Bills Digest No. 114  1999-2000

Numerical Index | Alphabetical Index

Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill 1999

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill 1999

Date Introduced: 24 November 1999

House: House of Representatives

Portfolio: Justice and Customs

Commencement: The substantive provisions commence on proclamation or six months and one day after Royal Assent is given to the legislation's formal provisions, whichever is earlier.

Purpose

To enable 'new technologies' to be used in external searches of suspects detained under the Customs Act 1901, to provide for videotaping of external searches, to increase penalties applicable to importing and exporting offences, and to introduce new offence categories under the Act.

Background

Australian Postal Corporation Act 1989

The Australian Postal Corporation Act 1989 sets out the functions, powers and obligations of Australia Post, and deals with operational matters. The major function of Australia Post is providing postal services within Australia and between Australia and other countries.⁽¹⁾ Australia Post is statutorily required to supply a letter service and also provides other services including parcel services.

The Australian Postal Corporation Act contains provisions about the opening and examining of postal articles by Australia Post employees-for example, to assist in the delivery of inadequately addressed mail, to repair items so that they are safe for delivery, to enable dangerous postal articles to be dealt with and to authorise the destruction of physically offensive items.⁽²⁾

The Bill adds new provisions to the Australian Postal Corporation Act to give Customs officers the power to open and inspect mail which they reasonably believe unlawfully contains drugs or other chemical compounds.

Customs Act 1901

The Australian Customs Service administers a number of Commonwealth statutes including the Customs Act 1901. This Act contains provisions governing the importation and exportation of goods, customs duties, customs agents, powers of search, seizure and detention, penalties for customs offences and requirements for customs prosecutions.

Two areas of the Customs Act are particularly relevant to the Bill. The first is Division IB of Part XII of the Act. Division IB deals with the powers of Customs officers and others who are authorised under the legislation. These include powers to search premises with and without a warrant, seize goods, arrest, obtain listening device warrants, and detain and search those suspected of importing or exporting prohibited goods or evading customs duty.

The Bill is designed to amend Division IB to enable Customs officers to use 'prescribed equipment' to conduct an external search of a suspect and to provide for videotaping of external searches. The conditions under which equipment can be prescribed and used are also dealt with by the amendments.

The second group of relevant Customs Act provisions are those dealing with unlawful importation and exportation of goods including narcotic goods. For example, under the Customs Act it is an offence to smuggle goods or engage in unlawful exportation or importation of goods (section 233) or to possess or deal with prohibited imports or exports that are narcotic goods (section 233B). Many of these goods are specified in regulations made under the Customs Act.⁽³⁾

The Bill increases certain penalties associated with importing and exporting offences and establishes new categories of these offences.

Senate Legal and Constitutional Legislation Committee

The Bill was referred to the Committee on 8 December 1999. The Committee's reporting date is 16 February 2000.

Main Provisions

Schedule 1-Amendment of the Australian Postal Corporation Act 1989

As stated earlier, the Australian Postal Corporation Act contains provisions enabling mail to be opened and examined in certain circumstances. Under section 90S, an international mail article can be opened by an authorised examiner⁽⁴⁾ in two circumstances. The first is at the request of a Customs officer. The second is if there are reasonable grounds for believing that the article contains something on which customs duty or sales tax is payable, or contains something carried in contravention of import or export laws. In either case, the Customs officer may then check the postal article. If an article is returned to the post after being opened and examined it must carry an Australia Post endorsement to this effect.⁽⁵⁾

In most cases the 'authorised examiner' who can open mail will be an Australia Post employee.⁽⁶⁾ The Bill's Second Reading Speech states that the present requirement for a Customs officer to request an 'authorised examiner' to open an international mail article:

Under Commonwealth law, the conduct of controlled operations by 'law enforcement officers' including Customs officers⁽⁸⁾ is permitted in certain circumstances. The definition of a 'controlled operation':

Item 3 of Schedule 1 inserts new section 90T into the Australian Postal Corporation Act. New section 90T enables a Customs officer to open and examine a postal article which he or she reasonably believes unlawfully contains drugs or chemical compounds. The article must be 'in the course of the post between Australia and a place outside Australia' [new paragraph 90T(1)(a)].

New subsection 90T(5) provides that if the article contains proscribed drugs or chemical compounds it must be dealt with according to applicable customs duty, sales tax, import or export laws. If it does not then it must be returned to the post [new subsection 90T(4)].

Regulations can be made governing the removal and inspection of items from the post and their return to it [new subsection 90T(6)].

Item 5 of Schedule 1 inserts new subsection 90V(2A) into the Australian Postal Corporation Act. An article opened and returned to the post by a Customs officer under new section 90T must carry an endorsement that it has been opened by the Australian Customs Service and the reasons why it was opened.

Schedule 2-Amendment of the Customs Act 1901

Arrest powers of Customs officers

Section 210 of the Customs Act empowers Customs officers and police officers to arrest without warrant if they reasonably believe that a person is engaging in smuggling or is importing or exporting prohibited goods including narcotics.

Item 6 amends paragraph 210(1)(b) so that the power to arrest without warrant extends to the new offences of importing or exporting 'tier 1' or 'tier 2 goods' (see below).

Personal searches under the Customs Act

Division IB of Part XII of the Customs Act includes provisions which deal with the circumstances in which persons reasonably suspected of carrying prohibited goods can be detained and subjected to a 'frisk search', an 'external search' or an 'internal search'.

A 'frisk search' is defined in subsection 4(1) of the Customs Act as a quick search where hands are run over a person's outer garment. It includes an examination of clothing that can be easily removed and which the person voluntarily removes. The purpose of a frisk search is to check whether a person has illegal goods hidden in their clothes or taped to their body.⁽¹⁰⁾

An 'external search' is defined in subsection 4(1) of the Customs Act as a search of a person's body or anything worn by the person. It does not include an internal examination of the person's body. It involves the person taking off all or some of their clothes so that Customs can check whether they have illegal goods hidden in their clothes or taped to their body.⁽¹¹⁾

An 'internal search' is an examination, including an internal examination, of a person's body to determine whether the person is internally concealing a substance or thing. An internal search involves a medical examination conducted by a doctor⁽¹²⁾ using 'any medical procedure or apparatus that the medical practitioner considers to be reasonably safe in the circumstances.'⁽¹³⁾ Typical procedures include the use of X-ray, ultrasound or a physical examination.⁽¹⁴⁾

The Customs Act also stipulates when personal searches can be carried out. The stringency of the statutory regime varies according to the intrusiveness of the search. The requirements for carrying out an external search are briefly described later in this Digest. If a detainee does not consent to an internal search, an application for an order must be made to a judge. The judge must not make the order unless satisfied that there are reasonable grounds for suspecting that the detainee is internally concealing a suspicious substance.⁽¹⁵⁾ A 'suspicious substance' is defined as being a narcotic that would assist in proving the person guilty of an offence under the Customs Act which carries a penalty of imprisonment for 7 years or more.⁽¹⁶⁾

The use of 'prescribed equipment' in external searches

Existing section 219R of the Customs Act sets out the circumstances under which an 'external search' may be conducted by a Customs officer or police officer. For example, if a person who will be subjected to an external search is under 17 years of age or is under a legal disability, the search must be carried out in the presence of their legal guardian or a person who can represent their interests.⁽¹⁷⁾ A person not in need of protection can only be externally searched if they consent to the search or if an order is obtained.⁽¹⁸⁾ The person carrying out the search must be of the same sex as the detainee.⁽¹⁹⁾ A person who is subjected to an external search cannot be questioned unless he or she is given a statutory warning.⁽²⁰⁾ An order for an external search may be obtained if a person does not consent to an external search when asked to do so.⁽²¹⁾

Item 9 inserts new subsections 219R(11A)-(11C) which enable 'prescribed equipment'-that is, equipment specified in regulations made under new section 219RAC-to be used in external searches of suspects.

The Second Reading Speech says this about 'prescribed equipment':

'Prescribed equipment' can only be used in carrying out external searches in two circumstances. The first is where the detainee consents and the requirements of new section 219RAB are met [new paragraph 219RA(11A)(a)]. Item 10 inserts new section 219RAB which provides that where a Customs officer asks a detainee to consent to an external search involving 'prescribed equipment', the Customs officer must tell the detainee certain things including what the prescribed equipment is, how and why it will be used and any known risks. He or she must also explain that any evidence obtained may be used against the detainee in court. The detainee must be told that the request and any consent given will be recorded and that the detainee is entitled to a copy of the recording.

The second circumstance in which the Bill enables a 'prescribed equipment' search to be conducted is where the suspect does not consent to the search and the Customs officer obtains an order for external search which directs that 'prescribed equipment' be used [new paragraph 219R(11A)(b)]. Under existing provisions in the Customs Act, an order for an external search can be sought from a justice of the peace or 'authorised officer'.⁽²³⁾ A protection provided to detainees by existing subsection 219R(1A) is that an application can only be made to an 'authorised officer' if either the detainee has waived their right to have the application considered by a justice or a justice is not reasonably available. An order can only be issued if the person considering the application is satisfied that there are reasonable grounds to suspect that the detainee is unlawfully carrying prohibited goods.⁽²⁴⁾

New subsection 219R(11B) provides that if the use of 'prescribed equipment' requires body samples to be obtained then only samples from the outer surface of the detainee's hand can be used.

Prescribing equipment for use in external searches

Item 10 inserts new section 219RAC which provides a procedure for prescribing equipment for use in external searches. Only equipment capable of indicating that a person is carrying prohibited goods on his or her body can be prescribed by regulation [new subsection 219RAC(1)].

Prior to equipment being prescribed the Chief Executive Officer of Customs (CEO):

• must first consult with any relevant Commonwealth authorities, and then
• provide a statement to the Minister that the equipment can safely be used to detect prohibited goods, poses minimal or no risk to the health of detainees, and can be operated by a person without professional qualifications [new subsections 219RAC(2) & (3)].

A Customs officer who uses 'prescribed equipment' must be authorised to do so and trained in its operation. The training scheme must be described in a statement approved by the CEO (an 'approved statement') (new section 219RAD).

Recording of external searches and requests for external searches

Item 8 amends paragraph 219R(1)(c) of the Customs Act. Paragraph 219R(1)(c) provides that before an external search can be conducted on a detainee who is not in need of protection, the detainee must consent to the search. An additional requirement to be added by new subparagraph 219R(1)(c)(iii) is that the requirements of new section 219RAA are met.

Item 10 inserts new section 219RAA. New section 219RAA deals with the recording of external searches. Where a Customs officer asks a detainee to consent to an external search, a videotape or other recording must be made of the request and any consent given by the detainee. The detainee must be told that a videotape or other recording made of the search could be used in evidence against him or her.

If a videotape or other electronic recording is made of the external search, a copy must be supplied to the detainee.

If the detainee refuses to consent to an external search and an order for the search is obtained, the order may provide for the videotaping of the search.

Destruction of videotapes and electronic records of external searches

Any videotape or electronic record of an external search, any image taken using prescribed equipment and any sample taken from the outer surface of a detainee's hand must be destroyed 'as soon as practicable' if 12 months have elapsed and 'relevant proceedings' have not commenced or have been discontinued [new subsections 219RAF(1)-(3)]. This 12 month period can be extended if a magistrate decides that there are 'special reasons' for doing so. There appear to be no limits in the Bill on the number of times that the period can be extended [new subsection 219RAF(4)] nor does there appear to be any definition of the expression 'special reasons.'

A further circumstance where the record or sample must be destroyed 'as soon as practicable' is where the detainee is convicted of a relevant offence but no conviction is recorded or if the detainee is acquitted-unless, in either case, there is another investigation or relevant proceeding pending [new subsections 219RAF(5) & (6)].

Application of amendments relating to 'prescribed equipment' and the recording of consents and personal searches

These amendments proposed by the Bill apply only:

• to persons detained so that an external search can be conducted because it is reasonably believed that they are unlawfully carrying prohibited goods,⁽²⁵⁾ or
• where a person detained so that a frisk search can be conducted refuses to submit to the search or refuses to produce something found as the result of the frisk search⁽²⁶⁾ (Item 11 of Schedule 2).

Amendments of penalties relating to smuggling

Item 12 amends paragraph 233AB(1)(a) of the Customs Act. At present, a person convicted of smuggling goods may be ordered to pay a penalty amounting to not more than 5 times and not less than twice the amount of duty that would have been payable on the goods. The amendment proposed by item 12 will remove the minimum penalty.

Item 13 amends paragraph 233B(1)(b) of the Customs Act. Under the Customs Act as currently worded, an alternative to the penalty provisions described in the previous paragraph is for a court to impose a maximum penalty of $50,000. The Bill increases this amount to a maximum of $100,000. A similar increase is effected in respect of penalty provisions in subparagraph 233AB(2)(a)(ii) and paragraph 233AB(2)(b) (items 14 and 15 respectively).

Special offences relating to tier 1 or tier 2 goods

Item 17 inserts new sections 233BAA-233BAC. New section 233BAA provides for what are called special offences relating to 'tier 1 goods'. 'Tier 1 goods' are goods prescribed by regulation whose importation or exportation is absolutely or conditionally prohibited. They include performance enhancing drugs, non-narcotic drugs and 'other specified goods' [new subsection 233BAA(1)]. It is an offence to knowingly or recklessly import or export goods that are 'tier 1 goods'. On conviction, the maximum penalty is $100,000 or 5 years imprisonment, or both [new subsections 233BAA(4) & (5)].

New section 233BAB creates special offences relating to what are called 'tier 2 goods.' 'Tier 2 goods' are goods specified by regulation and may include firearms, knives, chemicals, anti-personnel sprays, radioactive materials, human body tissue and fluids, child pornography, counterfeit charge cards and other specified goods. As with 'tier 1 goods', the regulations cannot prescribe a good as a 'tier 2 good' unless its importation or exportation is absolutely or conditionally prohibited under the customs regulations. 'Child pornography' is defined in new subsection 233BAB(3) as documents or goods which sexually depict a person who is or appears to be less than 16 years of age and is likely to cause offence to a reasonable adult [new subsection 233BAB(3)]. Offences of knowingly or recklessly importing or exporting goods that are 'tier 2 goods' are created by new subsections 233BAB(4) & (5). The maximum penalty is $250,000 or 10 years imprisonment, or both.

In order to be guilty of an offence involving 'tier 1' or 'tier 2 goods', the accused person must have lacked the requisite approval to import or export the goods. New section 233BAC is an evidential provision. It provides that a certificate issued by an authorised officer stating that a defendant lacked the necessary import or export approval is prima facie evidence of that fact. The defendant bears the onus of rebutting this evidence. He or she must be given a copy of the certificate and notice of the intention to rely on the certificate as evidence.

Amendments of penalties relating to narcotics offences

Items 18-20 amend penalty provisions in section 235 of the Customs Act which relate to importing or exporting large quantities of narcotics. Where a person imports or exports a commercial quantity of narcotics or imports or exports a trafficable quantity and is a repeat offender, the maximum penalty will be increased from life imprisonment to a fine of $750,000 and/or life imprisonment (item 18).⁽²⁷⁾

In other circumstances, importing or exporting a trafficable quantity of narcotics other than cannabis presently attracts a maximum penalty of $100,000 or 25 years imprisonment, or both [subparagraph 235(2)(d)(i)]. This fine will be increased to $500,000 (item 19).

In the case of a trafficable quantity of cannabis the maximum penalty is now a fine of $4,000 or 10 years imprisonment, or both [subparagraph 235(2)(d)(ii)]. Item 20 increases the maximum fine to $250,000.

Concluding Comments

Parliamentary scrutiny and 'prescribed equipment'

The equipment which may be used in external searches is not specified in the legislation. It will be stipulated in regulations. Questions might arise about whether primary or subordinate legislation is the more appropriate vehicle for this.

It is worth noting that amendments relating to 'prescribed equipment' are subject to Parliamentary scrutiny in two ways. First, regulations prescribing equipment must be tabled in Parliament and may be disallowed by either Chamber within the statutory time frame.⁽²⁸⁾ Second, training schemes for operators of prescribed equipment must be described in an 'approved statement.' Under section 4A of the Customs Act such statements are also disallowable instruments.⁽²⁹⁾

Protecting the community, detainees and operators of 'prescribed equipment'

The Government has said it recognises:

Examples of the sort of equipment that might be prescribed are found in the Bill's Second Reading Speech and Explanatory Memorandum and include body scan x-ray, particle detectors, and thermal imaging devices.⁽³⁰⁾

On the one hand, use of 'prescribed equipment' may result in more efficient and effective enforcement of the Customs Act and thus help protect the community from dangerous goods, weapons and illicit drugs. Its use may also cause less inconvenience and delay to members of the travelling public.

On the other hand, questions might be asked about whether the use of 'prescribed equipment' is more or less intrusive than an ordinary external search, what risks might be incurred by operators and detainees, and whether these risks, if any, are acceptable.

Another question which might be posed is whether proposed statutory protections for those subject to external searches with 'prescribed equipment' are sufficient or whether they should be further enhanced. Like any personal searches conducted under the Customs Act, personal searches by 'prescribed equipment' will only be utilised on the basis of a reasonable suspicion held by a Customs officer. Other protections provided by the proposed legislation include a requirement that certain information is given to a detainee when an external search involving 'prescribed equipment' is proposed. This is designed to enable the detainee to make an informed decision about whether to consent to the search. Further, the request and any consent given by the detainee must be recorded. Where a detainee refuses to consent an order must be obtained from a justice of the peace or, in some circumstances, from an authorised Customs officer.

While 'prescribed equipment' must be capable of indicating that a detainee may be carrying prohibited goods on his or her body⁽³¹⁾, it is conceivable that some of this equipment may coincidentally produce internal body images.⁽³²⁾ In such cases, a question which might be asked is whether the statutory regime for 'new technology' searches should approximate that provided under the Customs Act for internal searches (which involve an examination of a person's body using medical procedures and apparatus).⁽³³⁾ For example, under the Customs Act if a detention officer wants an internal search to be carried out on a suspect who does not consent in writing to the search, an order must be obtained from a judge, ie from someone independent of the Australian Customs Service. Additionally, the internal search must be carried out by a medical practitioner.

The question of the right level of protection for a detainee who is targeted for an external search involving 'prescribed equipment' may be complicated by the question of whether equipment currently used for internal searches of suspects could also be prescribed for external searches-subject to the limitation that 'prescribed equipment' cannot be equipment requiring a professionally qualified operator.⁽³⁴⁾ However, it may be difficult for the Parliament to determine appropriate statutory protections for detainees given that the Bill does not specify the equipment which can be used in external searches.

Conversely, it is arguable that the use of 'new technology' to conduct searches of detainees is inherently less intrusive and distressing than an internal search-it does not involve the removal of all or some of the detainee's clothing.⁽³⁵⁾ Additionally, the Australian Customs Service has emphasised that orders requiring a person to undergo an external search using 'prescribed equipment' are:

Two final questions relate to the training of Customs officers in the use of 'prescribed equipment.' The Bill provides that 'prescribed equipment' cannot be equipment the use of which requires professional qualifications. Instead, a person operating 'prescribed equipment' must have successfully undergone a training program approved by the CEO. The first question is whether the CEO of Customs is the most suitable person to make decisions about training programs or whether this decision might be more appropriately taken by or in conjunction with a medical or health authority. The second question is whether operators of the sort of equipment mentioned in the Second Reading Speech are normally required to have technical qualifications and, if so, whether these qualifications should be prescribed when the same equipment is used under the Customs Act.

Endnotes

2. Section 14.

3. Divisions 3 & 4 of Part 7B of the Australian Postal Corporation Act.

4. For example, the Customs (Prohibited Imports) Regulations and the Customs (Prohibited Exports) Regulations.

5. The expression 'authorised examiner' is defined in section 90FB as a person appointed by Australia Post under the provisions dealing with opening and examining of mail. It may be an Australia Post employee or, in some circumstances, a person who is not an employee of Australia Post.

6. Section 90V.

7. Except in the case of the use of x-ray and other equipment for examining mail items where a person who is not an Australia Post employee can be appointed. See subsection 90FB(3) and section 90P.

8. Page 12469.

9. Section 3, Crimes Act 1914.

10. Parliamentary Joint Committee on the National Crime Authority, Street Legal. The Involvement of the National Crime Authority in Controlled Operations, December 1999, http://www.aph.gov.au/senate/committee/nca_ctte/street_legal/chapter1.htm

11. Customs Act 1901, Information for a Person Detained for a Frisk Search, B503(3/97).

12. Customs Act 1901, Information for a Person Detained for External Search, B503(3/97).

13. Subsection 219Z(1). It must be carried out at a place provided with the technical and other services that are prescribed.

14. Section 219ZF, Customs Act.

15. Customs Act 1901, Information for a Person Detained for Internal Search, B503(3/97).

16. Subsection 219V(9).

17. Subsection 4(1).

18. Subsection 219R(5).

19. Subsection 219R(1).

20. Subsection 219R(11).

21. Subsections 219R(12) & (13).

22. Subsections 219R(2) & (3).

23. House of Representatives, Parliamentary Debates (Hansard), 24 November 1999, p 12469.

24. As a result of amendments made by the Customs Legislation Amendment Act (No.1) 1999, The relevant amendments commenced on 16 December 1999.

25. Subsections 219R(2) & (3).

26. That is, a person detained under section 219Q of the Customs Act.

27. That is, a person to whom section 219R of the Customs Act applies by force of section 219P.

28. Paragraph 235(2)(c) of the Customs Act currently reads:
    imprisonment for life or for such period as the Court thinks appropriate.
    The amendment effected by item 18 makes paragraph 235(2)(c) read as follows:
    a fine not exceeding $750,000 or imprisonment for life, or both or for such period as the Court thinks appropriate.

    The underlined words may be unnecessary and read awkwardly.

29. Section 48, Acts Interpretation Act 1901.

30. Section 4A of the Customs Act and section 46A of the Acts Interpretation Act.

31. House of Representatives, Parliamentary Debates (Hansard), 24 November 1999, p 12469.

32. New subsection 219RAC(1).

33. See, for example, suggestions made by the Australian Radiation Protection and Nuclear Safety Agency in its submission to the Senate Legal and Constitutional Affairs inquiry into the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill 1999.

34. For example, sections 219RA-219Z, Customs Act.

35. See new paragraph 219RAC(2)(c).

36. Australian Customs Service submission to the Senate Legal and Constitutional Legislation Committee inquiry into the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill 1999.

37. ibid, p 13.

Contact Officer and Copyright Details

Jennifer Norberry
11 February 2000
Bills Digest Service
Information and Research Services

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