(1) If a verification officer is in or on premises that he or she entered under this Subdivision, then, while the officer is entitled to remain in or on the premises, the officer may request the occupier to provide reasonable assistance to the officer for the purpose of the officer’s exercise of AUSFTA verification powers in or on the premises.
(2) The occupier is not obliged to comply with the request.
214BAJ Verification officer may disclose information to US
A verification officer may disclose any information obtained in exercising AUSFTA verification powers to a US customs official for the purpose of a matter covered by Article 4.3 of the Agreement.
214BAK Operation of electronic equipment at premises
A person may operate electronic equipment at premises in order to exercise a power under this Subdivision only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
214BAL Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 214BAC:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or addition of other data.
Subdivision K—Miscellaneous
214BA Nature of functions of magistrate under sections 203S and 205E
(1) A function of making an order conferred on a magistrate by section 203S or 205E is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(2) Without limiting the generality of subsection (1), an order made by a magistrate under section 203S or 205E has effect only by virtue of this Act and is not taken, by implication, to be made by a court.
(3) A magistrate performing a function of, or connected with, making an order under section 203S or 205E has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).
(4) The Governor‑General may make arrangements with the Governor of a State, the Chief Minister of the Australian Capital Territory or the Administrator of the Northern Territory for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under section 203S or 205E.
215 Collector may impound documents
The Collector may impound or retain any document presented in connexion with any entry or required to be produced under this Act, but the person otherwise entitled to such document shall in lieu thereof be entitled to a copy certified as correct by the Collector and such certified copy shall be received in all courts as evidence and of equal validity with the original.
217 Translations of foreign invoices
If any document in a foreign language be presented to any officer for any purpose connected with the Customs Acts, the Collector may require to be supplied with an English translation to be made at the expense of the owner by such person as the Collector may approve or to be verified as he or she may require.
218 Samples
Samples of any goods under customs control may for any purpose deemed necessary by the Collector be taken utilized and disposed of by any officer in manner prescribed.
218A Disposal of certain abandoned goods
(1) If a Collector has reason to believe that goods found at a Customs place:
(a) are not required to be, or are not able to be, entered for home consumption; and
(b) have been abandoned by their owner;
the Collector may take steps to dispose of the goods in any manner he or she thinks appropriate.
(2) For the purposes of subsection (1), a Collector is taken to have reason to believe that goods found at a Customs place have been abandoned if a period prescribed for the purposes of this subsection, not exceeding 120 days, has passed since the goods were found at that place and no person has claimed ownership of the goods.
(3) If the Collector sells the goods, any expenses incurred by the Commonwealth in collecting and housing them and ultimately arranging for their disposal may be offset against any money realised on their sale.
(4) Nothing in this provision prevents a person, at any time after the end of the prescribed period in relation to particular goods found at a Customs place, from seeking compensation for those goods in accordance with section 4AB.
(5) For the purposes of this section, the Collector must ensure that there is created and maintained a record, in writing, specifying, in respect of particular goods found at a Customs place:
(a) the date on which and place at which the goods were found; and
(b) if the goods are subsequently disposed of—the date and manner of their disposal; and
(c) if the goods are sold—the amount realised on their sale and any amount offset against that amount in accordance with subsection (3).
Division 1B—Detention and search of suspects
Subdivision A—Detention and frisk search of suspects
219L Detention for frisk search
(1) Where a detention officer suspects on reasonable grounds that a person is unlawfully carrying any prohibited goods on his or her body, an officer of Customs may, while a person is at a designated place, detain the person at the place for the purposes of being searched under this Subdivision.
(1A) If:
(a) officers have boarded a ship, aircraft or installation under section 187 for the purpose of conducting a search, or exercising any other power, under that section, in relation to that ship, aircraft or installation; and
(b) a detention officer suspects on reasonable grounds that a person who is on board the ship, aircraft or installation is unlawfully carrying prohibited goods on his or her body;
the detention officer may detain the person for the purpose of being searched under this Subdivision.
(2) Without limiting the generality of subsection (1) or (1A), a suspicion on reasonable grounds for the purposes of that subsection includes a suspicion reasonably formed on the basis of any of the following:
(a) the person’s travel itinerary, including plans in relation to places that have been visited or are intended to be visited by the person;
(b) declarations or statements made under a law of the Commonwealth by the person in the course of arriving in or departing from Australia;
(c) documents in the person’s possession, including passports, visas or tickets;
(d) unusual behaviour of the person observed by or reported to an officer of Customs;
(e) the contents of or appearance of any visible item carried by the person or, if the person has baggage, of the person’s baggage, whether or not carried by the person;
(f) the answers given by the person in relation to questions asked by an officer of Customs in the exercise of powers under this Act, or the refusal or failure of the person to answer such questions;
(g) the documents produced by the person in compliance with an obligation under this Act, or the refusal or failure of the person to produce such documents.
219M Frisk search
(1A) If a person is detained under section 219L, an officer of Customs may:
(a) carry out a frisk search of the person to determine whether the person is unlawfully carrying prohibited goods; and
(b) recover any prohibited goods found in the course of the frisk search.
(1) A frisk search of a person detained under section 219L is not to be carried out unless it is carried out:
(a) as soon as practicable after the detainee is detained; and
(b) by an officer of Customs who is of the same sex as the detainee.
(2) Before carrying out the frisk search of a person who is detained in a designated place that is a section 234AA place, the officer of Customs must:
(a) advise the detainee of the detainee’s right to request that the search be carried out in an area of the place of detention that would, in the opinion of the Comptroller‑General of Customs, provide adequate personal privacy to the detainee during the search; and
(b) if the detainee so requests, take the detainee to such an area.
(3) If the detainee is detained at a designated place other than a section 234AA place, then, in the conduct of a frisk search of the detainee, the officer conducting the search must use his or her best endeavours to give the detainee as much personal privacy as the circumstances of the search allow.
219N Power to require the production of things
The officer of Customs carrying out a frisk search of a person detained in the circumstances referred to in subsection 219L(1) or (1A) may require the production of any thing found, as a result of that search, to be carried on the body of the detainee in order to determine whether it is, or contains, prohibited goods unlawfully carried by the detainee.
219P Persons to whom section 219R applies
Section 219R applies to a person detained under subsection 219L(1) or (1A) if:
(a) the detainee refuses to submit to a frisk search under this Subdivision; or
(b) the detainee, having submitted to the frisk search, refuses to produce a thing that he or she is required to produce under section 219N.
Subdivision B—Detention and external search of suspects
219Q Detention for external search
(1) Where a detention officer or police officer suspects on reasonable grounds that a person is unlawfully carrying any prohibited goods on his or her body, an officer of Customs or police officer may detain the person for the purposes of being searched under this Subdivision.
(2) Where a person is so detained, an officer of Customs or police officer must, as soon as practicable, take the person to:
(a) a detention place that the officer considers suitable for the detention of the person for the purposes of this Subdivision; or
(b) a place (other than a detention place):
(i) if the person is detained by a detention officer—that, in the opinion of the Comptroller‑General of Customs, affords adequate personal privacy to the person; or
(ii) if the person is detained by a police officer—that, in the police officer’s opinion, affords adequate personal privacy to the person.
219R External search
External search by consent or order
(1) Where:
(a) by force of section 219P, this section applies to a person detained under section 219L; or
(b) a detention officer or police officer suspects on reasonable grounds that a person detained under section 219Q is unlawfully carrying prohibited goods on his or her body;
then:
(c) if:
(i) there are reasonable grounds to believe that the detainee is not in need of protection; and
(ii) the detainee consents to be searched; and
(iii) the requirements of section 219RAA are met in respect of that consent;
an officer of Customs or police officer must, as soon as practicable, carry out an external search of the detainee; or
(d) in any other case, the detention officer or police officer must, as soon as practicable, apply to a Justice or, in the circumstances set out in subsection (1A), to an authorised officer, for an order for an external search of the detainee.
(1A) The detention officer or police officer may apply to an authorised officer only if:
(a) the detainee has waived his or her right to have the application for an order considered by a Justice; or
(b) a Justice is not reasonably available to consider such an application.
Making an order for an external search
(2) Subject to subsection (3), the person to whom an application is made may order that an external search of the detainee be carried out.
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.
(3) The person must not make such an order unless he or she is satisfied that there are reasonable grounds for suspecting that the detainee is unlawfully carrying prohibited goods.
Order for release of detainee
(4) Where the person does not make such an order, he or she must order that the detainee be released immediately.
Detainee in need of protection
(5) If an external search of the detainee is ordered and the person making the order is satisfied that the detainee is in need of protection, the person must order that the search be carried out in the presence of:
(a) the detainee’s legal guardian; or
(b) a specified person (not being an officer of Customs or a police officer) who is capable of representing the detainee’s interests in relation to the search.
(6) So far as is practicable, a person mentioned in an order under subsection (5) as the person in whose presence an external search is to be carried out must be acceptable to the detainee.
Communicating with others
(7) Subject to subsection (8), the detainee may at any time communicate with another person.
(8) An officer of Customs or police officer may stop the detainee from communicating with another person if the officer believes on reasonable grounds that such communication should be stopped in order to:
(a) safeguard the processes of law enforcement; or
(b) protect the life and safety of any person.
Carrying out external search
(9) Where:
(a) an external search of the detainee is ordered; and
(b) a detention officer or police officer still suspects on reasonable grounds that the detainee is unlawfully carrying prohibited goods;
the detention officer or police officer must ensure that an external search of the detainee is carried out as soon as practicable.
(10) The search must be carried out:
(a) by an officer of Customs or a police officer; and
(b) in accordance with the order and this section.
(11) An external search of the detainee is to be carried out by a person who is of the same sex as the detainee.
External search using prescribed equipment
(11A) Prescribed equipment may be used in carrying out the external search if, and only if, consent to the use of the equipment in carrying out the search has been given by the detainee and the requirements of section 219ZAA are met.
Note 1: Section 219ZAB deals with regulations prescribing equipment.
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.
(11B) If use of the prescribed equipment involves samples from the detainee’s body, the equipment may be used in the search only with samples from the outer surface of the detainee’s hand.
Note: Any samples taken must be destroyed in accordance with section 219ZAE.
(11C) To avoid doubt, the search may be continued without the use of the prescribed equipment if the use of the equipment produces an indication that the detainee is or may be carrying prohibited goods.
Questioning a detainee
(12) While:
(a) a person is detained under section 219L and, by force of section 219P, this section applies to the person; or
(b) a person is detained under section 219Q;
a detention officer or police officer may question the person:
(c) for the purpose of carrying out an external search of the person under this section; or
(d) concerning any prohibited goods found to have been illegally carried by the person on his or her body as a result of the carrying out of an external search of the person under this section.
(13) The detention officer or police officer must not question the detainee under subsection (12) unless the detention officer or police officer has informed the detainee:
(a) that the detainee is not obliged to answer any questions asked of him or her; and
(b) that anything said by him or her may be used in evidence; and
(c) of his or her right to communicate with another person.
Meaning of authorised officer
(14) In this section:
authorised officer means an officer of Customs who is a member of a class of officers of Customs declared by the Comptroller‑General of Customs to be authorised officers in relation to particular circumstances or places.
219RAA Videotape record may be made of external search
(1) In inviting a detainee to consent to an external search, an officer of Customs must have told the detainee:
(a) that a videotape or other electronic record may be made of the external search; and
(b) that, if such a record is made, the record could be used in evidence against the detainee in a court; and
(c) that, if such a record is made, a copy of the record will be provided to the detainee; and
(d) that the invitation, and any giving of consent, was being or would be itself recorded by audiotape, videotape or other electronic means or in writing.
Note: Any videotape or electronic record made of an external search must be destroyed in accordance with section 219ZAE.