Comptroller-General of Customs (Places of Detention) Directions 2015 [F2015L00891]-Response required [2015] AUSStaCSDLM 113 (12 August 2015)

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Instrument	Comptroller-General of Customs (Places of Detention) Directions 2015 [F2015L00891]
Purpose	Identifies places which an officer is permitted to detain a person and specifies other matters relating to the detention of persons under paragraph 219ZJE(1)(a) of the Customs Act 1901
Last day to disallow	17 September 2015
Authorising legislation	Customs Act 1901
Department	Immigration and Border Protection
Scrutiny principle	Standing Order 23(3)(b)

Undue trespass on personal rights and liberties

This instrument specifies places where an officer is permitted to detain a person and specifies other matters relating to the detention of persons under paragraph 219ZJE(1)(a) of the Customs Act 1901.

Item 1 of the instrument provides that a person must be detained in a room that meets certain standards or, if no such room is convenient and suitable, an Australian Border Force vehicle. Item 2 of the instrument provides that, for the purposes of paragraph 219ZJE(1)(b) of the Customs Act 1901, if a Customs officer conducts a search before taking a person to a place mentioned in item 1 of the direction, the officer conducting the search must afford the detainee as much personal privacy 'as the circumstances of the search allow'.

Standing Order 23, scrutiny principle (3)(b) requires the committee to ensure that an instrument does not 'unduly trespass' on personal rights and liberties. In this case, the committee notes that the requirement to allow a detainee as much privacy 'as the circumstances of the search allow' lacks definition, and would appear to provide a broad discretion to an officer conducting a search in relation to the extent of privacy afforded to a person subject to a search. It is therefore unclear whether the instrument unduly trespasses on the personal rights and liberties of persons affected by the instrument.

The committee requests the advice of the minister in relation to this matter.