An officer of Customs or police who arrests a person under section 210, or who is present at such an arrest, may, if the officer suspects on reasonable grounds that the person is carrying:
(a) evidential material in relation to the offence for which the person is arrested or another offence; or
(b) a seizable item;
conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.
212 How arrested person to be dealt with
An officer of Customs who arrests a person under section 210 must ensure that the person is either:
(a) delivered into the custody of a police officer; or
(b) taken before a magistrate or bail justice;
as soon as practicable to be dealt with according to law.
213 Requirement to provide name etc.
(1) An officer of Customs or police may request a person arrested under section 210 to provide his or her name or address, or name and address, to the officer if the person’s name or address is, or name and address are, unknown to the officer.
(2) A person commits an offence if:
(a) an officer of Customs or police:
(i) has made a request of a person under subsection (1); and
(ii) has complied with any request that the person has made under paragraph (4)(b); and
(b) the person refuses or fails to comply with the request, or gives a name or address that is false in a material particular.
Penalty: 5 penalty units.
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) An officer of Customs or police commits an offence if:
(a) the officer makes a request of a person under subsection (1); and
(b) the person requests the officer to provide to the person:
(i) his or her name or the address of his or her place of duty; or
(ii) his or her name and that address; or
(iii) if he or she is not in uniform and it is practicable for the officer to provide the evidence—evidence that he or she is an officer; and
(c) the officer refuses or fails to comply with the request, or gives a name or address that is false in a material particular.
Penalty: 5 penalty units.
Subdivision HA—Information about people working in restricted areas or issued with security identification cards
213A Providing an authorised officer with information about people working in restricted areas
(1) A person who employs or engages a restricted area employee must, within 7 days after doing so, provide to an authorised officer the required identity information in respect of the employee.
(2) If a person (the employer):
(a) employs or engages another person after the commencement of this section; and
(b) at a later time the other person becomes a restricted area employee of the employer;
the employer must, within 7 days after that later time, provide to an authorised officer the required identity information in respect of the employee.
(3) If:
(a) a person (the employer) employed or engaged another person before the commencement of this section; and
(b) the other person is a restricted area employee of the employer; and
(c) an authorised officer suspects on reasonable grounds that the other person has committed, or is likely to commit, an offence against a law of the Commonwealth;
the authorised officer may, in writing, request the employer to provide to the authorised officer, within 7 days after receiving the request, the required identity information in respect of the employee. The employer must comply with the request.
(4) A person does not comply with an obligation under subsection (1), (2) or (3) to provide information unless the person provides the information:
(a) in writing; or
(b) in such other form as the Comptroller‑General of Customs determines in writing.
(5) A person commits an offence if the person fails to comply with subsection (1), (2) or (3).
Penalty: 30 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(7) In this section:
required identity information, in relation to a person, means any one or more of the following:
(a) the name and address of the person;
(b) the person’s date and place of birth;
(c) any other information prescribed by the regulations.
restricted area employee means a person whose duties include working in an area covered by a notice under subsection 234AA(3), but does not include a person who is issued with a security identification card.
security identification card means a card of a kind specified in the regulations.
213B Provision of information about people issued with security identification cards
(1) If a person has issued a security identification card to another person in respect of an airport appointed under section 15, an issuing authority in relation to the card must, within 7 days after the card is issued, provide to an authorised officer the required identity information in respect of the other person.
(2) If:
(a) before the commencement of this section, a person issued a security identification card to another person in respect of an airport appointed under section 15; and
(b) an authorised officer suspects on reasonable grounds that the other person has committed, or is likely to commit, an offence against a law of the Commonwealth;
the authorised officer may, in writing, request an issuing authority in relation to the card to provide to the authorised officer, within 7 days after receiving the request, the required identity information in respect of the other person. The issuing authority must comply with the request.
(2A) If a person has issued a security identification card to another person in respect of an airport appointed under section 15, an authorised officer may, at any time, in writing, request an issuing authority in relation to the card to provide to the authorised officer, within 7 days after receiving the request, information for the purposes of updating required identity information previously provided in respect of the other person under subsection (1) or this subsection. The issuing authority must comply with the request.
(2B) If a security identification card expires or is revoked, an issuing authority in relation to the card must notify an authorised officer of the expiry or revocation within 7 days after it occurs.
(3) A person does not comply with an obligation under subsection (1), (2), (2A) or (2B) to provide information unless the person provides the information:
(a) in writing; or
(b) in such other form as the Comptroller‑General of Customs determines in writing.
(4) In this section:
issuing authority, in relation to a security identification card, means any of the following:
(a) the person who issued the card;
(b) a person who is authorised to perform the functions, or exercise the powers, of the person who issued the card.
required identity information has the meaning given by section 213A.
security identification card has the meaning given by section 213A.
Subdivision J—General powers to monitor and audit
214AA Occupier of premises
In this Subdivision:
occupier of premises includes a person who is apparently in charge of the premises.
214AB What are monitoring powers?
Monitoring powers
(1) For the purposes of this Subdivision, the following are monitoring powers:
(a) the power to search premises;
(b) the power to take photographs (including a video recording), or make sketches, of premises or anything at premises;
(c) the power to inspect, examine, count, measure, weigh, gauge, test or analyse, and take samples of, anything in or on premises;
(d) the power to inspect any document or record in or on premises;
(e) the power to take extracts from, or make copies of, any document or record in or on premises;
(f) the power to take into or onto premises any equipment or material reasonably necessary for the purpose of exercising a power under paragraph (a), (b), (c), (d) or (e);
(g) the power to test and operate record‑keeping, accounting, computing or other operating systems of any kind that are at premises and may be used to generate or record information or documents of a kind that may be communicated to the Department;
(h) the power to secure a thing that:
(i) is found during a search of premises; and
(ii) a monitoring officer believes on reasonable grounds affords evidence of the commission of an offence against a Customs‑related law and may be lost, destroyed or tampered with;
until a warrant is obtained to seize the thing or 72 hours elapses after the securing of the thing, whichever first occurs;
(i) the powers in subsections (2) and (3).
Power to operate equipment to check information
(2) For the purposes of this Subdivision, monitoring powers include the power to operate equipment at premises to see whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is at the premises; and
(ii) can be used with the equipment or is associated with it;
contains information that is relevant to assessing:
(c) whether a person is complying with a Customs‑related law; or
(d) whether a person’s record‑keeping, accounting, computing or other operating systems of any kind accurately record and generate information to enable compliance with a Customs‑related law; or
(e) the correctness of information communicated by a person to the Department (whether in documentary or other form).
Power to copy information found by operating equipment
(3) For the purposes of this Subdivision, monitoring powers include the following powers in relation to information described in subsection (2) that is found in the exercise of the power under that subsection:
(a) the power to operate facilities at the premises to put the information in documentary form and copy the documents so produced;
(b) the power to operate facilities at the premises to transfer the information to a disk, tape or other storage device:
(i) that is brought to the premises for the exercise of the power; or
(ii) that is at the premises and the use of which for the purpose has been agreed in writing by the occupier of the premises;
(c) the power to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).
214AC Monitoring officers
Who is a monitoring officer?
(1) A monitoring officer is an officer who is authorised by the Comptroller‑General of Customs under this section to enter premises and exercise monitoring powers (whether the authorisation applies generally, during a specified period or in or on specified premises).
Who may be authorised to be a monitoring officer
(2) The Comptroller‑General of Customs must not authorise an officer to enter premises and exercise monitoring powers unless the Comptroller‑General of Customs is satisfied that the officer is suitably qualified, because of the officer’s abilities and experience, to exercise those powers.
Authorising officers to exercise monitoring powers
(3) The Comptroller‑General of Customs may authorise in writing an officer to enter premises and exercise monitoring powers:
(a) generally; or
(b) during a specified period; or
(c) in or on specified premises; or
(d) during a specified period in or on specified premises.
Availability of assistance and use of force in exercising monitoring powers
(4) In entering premises and exercising monitoring powers:
(a) a monitoring officer may obtain such assistance; and
(b) a monitoring officer or a person assisting a monitoring officer may use such force against things;
as is necessary and reasonable in the circumstances.
Monitoring powers to be used only as authorised
(5) This Subdivision does not allow:
(a) an officer who is authorised to enter premises and exercise monitoring powers during a specified period to enter the premises or exercise the powers at a time outside that period; or
(b) an officer who is authorised to enter, and exercise monitoring powers in or on, specified premises to enter, or to exercise the powers in or on, other premises.
214ACA Monitoring officer to notify occupier of premises of the occupier’s rights and obligations
Before exercising monitoring powers in respect of premises, a monitoring officer must give to the occupier of the premises a written notice setting out the occupier’s rights and obligations under this Subdivision.
214AD Notice of proposal to exercise monitoring powers
Before seeking consent under section 214AE to enter premises and exercise monitoring powers there, a monitoring officer may give to the occupier of the premises written notice stating that the officer wishes to enter the premises and exercise monitoring powers and specifying the period from the giving of the notice during which the officer wishes to exercise the powers.
Note: If the occupier had, before a notice is given under section 214AD, made to the Department a statement that was false or misleading, a voluntary notification made by the occupier after the notice is given is not a defence to a prosecution for an offence against section 243T or 243U in respect of the statement.
214AE Exercise of monitoring powers with consent
(1) A monitoring officer may enter, and exercise monitoring powers in or on, premises to the extent that it is reasonably necessary for the purpose of assessing:
(a) whether a person is complying with a Customs‑related law; or
(b) whether a person’s record‑keeping, accounting, computing or other operating systems of any kind accurately record and generate information to enable compliance with a Customs‑related law; or
(c) the correctness of information communicated by a person to the Department (whether in documentary or other form).
(2) However, a monitoring officer must not enter premises under this section unless the occupier of the premises has consented to the monitoring officer entering, and exercising monitoring powers in or on, the premises.
(3) Before obtaining such a consent, a monitoring officer must tell the occupier of the premises that he or she can refuse consent.
(4) A consent may be expressed to be limited to entry to, and the exercise of monitoring powers in or on, the premises to which the consent relates during a particular period unless the consent is withdrawn before the end of that period.
(5) A consent that is not limited as mentioned in subsection (4) has effect in relation to any entry to, and any exercise of monitoring powers in or on, the premises to which the consent relates until the consent is withdrawn.
(6) Before a monitoring officer enters premises or exercises any monitoring powers, he or she must produce his or her identity card to the occupier.
(7) A monitoring officer must leave the premises if the occupier withdraws the consent.
(8) A consent, or a withdrawal of consent, does not have effect unless the consent or withdrawal is in writing.
214AF Exercise of monitoring powers under a warrant
(1) A monitoring officer may apply to a magistrate for a warrant under this section in relation to particular premises.
(2) The magistrate must issue a warrant if satisfied, by information on oath or affirmation, that it is reasonably necessary that the monitoring officer should have access to the premises for the purpose of assessing:
(a) whether a person is complying with a Customs‑related law; or
(b) whether a person’s record‑keeping, accounting, computing or other operating systems of any kind accurately record and generate information to enable compliance with a Customs‑related law; or
(c) the correctness of information communicated by a person to the Department (whether in documentary or other form).
(3) If the magistrate requires further information about the grounds on which the issue of the warrant is applied for, he or she must not issue the warrant until the monitoring officer or someone else has given the magistrate the further information, either orally (on oath or affirmation) or by affidavit.
(4) The warrant must:
(a) state the purpose for which the warrant is issued; and
(b) identify the premises to which the warrant relates; and
(c) name the monitoring officer who is responsible for executing the warrant; and
(d) authorise any monitoring officer named in the warrant to enter the premises and exercise monitoring powers from time to time while the warrant remains in force, with such assistance, and using such force against things, as are necessary and reasonable; and
(e) state the hours during which entry under the warrant is authorised to be made; and
(f) specify the day (not more than 6 months after the day of issue of the warrant) on which the warrant ceases to have effect.
(5) A magistrate in a particular State or Territory may issue a warrant in respect of premises in another State or Territory.
214AG Warrants may be granted by telephone or other electronic means
(1) A monitoring officer may apply to a magistrate for a warrant in relation to premises by telephone, telex, fax or other electronic means (of any kind):
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The magistrate may require communication by voice to the extent that is practicable in the circumstances.
(3) An application under this section must include all information required to be provided in an application for a warrant under section 214AF but the application may, if necessary, be made before the information is sworn.
(4) The magistrate must complete and sign the same form of warrant used under section 214AF as soon as he or she:
(a) has considered the information included in the application under this section, and the further information (if any) required by him or her; and