Section 185AA Customs Act 1901 | Failing to Allow Searching of People


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The Legislation

Section 185AA of the Customs Act 1901 (Cth) deals with Failing to Allow Searching of People and is extracted below.

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185AA Searches of people on certain ships or aircraft

People found on ships and aircraft boarded under section 185
(1) A person may be searched for the purposes set out in subsection (1A) if:

(a) the person is found on a ship or aircraft that has been boarded under paragraph 185(2)(a); or
(b) the person has been placed on a ship or aircraft under subsection 185(3AA).

(1A) If a person may be searched for the purposes set out in this subsection, the person, the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property:

(a) a weapon or other thing capable of being used to inflict bodily injury or to help the person escape; or
(b) a document, or other thing, that the officer or other person has reasonable grounds to believe may afford evidence of the commission of a relevant offence.

Note: Division 1B of this Part provides search powers in respect of certain persons suspected of unlawfully carrying prohibited goods.

(1B) For the purposes of subsection (1A), a document, or other thing, carried or hidden on a person, in a person’s clothing or in a person’s property, may afford evidence of the commission of a relevant offence only if:

(a) in a case where the person is found on a ship in Australia—the document or other thing may afford evidence of the commission of an offence, either in or outside Australia, against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or
(b) in a case where the person is found on a ship outside Australia—the document or other thing may afford evidence of the commission of an offence:

(i) in Australia against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or
(ii) in Australia’s exclusive economic zone against an Act prescribed by the regulations; or

(c) in a case where the person is found on an aircraft in Australia—the document or other thing may afford evidence of the commission of an offence, either in or outside Australia, against this Act or section 72.13 or Division 307 of the Criminal Code.

People found on ships boarded under section 185A
(2) A person may be searched for the purpose set out in subsection (2A) if the person is found on a ship that has been boarded under paragraph 185A(2)(a).

(2A) If a person may be searched for the purpose set out in this subsection, the person, the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property a weapon or other thing capable of being used to inflict bodily injury.

Power to examine things found
(3) If a search is conducted under this section, an officer may examine any thing found in the course of the search (including, if the thing is a document, by reading the document directly or with the use of an electronic device).

(3A) In exercising the power to examine things, an officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the things.

(3B) However, when examining a thing found in the course of a search, an officer must not damage the thing by forcing it, or a part of it, open unless:

(a) the person being searched has been given a reasonable opportunity to open the thing or part; or
(b) it is not reasonably practicable to give the person such an opportunity.

Powers to take possession and retain things found
(3C) If, in the course of a search for a purpose set out in subsection (1A) or (2A), a weapon, document or other thing referred to in that subsection is found, then:

(a) in the case of a search conducted by an officer—an officer may take possession of the weapon, document or thing; and
(b) in the case of a search conducted by a person who is not an officer—the person must take possession of the weapon, document or thing and give it to an officer.

Limit on removal of clothing during search
(4) This section does not authorise an officer, or another person conducting a search pursuant to subsection (5), to remove any of the person’s clothing, or to require a person to remove any of his or her clothing, except the person’s outer garments (including but not limited to the person’s overcoat, coat, jacket, gloves, shoes and head covering).

Limit on who may conduct search
(5) A search under this section of a person, and the person’s clothing, must be conducted by:

(a) an officer of the same sex as the person; or
(b) in a case where an officer of the same sex as the person is not available to conduct the search—any other person who is of the same sex and:

(i) is requested by an officer; and
(ii) agrees;
to conduct the search.

Protection if officers etc. act in good faith
(6) An action or proceeding, whether civil or criminal, does not lie against an officer who conducts, or a person who (at the request of an officer) conducts, a search under this section if the officer, or person, acts in good faith and does not contravene subsection (7).

Limit on use of force to conduct search
(7) An officer or other person who conducts a search under this section must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

Evidence may be used in prosecutions etc.
(7A) To avoid doubt, if, when exercising powers under this section, an officer or other person who conducts a search under this section obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence may be used, or given to another body for use, in:

(a) investigating the offence; or
(b) proceedings for the prosecution for the offence.
However, this subsection does not override or limit the operation of a law of a State about the evidence that may be used in proceedings for an offence against a law of that State.

Definitions
(8) In this section:
officer means any of the following:

(a) an officer within the meaning of subsection 185(5);
(b) an officer within the meaning of subsection 185A(7).

References to person found on a ship or aircraft
(9) In this section, a reference to a person found on a ship or aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from, or left, the ship or aircraft.