Customs Amendment (Enhanced Border Controls and Other Measures) Act 2009 (34 of 2009)

Schedule 10   Powers of arrest

Part 1   Amendments

Customs Act 1901

2   Subdivision H of Division 1 of Part XII

Repeal the Subdivision, substitute:

Subdivision H - Arrest and related matters

210 Power of arrest without warrant

(1) An officer of Customs or police may without warrant arrest a person if the officer believes on reasonable grounds that:

(a) the person has committed or is committing one or more of the following offences:

(i) an offence against subsection 33(1) or 33(5);

(ii) an offence against section 231 or 233;

(iii) an offence against subsection 233BAA(4) or (5), 233BAB(5) or (6), 233BABAB(1) or 233BABAC(1);

(iv) an offence against section 72.13 or Division 307 of the Criminal Code;

(v) an offence against section 308.2 of the Criminal Code where the substance involved in the offence is reasonably suspected of having been imported into Australia, or being intended for export from Australia, in contravention of this Act;

(vi) an offence against section 147.1, 147.2 or 149.1 of the Criminal Code in relation to an officer of Customs; and

(b) proceedings by summons against the person would not achieve one or more of the following purposes:

(i) ensuring the appearance of the person before a court in respect of the offence;

(ii) preventing a repetition or continuation of the offence or the commission of another offence;

(iii) preventing the concealment, loss or destruction of evidence relating to the offence;

(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;

(v) preventing the fabrication of evidence in respect of the offence;

(vi) preserving the safety or welfare of the person.

(2) A person commits an offence if the person resists, obstructs or prevents the arrest of any person under this section.

Penalty: 10 penalty units.

(3) If:

(a) a person has been arrested for an offence under subsection (1); and

(b) before the person is charged with the offence, the officer of Customs or police in charge of the investigation ceases to believe on reasonable grounds:

(i) that the person committed the offence; or

(ii) that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);

the person must be released.

(4) An officer of Customs or police may without warrant arrest a person whom he or she believes on reasonable grounds has escaped from lawful custody to which the person is still liable under this Subdivision.

210A Use of force in making arrest

(1) An officer of Customs or police must not, in the course of arresting a person under section 210, use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the person after the arrest.

(2) Without limiting the operation of subsection (1), an officer of Customs or police must not, in the course of arresting a person under section 210, do anything that is likely to cause the death of, or grievous bodily harm to, the person unless:

(a) the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer); or

(b) if the person is attempting to escape arrest by fleeing:

(i) the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer); and

(ii) the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other manner.

210B Person to be informed of grounds of arrest

(1) An officer of Customs or police who arrests a person under section 210 must inform the person, at the time of the arrest, of the offence for which the person is being arrested.

(2) It is sufficient if the person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.

(3) Subsection (1) does not apply to the arrest of the person if:

(a) the person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or

(b) the person’s actions make it impracticable for the officer to inform the person of the offence for which he or she is being arrested.

211 Power to conduct a frisk search of an arrested person

An officer of Customs or police who arrests a person under section 210, or who is present at such an arrest, may, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:

(a) conduct a frisk search of the person at or soon after the time of arrest; and

(b) seize any seizable items found as a result of the search.

211A Power to conduct an ordinary search of an arrested person

An officer of Customs or police who arrests a person under section 210, or who is present at such an arrest, may, if the officer suspects on reasonable grounds that the person is carrying:

(a) evidential material in relation to the offence for which the person is arrested or another offence; or

(b) a seizable item;

conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.

212 How arrested person to be dealt with

An officer of Customs who arrests a person under section 210 must ensure that the person is either:

(a) delivered into the custody of a police officer; or

(b) taken before a magistrate or bail justice;

as soon as practicable to be dealt with according to law.

213 Requirement to provide name etc.

(1) An officer of Customs or police may request a person arrested under section 210 to provide his or her name or address, or name and address, to the officer if the person’s name or address is, or name and address are, unknown to the officer.

(2) A person commits an offence if:

(a) an officer of Customs or police:

(i) has made a request of a person under subsection (1); and

(ii) has complied with any request that the person has made under paragraph (4)(b); and

(b) the person refuses or fails to comply with the request, or gives a name or address that is false in a material particular.

Penalty: 5 penalty units.

(3) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) An officer of Customs or police commits an offence if:

(a) the officer makes a request of a person under subsection (1); and

(b) the person requests the officer to provide to the person:

(i) his or her name or the address of his or her place of duty; or

(ii) his or her name and that address; or

(iii) if he or she is not in uniform and it is practicable for the officer to provide the evidence - evidence that he or she is an officer; and

(c) the officer refuses or fails to comply with the request, or gives a name or address that is false in a material particular.

Penalty: 5 penalty units.