CUSTOMS AMENDMENT (SERIOUS DRUGS DETECTION) BILL 2011

i Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Amendments to the Customs Act 1901

Part 1--Amendments

Customs Act 1901

Part 2--Application and saving provisions

Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011 1

A Bill for an Act to amend the Customs Act 1901,

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Customs Amendment (Serious Drugs

Detection) Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments to the Customs Act 1901 Schedule 1

Amendments Part 1

Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011 3

Schedule 1--Amendments to the Customs Act

1901

Part 1--Amendments

Customs Act 1901

1 Subsection 4(1)

Insert:

internal medical search means an internal search carried out under

section 219Z (internal medical search by medical practitioner).

2 Subsection 4(1)

Insert:

internal non-medical scan means an internal search carried out

under section 219SA (internal non-medical scan using prescribed

equipment).

3 Subsection 4(1) (definition of Internal search)

Repeal the definition, substitute:

internal search of a person:

(a) means an examination (including an internal examination) of

the person's body to determine whether the person is

internally concealing a substance or thing; and

(b) in the case of an internal medical search--includes the

recovery of any substance or thing suspected on reasonable

grounds to be so concealed.

4 At the end of subsection 219R(2)

Add:

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.

Note 1: The following heading to subsection 219R(1) is inserted "External search by consent or

order".

Note 2: The following heading to subsection 219R(2) is inserted "Making an order for an

external search".

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4 Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011

Note 3: The following heading to subsection 219R(4) is inserted "Order for release of

detainee".

Note 4: The following heading to subsection 219R(5) is inserted "Detainee in need of

protection".

Note 5: The following heading to subsection 219R(7) is inserted "Communicating with others".

Note 6: The following heading to subsection 219R(9) is inserted "Carrying out external

search".

5 Subsection 219R(11A)

Omit "section 219RAB", substitute "section 219ZAA".

Note:

The following heading to subsection 219R(11A) is inserted "External search using

prescribed equipment".

6 Subsection 219R(11A) (note)

Omit "Note: Section 219RAC", substitute "Note 1: Section 219ZAB".

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

Add:

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.

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

Add:

Note:

Any samples taken must be destroyed in accordance with

section 219ZAE.

Note 1: The following heading to subsection 219R(12) is inserted "Questioning a detainee".

Note 2: The following heading to subsection 219R(14) is inserted "Meaning of authorised

officer".

9 At the end of subsection 219RAA(1)

Add:

Note:

Any videotape or electronic record made of an external search must be

destroyed in accordance with section 219ZAE.

10 At the end of subsection 219RAA(2)

Add:

Note:

A detainee may be given, under section 219ZAD, a copy of the record

of the invitation to consent and any consent of the detainee.

Amendments to the Customs Act 1901 Schedule 1

Amendments Part 1

Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011 5

11 At the end of subsection 219RAA(5)

Add:

Note:

Any photograph taken must be destroyed in accordance with

section 219ZAE.

12 Sections 219RAB to 219RAF

Repeal the sections.

13 Subsection 219S(1)

Repeal the subsection, substitute:

(1) If a detention officer or police officer suspects on reasonable

grounds that a person is internally concealing a suspicious

substance, an officer of Customs or police officer may detain the

person for the purposes of:

(a) carrying out an internal non-medical scan under

section 219SA; or

(b) enabling an application to be made under section 219T for an

order for the person to be detained.

14 Paragraph 219S(2)(b)

Omit ", subject to subsections 219Z(3), (4), (5) and (6),".

15 At the end of subsection 219S(2)

Add:

Note:

See also subsections 219Z(3) to (6) for places at which a person can

be detained if an internal medical search of the person is carried out.

16 After section 219S

Insert:

219SA Internal non-medical scan using prescribed equipment

(1) If a person has been detained under section 219S, an officer of

Customs may carry out an internal non-medical scan of the person,

as soon as practicable, if:

(a) there are reasonable grounds to believe that the detainee is

not in need of protection; and

(b) the detainee consents to an internal non-medical scan using

equipment prescribed for the purposes of this subsection; and

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6 Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011

detainee to so consent.

(2) An internal non-medical scan of a detainee must be carried out:

(a) using equipment prescribed for the purposes of

subsection (1); and

(b) by an officer who is authorised for the purposes of subsection

219ZAA(3) to use that equipment.

Note 1:

The officer must also be the same sex as the detainee (see subsection

219ZAA(3)).

Note 2:

Any photograph or image taken using the prescribed equipment must

be destroyed in accordance with section 219ZAE.

219SB Seeking detention order following invitation to consent to

internal non-medical scan

If a person has been detained under section 219S, the CEO or a

police officer must, as soon as practicable, apply for an order under

section 219T that the detainee be detained if:

(a) the detainee has been invited to consent to an internal

non-medical scan using equipment prescribed for the

purposes of subsection 219SA(1); and

(b) any of the following apply:

(i) the detainee does not consent to the internal

non-medical scan;

(ii) the internal non-medical scan of the detainee is begun

but not completed, and a detention officer or police

officer suspects on reasonable grounds that the detainee

is internally concealing a suspicious substance;

(iii) after carrying out the 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; and

medical search).

Note 1:

An officer of Customs or a police officer must arrange for an internal

medical search of the detainee by a medical practitioner if subsection

219V(2) applies.

Note 2:

The detainee must be released under section 219ZE if no detention

officer suspects on reasonable grounds that the detainee is concealing

a suspicious substance.

Amendments to the Customs Act 1901 Schedule 1

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Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011 7

17 Before subsection 219T(1)

Insert:

(1A) This section applies if:

(a) a person is detained under section 219S; and

(b) subsection 219V(2) does not apply (consent to internal

medical search); and

non-medical scan using prescribed equipment--the CEO or a

police officer is required, under section 219SB, to apply for

an order under this section.

18 Subsection 219T(1)

Omit "Where a person is detained under section 219S and subsection

219V(2) does not apply, the", substitute "The".

19 Paragraph 219V(2)(b)

Omit "to be internally searched", substitute "to an internal medical

search".

Note 1: The heading to section 219V is altered by omitting "internal search" and substituting

"internal medical search".

Note 2: The following heading to subsection 219V(1) is inserted "Application of section".

Note 3: The following heading to subsection 219V(2) is inserted "Consent to internal medical

search".

20 Subsection 219V(2)

Omit "internal search", substitute "internal medical search".

21 At the end of subsection 219V(2)

Add:

Note:

A detainee may be given, under section 219ZAD, a copy of the

consent of the detainee.

22 Paragraph 219V(3)(c)

Omit "to be internally searched", substitute "to an internal medical

search".

Note:

The following heading to subsection 219V(3) is inserted "Application for order for

internal medical search".

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8 Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011

23 Subsection 219V(3)

Omit "internal search", substitute "internal medical search".

24 Paragraph 219V(4)(a)

Omit "to the detainee being internally searched", substitute "to an

internal medical search of the detainee".

25 Subsection 219V(4)

Omit "internal search", substitute "internal medical search".

26 Paragraph 219V(5)(a)

Omit "internal search", substitute "internal medical search".

Note:

The following heading to subsection 219V(5) is inserted "Extension of detention

period".

27 Subsection 219V(6)

Omit "the detainee".

Note:

The following heading to subsection 219V(6) is inserted "Order for internal medical

search".

28 Paragraph 219V(6)(a)

Omit "be internally searched", substitute "an internal medical search of

the detainee be carried out".

29 Paragraph 219V(6)(b)

Repeal the paragraph, substitute:

(b) the detainee be detained for so long as is reasonably

necessary for the internal medical search to be completed.

Note 1: The following heading to subsection 219V(7) is inserted "Order for release".

Note 2: The following heading to subsection 219V(8) is inserted "Extension of time for starting

internal medical search".

Note 3: The following heading to subsection 219V(9) is inserted "Limitation on making order".

Note 4: The following heading to subsection 219V(10) is inserted "Time for starting internal

medical search".

30 Subsection 219V(11)

Omit "internal search" (wherever occurring), substitute "internal

medical search".

Amendments to the Customs Act 1901 Schedule 1

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Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011 9

31 Subsection 219Z(1)

Omit "internal search", substitute "internal medical search".

Note:

The heading to section 219Z is replaced by the heading "Internal medical search by

medical practitioner".

32 After Subdivision C of Division 1B of Part XII

Insert:

Subdivision CA--Prescribed equipment for external searches

and internal non-medical scans

219ZAA Use of prescribed equipment for external search or internal

non-medical scan

Requirements in inviting consent

(1) In inviting a detainee to consent to the use of prescribed equipment

in an external search, or to an internal non-medical scan using

prescribed equipment, an officer of Customs must tell the detainee

the following:

(a) what the prescribed equipment is;

(b) the purpose for which the prescribed equipment would be

used;

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

Schedule 1 Amendments to the Customs Act 1901

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10 Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011

(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;

(j) that the detainee is entitled to a copy of those records.

Note:

A detainee may be given, under section 219ZAD, a copy of the record

of the invitation to consent and any consent of the detainee.

(2) The invitation to consent and any consent must be recorded by

audiotape, videotape or other electronic means or in writing.

Equipment to be operated by officer of same sex as detainee

(3) The prescribed equipment must be operated by an authorised

officer who is of the same sex as the detainee.

Note:

Section 219ZAC deals with authorisation of an officer to operate

equipment.

219ZAB Prescribing equipment for use in external searches and

internal non-medical scans

Equipment that may be prescribed for external searches

(1) For the purposes of subsection 219R(11A), 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.

Equipment that may be prescribed for internal non-medical scans

(2) For the purposes of subsection 219SA(1), the regulations may

prescribe only equipment that can produce an indication that a

person is or may be internally concealing a suspicious substance.

Requirement for statement from CEO

(3) 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 a statement that:

(a) the equipment can safely be used to detect prohibited goods

or suspicious substances (as the case requires); and

Amendments to the Customs Act 1901 Schedule 1

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Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011 11

(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

operate the equipment.

Consultation with relevant authorities

(4) Before making a statement under subsection (3), the CEO must

consult any Commonwealth authorities (if any) that have expertise

or responsibilities relevant to the matters addressed by the

statement.

(5) The CEO must table, before each House of the Parliament, a copy

of any advice received under subsection (4) within 7 sitting days of

that House after the day on which the statement is given to the

Minister.

219ZAC Authorising officers to use prescribed equipment for

external search or internal non-medical scan

(1) The CEO 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.

(2) The specification made under subsection (1) is not a legislative

instrument.

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

order

Record of invitation to consent and consent

(1) If the 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

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12 Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011

(b) if the detainee gave consent--a copy of the record of the

detainee's consent.

(2) If a detainee requests it, an officer of Customs must give the

detainee, as soon as reasonably practicable, a copy of the record of

the detainee's consent to an internal medical search.

Copy of order for external search

(3) 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.

219ZAE Records of results of external search or internal

non-medical scan

(1) This section applies to any of the following (the search record)

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;

(b) a photograph or image of the detainee's body taken using

equipment prescribed for the purposes of subsection

219R(11A) or 219SA(1);

subsection 219RAA(5);

(d) a sample from the outer surface of the detainee's hand taken

using equipment prescribed for the purposes of subsection

219R(11A).

Requirement for search record to be destroyed

(2) 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 (subject to subsection (3)); and

(b) proceedings against the detainee, relating to prohibited goods

or suspicious substances, in respect of which the search

record is relevant:

Amendments to the Customs Act 1901 Schedule 1

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Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011 13

(i) have not been instituted; or

(ii) have been discontinued.

(3) A magistrate may extend the period of 12 months (or that period as

previously extended under this subsection) referred to in

paragraph (2)(a) in relation to a search record 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.

(4) A search record must (subject to subsection (5)) be destroyed as

soon as practicable if:

(a) the detainee is found to have committed a relevant offence

(see subsection (7)) but no conviction is recorded; 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.

Retention of search record pending destruction

(5) Despite subsection (4), a search record may be retained if:

(a) an investigation is pending into another relevant offence (see

subsection (7)); or

(b) a proceeding is pending against the detainee for another

relevant offence.

(6) The regulations must provide for the secure storage of any search

record pending its ultimate destruction.

Meaning of relevant offence

(7) For the purposes of this section, 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.

33 Paragraph 219ZE(1)(f)

Omit "internal search", substitute "internal medical search".

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14 Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011

34 Subsection 219ZF(1)

Omit "internal search", substitute "internal medical search".

Note:

The heading to section 219ZF is altered by omitting "internal search" and substituting

"internal medical search".

35 Paragraph 219ZF(3)(a)

Omit "internal search", substitute "internal medical search".

Amendments to the Customs Act 1901 Schedule 1

Application and saving provisions Part 2

Customs Amendment (Serious Drugs Detection) Bill 2011 No. , 2011 15

Part 2--Application and saving provisions

36 Application of amendments

The amendments made by Part 1 of this Schedule apply to persons

detained under Division 1B of Part XII of the Customs Act 1901 after

this Schedule commences.

37 Saving things done before commencement

To avoid doubt, the amendments made by Part 1 of this Schedule do not

affect the validity of anything done under, or in relation to, Division 1B

of Part XII of the Customs Act 1901, in relation to a person who is

detained under that Division before this Schedule commences.

Commonwealth of Australia Bills

CUSTOMS AMENDMENT (SERIOUS DRUGS DETECTION) BILL 2011