A person can only be detained under section 219S if a detention officer or a police officer suspects on reasonable grounds that a person is internally concealing a suspicious substance. 'Suspicious substance' is defined in subsection 4(1) of the Customs Act as a narcotic substance that would assist in the proof of the commission of an offence against Division 307 of the Criminal Code that is punishable by imprisonment for 7 years or more. Under Division 307, for example, the importation of a marketable quantity of a border controlled drug is punishable by imprisonment for 25 years. The marketable quantity of a drug depends on each drug - for example the marketable quantity of cocaine is 250 grams. Therefore, for this offence a person could be detained if there were reasonable grounds to suspect that they were internally concealing 250 grams of cocaine.

Items 14 and 15

25.These items amend subsection 219S(2) by removing cross references to subsections of section 219Z from the body of the section and inserting them as a Note to subsection 219S(2). This is a technical drafting amendment only. Section 219S deals with the place at which a person can be initially detained for an internal search, and section 219Z deals with the place at which an internal search can actually be carried out.

Item 16 After section 219S

26.This item inserts new sections 219SA and 219SB in the Customs Act.

New section 219SA Internal non-medical scan using prescribed equipment

27.New subsection 219SA(1) sets out the circumstances in which an internal non-medical scan using prescribed equipment may be carried out by an officer of Customs. The non-medical internal scan is to be carried out before the formal detention of a detainee under section 219T.

28.The decision to invite a person to consent to the carrying out of an internal non-medical scan using prescribed equipment is entirely at the discretion of an officer of Customs.

29.First, the scan can only be carried out if a person has been detained under section 219S of the Customs Act (as set out above).

30.Secondly, the scan can only be carried out if there are reasonable grounds to believe that the detainee is not in need of protection. A person is in need of protection if the person is under 18 years of age, or in a mental or physical condition (whether temporary or permanent) that makes the person incapable of managing his or her own affairs. Therefore, an internal non-medical scan can only be carried out on persons who are 18 years or older.

31.Thirdly, the detainee must have consented to an internal non-medical scan using equipment prescribed for the purposes of subsection 219SA(1).

32.Fourthly, the requirements of section 219ZAA must be met in inviting a detainee to consent to the internal non-medical scan. These requirements will be explained in detail below.

33.Finally, the scan must be carried out as soon as practicable after the detainee has been detained under section 219S.

34.New subsection 219SA(2) provides that an internal non-medical scan must be carried out using equipment prescribed for the purposes of subsection 219SA(1). New section 219ZAB places limitations on the prescription of this equipment and these will be explained in detail below.

35.New subsection 219SA(2) also provides that an internal non-medical scan must be carried out by an officer who is authorised for the purposes of subsection 219ZAA(3) to use that equipment. Section 219ZAA will also be explained in detail below.

New section 219SB Seeking detention order following invitation to consent to internal non-medical scan

36.New section 219SB sets out the procedure to be followed where a detainee has been invited to consent to an internal non-medical scan under subsection 219SA(1), and the person has not consented in writing to an internal medical scan, and various circumstances apply.

37.This section requires that the Customs Chief Executive Officer or a police officer must, as soon as practicable, apply for an order under section 219T that the detainee be detained if any of the following circumstances apply:

a)

The detainee does not consent to the internal non-medical scan; or

b)

The internal non-medical scan of the detainee is begun but not completed, and the detention officer or police officer suspects on reasonable grounds that a person is internally concealing a suspicious substance. This circumstance would apply, for example, where a detainee withdrew their consent to the internal non-medical scan while the search was taking place; or

c)

After carrying out the internal non-medical scan of the detainee, the detention officer or police officer suspects on reasonable grounds that a person is internally concealing a suspicious substance.

The prescribed equipment used to carry out the non-medical internal search will produce an image of a detainee's internal body cavity. Such an image may clearly show that a person is internally concealing a suspicious substance and therefore the detention officer or police officer will continue to have the requisite suspicion for the purposes of this section. Alternatively, the prescribed equipment may produce an image that does not conclusively show or not show that a person is internally concealing a suspicious substance. In that circumstance, as long as the detention officer or police officer still has the requisite suspicion, section 219SB will apply and the detention order under section 219T must be sought.

38.If, either during or after carrying out the internal non-medical scan, the detention officer or police officer no longer suspects on reasonable grounds that a person is internally concealing a suspicious substance, the detention and search of the person must cease immediately (see subsection 219ZE(1) of the Customs Act). This may occur, for example, if the image taken by the prescribed equipment clearly shows that a person is not internally concealing a suspicious substance.

Item 17 - Before subsection 219T

39.This item amends section 219T by inserting new subsection 219T(1A).

40.Section 219T currently sets out the circumstances in which a detention order from an authorised judge or magistrate must be sought (and the procedures to be followed in seeking such an order) when a person has been detained under section 219S. However, as a consequence of an internal non-medical scan possibly taking place between the initial detention under section 219S and the seeking of a detention order under section 219T, it is necessary to more clearly identify the circumstances in which section 219T applies.

41.New subsection 219T(1A) states that section 219T applies if:

a)

A person is detained under section 219S; and

b)

Subsection 219V(2) does not apply i.e. the detainee has not consented to an internal medical search; and

c)

For a person who has been invited to consent to an internal non-medical scan using prescribed equipment - the CEO or police officer is required, under section 219SB, to apply for an order under section 219T.

Item 18 - Subsection 219T(1)

42.As a consequence of new subsection 219T(1A) setting out the circumstances in which section 219T, this item removes the phrase "Where a person is detained under section 219S and subsection 219V(2) does not apply" and substitutes "The".

Items 19 to 30 - Various amendments to section 219V

43.Section 219V of the Customs Act sets out the procedures to be followed in arranging for the carrying out of an internal search of a detainee. Currently, an internal search refers to the type of internal search that can only be carried out by a medical practitioner. As a consequence of the amendments proposed in this Bill, an internal search will be defined by reference to two types of searches - (a) an internal non-medical scan that can be carried out by an officer of Customs, and (b) an internal medical search that can only be carried out by a medical practitioner.

44.However, section 219V will only need to continue to apply in relation to a medical internal search. Therefore, the amendments set out in items 19 to 30 amend section 219V so that it only applies to these searches, for example by omitting the references to "internal search' and substituting "internal medical search".

45.These items also insert appropriate headings to each subsection of section 219V (where relevant).

Item 31 - Subsection 219Z(1)

46.Section 219Z sets out the requirement that an internal search can only be carried out by a medical practitioner. Similar to the amendments in items 19 to 30, this item amends subsection 219Z(1) by omitting the reference to "internal search' and substituting "internal medical search", so that this requirement continues to apply only to internal medical searches, and not to both types of internal search.

Item 32 - After Subdivision C of Division 1B of Part XII

47.This item amends the Customs Act by inserting new Subdivision CA of Division 1B of Part XII, which will set out the requirements relating to the use of prescribed equipment for external search and internal non-medical scans.

48.Subdivision B of Division 1B of Part XII currently sets out the circumstances under which an external search of a detainee can be carried out. An external search is a search of the body of, and anything worn by, a person to determine if they are carrying any prohibited goods. It does not include an internal search. Under current section 219R(11A) of the Customs Act, prescribed equipment may be used to carry out an external search but only if consent to the use of such equipment is given by the detainee and if the requirements set out in section 219RAB are met.

49.The requirements in section 219RAB relate to the invitation to consent. Other sections in Subdivision C set out additional requirements relating to prescribed equipment, including conditions that must be met before a piece of equipment can be prescribed for the purposes of carrying out external searches, and who is authorised to carry out such searches using prescribed equipment.

50.As set out above, the new internal non-medical scan can only be carried out using prescribed equipment with the consent of a detainee. It is proposed that the requirements that apply in relation to the prescribed equipment to carry out an external search also apply in relation to the use of prescribed equipment to carry out an internal non-medical scan. Therefore, these provisions have been moved from Subdivision C and consolidated in new Subdivision CA.

New section 219ZAA - Use of prescribed equipment for external search or internal non-medical scan

51.This section replicates the provisions of current section 219RAB and extends its operation to the new internal non-medical scan.

52.Subsection 219ZAA(1) provides that in inviting a detainee to consent to the use of prescribed equipment in an external search, or an internal non-medical scan using prescribed equipment, an officer of Customs must tell the detainee the following things:

(a)

what the prescribed equipment is;

(b)

the purpose for which the prescribed equipment would be used;

(c)

that use of the prescribed equipment could produce evidence against the detainee that could be used in a court;

(d)

what known risk (if any) would be posed to the detainee's health by use of the prescribed equipment;

(e)

the procedure for the use of the prescribed equipment;

(f)

that the prescribed equipment would be used by an officer of Customs authorised to use the equipment;

(g)

in the case of an external search-that the search would be continued without the use of the prescribed equipment should use of the equipment indicate that the detainee was or might be carrying prohibited goods;

(h)

in the case of an internal non-medical scan-that an order may be sought for the detainee to be detained, and for an internal medical search of the detainee to be carried out, if:

(i)

the detainee does not consent to the internal non-medical scan; or

(ii)

after carrying out an internal non-medical scan of the detainee, a detention officer or police officer suspects on reasonable grounds that the detainee is internally concealing a suspicious substance;

(i)

in any case-that the invitation, and any giving of consent, was being or would be recorded by audiotape, videotape or other electronic means or in writing.

53.Subsection 219ZAA(2) provides that the invitation to consent and any consent must be recorded by audiotape, videotape or other means or in writing. This requirement will ensure that evidence of the invitation to consent and the giving of the consent is made.

54.Subsection 219ZAA(3) provides that the prescribed equipment must be operated by an authorised officer who is of the same sex as the detainee. Section 219ZAC sets out the requirements in relation to authorisation of officers to operate prescribed equipment.

New section 219ZAB - Prescribing equipment for use in external search and internal non-medical scan

55.This section replicates the provisions of current section 219RAC and extends its operation to the new internal non-medical scan.

56.Subsection 219ZAB(1) provides that for the purposes of subsection 219R(11A) (as mentioned above), the regulations may prescribe only equipment that can produce an indication that a person is or may be carrying prohibited goods on his or her body. This limitation will ensure that prescribed equipment can be used to only undertake an external search (as defined above).

57.Subsection 219ZAB(2) provides that for the purpose of subsection 219SA(1) (new internal non-medical scan) the regulations may prescribe only equipment that can produce an indication that a person is or may be internally concealing a suspicious substance.

58.Subsections 219ZAB(3) to (5) contain several requirements that must be satisfied, relating to the safety and use of the equipment that is proposed to be prescribed, before the Governor-General makes a regulations prescribing the equipment. These requirements are the same as those set out in current subsection 219RAC(3) to (5) and are as follows:

(1)

Before the Governor-General makes a regulation prescribing equipment for the purposes of subsection 219R(11A) or 219SA(1), the Minister must obtain from the CEO of Customs a statement that:

(a)

the equipment can safely be used to detect prohibited goods or suspicious substances (as the case requires); and

(b)

use of the equipment poses no risk, or minimal risk, to the health of a person whom the equipment is used to search; and

(c)

a person does not require professional qualifications to operate the equipment.

(2)

Before making such a statement), the CEO of Customs must consult any Commonwealth authorities (if any) that have expertise or responsibilities relevant to the matters addressed by the statement.

(3)

The CEO of Customs must table, before each House of the Parliament, a copy of any advice received from the Commonwealth authorities within 7 sitting days of that House after the day on which the statement is given to the Minister.

New section 219ZAC - Authorising officers to use prescribed equipment for external search or internal non-medical scan

59.This section replicates the provisions of current section 219RAD and extends its operation to the new internal non-medical scan.

60.Subsection 219ZAC(1) provides that the CEO of Customs may authorise an officer of Customs for the purposes of subsection 219ZAA(3) to use prescribed equipment only if the officer has successfully completed the training, specified in writing by the CEO, in the operation of that equipment. Training in the operation of the equipment will be consistent with the Customs and Border Protection national training framework in terms of content, competencies and assessment. The delivery of appropriate training to officers in the effective and safe operation of the equipment will be in compliance with any relevant regulatory controls such as Australian Radiation Protection and Nuclear Safety Agency licence conditions.

61.Subsection 219ZAC(2) provides that the specification by the CEO of the necessary training is not a legislative instrument. This provision is included to indicate that the specification is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 . This specification will therefore not need to be registered on the Federal Register of Legislative Instruments before it is enforceable.

New section 219ZAD Giving a record of invitation and consent, or a copy of order

62.This section replicates the provisions of current section 219RAE and extends its operation to the new internal non-medical scan. It also introduces a new requirement in relation to internal medical searches.

63.Subsection 219ZAD(1) provides that if a detainee requests it, an officer of Customs must give the detainee, as soon as reasonably practicable:

(a)

a copy of the record of an invitation to consent:

(i)

to an external search under section 219R; or

(ii)

to the use of prescribed equipment in the conduct of an external search; or

(iii)

to an internal non-medical scan using prescribed equipment; and

(b)

if the detainee gave consent-a copy of the record of the detainee's consent.

These requirements in relation to an external search are the same as the current requirements. These requirements have been equally applied in relation to consent to an internal non-medical scan.

64.Subsection 219ZAD(2) inserts a new requirement in relation to consent to an internal medical search i.e., the internal search that can only be carried out by a medical practitioner. Under this provision, an officer of Customs must give a detainee a copy of the detainee's consent to an internal medical search, as soon as reasonably practicable, if the detainee requests it. This aligns with the current practice of giving the detainee a copy of the record of the detainee's consent and will now make it a legislative requirement to do so.

65.Subsection 219ZAD(3) provides that if an order for an external search of a detainee is made under subsection 219R(2), a copy of the order is to be given, as soon as reasonably practicable:

(a)

unless paragraph (b) applies-to the detainee; or

(b)

if the detainee is in need of protection-to the person in whose presence the external search is to be carried out.

This requirement is the same requirement in current subsection 219RAE(2).

New section 219ZAE - Records of results of an external search or internal medical search

66.This section replicates the provisions of current section 219RAF and extends its operation to records that are the result of the new internal non-medical scan.

67.Subsection 219ZAE(1) sets out the search records to which section 219ZAE applies. It provides that this section applies to the following search records produced in the course of an external search of a detainee under section 219R, or an internal non-medical scan of a detainee:

(a)

a videotape or other electronic record of an external search of the detainee. This may be made under section 219RAA of the Customs Act, at the discretion of Customs;

(b)

a photograph or image of the detainee's body taken using equipment prescribed for the purposes of subsection 219R(11A) or 219SA(1);

(c)

a photograph taken in the circumstances described in subsection 219RAA(5). Under that subsection, a photograph may be taken of prohibited goods that are found in the course of carrying out an external search;

(d)

a sample from the outer surface of the detainee's hand taken using equipment prescribed for the purposes of subsection 219R(11A). Such samples can be taken under subsection 219R(11B).

68.Subsection 219ZAE(2) sets out the circumstances under which a search record must be destroyed. Under this provision, a search record must be destroyed as soon as practicable if:

(a)

a period of 12 months has elapsed since the search record was made or produced. This requirement is subject to subsection 219ZAE(3), which deals with extensions of time; and

(b)

proceedings against the detainee, relating to prohibited goods or suspicious substances, in respect of which the search record is relevant, have not been instituted, or have been discontinued.

For example, if a search record which is the result of an internal non-medical scan carried out under section 219SA(1) indicates that a person is internally concealing a suspicious substance, and relevant proceedings under the Criminal Code in relation to the importation of a border controlled drug are instituted within 12 months of the record being made, that search record would not need to be destroyed under this subsection. However, subsection 219ZAE(4) sets out additional circumstances in which such a search record must be destroyed.

69.Subsection 219ZAE(3) sets out the circumstances in which the 12 month period in relation to a search record referred to in paragraph 219ZAE(2)(a) above may be extended. A magistrate may extend this period of 12 months (or that period as previously extended under this provision) if:

(a)

an officer of Customs or the Director of Public Prosecutions applies for the extension; and

(b)

the magistrate is satisfied that there are special reasons for doing so.

70.Subsection 219ZEA(4) sets out additional circumstances in which a search record must be destroyed. This must occur as soon as practicable if:

(a)

the detainee is found to have committed a relevant offence but no conviction is recorded. "Relevant offence" is defined in subsection 219ZAE(7); or

(b)

the detainee is acquitted of a relevant offence and:

(i)

no appeal is lodged against the acquittal; or

(ii)

an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn.

71.Subsection 219ZAE(5) sets out the circumstances in which a search record that would otherwise be required to be destroyed under subsection 219ZAE(4) can be retained. These are if:

(a)

an investigation is pending into another relevant offence (as defined in subsection 219ZAE(7)); or

(b)

a proceeding is pending against the detainee for another relevant offence.

72.Subsection 219ZAE(6) provides that the regulations must provide for the secure storage of any search record pending its destruction. This section replicates current subsection 219RAF(7) of the Customs Act. Current regulations that are made for the purposes of subsection 219RAF(7) will need to be remade so that they also extend to search records resulting from an internal non-medical scan.

73.Subsection 219RAE(7) sets out the definition of "relevant offence" for the purposes of section 219RAE. An offence is a relevant offence in relation to a search record if:

(a)

the offence relates to prohibited goods or a suspicious substance; and

(b)

the search record relates to the offence.

For example, as previously mentioned, 'suspicious substance' is defined as a narcotic substance that would assist in the proof of the commission of an offence against Division 307 of the Criminal Code that is punishable by imprisonment for 7 years or more. Under Division 307, the importation of a marketable quantity of a border controlled drug is punishable by imprisonment for 25 years. The marketable quantity of cocaine is 250 grams. Therefore, if a search record resulting from an internal non-medical scan of a person showed that the person was internally concealing at least 250 grams of cocaine, the search record would relate to the offence of the importation a marketable quantity of a border controlled drug, being cocaine.

Items 33, 34 and 35 - Various amendments

74.Sections 219ZE and 219ZV of the Customs Act contain provisions that apply in respect of an internal medical search of a detainee. As previously discussed, as a consequence of the amendments proposed in this Bill, an internal search will be defined by reference to two types of searches - (a) an internal non-medical scan that can be carried out by an officer of Customs, and (b) an internal medical search that can only be carried out by a medical practitioner.

75.However, sections 219ZE and 219ZV will only need to continue to apply in relation to a internal medical search. Therefore, the amendments set out in items 33, 34 and 35 amend these sections so that they only apply to these searches by omitting the references to "internal search' and substituting "internal medical search".

Part 2 - Application and saving provisions

Item 36 - Application of amendments

76.This item sets out the application provision for the amendments in Part 1 of the Schedule and provides that these amendments only apply to persons detained under Division 1B of Part XII of the Customs Act after the Schedule commences. This means that a person who has been detained and is still in detention at the time the amendments commence will continue to be governed by the old law. For example, if a person had been detained under old 219S before the amendments commence, and they are still in detention at the time the amendments commence, they could not be the subject of the new provisions allowing internal non-medical searches. These can only apply if a person is detained under section 219S after the amendments commence.

Item 37 - Saving things done before commencement

77.This item sets out the savings provision for certain things done before the Schedule commences, to avoid doubt. The item provides that the amendments do not affect anything done under, or in relation to, Division 1B of Part XII of the Customs Act, in relation to a person who is detained under Division 1B before the Schedule commences. For example, if a consent to an external search is recorded under subsection 219RAB(2), this record is still validly made despite the repeal of section 219RAB and its re-enactment as new section 219ZAA.