Comptroller-General of Customs (Places of Detention) Directions 2015 [F2015L00891]-Concluded matters [2015] AUSStaCSDLM 188 (17 September 2015)

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)
Previously reported in	Delegated legislation monitor No. 8 of 2015

Undue trespass on personal rights and liberties

The committee commented as follows: 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 requested the advice of the minister in relation to this matter.

Minister's response

The Minister for Immigration and Border Protection advised:

The instrument refers to the Comptroller-General of Customs giving a direction on the places of detention available to officers when a person is detained under Division 1 BA of Part XII of the Customs Act 1901 (Customs Act) (item 1 of the direction) and the privacy afforded a detained persons who may be searched under section 219ZJD of the Customs Act (item 2 of the direction). Division 1 BA relates to detention and search of persons for the purposes for law enforcement cooperation.
Officers receive extensive training in relation to their duties which includes regular training in relation to personal search powers. This training includes the procedures that must be followed and provides guidance on officers' obligations to ensure the highest standards of care, wellbeing and privacy considerations of the person.
Provisions in Division 1 BA of Part XII of the Customs Act allow officers to detain a person in certain circumstances. For example, section 219ZJB applies where a person is in a designated place (including gazetted airports and ports, and boarding stations) and the officer has reasonable grounds to suspect that the person has committed, or is committing, a serious commonwealth offence or a prescribed state or territory offence. Officers can detain the person and conduct a search of persons detained under section 219ZJD of the Act. This section allows officers to conduct a frisk or ordinary search of the person, to search the clothing that the person is wearing and any property under the person's immediate control. A search under this Division is for the purposes of determining whether a weapon or thing capable of inflicting harm is concealed on the person or in the persons clothing or property; or to prevent the concealment, loss or destruction of evidence relating to an offence; or preventing the concealment, loss or destruction of material of interest for national security or the security of a foreign country. Under section 219ZJD of the Act, a search must be conducted as soon as practicable after the person is detained; and by an officer of the same sex as the detained person. Persons who identify as transgender are consulted as to their preference for a male or female officer to conduct the search.
The level of privacy that may be afforded a detainee who is the subject of a personal search will depend on the location of the detention. Major airports and seaports have designated rooms available for detention and the personal search of detainees. These rooms are closed off from public view and will afford a detainee a higher level of personal privacy while being searched. However, regional airports and seaports may lack identical infrastructure. While a person may be initially detained at such places, the final detention place may be some distance from the initial detention place. In these circumstances, it may preferable to conduct the personal search at the initial detention place and before the final detention space, for example to ensure officer safety. In all circumstances, therefore, the person will be provided as much personal privacy as that particular infrastructure allows.
In these circumstances, I do not consider that the Directions unduly trespass on personal rights and liberties of a detained person.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.