Customs (Places of Detention) Directions 2025

EXPLANATORY STATEMENT

Issued by the authority of the Comptroller-General of Customs

Customs Act 1901

Customs (Places of Detention) Directions 2025

Legislative authority

The Customs Act 1901 (the Act) concerns customs-related functions and is the legislative authority that sets out the customs requirements for the importation of goods into, and the exportation of goods from, Australia.

Section 219ZJE of the Act provides that the Comptroller-General of Customs must, by legislative instrument, give directions:

1.      identifying places at which an officer of Customs is permitted to detain a person under Division 1BA of Part XII of that Act (whether by their character under this Act, the amenities available at the places or any other matters); and
2.      specifying such other matters relating to the detention of persons under that Division as the Comptroller-General of Customs considers appropriate.

Subsection 33(3) of the Acts Interpretation Act 1901 provides that, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.

Background

Division 1BA of Part XII of the 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:

1.      there is a warrant for the arrest of the person in relation to a Commonwealth offence or a prescribed State or Territory offence; or
2.      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 (subsection 219ZJC(1) of the Act refers);

1.      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 Act to mean:

1.      appointed ports, airports, wharves or boarding stations; or
2.      places that are subject to certain permissions given under the Act; or
3.      a place covered by section 234AA of the Act and 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:

1.      conduct a frisk search or an ordinary search of the person; and
2.      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:

1.      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
2.      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
3.      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.

For the purposes of section 219ZJE of the Act, the Comptroller-General of Customs (Places of Detention) 2015 (the Previous Instrument) identifies designated places where persons may be detained and specifies requirements related to their detention.

Purpose and effect

The Previous Instrument sunsets on 1 October 2025, and as such, is automatically repealed by operation of Part 4 of the Legislation Act 2003 (Legislation Act) on that day.

The purpose and effect of the Customs (Places of Detention) Directions 2025 (2025 Instrument) is to identify places where people may be detained, the amenities or any other considerations about the place of detention and specify requirements related to their detention.

The 2025 Instrument substantially replicates the Previous Instrument. It will continue to identify places of detention that ensure persons detained under Division 1BA of Part XII of the Act are treated in a manner that is consistent with legal obligations and operational standards in relation to the conditions of their detention. Broadly, the 2025 Instrument prescribes that rooms used for the detention of persons must be private, secured against unauthorised access and reasonably comfortable and ventilated.

The 2025 Instrument also specify requirements related to the privacy of individuals during searches by the Australian Border Force (ABF) to ensure that this requirement continues to apply. It does this by requiring an officer of Customs undertaking searching to afford the detainee as much personal privacy as the circumstances of the search allow.

Consultation

The 2025 Instrument substantially replicate places of detention and requirements

related to the privacy of individuals during searches by the ABF as provided for in the Previous Instrument. The key difference between the 2025 Instrument and the Previous Instrument are structural drafting changes and the inclusion of transitional provisions. These changes do not change the scope of the requirements but rather ensures compliance with drafting conventions and usage of plain English. The inclusion of transitional provisions also ensure that any actions undertaken in compliance with the Previous Instrument is taken to have been done under the corresponding provisions of the 2025 Instrument.

The changes that are implemented as part of the 2025 Instrument are therefore machinery in nature and do not themselves change the scope of places and requirements. Internal consultation has occurred across the ABF. In light of this, no external consultation has occurred due to the legislative instrument containing operational requirements that are only applicable to ABF officers.

Details and operations

Details of the 2025 Instrument are set out in Attachment A.

The 2025 Instrument is a disallowable legislative instrument for the purposes of the Legislation Act.

The 2025 Instrument commence on 1 October 2025.

Other matters

A Statement of Compatibility with Human Rights has been prepared in relation to the instrument and is at Attachment B.

Attachment A

Details of the Customs (Places of Detention) Directions 2025

Part 1—Preliminary

Division 1—Preliminary

Section 1  Name

This section provides that the name of the instrument is the Customs (Places of Detention) Directions 2025 (the 2025 Instrument).

Section 2  Commencement

This section has the effect that the 2025 Instrument commences on 1 October 2025.

Section 3  Authority

Section 3 provides that the authority to make the 2025 Instrument is section 219ZJE of the Customs Act 1901 (the Act).

Section 4  Definitions

Section 4 provides the meaning for defined terms used in the 2025 Instrument.

The note at the start of section 4 provides that certain definitions used in the 2025 Instrument, being the definition of ‘designated place’, and ‘officer of Customs’ are defined in the Act.

The term ABF means the Australian Border Force, which has the same meaning as in the Australian Border Force Act 2015.

The term ABF vehicle means a vehicle that that is operated or under the control of the ABF and that is used or capable of being used, for the lawful transport or temporary detention of persons under Division 1BA of Part XII of the Act.

The term Act means the Customs Act 1901.

The term Detainee means a person detained under the Division 1BA of Part XII of the Act.

Section 5  Schedules

Section 5 provides that each instrument that is specified in a Schedule to the 2025 Instrument is amended or repealed as set out in the applicable items in the Schedule concerned and that any other item in a Schedule to the 2025 Instrument has effect according to its terms.

Part 2—Detention Directions

Section 6  Places of detention

This section substantially replicates item 1 of the Comptroller-General of Customs (Places of Detention) 2015 (the Previous Instrument) and concerns the identification of places of detention. Any modifications made are to make expression of matters clearer and do not change the scope or operation of the section.

Subsection 6(1) has the effect that, except in the circumstance specified in subsection 6(2), a person detained under Division 1BA of Part XII of the Act in a designated place must be detained in a room within that place that meets the standards, as a characterisation of the room identified, in paragraphs 6(1)(a), 6(1)(b) and 6(1)(c).

Paragraph 6(1)(a) outlines the standard that persons inside the room should be concealed from the view of persons outside the room. The modification made to this paragraph in comparison to the Previous Instrument was the addition of the clarifier ‘outside the room’.

This was to make it clear that the person inside the room are to be concealed from the view of persons outside the room rather than outside the designated place. This does not change the scope or operation of the section.

Paragraph 6(1)(b) outlines the standard that the room should be secured against access by any person who is not an officer of Customs. The modification made to this paragraph was to ensure plain English writing of the section. This does not change the scope or operation of the section.

Paragraph 6(1)(c) outlines the standard that the room should have reasonably comfortable ventilation and illumination. The drafting, scope or function of this section has not changed from the Previous Instrument.

Subsection 6(2) provides for where a detainee must be detained if the room meeting the standards in subsection 6(1) is not available in the designated place.

Paragraph 6(2)(a) provides that, where it is convenient and suitable to do so, the detainee may be detained in a room in another designated place that meets the standards outlined in Subsection 6(1). 

Paragraph 6(2)(b) provides that where a room meeting the standard in 6(1) is not available, and an alternative in line with paragraph 6(2)(a) cannot be found, then the person may otherwise be detained in an ABF vehicle.

The modifications made to these paragraphs acted to simplify and clarify the provision in comparison to the Previous Instrument. However the scope and function of the measures have not changed.

Section 7  Personal privacy during searches

This section replicates in full item 2 of the Previous Instrument and concerns the privacy requirements for places of detention.

This section provides that, if an officer of Customs conducts a search under section 219ZJD of the Act, before taking a person to a place mentioned in section 6, the officer conducting the search must afford the detainee as much personal privacy as the circumstances of the search allows.

Section 8  Transitional provisions

Subsection 8(1) provides that section 8 applies if a person was detained under Division 1BA of Part XII of the Act before the commencement of the 2025 Instrument, and the person remains in detention on or after commencement.

Subsection 8(2) provides that a detention described in subsection (1), as well as any associated searches, holding arrangements, or reporting obligations , are to be treated as if they were governed by the 2025 Instrument from its commencement. This transitional provision accounts for any actions that may have been undertaken through Division 1BA of Part XII of the Act that have occurred after the detainee has been detained in a place specified in the 2025 instrument.

Subsection 8(3) provides that anything done or omitted to be done under the Previous Instrument is taken to have been done under the corresponding provisions of this Instrument.

Schedule 1  Repeals

Item 1 of Schedule 1 to the 2025 Instrument has the effect of repealing the Previous Instrument.

ATTACHMENT B

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 2025

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

Overview of the Disallowable Legislative Instrument

The Customs (Places of Detention) Directions 2025 (the 2025 Instrument) are made for the purpose of subsection 219ZJE of the Customs Act 1901 (the Act). The purpose of the 2025 Instrument is to identify places of detention that ensure that persons detained under Division 1BA of Part XII of the Act are treated in a manner that is consistent with legal obligations and operational standards, particularly in relation to the conditions of their detention and the protection of their privacy during searches.

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

1.         identifying places at which an officer is permitted to detain a person under Division 1BA of Part XII of the Act (whether by their character under this Act, the amenities available at the places or any other matters); and
2.         specifying such other matters relating to the detention of persons under this Division as the Comptroller-General of Customs considers appropriate.

Section 6 of the 2025 Instrument provides that, for the purposes of paragraph 219ZJE(a) of the Act, a person must be held in a room that meets the following standards:

• persons inside the room are concealed from the view of persons outside the room (paragraph 6(1)(a) refers);
• the room is secured against access by any person who is not an officer of Customs (paragraph 6(1)(b) refers); and
• the room has reasonably comfortable ventilation and illumination (paragraph 6(1)(c) refers).

If a room meeting the standards in subsection 6(1) is not available, then, where it is convenient and suitable to do so, a person must be detained in a room in another designated place that meets those standards; or failing that, an Australian Border Force vehicle (subsection 6(2) refers).

Section 7 of the 2025 Instrument provides that, for the purposes of paragraph 219ZJE(b) of the Act, if an officer of Customs conducts a search under section 219ZJD before taking a person to place mentioned in section 6 of that Instrument, the officer conducting the search must afford the detainee as much personal privacy as the circumstances of the search allow.

The 2025 Instrument commences on 1 October 2025.

Human rights implications

The 2025 Instrument engages the following rights:

• the right to human treatment in detention in Article 10(1) of the International Covenant on Civil and Political Rights (ICCPR); and
• the prohibition on the interference with privacy in Article 17 of the ICCPR.

The right to human treatment in detention

Article 10 (1) of the ICCPR relevantly states that:

all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Section 6 of the 2025 Instrument prescribes standards with respect to detention places. These prescribed standards promote the right to human 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.

Right to privacy

Article 17 of the ICCPR states that;

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Interferences with privacy may be permissible, where they are authorised by law and not arbitrary. In its General Comment 16, the United Nations Human Rights Committee (UNHRC) argued that the introduction of the concept of arbitrariness in Article 17 “is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be in any event, reasonable in the particular circumstances.” The UNHCR has interpreted ‘reasonableness’ in this context to mean that “any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case”. The term unlawful means that no interference can take place except as authorised under domestic law.

The 2025 Instrument operate to ensure that people being detained under Division 1BA of Part XII of the Act or searched under section 219ZJD of the Act are afforded privacy. Section 6 of the 2025 Instrument promotes the detainee’s right to privacy as they ensure that the detainee is concealed from the view of other persons. Section 7 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.

The 2025 Instrument engages both Article 10 and Article 17 of the ICCPR and promotes both rights.

Conclusion

The 2025 Instrument is compatible with human rights because it promotes the protection of human rights.

Gavan Reynolds AO, Comptroller-General of Customs