(2) The invitation to consent and any giving of consent must have been recorded by audiotape, videotape or other electronic means or in writing.
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.
(3) The officer making the videotape or other electronic record must be of the same sex as the detainee.
(4) If, in the absence of consent by the detainee to an external search, an application is made for an order under subsection 219R(2) for an external search, that order may authorise the making of a videotape or other electronic record of the external search.
(5) If, in the course of carrying out an external search, an officer of Customs or a police officer finds evidence that the detainee is unlawfully carrying prohibited goods, that officer may, without the further consent of the detainee, take a photograph of the prohibited goods on the detainee.
Note: Any photograph taken must be destroyed in accordance with section 219ZAE.
Subdivision C—Detention and internal search of persons suspected of internally concealing substances etc.
219RA Certain Judges and Magistrates eligible to give orders under this Subdivision
(1) A Judge of the Federal Court of Australia, of the Supreme Court of the Australian Capital Territory or of the Federal Circuit and Family Court of Australia (Division 1) may, by writing, consent to be nominated by the Minister under subsection (2).
(2) The Minister may, by writing, nominate a Judge of a court referred to in subsection (1) in relation to whom a consent is in force under that subsection to be a Division 1B Judge.
219S Initial detention
(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.
(2) If the person is so detained, an officer of Customs or police officer:
(a) must, as soon as practicable, take the person to the nearest detention place that the officer considers suitable for the detention of the person for the purposes of this Subdivision; and
(b) may detain the person at that place for those purposes.
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.
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 Comptroller‑General of Customs 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.
219T Initial order for detention
(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 Comptroller‑General of Customs or a police officer is required, under section 219SB, to apply for an order under this section.
(1) The Comptroller‑General of Customs or a police officer must, as soon as practicable, apply:
(a) if there are reasonable grounds to suspect that the person is in need of protection—to a Division 1B Judge; or
(b) in any other case—to a Division 1B Judge or a Division 1B Magistrate;
for an order that the detainee be detained.
(2) Subject to subsection (3), the Judge or Magistrate may order that the detainee be detained under this section for a period of 48 hours from:
(a) the time at which the detention began; or
(b) the time at which the order is made;
as the Judge or Magistrate thinks fit.
(3) The Judge or Magistrate must not make such an order unless he or she is satisfied that there are reasonable grounds for suspecting that the detainee is internally concealing a suspicious substance.
(4) Where the Judge or Magistrate does not make such an order, he or she must order that the detainee be released immediately.
(5) Where:
(a) a Judge or Magistrate orders that a detainee be detained under this section; and
(b) the Judge or Magistrate is satisfied that the detainee is in need of protection;
the Judge or Magistrate must appoint a person (not being an officer of Customs or police officer) to represent the detainee’s interests in relation to this Division until the detainee is no longer in need of protection.
(6) So far as is practicable, a person so appointed must be acceptable to the detainee.
219U Renewal of order for detention
(1) Where:
(a) a person is being detained under an order under section 219T; and
(b) a detention officer or police officer decides that a further period of detention is necessary in order to determine whether the person is internally concealing a suspicious substance;
the Comptroller‑General of Customs or a police officer may apply:
(c) if there are reasonable grounds to suspect that the detainee is in need of protection—to a Division 1B Judge; or
(d) in any other case—to a Division 1B Judge or a Division 1B Magistrate;
for an order that the detainee be further detained.
(2) Subject to subsection (3), the Judge or Magistrate may order that the detainee be further detained under this section for a period of 48 hours from the end of the period for which the unexpired order is in force.
(3) The Judge or Magistrate must not make such an order unless he or she is satisfied that there are reasonable grounds for suspecting that the detainee is internally concealing a suspicious substance.
(4) Where the Judge or Magistrate does not make such an order, he or she must order that, at the end of the period for which the unexpired order is in force, the detainee be released immediately.
219V Arrangement for internal medical search
Application of section
(1) This section applies only so long as a detention officer or police officer suspects on reasonable grounds that the detainee is internally concealing a suspicious substance.
Consent to internal medical search
(2) If:
(a) there are no reasonable grounds to believe that the detainee is in need of protection; and
(b) the detainee signs a written consent to an internal medical search;
an officer of Customs or police officer must, as soon as practicable, arrange for an internal medical search of the detainee.
Note: A detainee may be given, under section 219ZAD, a copy of the consent of the detainee.
Application for order for internal medical search
(3) If:
(a) there are no reasonable grounds to believe that the detainee is in need of protection; and
(b) the detainee has been detained under section 219U; and
(c) the detainee has not signed a written consent to an internal medical search;
the Comptroller‑General of Customs or a police officer must, before the end of the period of detention under that section, apply to a Division 1B Judge for an order for an internal medical search of the detainee.
(4) If there are reasonable grounds to believe that the detainee is in need of protection, the Comptroller‑General of Customs or a police officer must:
(a) if a person has been appointed under subsection 219T(5) or 219X(3) to represent the detainee’s interests in relation to this Division and that person consents to an internal medical search of the detainee—as soon as practicable after the consent is given; or
(b) if paragraph (a) does not apply, and the detainee has been detained under section 219U—before the end of the period of that detention;
apply to a Division 1B Judge for an order for an internal medical search of the detainee.
Extension of detention period
(5) After the end of a period of detention under section 219S, 219T or 219U, the detainee may be further detained by force of this subsection:
(a) if subsection (2) applies—until the internal medical search is completed; or
(b) if subsection (3) or (4) applies—until an order under this section is granted.
Order for internal medical search
(6) Subject to subsections (9) and (10), the Judge may order that:
(a) an internal medical search of the detainee be carried out, the search to start:
(i) if consent to the search has been given under paragraph (4)(a)—as soon as practicable after the order is made and no later than a time specified in the order; or
(ii) in any other case—no sooner than the end of the period of detention under section 219U, but as soon as practicable after the end of that period and no later than a time specified in the order; and
(b) the detainee be detained for so long as is reasonably necessary for the internal medical search to be completed.
Order for release
(7) Where the Judge does not make such an order, he or she must order that the detainee be released immediately.
Extension of time for starting internal medical search
(8) Subject to subsections (9) and (10), on an application made by the Comptroller‑General of Customs or a police officer within the time specified in an order under paragraph (6)(a), or the time as extended under this subsection, the Judge may extend that time.
Limitation on making order
(9) The Judge must not make an order under subsection (6), or grant an extension of time under subsection (8), unless he or she is satisfied that there are reasonable grounds for suspecting that the detainee is internally concealing a suspicious substance.
Time for starting internal medical search
(10) Subject to subsection (11), the time specified in an order under paragraph (6)(a), including that time as extended under subsection (8), must not be later than 48 hours after:
(a) if the detainee is being detained under section 219S, 219T or 219U—the end of the period of that detention; or
(b) if the detainee is being detained under subsection (5)—the time when that detention began.
(11) If the Judge is satisfied that the detainee will refuse, or has refused, to submit to an internal medical search in spite of an order having been made under subsection (6), the time specified in the order under paragraph (6)(a), including that time as extended under subsection (8), is to be such time as the Judge considers appropriate in order to allow an internal medical search to be carried out.
219W Detention under this Subdivision
(1) A person detained under this Subdivision may at any time:
(a) consult a lawyer; or
(b) subject to subsection (3), communicate with another person.
(2) Where a person detained under this Subdivision wishes to consult a lawyer, an officer of Customs or police officer must arrange for the person to consult a lawyer of the person’s choice.
(3) An officer of Customs or police officer may stop a person so detained 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.
(4) While a person is being detained under an order under this Subdivision, or has consented to an internal search under this Subdivision, a detention officer or police officer may ask the person such questions as are reasonable:
(a) to determine whether the person is internally concealing a suspicious substance; or
(b) concerning any such substance found to have been internally concealed by the person.
(5) The detention officer or police officer must not question the detainee under subsection (4) 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 consult a lawyer or communicate with another person.
(6) While the person is detained under an order made under this Subdivision:
(a) subject to section 219ZG, the person is to be detained at a detention place; and
(b) the detention is to be conducted with such medical supervision as is specified in an order relating to the person’s detention under this Subdivision; and
(c) the detainee, his or her representative or (where applicable) a person appointed under subsection 219T(5) or 219X(3) to represent the detainee’s interests in relation to this Division may at any time apply to:
(i) if the order was made by a Judge—a Division 1B Judge; or
(ii) if the order was made by a Magistrate—a Division 1B Judge or a Division 1B Magistrate;
for the order to be revoked.
219X Detainee becoming in need of protection
(1) If:
(a) at any time while a person is being detained under this Subdivision, there are reasonable grounds to believe that the detainee has become in need of protection; and
(b) until that time, the detainee has not been treated under this Subdivision as being in need of protection;
the Comptroller‑General of Customs or a police officer must, as soon as practicable, apply for an order under this section.
(2) The application is to be made:
(a) if the person is being detained under an order made by a Division 1B Judge or Division 1B Magistrate—to such a Judge or Magistrate, as the case may be; or
(b) if not—to a Division 1B Judge.
(3) The Judge or Magistrate must, if satisfied that the detainee is in need of protection, appoint a person (not being an officer of Customs or a police officer) to represent the detainee’s interests in relation to this Division until the detainee is no longer in need of protection.
(4) So far as is practicable, a person so appointed must be a person acceptable to the detainee.
219Y Applications for orders under this Subdivision
(1) A detainee must be given adequate opportunity to obtain legal advice and legal representation in relation to an application for an order under this Subdivision.
(2) An application under this Subdivision may be made orally or in writing and, subject to subsection (5), must be made in person, and on oath or affirmation, at a hearing before the relevant Judge or Magistrate.
(3) Subject to subsection (4), the detainee has the right to be present at, to make submissions to, and to be represented before, any hearing before the Judge or Magistrate.
(4) The Judge or Magistrate, to the extent that he or she thinks necessary to:
(a) safeguard the processes of law enforcement; or
(b) protect the life and safety of any person;
may:
(c) restrict the rights under subsection (3) of the detainee to hear or have access to evidence presented by or on behalf of the Comptroller‑General of Customs or a police officer; or
(d) order that a witness not be required to answer a question or to produce a document.
(5) Where it is not practicable to make an application under this Subdivision in person, the application may be made by telephone or any other appropriate method of communication, and:
(a) if the Judge or Magistrate so requires—the detainee or the detainee’s representative is to be given an opportunity to make submissions to the Judge or Magistrate by the same method of communication; and
(b) as soon as practicable after making the application, the Comptroller‑General of Customs or a police officer must give the Judge or Magistrate a statutory declaration setting out the facts and reasons supporting the application.
219Z Internal medical search by medical practitioner
(1) An internal medical search is to be carried out by a medical practitioner.
(2) Where the detainee is in need of protection, the search is to be carried out in the presence of the person appointed under subsection 219T(5) or 219X(3).
(3) Subject to subsection (5), the search is to be carried out at a place that:
(a) is specified in regulations made for the purposes of this subsection; or