Commonwealth Numbered Acts Commonwealth Numbered Acts
1 Subsection 4(1) (definition of Frisk search )
Repeal the definition, substitute:
"frisk search" means:
(a) a search of a person conducted by quickly running the hands over the person's outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
2 Subsection 183UA(1) (definition of frisk search )
Repeal the definition.
3 After paragraph 185(2)(ca)
Insert:
(cb) take possession of any goods (other than narcotic goods) found on the ship or aircraft, and any documents produced under paragraph (c) by a person found on the ship or aircraft, if the officer has reasonable grounds to believe that the goods or documents may afford evidence of the commission of a relevant offence; and
4 At the end of subsection 185(2)
Add:
Note: Section 185AA gives power to search a person found on a ship or aircraft that has been boarded under paragraph 185(2)(a).
5 At the end of subsection 185(3AA)
Add:
Note: Section 185AA gives power to search a person placed on a ship or aircraft under subsection 185(3AA).
6 At the end of section 185
Add:
(7) For the purposes of paragraph (2)(cb), goods found on a ship or aircraft, or documents produced by a person found on a ship or aircraft, may afford evidence of the commission of a relevant offence only if:
(a) in a case where the ship is in Australia--the goods or documents may afford evidence of the commission of an offence, either in or outside Australia, against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or
(b) in a case where the ship is outside Australia--the goods or documents may afford evidence of the commission of an offence:
(i) in Australia against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or
(ii) in Australia's exclusive economic zone against an Act prescribed by the regulations; or
(c) in a case where the aircraft is in Australia--the goods or documents may afford evidence of the commission of an offence, either in or outside Australia, against this Act or section 72.13 or Division 307 of the Criminal Code .
7 At the end of subsection 185A(2)
Add:
Note: Section 185AA gives power to search a person found on a ship that has been boarded under paragraph 185A(2)(a).
8 Subsections 185AA(1), (2) and (3)
Repeal the subsections, substitute:
People found on ships and aircraft boarded under section 185
(1) A person may be searched for the purposes set out in subsection (1A) if:
(a) the person is found on a ship or aircraft that has been boarded under paragraph 185(2)(a); or
(b) the person has been placed on a ship or aircraft under subsection 185(3AA).
(1A) If a person may be searched for the purposes set out in this subsection, the person, the person's clothing and any property under the immediate control of the person, may, without warrant, be searched to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property:
(a) a weapon or other thing capable of being used to inflict bodily injury or to help the person escape; or
(b) a document, or other thing, that the officer or other person has reasonable grounds to believe may afford evidence of the commission of a relevant offence.
Note: Division 1B of this Part provides search powers in respect of certain persons suspected of unlawfully carrying prohibited goods.
(1B) For the purposes of subsection (1A), a document, or other thing, carried or hidden on a person, in a person's clothing or in a person's property, may afford evidence of the commission of a relevant offence only if:
(a) in a case where the person is found on a ship in Australia--the document or other thing may afford evidence of the commission of an offence, either in or outside Australia, against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or
(b) in a case where the person is found on a ship outside Australia--the document or other thing may afford evidence of the commission of an offence:
(i) in Australia against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or
(ii) in Australia's exclusive economic zone against an Act prescribed by the regulations; or
(c) in a case where the person is found on an aircraft in Australia--the document or other thing may afford evidence of the commission of an offence, either in or outside Australia, against this Act or section 72.13 or Division 307 of the Criminal Code .
People found on ships boarded under section 185A
(2) A person may be searched for the purpose set out in subsection (2A) if the person is found on a ship that has been boarded under paragraph 185A(2)(a).
(2A) If a person may be searched for the purpose set out in this subsection, the person, the person's clothing and any property under the immediate control of the person, may, without warrant, be searched to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property a weapon or other thing capable of being used to inflict bodily injury.
Power to examine things found
(3) If a search is conducted under this section, an officer may examine any thing found in the course of the search (including, if the thing is a document, by reading the document directly or with the use of an electronic device).
(3A) In exercising the power to examine things, an officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the things.
(3B) However, when examining a thing found in the course of a search, an officer must not damage the thing by forcing it, or a part of it, open unless:
(a) the person being searched has been given a reasonable opportunity to open the thing or part; or
(b) it is not reasonably practicable to give the person such an opportunity.
Powers to take possession and retain things found
(3C) If, in the course of a search for a purpose set out in subsection (1A) or (2A), a weapon, document or other thing referred to in that subsection is found, then:
(a) in the case of a search conducted by an officer--an officer may take possession of the weapon, document or thing; and
(b) in the case of a search conducted by a person who is not an officer--the person must take possession of the weapon, document or thing and give it to an officer.
Note 1: The following heading to subsection 185AA(4) is inserted " Limit on removal of clothing during search ".
Note 2: The following heading to subsection 185AA(5) is inserted " Limit on who may conduct search ".
9 Subsection 185AA(6)
Repeal the subsection, substitute:
Protection if officers etc. act in good faith
(6) An action or proceeding, whether civil or criminal, does not lie against an officer who conducts, or a person who (at the request of an officer) conducts, a search under this section if the officer, or person, acts in good faith and does not contravene subsection (7).
10 After subsection 185AA(7)
Insert:
Evidence may be used in prosecutions etc.
(7A) To avoid doubt, if, when exercising powers under this section, an officer or other person who conducts a search under this section obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence may be used, or given to another body for use, in:
(a) investigating the offence; or
(b) proceedings for the prosecution for the offence.
However, this subsection does not override or limit the operation of a law of a State about the evidence that may be used in proceedings for an offence against a law of that State.
Note: The following heading to subsection 185AA(7) is inserted " Limit on use of force to conduct search ".
11 Subsection 185AA(8)
Repeal the subsection, substitute:
Definitions
(8) In this section:
"officer" means any of the following:
(a) an officer within the meaning of subsection 185(5);
(b) an officer within the meaning of subsection 185A(7).
12 At the end of section 185AA
Add:
References to person found on a ship or aircraft
(9) In this section, a reference to a person found on a ship or aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from, or left, the ship or aircraft.
13 After section 185AA
Insert:
(1) Subject to any contrary order of a court, Customs must return a relevant item if:
(a) the reason for the relevant item's retention by Customs no longer exists or it is decided that the relevant item is not to be used in evidence; or
(b) the period of 60 days after the relevant item was taken possession of ends;
whichever is the earlier, unless the relevant item is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(2) If Customs is required to return a relevant item under subsection (1), Customs must take reasonable steps to return it to the person from whom it was taken or to the owner if that person is not entitled to possess it, unless:
(a) proceedings in respect of which the relevant item may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
(b) Customs may retain the relevant item because of an order under subsection (4); or
(c) Customs is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the relevant item.
(3) If proceedings in respect of which the relevant item may afford evidence have not commenced:
(a) before the end of 60 days after it was taken possession of; or
(b) before the end of a period previously specified in an order of a magistrate under subsection (4);
Customs may apply to a magistrate for an order that Customs may retain the relevant item for a further period.
(4) If the magistrate is satisfied that it is necessary for Customs to continue to retain the relevant item:
(a) for the purposes of an investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence to be secured for the purposes of a prosecution;
the magistrate may order that Customs may retain the relevant item for a period specified in the order.
(5) Before making the application, Customs must:
(a) take reasonable steps to discover who has an interest in the retention of the relevant item; and
(b) if it is practicable to do so, notify each person who Customs considers has such an interest.
(6) In this section:
"relevant item" means:
(a) goods taken possession of under paragraph 185(2)(cb); or
(b) a document taken possession of under paragraph 185(2)(cb) or subsection 185AA(3C); or
(c) a weapon taken possession of under subsection 185AA(3C); or
(d) any other thing (other than narcotic goods) taken possession of under subsection 185AA(3C).
14 Subsection 219L(1B)
Repeal the subsection.
15 Subsection 219L(1C)
Repeal the subsection.
16 Subsection 219L(2)
Omit "(1), (1A), (1B) or (1C)", substitute "(1) or (1A)".
17 Before subsection 219M(1)
Insert:
(1A) If a person is detained under section 219L, an officer of Customs may:
(a) carry out a frisk search of the person to determine whether the person is unlawfully carrying prohibited goods; and
(b) recover any prohibited goods found in the course of the frisk search.
18 Subsection 219M(4)
Repeal the subsection.
19 Section 219NA
Repeal the section.
20 Paragraph 219ZE(1)(ca)
Omit "in the circumstances referred to in subsection 219L(1) or (1A)".
21 Paragraph 219ZE(1)(cb)
Repeal the paragraph.
22 Application
The amendments made by items 3, 6, 8, 9, 10, 11 and 12 of this Schedule apply in relation to ships and aircraft that are boarded on or after the commencement of this item.
[ Minister's second reading speech made in--
House of Representatives on 20 March 2008
Senate on 16 June 2008 ]
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(53/08) |