Customs Act 1901

PART XII - OFFICERS  

Division 1B - Detention and Search of Suspects  

Subdivision B - Detention and external search of suspects  

SECTION 219R   EXTERNAL SEARCH  
External search by consent or order

219R(1)    
Where:

(a) by force of section 219P , this section applies to a person detained under section 219L ; or

(b) a detention officer or police officer suspects on reasonable grounds that a person detained under section 219Q is unlawfully carrying prohibited goods on his or her body;

then:

(c) if:

(i) there are reasonable grounds to believe that the detainee is not in need of protection; and

(ii) the detainee consents to be searched; and

(iii) the requirements of section 219RAA are met in respect of that consent;

an officer of Customs or police officer must, as soon as practicable, carry out an external search of the detainee; or

(d) in any other case, the detention officer or police officer must, as soon as practicable, apply to a Justice or, in the circumstances set out in subsection (1A), to an authorised officer, for an order for an external search of the detainee.

219R(1A)    

The detention officer or police officer may apply to an authorised officer only if:

(a) the detainee has waived his or her right to have the application for an order considered by a Justice; or

(b) a Justice is not reasonably available to consider such an application.

Making an order for an external search

219R(2)    
Subject to subsection (3), the person to whom an application is made may order that an external search of the detainee be carried out.

Note:

A copy of the order is to be given to the detainee (or the person in whose presence the external search is to be carried out) under section 219ZAD .

219R(3)    
The person must not make such an order unless he or she is satisfied that there are reasonable grounds for suspecting that the detainee is unlawfully carrying prohibited goods.

Order for release of detainee

219R(4)    
Where the person does not make such an order, he or she must order that the detainee be released immediately.

Detainee in need of protection

219R(5)    
If an external search of the detainee is ordered and the person making the order is satisfied that the detainee is in need of protection, the person must order that the search be carried out in the presence of:

(a) the detainee ' s legal guardian; or

(b) a specified person (not being an officer of Customs or a police officer) who is capable of representing the detainee ' s interests in relation to the search.

219R(6)    
So far as is practicable, a person mentioned in an order under subsection (5) as the person in whose presence an external search is to be carried out must be acceptable to the detainee.

Communicating with others

219R(7)    
Subject to subsection (8), the detainee may at any time communicate with another person.

219R(8)    
An officer of Customs or police officer may stop the detainee from communicating with another person if the officer believes on reasonable grounds that such communication should be stopped in order to:

(a) safeguard the processes of law enforcement; or

(b) protect the life and safety of any person.

Carrying out external search

219R(9)    
Where:

(a) an external search of the detainee is ordered; and

(b) a detention officer or police officer still suspects on reasonable grounds that the detainee is unlawfully carrying prohibited goods;

the detention officer or police officer must ensure that an external search of the detainee is carried out as soon as practicable.

219R(10)    
The search must be carried out:

(a) by an officer of Customs or a police officer; and

(b) in accordance with the order and this section.

219R(11)    
An external search of the detainee is to be carried out by a person who is of the same sex as the detainee.

External search using prescribed equipment

219R(11A)    

Prescribed equipment may be used in carrying out the external search if, and only if, consent to the use of the equipment in carrying out the search has been given by the detainee and the requirements of section 219ZAA are met.

Note 1:

Section 219ZAB deals with regulations prescribing equipment.

Note 2:

A detainee may be given, under section 219ZAD , a copy of the record of the invitation to consent and any consent of the detainee.

Note 3:

Any photograph or image taken using the prescribed equipment must be destroyed in accordance with section 219ZAE .

219R(11B)    
If use of the prescribed equipment involves samples from the detainee ' s body, the equipment may be used in the search only with samples from the outer surface of the detainee ' s hand.

Note:

Any samples taken must be destroyed in accordance with section 219ZAE .

219R(11C)    
To avoid doubt, the search may be continued without the use of the prescribed equipment if the use of the equipment produces an indication that the detainee is or may be carrying prohibited goods.

Questioning a detainee

219R(12)    
While:

(a) a person is detained under section 219L and, by force of section 219P , this section applies to the person; or

(b) a person is detained under section 219Q;

a detention officer or police officer may question the person:

(c) for the purpose of carrying out an external search of the person under this section; or

(d) concerning any prohibited goods found to have been illegally carried by the person on his or her body as a result of the carrying out of an external search of the person under this section.

219R(13)    
The detention officer or police officer must not question the detainee under subsection (12) unless the detention officer or police officer has informed the detainee:

(a) that the detainee is not obliged to answer any questions asked of him or her; and

(b) that anything said by him or her may be used in evidence; and

(c) of his or her right to communicate with another person.

Meaning of authorised officer

219R(14)    

In this section:

"authorised officer"
means an officer of Customs who is a member of a class of officers of Customs declared by the Comptroller-General of Customs to be authorised officers in relation to particular circumstances or places.

Definition of " authorised officer " amended by No 41 of 2015, s 3 and Sch 1 item 710, effective 1 July 2015. For saving and transitional provisions see note under the title of this Act.