Commonwealth: Customs Amendment (Serious Drugs Detection) Act 2011 (Cth)

Customs Amendment (Serious Drugs Detection) Act 2011 No. 78, 2011 An Act to amend the Customs Act 1901, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) 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) Act 2011 No. 78, 2011 An Act to amend the Customs Act 1901, and for related purposes [Assented to 25 July 2011] 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. 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. 25 July 2011 2. Schedule 1 A single day to be fixed by Proclamation. 25 January 2012 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 Note: This table relates only to the provisions of this Act as originally enacted.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in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. 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". 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. 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 (c) the requirements of section 219ZAA are met in inviting the 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 (c) subsection 219V(2) does not apply (consent to internal 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. 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 (c) for a person who has been invited to consent to an internal 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". 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". 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; (c) that use of the prescribed equipment could produce evidence 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 (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. (2A) Any equipment prescribed under subsection (2) must be configured so that the equipment's use, when carrying out an internal non‑medical scan, is limited to that necessary to 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 (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 (c) a person does not require professional qualifications to 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 (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); (c) a photograph taken in the circumstances described in 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: (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". 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". 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. [Minister's second reading speech made in— House of Representatives on 23 February 2011 Senate on 25 March 2011] (26/11)