Comptroller-General of Customs (Places of Detention) Directions 2015

Administered by Department of Home Affairs

Legislation au F2015L00891 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Comptroller-General of Customs (Places of Detention) Directions 2015

Customs Act 1901

Subsection 219ZJE(1) of the Customs Act 1901 (Customs Act) provides that the Comptroller-General of Customs must, by legislative instrument, give directions in writing under that subsection:

a)        identifying places at which an officer is permitted to detain a person under this Division (whether by their character under this Act, the amenities available at the places or any other matters); and

b)        specifying such other matters relating to the detention of persons under this Division as the Comptroller-General of Customs considers appropriate.

Background

Division 1BA of the Customs Act allows an officer of Customs to detain a person if:

1)        the person is in a designated place; and the officer has reasonable grounds to suspect that the person has committed, or is committing, or intends to commit a serious Commonwealth offence or a prescribed State or Territory offence; or

2)        the person is in a designated place; the officer has reasonable grounds to suspect that the person intends to leave the designated place; and either:

a)        there is a warrant for the arrest of the person in relation to a Commonwealth offence or a prescribed State or Territory offence; or

b)        the person is on bail subject to a condition that the person not leave Australia and the bail relates to a Commonwealth offence or a prescribed State or Territory offence (new subsection 219ZJC(1) of the Customs Act refers);

3)        the person is in a designated place and the officer is satisfied on reasonable grounds that the person is, or is likely to be, involved in an activity that is a threat to national security or the security of a foreign country.

“Designated place” is defined in subsection 4(1) of the Customs Act to mean:

a)        appointed ports, airports, wharves or boarding stations; or

b)        places that are subject to certain permissions given under the Customs Act; or

c)        a section 234AA place that is not a place, or a part of a place, covered by paragraph (a) or (b).

Section 219ZJD provides that an officer may, in relation to a person detained under Division 1BA:

a)        conduct a frisk search or an ordinary search of the person; and

b)        search the clothing that the person is wearing and any property under the person's immediate control, if the officer believes on reasonable grounds that it is necessary to do so;

for the purposes of:

a)        determining whether there is concealed on the person, or in the person's clothing or property, a weapon or other thing capable of being used to inflict bodily injury or to assist the person to escape from detention; or

b)        in the case of a person detained under section 219ZJB—preventing the concealment, loss or destruction of evidence of, or relating to, the offence concerned; or

c)        in the case of a person detained under section 219ZJCA—preventing the concealment, loss or destruction of material of interest for national security or the security of a foreign country.

Item 1 of the Comptroller-General of Customs (Places of Detention) Directions 2015 (the Directions) provide that a person must be detained in a room that meets certain standards or if no such room is convenient and suitable, an Australian Border Force vehicle. 

Since there may be some distance between the initial place of detention and the room or vehicle, it may be necessary to search the person under section 219ZJD of the Customs Act before they are taken to the room or vehicle.  Item 2 of the Direction provides that for the purposes of paragraph 219ZJE(1)(b) of the Customs Act, if an officer of Customs conducts a search under section 219ZJD before taking a person to place mentioned in item 1 of the Direction, the officer conducting the search must afford the detainee as much personal privacy as the circumstances of the search allow.

From 1 July 2015, the functions of the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service (ACBPS) will be integrated, and a new frontline operational agency, the Australian Border Force, will be established within the new Department.

The Direction does not differ substantially from the Directions that applied in the ACBPS in relation to the same subject matter.

Consultation

No consultation was undertaken under section 17 of the Legislative Instruments Act 2003 before the Directions were made as they are of a minor or machinery nature and do not substantially alter existing arrangements.

Commencement

The Directions commence on 1 July 2015.


Statement of Compatibility with Human Rights

 

(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

 

Comptroller-General of Customs (Places of Detention) Directions 2015 made pursuant to section 183UC of the Customs Act 1901

 

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the legislative instrument

 

The Comptroller-General of Customs (Places of Detention) Directions 2015 (the Directions) are made for the purpose of subsection 219ZJE(1) of the Customs Act 1901 (Customs Act).  This subsection provides that the Comptroller-General of Customs must, by legislative instrument, give directions in writing under that subsection:

 

a)        identifying places at which an officer is permitted to detain a person under this Division 1BA (whether by their character under this Act, the amenities available at the places or any other matters); and

 

b)        specifying such other matters relating to the detention of persons under this Division as the Comptroller-General of Customs considers appropriate.

Item 1 of the Directions provides that, for the purposes of paragraph 219ZJE(1)(a) of the Customs Act, a person must be detained in a room that meets certain standards or if no such room is convenient and suitable, an Australian Border Force vehicle. 

Since there may be some distance between the initial place of detention and the room or vehicle, it may be necessary to search the person under section 219ZJD of the Customs Act before they are taken to the room or vehicle.  Item 2 of the Direction provides that for the purposes of paragraph 219ZJE(1)(b) of the Customs Act, if an officer of Customs conducts a search under section 219ZJD before taking a person to place mentioned in item 1 of the Direction, the officer conducting the search must afford the detainee as much personal privacy as the circumstances of the search allow.

The Direction commences on 1 April 2015.

Human Rights implications

The Regulation engages the human rights which are identified below:

 

 

Right to Humane Treatment in Detention

 

Article 10(1) of the International Covenant on Civil and Political Rights (ICCPR) ICCPR provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Right to Privacy

Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person’s privacy.  It also prohibits unlawful attacks on a person’s honour and reputation.  It provides that persons have the right to protection of the law against such interference or attacks.  An interference with privacy will not be arbitrary if it is authorised by law or consistent with the provisions, aims and objectives of the ICCPR and reasonable in the circumstances.  Reasonableness in this context incorporates notions of proportionality, appropriateness and necessity.

The Directions engage both Article 10 and 17 of the ICCPR and promote both rights.

Item 1 of the Directions prescribes standards with respect to detention places.  These places and standards promote the right to humane treatment in detention as they ensure that a detention place is a separate room and that persons inside a detention place are concealed from the view of persons outside, the place is secured against unauthorised access and the place has reasonably comfortable ventilation and illumination. 

Item 1 of the Directions also promotes the detainee’s right to privacy as they ensure that the detainee is concealed from the view of other persons.  Item 2 also promotes the detainee’s right to privacy as it requires the officer conducting the search to afford the detainee as much personal privacy as the circumstances of the search allow.

Conclusion

This Regulation is compatible with human rights because it is consistent with Australia’s human rights obligations and promotes human rights.

Comptroller-General of Customs

 

 

Overview

The Comptroller-General of Customs (Places of Detention) Directions 2015 were enacted to provide detailed guidelines concerning the detention of individuals by Customs officers under the Customs Act 1901. These Directions were introduced to ensure that detentions are conducted in a manner that respects human rights and maintains the dignity of the individuals involved. Enacted by the Australian Parliament, the policy objective of these Directions is to establish specific standards for the detention of individuals suspected of serious offences or threats to national security, ensuring that such detentions are conducted humanely and with due regard for privacy. The Directions identify suitable places for detention, such as rooms that meet certain standards or Australian Border Force vehicles, and mandate that searches of detainees be conducted with as much privacy as possible. This legislation aims to align with Australia’s international human rights obligations, particularly under the International Covenant on Civil and Political Rights. The Directions also ensure that officers are required to respect the privacy of detainees during searches, thus addressing potential human rights concerns associated with detention practices. By specifying the conditions under which a person can be detained and the standards for such detention, the Directions aim to balance the need for effective law enforcement with the protection of individual rights. The Directions were made under the authority provided in section 219ZJE(1) of the Customs Act and came into effect on 1 April 2015, coinciding with the integration of the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service into the Australian Border Force.

Scope and Application

The Comptroller-General of Customs (Places of Detention) Directions 2015 applies to the officers of the Australian Border Force, which is the frontline operational agency established within the new Department of Immigration and Border Protection, succeeding the Australian Customs and Border Protection Service. These Directions are applicable to the detention of individuals in specific locations, such as appointed ports, airports, wharves, boarding stations, and places subject to certain permissions under the Customs Act 1901, or section 234AA places not covered by the former categories. The Directions identify places where an officer is permitted to detain a person, ensuring that such detentions occur in rooms meeting certain standards or, if not convenient, in Australian Border Force vehicles. These Directions also specify that an officer conducting a search under the Customs Act before taking a person to the detention place must afford the detainee as much personal privacy as the circumstances allow. The Directions do not substantially alter the existing arrangements and are of a minor or machinery nature, thus not requiring consultation under the Legislative Instruments Act 2003. These Directions commenced on 1 July 2015 and align with Australia's human rights obligations by promoting humane treatment in detention and privacy rights under the International Covenant on Civil and Political Rights.

Key Provisions

The Comptroller-General of Customs (Places of Detention) Directions 2015 (the Directions) are instrumental in implementing subsection 219ZJE(1) of the Customs Act 1901. They identify specific locations where Customs officers are permitted to detain individuals, which must meet certain standards, and if no such room is available, then an Australian Border Force vehicle can be used. Furthermore, the Directions specify that if a search is conducted under section 219ZJD of the Customs Act before transporting the detainee to the designated place, the officer must ensure that the detainee's personal privacy is maintained as much as possible given the circumstances. These provisions ensure that detainees are treated humanely and their privacy is respected, aligning with international human rights standards. The Directions impose several obligations on Customs officers. Primarily, they must ensure that detainees are held in locations that meet the specified standards or in an Australian Border Force vehicle if no suitable room is available. Additionally, when conducting a search before transporting the detainee, officers must afford the detainee as much privacy as the situation permits. This obligation underscores the importance of humane treatment and respect for privacy during the detention process. Violations of the Directions may lead to legal consequences. While the Directions themselves do not specify particular offences, breaches of the Customs Act, such as unauthorised detention or improper conduct during searches, could result in criminal charges. The penalties for such offences vary depending on the specific provisions of the Customs Act that are contravened, but they can include substantial fines and imprisonment. The exact penalties would be determined based on the severity of the breach and the relevant sections of the Customs Act. Ensuring compliance with these Directions is therefore crucial to avoid potential legal repercussions.

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