what are your legal rights on re-entering Australia?

[stryker]

Your best bet would have been to say NO and then have been handed over to the AFP.

At least you have statutory rights if being held by a police force in Australia (unless you are Aboriginal).

 

[Hvr]

Your best bet would have been to say NO and then have been handed over to the AFP.

At least you have statutory rights if being held by a police force in Australia (unless you are Aboriginal).

Actually being Aboriginal ensures you get a free lawyer. This should be the standard for all people being questioned by police.

 

[jessica1]

Any chance you might divulge said legal advice for our benefit? I'm assuming it's more comprehensive than your last sentence. Clarification of "non compulsory questions" and "reasonable cause" would help too....

Reasonable suspicion and the word reasonable is often used in law.
It means possible in an everyday situation.
So, for them to have reasonable cause to believe something, they'd have to actually make an allegation, eg, "we think you have heroi_ strapped to your body. We have detected something under your clothes and received positive readings for it."
Reasonable cause, would not be, "we need to internally examine you in case you're carrying something (without knowing what) inside, we don't know what but we need to be sure, so we're just doing it anyway even though there are no other indications".

In the latter, if you said no, they would present a statement of facts to the feds, who would decline it pretty much immediatley over the phone as they know a maj wouldn't grant it.

Non compulsory questions are actually any questions whatsoever, outside of section 195 which are, "are you carrying any prohibited, dutiable or excisable goods".

An example of a non compulsory question would be:

"Is there anyone picking u up at the airport?"

 

[Happy Dude]

Thanks for the response Jessica1.

The answer to your original question is, no you don't have to answer their questions and you're well within you rights to say (your post #13 - "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.") There is no penalty for doing this.

However, and here's the rub, if you don't answer their questions or over-react or spout a "sod off" retort, they might want to know why. They might also just shut up and let you through.

If you do answer, your answer might corroborate written responses, or otherwise, or result in a reaction that may give the officer "reasonable" suspicion. The questions are not illegal or compulsory. It's all part of the dance. You are entitled to ask questions to establish if you're under arrest (then don't answer any questions), if they've found what they're looking for, what are you looking for, etc etc. But I'm thinking they're well trained to turn the situation around again e.g. "Why do you think you're under arrest?" etc)

I understand what you're saying but it's way too simplistic to expect security/immigration issues to be confined to just ticking a box on a form. Everyone would tick "no", even the dishonest ones, and international airports would consist of a walkway between the tarmac and the carpark.

 

[jessica1]

Thanks for the response Jessica1.

The answer to your original question is, no you don't have to answer their questions and you're well within you rights to say (your post #13 - "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.") There is no penalty for doing this.

However, and here's the rub, if you don't answer their questions or over-react or spout a "sod off" retort, they might want to know why. They might also just shut up and let you through.

If you do answer, your answer might corroborate written responses, or otherwise, or result in a reaction that may give the officer "reasonable" suspicion. The questions are not illegal or compulsory. It's all part of the dance. You are entitled to ask questions to establish if you're under arrest (then don't answer any questions), if they've found what they're looking for, what are you looking for, etc etc. But I'm thinking they're well trained to turn the situation around again e.g. "Why do you think you're under arrest?" etc)

I understand what you're saying but it's way too simplistic to expect security/immigration issues to be confined to just ticking a box on a form. Everyone would tick "no", even the dishonest ones, and international airports would consist of a walkway between the tarmac and the carpark.

The law is fairly clear on this matter, the advice that I've received.
Exercising your legal right to refuse to answer questions, (or consult a lawyer where necessary), is never, and can never be used as reasonable cause or be used against you as an admission of guilt.

If the only thing you do is refuse to answer their verbal non compulsory questions which is your right to do so, there is very little they can do based on that alone. Other than bluff or simply say things.

You cannot be charged, detained for internal searches, stripped or anything on that fact alone, (if you are an Australian citzen returning from overseas. A foreign national may become an immigration concern.)

This would amount to you being punished for exercising your legal rights.

Internal searches or detainment are to be used only when they actually suspect you have prohibited items and can give probable cause why.

They are not to be used as a form of punishment for people who decline to answer non conpulsory questions.

They can say they are detaining you for a strip search for example, but if you refuse, and they have no other cause for suspicion, you'll find they will let you go once they realise their bluff isn't going to work.

They're trained in the art of bluffing and pressure tactics.

 

[serfty]

... you'll find they will let you go once they realise their bluff isn't going to work. ...

and how long would it take for the officer(s) to "realise their bluff isn't going to work"?

• 5 Minutes?
• 5 Hours?
• Longer?
• Shorter?
• Somewhere in between?

 

[JohnK]

An example of a non compulsory question would be:

"Is there anyone picking u up at the airport?"

Would you say any of these questions are relevant or compulsory?

"Did you go out at night during your overseas holiday?"
"Did you drink any alcohol?"
"Did you talk to anyone?"
"Did you enjoy yourself?"

 

[medhead]

Would you say any of these questions are relevant or compulsory?

"Did you go out at night during your overseas holiday?"
"Did you drink any alcohol?"
"Did you talk to anyone?"
"Did you enjoy yourself?"

These question are neither relevant or compulsory, IMO. I would answer them with deep sarcasism and or jokes. i.e. Did I enjoy myself? - I was on holiday, of course not.

That then makes them drop it or if they suspect something and consider the question important, it forces them to take a more formal approach. Once they step over the formal line they generally have to inform you of your various rights, which makes the pressure tactics and bullying less effective.

 

[Happy Dude]

The law is fairly clear on this matter, the advice that I've received.
Exercising your legal right to refuse to answer questions, (or consult a lawyer where necessary), is never, and can never be used as reasonable cause or be used against you as an admission of guilt.

If the only thing you do is refuse to answer their verbal non compulsory questions which is your right to do so, there is very little they can do based on that alone. Other than bluff or simply say things.

You cannot be charged, detained for internal searches, stripped or anything on that fact alone, (if you are an Australian citzen returning from overseas. A foreign national may become an immigration concern.)

This would amount to you being punished for exercising your legal rights.

Internal searches or detainment are to be used only when they actually suspect you have prohibited items and can give probable cause why.

They are not to be used as a form of punishment for people who decline to answer non conpulsory questions.

They can say they are detaining you for a strip search for example, but if you refuse, and they have no other cause for suspicion, you'll find they will let you go once they realise their bluff isn't going to work.

They're trained in the art of bluffing and pressure tactics.

I understand and agree with what you're saying, but I don't think it's too hard (or too whimsical) for officers to come up with some degree of suspicion and contrary to your legal advice, your reaction can, according to a ex-fed cop family member who spent a deal of time at MEL airport, be used to establish reasonable cause to escalate the matter. Certainly not to the extent of strip/internal searches or arrest, but to investigate further and holding you up in the process.

Let's role play the situation....

Customs/Immigration officer: Good morning Madam. Returning from Malaysia eh? Was that a work trip or holiday? (or insert similar non-compulsory question).

Traveller: That's not relevant to any of the questions I've completed on the incoming passenger card and I'd rather not go into any details with you.

Customs/Immigration officer: Damn! You've trumped my limited powers with those pesky legal rights of yours. Well played. But Malaysia is a well known centre for movie piracy and we want to be sure that you're not carrying any pirated movies. Please proceed to that room where your luggage will be searched. Now, where did I put that fine-tooth comb?

You should ask your counsel how it would be possible for you to argue the difference between a case of "you being punished for exercising your legal rights" and a case of the officer using their powers to ensure you're not breaking the law.

Sadly, it's a risky strategy to stamp your legal rights because although you'll win the war (assuming you don't have prohibited items), you'll lose the battle. And that might be all the officer is interested in.

 

[Mal]

While flicking around on the IMMI website recently, I came across this page:

Passenger Cards - Travelling to Australia - Border Security

Completing an incoming passenger card

Travellers to Australia are required to accurately answer the following questions on the front of the IPC:

* family name, given name and passport number
* flight number or name of ship
* intended address in Australia
* if they intend to live in Australia for the next 12 months.

Travellers must also complete questions on the back of the IPC that relate to:

* the country in which they boarded the flight/vessel
* flight number or name of ship
* their date of birth and usual occupation
* nationality as shown on their passport.

Travellers who are non-Australian citizens are also required to correctly answer additional questions concerning their migration status, health status and any prior criminal convictions. Providing false information can affect their visa status.

and

Travellers departing Australia are required to accurately provide the following information on the OPC:

* their family name, given names and nationality
* passport number
* flight number or name of ship.

Travellers are also required to sign and date the OPC.

Interestingly, that doesn't seem to be all the Immigration type questions on the cards. (And yes, the Customs questions are seperate)...

 

[medhead]

Let's role play the situation....

Customs/Immigration officer: Good morning Madam. Returning from Malaysia eh? Was that a work trip or holiday? (or insert similar non-compulsory question).

Or

Traveller: I'm not sure, with my family, holidays are more work than work trips.

Customs/Immigration officer: Damn! Your a funny b*stard and you've trumped my limited powers with those pesky legal rights of yours. Well played. Despite Malaysia being a well known centre for movie piracy, your not trying to hide anything from me and I have no other reason to suspect your carrying pirated movies. Please proceed and enjoy your holiday.

 

[Arthur Hodgson]

While flicking around on the IMMI website recently, I came across this page:

Passenger Cards - Travelling to Australia - Border Security

and

Interestingly, that doesn't seem to be all the Immigration type questions on the cards. (And yes, the Customs questions are seperate)...

Mal, I used to be in charge of passenger card processing at the Department of Immigration (so they would know who I am), and I can assure you the systems were so woeful that nobody could find anything in a reasonable timeframe (if at all).

But don't count on it!

So there you go...

 

[jessica1]

and how long would it take for the officer(s) to "realise their bluff isn't going to work"?

• 5 Minutes?
• 5 Hours?
• Longer?
• Shorter?
• Somewhere in between?

Once the search is completed, excempting "time outs", (eg if they must wait for feds their travelling time etc or checking on records if the really suspect something is up with you) they are left with one of 2 choices, formally detain you giving you reasons why, or let you go.

They have a series of steps and checks they go through, once they are exhausted that's it.

They won't intentionally do something bad to you.
They're not out to get you, they're just doing their job.

You can decline to go participate it any interviews.
This will certainly cut the time back.

 

[serfty]

.. unless you' re researching for a thesis or something, why bother with this?

You seem more interested in some fantasy application of law rather than the real world. Ignoring anything that may vary from your vision.

It's no rocket science, give the agents something to question and they will.

Over the last 4 years, I have arrived back into OZ around 40. Twice I've had secondary inspection with complete searches of luggage, never have been searched more than that. Even with this I have been through in 30 minutes. Most times I'm through in less than 5 minutes. I answer question truthfully as asked; I have nothing to hide.

Now you post 'Once the search is completed, exempting "time outs"'. Why bother. Why put yourself in line to be searched in the fist place?

If you wish to extend the average time for getting through immigration/customs by answering an officer of the relevant agency with a less than humdrum answer, so be it, it will invariably end up wasting their time and yours.

 

[Evan]

I am afraid i think its easier just to answer the questions unless its personal or i really did not want to answer, i have had some odd events though, i was traveling in F and a few of us were first though and we all got sent down to customs in the lane to be questioned or looked at more closely... anyway the took my passport did not ask any questions, made a phone call for 10 mins (probably only 2 but it seemed like 10, lets just more than expected) and then i was just pass after an xray of my bags as usual. Very strange and no idea why.

 

[jessica1]

I understand and agree with what you're saying, but I don't think it's too hard (or too whimsical) for officers to come up with some degree of suspicion and contrary to your legal advice, your reaction can, according to a ex-fed cop family member who spent a deal of time at MEL airport, be used to establish reasonable cause to escalate the matter. Certainly not to the extent of strip/internal searches or arrest, but to investigate further and holding you up in the process.

Let's role play the situation....

Customs/Immigration officer: Good morning Madam. Returning from Malaysia eh? Was that a work trip or holiday? (or insert similar non-compulsory question).

Traveller: That's not relevant to any of the questions I've completed on the incoming passenger card and I'd rather not go into any details with you.

Customs/Immigration officer: Damn! You've trumped my limited powers with those pesky legal rights of yours. Well played. But Malaysia is a well known centre for movie piracy and we want to be sure that you're not carrying any pirated movies. Please proceed to that room where your luggage will be searched. Now, where did I put that fine-tooth comb?

You should ask your counsel how it would be possible for you to argue the difference between a case of "you being punished for exercising your legal rights" and a case of the officer using their powers to ensure you're not breaking the law.

Sadly, it's a risky strategy to stamp your legal rights because although you'll win the war (assuming you don't have prohibited items), you'll lose the battle. And that might be all the officer is interested in.

Yes I see what you mean.

But the advice that I was given was referring to if you were ALREADY selected (or preselected) for a 100% search which is the most they can do anyway. This is where you are taken from the queue and directed to a seperate counter of your own and questioned and searched, case emptied and xrayed, contacts from phone downloaded etc.

Of course if you were going through the x-ray only queue where they ask a few simple things and it's next person in the queue this would slow you down as they would and could upgrade it then to a 100% search.

If you're getting a 100% search they follow protocol.
It is then (from your perspective) irrelevant whether or not you answer the non compulsory questions, because they will continue the search until all steps possible are taken and protocol followed and the only thing left to upgrade to then is an internal search if grounds are found.

They will also not stop half way through the search and say "oh she's answered all our questions no need to bother with the rest of this 100% search I'm satisfied we'll put this down as a 65% search and let her go".

Also, there is no 200% search they can escalate it to should you refuse to answer non compulsory questions, you've already got the maximum.

A 100% search is the maximum they can do to you.
So you see my counsels point now. They may not like it, but they simply can't escalate it to anything else because there's no room to move, (unless something is found during the search). There's nothing they can do, other than bluff for a while to see if you comply, treading a fine line as to not apply duress (which is what was explained to me later.)

The next step is an internal search which they must seek permission for, this is a non event, they simply wouldn't have grounds, the decision is not theirs for this anyway.

They follow protocol (I'm told) to ensure that any evidence they obtain, is admissable in court should something be found.

You still have the impression they want you to have, and that I once had, that they are out to get you, and will attempt to punish non compliance.

This couldn't be further from the truth, both in my experience and the advice I had. Reason for that, is that if you're placed under any form of duress during any search, or pressured into a search when you've previously said no, the evidence obtained under duress is inadmissable, or will not be heard. Officers would be cross examined and would be very unlikely for them to lie on the stand and risk jail time.

Payouts for this kind of behaviour start at around 100K.
You may like to look up the "tasty raid", where police didn't follow proper search procedure in the mid 1990's in Victoria. The police budget was used up paying the class action lawsuits out to the many people who sued. Millions in compensation was paid out plus costs.

So they are most careful not to do that.

I hope I've explained it the best I heard and understood it.
There are set guidelines and protocols followed which are set in stone.

Bad things cannot happen to you because you've pissed someone off or because someone doesn't like you.

If you refuse to answer non compulsory questions, they will simply continue with the 100% search as planned, may check with a supervisor to see if you're wanted for anything, then let you go. Their optioins exhausted.

I remember now when I was being questioned and refused to answer a question, he immediately stopped his aggressiveness and started being friendly and changed his line of questioning. It's obvious to me now the reason he did this was because he didn't want me to exercise my legal right to silence because there's not a thing he can do about it if I do.

Like I said I hope I explained it.
From what I was told they attempt to get you to volunteer to say and do things, this is how they are trained.

If you start refusing, there's little they can do.
You'll note, that it's almost impossible to find out information of what your rights are on these matters anywhere on any governmental website.

The reason for this is simple, they don't want you to know.

 

[jessica1]

.. unless you' re researching for a thesis or something, why bother with this?

You seem more interested in some fantasy application of law rather than the real world. Ignoring anything that may vary from your vision.

It's no rocket science, give the agents something to question and they will.

Over the last 4 years, I have arrived back into OZ around 40. Twice I've had secondary inspection with complete searches of luggage, never have been searched more than that. Even with this I have been through in 30 minutes. Most times I'm through in less than 5 minutes. I answer question truthfully as asked; I have nothing to hide.

Now you post 'Once the search is completed, exempting "time outs"'. Why bother. Why put yourself in line to be searched in the fist place?

If you wish to extend the average time for getting through immigration/customs by answering an officer of the relevant agency with a less than humdrum answer, so be it, it will invariably end up wasting their time and yours.

Silence is a legal right that a citizen is entitled to exercise in our democracy.

The information that you provide to Customs is added to your file.
You can never see it, read it, almost anyone in customs can access it and you cannot control what's added to it or who adds it.

You may find that in 30 years something that you've said on that file may come back to bite you in a number of ways.

Opting to give Big Brother free information on yourself to be stored on file I think is just plain dumb.

Think about this, in the year 2000 nobody in America would have predicted that they would legalise torture. Yet within a few months after Sept 11, they legalized it.

You may find that if something bad happens in the future in Australia, they will start going looking for profiles of certain people. Too bad about that free information you gave Customs, as you find yourself under the microscope and are totally innocent.

Chairman Rudd and his labor party friends are already attempting to censor the internet. One of the first thing he's done is made it illegal for anyone to publish a list of websites that are to be censored and it's already expanded to a range of other sites other than what was originally intended.

The government has also threated users of the Whirlpool forum to shut up or feel their wrath.

What I'm saying and talking about makes sense, rather than just being a sheep.

 

[Happy Dude]

But the advice that I was given was referring to if you were ALREADY selected (or preselected) for a 100% search which is the most they can do anyway. This is where you are taken from the queue and directed to a seperate counter of your own and questioned and searched, case emptied and xrayed, contacts from phone downloaded etc.

This is the crux of the issue and now I understand what you're on about. According to my ex fed-cop family member (now a lawyer), "they" have probably selected you well before arriving at customs, although your answers at customs could see the matter escalated. I, like most others here I suspect, was referring to this. Serfty seems to have summed up the general attitude to questions at the x-ray point.

What happens in the "question/search room", for want of a better term, is fairly clear, as you point out. There's is a set procedure. I expect that the level of co-operation, or perhaps proximity to knock-off time, will determine how long that procedure takes. Rather than remaining silent, I'd be asking if your answers will be recorded, if that question is relevant and why, do I have to answer, etc.

For the record, I am absolutely convinced that "they" are out to get me. Everyone from the airline looking to charge excess on 20.1kgs to the AQIS guy inspecting the bottom of my hiking boots. I know full well that they're not, but information (ads, signs, declaration, etc) appears to be designed to give you religion and the inconsistency in the application of the rules gives me no other conclusion.

Also, I wholeheartedly agree with you regarding the Rudd Government's internet censorship. The comparison with China's censorship is obvious and one I would have thought any reasonable government would not want.

 

[stryker]

If you wish to extend the average time for getting through immigration/customs by answering an officer of the relevant agency with a less than humdrum answer, so be it, it will invariably end up wasting their time and yours.

Based on personal experience, Serfty, I agree 100%. And the odd Customs officer will probably agree with me, after a reprimand from their Regional Director.

Following a completely unnecessay altercation with a gung-ho Customs person, I now answer all questions in a humdrum manner, to the point of telling (plausible) lies when necessary. Any incriminating documentation or artefacts have been well and truly removed and redirected by then, in case of personal search.

It gets me through in the quickest possible time, and I recommend this approach to everyone (provided you have done your homework, and don't have anything undeclared on your person).

I am not a generally dishonest person (never had even a speeding ticket in 40 years of driving), and usually obey the law implicitly, but the attitude of the Customs personnel just annoys the hell out of me.

Sorry, but I don't like the idea of living in a police state, as we currently are.

 

[jessica1]

Based on personal experience, Serfty, I agree 100%. And the odd Customs officer will probably agree with me, after a reprimand from their Regional Director.

Following a completely unnecessay altercation with a gung-ho Customs person, I now answer all questions in a humdrum manner, to the point of telling (plausible) lies when necessary. Any incriminating documentation or artefacts have been well and truly removed and redirected by then, in case of personal search.

It gets me through in the quickest possible time, and I recommend this approach to everyone (provided you have done your homework, and don't have anything undeclared on your person).

I am not a generally dishonest person (never had even a speeding ticket in 40 years of driving), and usually obey the law implicitly, but the attitude of the Customs personnel just annoys the hell out of me.

Sorry, but I don't like the idea of living in a police state, as we currently are.

Well said.

I'm considering emailing the GET UP people who are about to commence a series of anti Internet Censorship TV commericals to add to their website details on how to remain silent at customs and informing people the tactics customs use.

If enough people get together and exercise their legal right to remain silent, changes happen.

People power is a very strong thing against an increasingly draconian system.


Finally, verbal information you freely provide to a Customs officer can easily be shared with other government departments.
They absolutely can, and often do share with Centrelink, and the ATO frequently.

Example: "So what do you do for work"?
"Oh I'm working in a restaurant earning $xx_ amount per week."

Customs will then attempt to verify your story as they have you wait, they can do this by checking with the ATO as to how much you're earning through your TFN provided to your employer.

Of course, as with many waiters in restaurants who earn cash you may not have declared it as taxable income.
Too bad when the ATO audit you. It's jail time for lying on a tax return.

All because you volunteered that free information to a Customs officer at the airport instead of remaining silent.

Perhaps now you're seeing that Customs are indeed, information gatherers for many government departments.

Additionally, it's an offence to provide false or misleading information to an officer, which is why silence is the best option.