what are your legal rights on re-entering Australia?

[markis10]

Section 186 of the customs act is quite revealing as to the powers of search granted to Cusotms Officers:

48 - At the end of section 186

 

[clifford]

Section 186 of the customs act is quite revealing as to the powers of search granted to Cusotms Officers:

48 - At the end of section 186

It's a pity that none of them have any intelligence.

As my wife's professor said, "intellectual, but not intelligent" when commenting on some other academics.

Unfortunately, Customs officers are neither intellectual nor intelligent.

Find one that beats the mould and you win a prize!

 

[markis10]

It's a pity that none of them have any intelligence.

I have had the pleasure to work with Customs officers on some seizures when I was in the employment of a large US based supplier of computer chips and found them overall to be very intelligent yet mindful of the rights of citizens. I have also been on the end of some rather stupid questions after a quick weekend away in Fiji when I came back with coffee. I suspect the airport posts are the first line of duty for those fresh out of training, those with intelligence and tolerance quickly get moved on, much like first year police officers always end up in the trouble spots!

 

[clifford]

I suspect the airport posts are the first line of duty for those fresh out of training, those with intelligence and tolerance quickly get moved on, much like first year police officers always end up in the trouble spots!

Well, I don't think you're right, and if you were, wouldn't this be a terrible indictment of the federal government's policies? ie, to give tourists (who prop up the economy) absolute hell from relatively untrained operatives.

Great way to get your country appreciated!

But I've been to Canada, so I know how things really are...

 

[Evan]

I have to find a thread i started here, i got some very strange treatment myself returning to AU recently. But no questions or search in the end.
They have the right i guess and something must have tipped them into looking, i have no idea how they "score" people to be looked at but it can be Australian citizens as well as others.

As for copies of hard drives, it can take a while, its not all that easy to do and in my case i am rather sure they would not likely crack it.
We use very good encryption software (not related to OS, its loaded before that, So first BIOS allows reading of the MBA and then Partition table, then the Pre-boot Authentication takes place, then the OS can access data) and all i can say is good luck to them, and for all i care they can take my company laptop and keep it as long as as get a receipt i would just get a new one but never give them the passwords !

And even if i did give them access to the hard drive they important files and emails are encrypted by yet another encryption product.

We have a company requirement specifying all suitable encryption methods for all types of situations, even backup media.

E

 

[garyjohn951]

I got pulled up on a recent trip back from China and asked me to turn on the laptop. I think they were after kiddie cough.
Anyway it just so happens that my wife also uses the laptop to download her photos when we travel together and is a very keen photographer, not unusual to have 2000 photos for a 3 week trip.
Anyhow, last count she had about 25000 on the hard drive and all of them catalogued in a data file.
They started looking a a file and I told them about the master data file. After 10 minutes of castles along the Danube, Venice canals, they handed it back and I was on my way.

 

[Evan]

Section 186 of the customs act is quite revealing as to the powers of search granted to Cusotms Officers:

48 - At the end of section 186

Actually they seen rather tame and fair. (Remember you need to actually catch a few bad guys !)
Its up to the person to protect there data.
For example when i travel i do not take paper documents with me for exactly this reason.
So it seems to me they are within there rights to take a copy of a HDD, but after some time they need to let you go even if they do keep a copy of your data.

If any tech geeks want to talk about this i created a new thread in the payground
http://www.frequentflyer.com.au/community/playground/computer-security-15588.html
Otherwise this will get so off topics its not funny.

E

 

[medhead]

Section 186 of the customs act is quite revealing as to the powers of search granted to Cusotms Officers:

48 - At the end of section 186

Thanks for the link. it gives a good indication but note it's from the ATO legal database and only outlines one amendment to the customs act

quiet O/T but for future reference it's usually preferable to go to a website like www.legislation.gov.au and look up the whole act. This should give a general page with current and all old versions of an Act

ComLaw Management - Series- Customs Act 1901

Plus of course the current Act itself. http://www.comlaw.gov.au/ComLaw/Leg...CA25750F001A84AE/$file/Customs01Vol2_WD02.pdf

In this case Section 186 is a bit more then just as per the link. I can't see anything that requires you to provide the password, however 186(1) says that the cost of the examination shall be borne by the owner. So presumably they can charge the owner for the expense of cracking an encryption.

There is also a broad range of offence that they can consider, including a range of intelligence agencies or legislation as well as prescribed legislation.

186A Power to make copies of, and take extracts from, documents in
certain circumstances
(1) If:
(a) a document is examined under section 186; and
(b) as a result of that examination, an officer of Customs is satisfied that the document or part of the document may contain information relevant to:
(i) an importation or exportation, or to a proposed importation or exportation, of prohibited goods; or
(ii) the commission or attempted commission of any other offence against this Act or of any offence against a prescribed Act; or
(iii) the performance of functions under section 17 of the Australian Security Intelligence Organisation Act 1979; or​

(iv) the performance of functions under section 6 of the Intelligence Services Act 2001; or
(v) security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);

 

[simongr]

Interesting the frequency of people being pulled aside. I have generally been on 12-20 segment trips and have never been questions. I am UK citizen, male, middle aged and am caucasian.

 

[markis10]

Thanks for the link. it gives a good indication but note it's from the ATO legal database and only outlines one amendment to the customs act.

I was working on the KISS principle as the ATO link had the pertinent info for this thread, I am not a fan of reading legislation for leisure :shock:

I was also tempted to post the legislation about the 24/7 Customs passenger screening centre in Canberra that has access to 96% of the airlines data, I suspect a lot of the prescreening is done there so they are ready for your arrival with some questions!

 

[medhead]

I was working on the KISS principle as the ATO link had the pertinent info for this thread, I am not a fan of reading legislation for leisure :shock:

Yes, totally. and commonwealth legislation is the worst.

I wouldn't have mentioned it except I noticed the other bits about the intelligence legislation. Plus I didn't want to totally waste the time I used digging the act out.

 

[jessica1]

This general question is regarding a customs matter.
Unfortunately there are no sections on the aussielegal website that this question fits.

So here it is:

When an Australian citizen comes back from oveseas he/she is required to fill out an incoming passenger card, sign it, and expected to cooperate with bag searches. I already know under the customs act that they have the right to do things like download mobile phone contents, mirror lapop hardrives etc.

Are verbal questions that customs officers ask upon re-entry to Australia, compulsory to answer? If so, what's the penalty should I refuse.

Is it possible for me to do something like say "I'm more than happy to cooperate with your search and answer the questions on the incoming passenger card, but I refuse to answer any personal questions other than those questions". Then opt to remain silent.

I understand that the questions relating to carrying of prohibited or duty payable goods are compulsory to answer under penalty.

However, questions such as "how much do you earn?" etc,
And similiar questions of a personal nature, are these questions that are outside of the incoming passenger card (the ones that the customs officer makes up him/herself), are they compulsory to answer?

If not, what can they do if you refuse to answer them?

 

[serfty]

G'day jessica1, welcome to AFF.

... If not, what can they do if you refuse to answer them?

... at the very least they could quite legally delay your arrival landside for several hours ...

 

[drron]

Jessica1 welcome.If these sort of questions are able to be asked I for 1 want the law changed.I dont see any relevance to the situation.
Unfortunately as serfty has said they are in a position of power and certainly it would be easy to delay you for some time.My response would be to say something like-I fail to see the relevance of that question.If an answer was pressed ask to see a supervisor to ascertain whether the question was valid but also asking for the name of the officer because I wanted to bring this matter to the attention of my Federal member of parliament.Doing so though in the knowlrdge this may very well p*** the officer off and I would definitely be delayed.

 

[jessica1]

G'day jessica1, welcome to AFF.
... at the very least they could quite legally delay your arrival landside for several hours ...

Again, I don't believe this to be correct..
There actually isn't any such thing as "delaying" a person for hours.
I know this for a fact.
They either must legally detain you, once the search is complete, or let you go.
They must have purpose, EG, checking something or actually doing something, searching etc.
Otherwise you can simply walk out.
That much I know. There's no such legal term as "delaying", someone.

 

[Nigelinoz]

Otherwise you can simply walk out

Probably wouldn't be a wise move though since I assume that until they
give you permission to leave you wouldn't actually have cleared the customs and immigration process and therefore could be prevented from exiting the terminal.

 

[NM]

Again, I don't believe this to be correct..
There actually isn't any such thing as "delaying" a person for hours.
I know this for a fact.
They either must legally detain you, once the search is complete, or let you go.
They must have purpose, EG, checking something or actually doing something, searching etc.
Otherwise you can simply walk out.
That much I know. There's no such legal term as "delaying", someone.

I think serfty is suggesting that the search process could be drawn out to take several hours.

I would expect they are able to ask any questions they feel are relevant to be used to determine if you are in breach of any immigration, customs or quarantine laws. So in some cases it may be relevant for them to ask about how your trip was funded as it is well known that many drug runners are low-income people whose trip is paid by someone else. So if they are suspecting a person of being a drug runner, the source of funds for the trip may well be relevant to help them clear a person of that suspicion.

Personally, I would not go down the refusal path as that is certain to increase any suspicion levels and likely to result in a very thorough search process that may involve more intimate details than your income .

 

[Flashback]

I think serfty is suggesting that the search process could be drawn out to take several hours.

I would expect they are able to ask any questions they feel are relevant to be used to determine if you are in breach of any immigration, customs or quarantine laws. So in some cases it may be relevant for them to ask about how your trip was funded as it is well known that many drug runners are low-income people whose trip is paid by someone else. So if they are suspecting a person of being a drug runner, the source of funds for the trip may well be relevant to help them clear a person of that suspicion.

Personally, I would not go down the refusal path as that is certain to increase any suspicion levels and likely to result in a very thorough search process that may involve more intimate details than your income .

And such a scenario was seen on Border Patrol a few weeks ago. Turned out the lady was free to go, but by not co-operating they certainly made things hard for her

 

[Happy Dude]

....snip....
However, questions such as "how much do you earn?" etc,
And similiar questions of a personal nature, are these questions that are outside of the incoming passenger card (the ones that the customs officer makes up him/herself), are they compulsory to answer?

If not, what can they do if you refuse to answer them?

I cannot answer your questions with any authority, but, and I'm strictly guessing here, perhaps they ask such questions to help build a profile upon which they decide if further investigation is warranted. Perhaps they might think that it's odd you answered $50k/year, but you've travelled in F/J, you've got a bunch of recent EU or South American stamps and you've got authentic-looking LV luggage? Or maybe they're cross referrencing your answer with your stated occupation?

(before anyone chimes in with "Objection!...relevance, your Honour. There are lots of instances where occupation and expected remuneration are directly disproporational." Sustained, but as I say I'm just guessing why the question was asked in the first place.)

The tax office knows how much you earn so I personally don't see why such trivial information dispensed to another random govt official should be an issue. Out of interest, are you concerned about your answers being cross-referrenced with the ATO, et al? If enough people don't answer verbally, the question may be included on future incoming passenger card.

But if the questions really bother you so much, why not approach the Immigation Dept/DFAT, whoever, yourself or get a lawyer to act on your behalf? Would you really "test" any answers given here (AFF) next time you come back into the country?

 

[medhead]

Probably wouldn't be a wise move though since I assume that until they
give you permission to leave you wouldn't actually have cleared the customs and immigration process and therefore could be prevented from exiting the terminal.

I think the point is that unless they legally detain you then you can simply walk out. Like in the TV cop shows. "Are you charging me? No? Good bye then."


To Jess, I suppect that you could politely refuse to answer - "does that matter" or maybe a joke something like "not enough", "enough to feed the kids" or "enough to keep me in beer". That sort of thing. You will soon find out if they have the power of compulsion in forcing you to answer. But if they exercise that power then they will no doubt have to go through a process. They will have to give the warning and also inform you of the power of making you answer. They have to tell you they are exercising that power to make you answer and also inform you of the consequences of forcing you to answer.

In one of my jobs where I had the power to force people to answer questions, exercising that power automatically prevented me from using the answer against the person, except if they lied in the answer. We had to inform the person of that restriction. Generally the power is only used to get evidence against another person.

If you not comfortable with a question, the best bet is to brush it aside with a joking non answer. That will then make them use their powers and they will be highly unlikely to do that unless they have very good reason to suspect you of something.