EXPLANATORY STATEMENT
CUSTOMS ACT 1901
CUSTOMS REGULATIONS (AMENDMENT)
STATUTORY RULES 1990 NO. 450
ISSUED BY THE AUTHORITY OF THE MINISTER OF STATE FOR SMALL BUSINESS AND CUSTOMS
Section 270 of the Customs Act 1901 (the Act) provides in part that “The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the Customs.”
The Regulations amend the Customs Regulations by prescribing detention places for the purposes of an external search and an internal search pursuant to the Customs (Detention and Search) Act 1990.
Background
The Customs (Detention and Search Act 1990 (the Act) received Royal Assent on 23 October 1990. The Act was expressed to commence by Proclamation and it is anticipated that the Act be proclaimed on 1 January 1991. Section 4 of the Acts Interpretation Act 1901 authorises the making of regulations pursuant to an Act prior to its commencement.
The Act provides for 3 types of body-search powers, from the least intrusive frisk, through external search, to the most intrusive internal search. The Regulations amend the Customs Regulations to prescribe the places and standards required for the internal search of a person and where internally concealed substances may be recovered. The Regulations also prescribe the “detention places” where persons shall be detained for the purposes of an external search and internal search.
Details of the amendments are as follows:
Regulation 1: is a formal provision which provides that the Customs Regulations are amended as set out in the proposed Regulations.
Regulation 2: inserts regulations 177 and 178 into the Customs Regulations.
Subregulation 177(1) provides that an internal search may only be carried out at a hospital (paragraph 177(1) an or a surgery of a registered or licensed medical practitioner (paragraph 177(1)(b)).
Subregulation 177(2) provides that the recovery of an internally concealed substance or thing may only be carried out at a hospital (paragraph 177(2)(a)) or a surgery of a registered or licensed medical practitioner (paragraph 177(2)(b)).
Subregulation 178(1) provides that a place that is a room in a place which is set aside for certain purposes under section 234AA of the Customs Act 1901, is prescribed as a detention place for the purposes of paragraph 219ZB(1)(a) of the Act (ie., for an external search).
Subregulation 178(2) provides that a place with amenities that meet the following standards is a detention place for an external search: persons inside the place are concealed from the view of persons outside (paragraph 178(2)(a)); the place is secured against access by persons other than those authorised to be there under the Act or the Customs Act 1901 (paragraph 178(2)(b)); and that the place has reasonably comfortable ventilation and illumination.
Subregulation 178(3) provides that a place which is a room in a place which is set aside for certain purposes under section 234AA of the Customs Act 1901, is prescribed as a detention place for the purposes of an internal search (paragraph 178(3)(a)). It also prescribes a hospital (paragraph 178(3)(b) or a surgery of a registered or licensed medical practitioner (paragraph 178(3)(c)) as a detention place for the purposes of an internal search.