(b) is provided with the technical, paramedical and other services prescribed for the purposes of this subsection.
(4) If the person is not being detained at such a place, an officer of Customs or police officer must, as soon as practicable:
(a) take the person to the nearest such place that the officer considers, on reasonable grounds, to be suitable for the search; and
(b) continue the person’s detention at that place.
(5) The recovery, during the search, of a substance or thing internally concealed by the detainee is to be carried out at a place that:
(a) is specified in regulations made for the purposes of this subsection; or
(b) is provided with the technical, paramedical and other services prescribed for the purposes of this subsection.
(6) If the person is not being detained at such a place, an officer of Customs or police officer must:
(a) take the person to the nearest such place that the officer considers, on reasonable grounds, to be suitable for the recovery; and
(b) continue the person’s detention at that place.
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 Comptroller‑General of Customs
(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 Comptroller‑General of Customs 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 Comptroller‑General of Customs must consult any Commonwealth authorities (if any) that have expertise or responsibilities relevant to the matters addressed by the statement.
(5) The Comptroller‑General of Customs 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 Comptroller‑General of Customs 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 Comptroller‑General of Customs, 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.
Subdivision D—Detention generally
219ZA Detention officers
(1) The Comptroller‑General of Customs may, by signed instrument, declare a class of officers of Customs to be detention officers for the purposes of Subdivision A.
(2) The Comptroller‑General of Customs may, by signed instrument, declare a class of officers of Customs to be detention officers for the purposes of Subdivision B.
(3) The Comptroller‑General of Customs may, by signed instrument, declare a class of officers of Customs to be detention officers for the purposes of Subdivision C.
219ZB Detention places
(1) A place that is:
(a) prescribed for the purposes of this subsection; or
(b) provided with amenities that satisfy standards prescribed for the purposes of this subsection;
is a detention place for the purposes of Subdivision B.
(2) A place that is:
(a) prescribed for the purposes of this subsection; or
(b) provided with amenities that satisfy standards prescribed for the purposes of this subsection;
is a detention place for the purposes of Subdivision C.
219ZC Detention under this Division
(1) An officer of Customs or police officer exercising powers under this Division in relation to a person must produce identification as such an officer when requested by the person to do so.
(2) An officer of Customs or police officer exercising powers under this Division in relation to a person must not use more force, or subject the person to greater indignity, than is reasonable and necessary.
(2A) Without otherwise limiting the application of subsection (2), the use of force in actually conducting an external search of a detainee will be regarded as reasonable and necessary:
(a) if an order has been made by a Justice under section 219R and the detainee does not submit to the search; or
(b) if an order has been made under that section by an authorised officer because a Justice was not reasonably available and the detainee does not submit to the search.
(3) While a person is being taken to a particular place under this Division (except under subsection 219ZE(3)) the person is regarded as being detained under this Division.
(4) While a person is being detained under this Division, the person is regarded as being in the custody of:
(a) if the person is being detained by an officer of Customs—the Comptroller‑General of Customs; or
(b) if the person is being detained by a member of the Australian Federal Police—the Commissioner of Police; or
(c) if the person is being detained by a member of the Police Force of a State or Territory—the person who holds, in relation to that Police Force, the same office as the Commissioner of Police holds in relation to the Australian Federal Police.
219ZD Detainees not fluent in English
(1) Where an officer of Customs or police officer detaining a person under this Division has reasonable cause to believe that the person is unable, because of inadequate knowledge of the English language or for any other reason, to communicate orally with reasonable fluency in the English language, the officer must take all reasonable steps to ensure that, at all times during the person’s detention when communication with or by the person is to take place, a person competent to act as an interpreter is present and acts as interpreter for the purposes of the communication.
(2) Subsection (1) does not apply if the person detained and the person with whom he or she is communicating are able:
(a) to communicate in a language other than the English language with reasonable fluency; or
(b) to communicate satisfactorily by any other means.
219ZE Release from, or cessation of, detention
(1) In spite of any other provision of this Division, but subject to subsection (2) and section 219ZG, where a person is detained under this Division and:
(a) an order is made under this Division that the person be released; or
(b) an order for the detention of the person is revoked; or
(c) an order for the detention of the person has ended and subsection 219V (5) does not apply; or
(ca) if the detention is under Subdivision A—no detention officer suspects on reasonable grounds that the person is unlawfully carrying prohibited goods on his or her body; or
(d) if the detention is under Subdivision B—no detention officer suspects on reasonable grounds that the person is unlawfully carrying prohibited goods on his or her body; or
(e) if the detention is under Subdivision C—no detention officer suspects on reasonable grounds that the person is internally concealing a suspicious substance; or
(f) an internal medical search of the person is completed;
the detention, and any search, of the person under this Division must cease immediately.
(2) Subsection (1) does not prevent a further application of this Division, or the detention of the person under any law other than this Division.
(3) If:
(a) the detainee is released at any place other than the place at which he or she was first detained; and
(b) the detainee so requests;
the detainee must immediately be returned free of charge to the place of the first detention.
Subdivision E—Medical practitioners
219ZF Conduct of internal medical search
(1) Subject to subsection (2), a medical practitioner may, in carrying out an internal medical search of a detainee under section 219Z, use any medical procedure or apparatus that the medical practitioner considers to be reasonably safe in the circumstances.
(2) The medical practitioner must not use any medical procedure involving surgical incision unless he or she considers it necessary to do so because the detainee’s life is at risk.
(3) If the medical practitioner:
(a) suspects on reasonable grounds during the internal medical search that the detainee is internally concealing a substance or thing; and
(b) lacks sufficient expertise to recover it;
he or she must, as soon as practicable, arrange for another medical practitioner having that expertise to do so.
219ZG Medical practitioner may take action to preserve detainee’s life
(1) A medical practitioner may take such measures in relation to a detainee, including removal to another place, as the medical practitioner considers necessary because the detainee’s life is at risk, including measures involving surgical incision or exploration.
(2) While the detainee is being so removed to a place, and while he or she is at that place:
(a) he or she may be detained under this subsection; and
(b) time is not to be taken to run under an order made under Subdivision C.
219ZH Medical practitioner to answer questions and prepare report
(1) Subject to subsection (4), at any time during the period during which a medical practitioner is involved in doing anything under this Division, an officer of Customs or police officer may ask the medical practitioner questions relating to whether an internal search of the detainee should be carried out, the manner in which such a search is being carried out or the results of such a search, and the medical practitioner must answer those questions to the best of his or her ability.
(2) As soon as practicable after completing anything done under this Division, the medical practitioner or medical practitioners involved must give to the chief officer of the person who detained the detainee a written report under subsection (3).
(3) The report is to be in accordance with directions given by the chief officer concerned.
(4) Subsections (1), (2) and (3) are not limited by any law relating to privilege or confidentiality.
(5) A report prepared under subsection (3) and given to a chief officer under subsection (2) is, in any proceedings under this Act, prima facie evidence of the facts stated in the report.
(6) In this section:
chief officer means:
(a) in relation to an officer of Customs—the Comptroller‑General of Customs; or
(b) in relation to a member of the Australian Federal Police—the Commissioner of Police; or
(c) in relation to a member of the Police Force of a State or Territory—the person who holds, in relation to that Police Force, the same office as the Commissioner of Police holds in relation to the Australian Federal Police.