The basis of those powers includes ss 195, 186 and 186A of the Customs Act 1901 (Cth), the Migration Act 1958 (Cth), the Environment Protection & Biodiversity Conservation Act 1999 (Cth) and the Anti-Money Laundering & Counter-Terrorism Financing Act 2006 (Cth). Section 195(3) of the Customs Act provides that the offence of not answering questions put under s 195(1) is one of strict liability. Salient case law regarding questioning includes R v Raso (1993) 115 FLR 319 and R v Bangura (2006) 3 DCLR(NSW) 179.
The report reflects complaints from travellers about their experiences with ACBPS officers. Those travellers often do not know why they have been searched, or are left wondering if the officer acted within their power. The report finds that searches by ACS "are generally consistent with principles of good administration but improvement could be made in several areas".
It indicates that -
A Customs officer is able to impede a person's passage through an airport and to ask questions that the person must answer. The officer is allowed to examine the person’s baggage and items found within it, including diaries and notebooks, laptop computers, cameras and other electronic storage devices. The officer can in some circumstances copy those documents – for example, the officer may download mobile phone content. The officer is also able to keep an item carried by the person for a period of time after the person has left the airport, to enable it to be examined by another area within Customs with the necessary expertise and equipment. These are strong powers, used by Customs to regulate the movement of people and goods across Australia's border.Some sense of potential concerns is provided by an instance highlighted in the report, with the Ombudsman noting that -
Customs officers’ powers are exercisable with respect to all those who depart from and arrive in Australia on international flights. For the most part, passengers will travel through the airport unimpeded. Customs' 2008/09 Annual Report indicated that in that year it processed 24.33 million international air and sea passengers, and on average 97.4 per cent of those passengers were processed through Customs within 30 minutes of joining the inwards queue. Nevertheless, as complaints to this office indicate, when a person is subject to some form of Customs intervention at the airport, it can be cause for significant concern for that person.
a man was questioned about his accommodation in his country of origin, who he lived with, details of their relationship and whether he was married – which did not relate so much to the 'carriage of prohibited goods', as to whether his story stood up to the officer’s scrutiny. He complained to the Ombudsman that the questioning had been unduly invasive and personal, and that his reluctance to answer was interpreted by the Customs officer as if he had something to hide, which led to more questioning.Improvements suggested by the Ombudsman relate to -
* the relevance of questions asked
* the relevance of documents copied
* the timeliness of the return of personal possessions after forensic examination
* gaps between policy and practice with respect to record keeping and the transparency of administration
* record keeping
* providing information to the public on passenger processing.
