Search, Seizure and Detention under the Customs Act 1901 (Cth)
The Customs Act 1901 (Cth) contains specific powers for the detention and search of people reasonably suspected of unlawfully carrying any prohibited goods or internally concealing a suspicious substance.
To search a person, there must be ‘suspicion on reasonable grounds’. Reasonable suspicion can be aroused by:
- a person’s travel itinerary;
- declarations made by the person under Commonwealth law;
- documents in the person’s possession;
- unusual behaviour of the person;
- and the content or appearance of the person’s baggage.
Section 4 of the Customs Act defines a frisk search as a rapid and methodical running of hands over the person’s outer garments and an examination of anything worn by the person that can be conveniently removed and is voluntarily removed by the person.
The search must be carried out by a Customs Officer who is of the same sex as the detainee (s219M(1)(b)). You can not refuse to submit to a frisk search or refuse to produce an item requested after a frisk search. Refusal results in the person being liable to an external search (s219P).
Sections 219Q and 219R are the provisions concerning external search. The definition of an external search is: a search of the body of, and anything worn by, a person in order to determine whether the person is carrying any prohibited goods and to recover any such goods. It does not include an internal examination of the person’s body (s4(1)).
An external search can be carried out where a detention officer or police officer suspects on reasonable grounds that a person detained under frisk search provisions (s219Q) is unlawfully carrying prohibited goods on their body (s219R(1)(b)). The external search must be carried out as soon as practicable. if the person is not in need of protection and the person consents (s219R(1)(c)). Otherwise, the detention officer or police officer must apply to an authorised officer, or a Justice to carry out an external search of the detainee (s219R(1)(d)).
The external search must be carried out by a police or Customs officer of the same sex as the detainee (s219R(10) & (11)).
Sections 219S to 219Z contain the internal search provisions of the Customs Act.
A detention officer or police officer who suspects on reasonable grounds that a person is internally concealing a suspicious substance may detain the person for the purpose of making an application for detention of the person (s219S).
An application for a detention order must be to a Federal Court or Supreme Court Judge if the person is in need of protection. In other cases, the application may be made to these Judges or to a Magistrate (s219T). An order for detention is made for an initial period of up to 48 hours and can be extended by the Judge or Magistrate for a further period of 48 hours. If an order for detention is not made or extended, the person must be released immediately (s219T & V). If the person consents to an internal search, the search must be carried out as soon as practicable.
If the person, or the person appointed to represent their interests, refuses to undergo an internal search, an application must be made to a Federal or Supreme Court Judge for an order for an internal search. A Judge must not make an order for an internal search unless satisfied that there are reasonable grounds for suspecting that the detainee is internally concealing a suspicious substance (s219V(9)).
An internal search must be carried out by a medical practitioner, in a place suitably equipped (s219Z). The medical practitioner must not use any procedure involving surgical incision unless they consider it necessary because the detainee’s life is at risk (s219ZF), such as where a person has swallowed packets of drugs and those packets might rupture, and cause serious harm to the person.
A person detained for an internal search must be allowed to consult a lawyer (s219W). Frisk and external searches do not have a similar provision.
Page last updated 13/12/2017