In announcing passage of the Bill, the Minister for Home Affairs indicated that the technology will boost the detection of drugs imported inside the bodies of drug couriers. Suspects will be given the option of an internal body scan at an international airport, as part of a year-long trial that commences later this year. For a scan a reasonable suspicion must be formed that a person is carrying drugs internally. The suspect must consent to being scanned. A person who refuses will be required to undergo a hospital examination, ie the current practice. (The Customs Regulations 1926 specify a hospital or the surgery or other practising rooms of a medical practitioner for this purpose.) Where a scanning supports a suspicion of an internal concealment, the existing regime governing internal searches by a medical practitioner will apply.
Subdivision C of Division 1B of Part XII of the Customs Act 1901 (Cth) currently authorises detention of a person by an authorised Customs officer or police officer where the officer suspects on reasonable grounds that the person is internally concealing a 'suspicious substance' (ie a narcotic substance that relates to an offence, under Division 307 of the Commonwealth Criminal Code, punishable by imprisonment for 7 years or more). Once detained, an application can be made to a Judge for an order for an internal search of the detainee by a medical practitioner. Internal searches can be carried out by various means, including digital examination, probes and scanning of a person's body.
The Minister indicated that -
In 2009-10, 48 drug couriers [out of 205 suspects who experienced a hospital examination] were identified attempting to import more than 27 kilograms of illicit drugs within their bodies, including heroin and cocaine.Use of the scanners is "also expected to present significant time and money savings to Customs, the Australian Federal Police and our hospitals", with the Minister commenting that "last year AFP officers spent almost 8300 hours guarding suspects, including more than 4600 hours in hospital waiting rooms, rather than policing our airports and other public areas".
Bringing illicit drugs into Australia is illegal. We want to do all we can to stop drug importation and protect Australian families from the immeasurable harm caused by drug use.
Internally secreted drugs pose a dire health risk to a courier. It is not unusual for packages to split and for drug couriers to face serious illness or death as a result.
Body scanning technology will help to more promptly identify if a suspect is carrying drugs internally and allow medical help to be rendered quickly
Body scanning has attracted substantial criticism in the US, where there have been expressions of concern regarding perceived health hazards and substantive concerns regarding poor practice on the part of the TSA. Those concerns include observation by people in queues for security screening of 'naked images' (the War on Terror may well involve a 'virtual striptease' as a condition of entry to planes and trains but coerced unrobing does not need by shared) and uncertainty about whether the TSA - or prurient security personnel - store and communicate particular images.
The media release accompanying passage states that -
As Minister for Privacy, I’m acutely aware of community concerns about the use of such technology. I’d like to assure the public that this technology will be subject to strict controls.There are questions about the meaningfulness of consent if the trial is extended to cover all airports and all passengers, particularly if ground staff - as highlighted in the recent ANAO report - do not undergo the same scanning.
Most importantly, body scanning technology will not be used on all travellers or used randomly – it will only be used where there is a reasonable suspicion that a person is carrying drugs internally. In addition a suspect must consent to the use of body scanning technology.
The Minister commented that measures to ensure respect for privacy and individual rights include -
• law enforcement agencies form a reasonable suspicion that a person may be carrying illicit drugs internally before the technology can be usedA savvy criminal will presumably insert the illicit substances into the requisite orifices of children, pregnant women, the "mentally impaired" and physically disabled.
• a suspect must give written consent to being subject to body scanning technology. If they don’t, a hospital examination will be conducted, as is the current practice
• the operation of the body scanning technology will be conducted by a specially trained Customs officer
• the images taken are subject to storage, access and destruction controls
• the specific configuration of the body scanner device has been legislated to ensure that it is restricted to detecting internal drug concealments
• children, pregnant women and the mentally impaired will not be offered a body scan.
"For operational reasons the locations of the trial will not be publicly disclosed" but will presumably become evident fairly quickly.
The Minister's concise Second Reading Speech indicates that -
The Office of the Australian Information Commissioner has provided input to the privacy impact assessment and all comments have been incorporated. The Office of International Law in the Attorney-General’s Department has advised that the amendments would not breach the right to privacy as set out in the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child. I also want to add that the X-rays not required for any potential criminal proceedings will be destroyed in a timely manner.
The Privacy and FOI Policy Branch of the Department of the Prime Minister and Cabinet and the Office of the Australian Information Commissioner will be consulted prior to the prescription of body scan technology.
