bureaucratic coughry

[nutwood]

Once again, I don't really wish to get too deeply into this matter but I would refer you to Section 42 of the Australian Border Force Act 2015 which reads - partly -

I think the question that arises is, when does the need for operational security morph into unaccountability? I believe your earlier post put the position fairly and accurately, at least with regard to how it used to be done. I'm not sure though, that things are the same. I feel that it's very important that we discuss and question these sorts of incidents. To be honest, I only became involved in this thread due to disappointment that a contributor who seemed to be raising legitimate questions was being howled down. Obviously the information available is limited. The OP's sister may have spent the 70's running hash into Australia, we don't know the full picture. I do however think it reasonable that there should be a level of accountability in these matters.

 

[DC3]

Interesting read with entrenched views by many …

Yes, good point. It would be an interesting study into the psychology of how we become more entrenched in defending our firmly held views, as contrary views are put to us. Having said that, having strong convictions is probably a good thing. Now going a bit O/T.

 

[VPS]

False positives

 

[harvyk]

I think the question that arises is, when does the need for operational security morph into unaccountability?
<snip>

Welcome to the new normal, where "security" trumps any other factor. Where a politician even asking about accountability means that they might as well be planting a bomb themselves, at least in the minds of the average voter.

 

[Happy Trails]

False positives

View attachment 148501

Type I error is more common than you might think.

 

[Vic]

To start with, in the OP, there was no suggestion that the lady was treated without respect.

Did you read the OP? Pretty clearly states there was a complete lack of respect.
But then you also seem to think there was some evidence against the OP's sister, except none has been presented. That leads into a comment about witch hunts - they work both ways. You seem to be assuming the OP's sister was guilt of something on your assumption there was some evidence to suggest wrong doing. Witch hunt?

 

[nutwood]

False positives

View attachment 148501

So if it is noticed that the local GP is conducting random pregnancy checks on their patients, regardless of age or gender, does one question this or does one simply assume that they are a qualified professional and obviously know what they are doing....?

 

[Vic]

Once again, I don't really wish to get too deeply into this matter but I would refer you to Section 42 of the Australian Border Force Act 2015 which reads - partly -

"42 Secrecy

(1) A person commits an offence if:

(a) the person is, or has been, an entrusted person; and

(b) the person makes a record of, or discloses, information; and

(c) the information is Immigration and Border Protection information.

Penalty: Imprisonment for 2 years."

The Sections following give details of what information can be released and who can release it.

(Part1 Sec. 3) entrusted person means:

(a) the Secretary; or

(b) the Australian Border Force Commissioner (including in his or her capacity as the Comptroller‑General of Customs); or

(c) an Immigration and Border Protection worker.


I am not familiar with this Act as it came into force after my retirement but this sort of penalty does make you consider carefully what information you give to unauthorised persons. During my career we were subject to the Customs Administration Act which had similar but less draconian provisions. I took it very seriously. My wife is still slightly annoyed that I would never discuss operational matters with her.

What is interesting are the bits that you've left out:

Exception

Subsection (1) does not apply if:

(a) the making of the record or disclosure is authorised by section 43, 44, 45, 47, 48 or 49; or

(b) the making of the record or disclosure is in the course of the person's employment or service as an entrusted person; or
What like in the course of interviewing someone as part of their employment or service?
(c) the making of the record or disclosure is required or authorised by or under a law of the Commonwealth, a State or a Territory; or
What like telling someone the reason they've been detained?
(d) the making of the record or disclosure is required by an order or direction of a court or tribunal.

It is much more complex, but a quick review of those sections shows that they can disclouse information in the performance of their duties. It is strange that someone being investigated is unauthorised considering they have an "evidential burden" under the criminal code in relation to these exceptions. (also something from section 42)

Also the definition of Immigration and border protection information is worth considering.

"Immigration and Border Protection information" means information of any of the following kinds that was obtained by a person in the person's capacity as an entrusted person:
(a) information the disclosure of which would or could reasonably be expected to prejudice the security, defence or international relations of Australia;
(b) information the disclosure of which would or could reasonably be expected to prejudice the prevention, detection or investigation of, or the conduct of proceedings relating to, an offence or a contravention of a civil penalty provision;
(c) information the disclosure of which would or could reasonably be expected to prejudice the protection of public health, or endanger the life or safety of an individual or group of individuals;
(d) information the disclosure of which would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;
(e) information the disclosure of which would or could reasonably be expected to cause competitive detriment to a person;
(f) information of a kind prescribed in an instrument under subsection (7).

 

[Vic]

So if it is noticed that the local GP is conducting random pregnancy checks on their patients, regardless of age or gender, does one question this or does one simply assume that they are a qualified professional and obviously know what they are doing....?

I've heard of at least one case of checking for pregnancy on an 80 year old, from a supposedly qualified doctor. They must have missed the lectures on "the change". At least the patient was a female. lol

 

[get me outta here]

A bit OT, but I am reminded of the one leg at amputee turning up to get the car rego being told to get a doctors certificate. He replied, “it’s not gonna bloody grow back.”

 

[Forg]

So if it is noticed that the local GP is conducting random pregnancy checks on their patients, regardless of age or gender, does one question this or does one simply assume that they are a qualified professional and obviously know what they are doing....?

Can you imagine the vocal outrage from Social Justice Warrior types if said GP was discriminating against anyone?! HOW DARE YOU REFUSE TO CHECK MY BROTHER FOR PREGNANCY?!?!

 

[OZDUCK]

What is interesting are the bits that you've left out:

Exception

Subsection (1) does not apply if:

(a) the making of the record or disclosure is authorised by section 43, 44, 45, 47, 48 or 49; or

(b) the making of the record or disclosure is in the course of the person's employment or service as an entrusted person; or
What like in the course of interviewing someone as part of their employment or service?
(c) the making of the record or disclosure is required or authorised by or under a law of the Commonwealth, a State or a Territory; or
What like telling someone the reason they've been detained?
(d) the making of the record or disclosure is required by an order or direction of a court or tribunal.

It is much more complex, but a quick review of those sections shows that they can disclouse information in the performance of their duties. It is strange that someone being investigated is unauthorised considering they have an "evidential burden" under the criminal code in relation to these exceptions. (also something from section 42)

Also the definition of Immigration and border protection information is worth considering.

"Immigration and Border Protection information" means information of any of the following kinds that was obtained by a person in the person's capacity as an entrusted person:
(a) information the disclosure of which would or could reasonably be expected to prejudice the security, defence or international relations of Australia;
(b) information the disclosure of which would or could reasonably be expected to prejudice the prevention, detection or investigation of, or the conduct of proceedings relating to, an offence or a contravention of a civil penalty provision;
(c) information the disclosure of which would or could reasonably be expected to prejudice the protection of public health, or endanger the life or safety of an individual or group of individuals;
(d) information the disclosure of which would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;
(e) information the disclosure of which would or could reasonably be expected to cause competitive detriment to a person;
(f) information of a kind prescribed in an instrument under subsection (7).

You may have missed the bit where I said - "The Sections following give details of what information can be released and who can release it".
I posted sections of the Act as a courtesy. As I have consistently stated I do not wish to become too deeply involved in this topic because -

- My knowledge of procedure is 10 years out of date and as I said previously I have never worked "under" this Act
- I know nothing of the actual circumstances of what happened. All that is being discussed is third party hearsay
- Because of my employment history I believe that I am biased, and have also said so previously.

 

[Vic]

You may have missed the bit where I said - "The Sections following give details of what information can be released and who can release it".
I posted sections of the Act as a courtesy. As I have consistently stated I do not wish to become too deeply involved in this topic because -

- My knowledge of procedure is 10 years out of date and as I said previously I have never worked "under" this Act
- I know nothing of the actual circumstances of what happened. All that is being discussed is third party hearsay
- Because of my employment history I believe that I am biased, and have also said so previously.

I'm referring not just to the following sections but also the other exceptions. Just think it is a bit misleading to suggest there was any serious impediment to informing the interviewee in this situation given those exceptions.

 

[OZDUCK]

I'm referring not just to the following sections but also the other exceptions. Just think it is a bit misleading to suggest there was any serious impediment to informing the interviewee in this situation given those exceptions.

I am sorry if you thought I was misleading anyone, my intention was purely to point people towards the relevant Act for their information. However we still don't know why the baggage examination, not a body search, was carried out. It may have been at the request of a Foreign Government, it may have been at the request of the ATO or Medicare or some other body or for any number of other reasons. In many of those cases I still believe that the release of possibly confidential information would be prohibited under the Act. Especially, when there is no requirement or need to release it. After trying to refresh my memory, Sec. 186 of the Customs Act gives an officer the right to examine any goods under Customs Control. This right is not subject to any requirement for "probable cause" etc it is an absolute right and no reason needs to be given to employ that right. As far as I am aware that law, or similar, has been in force since Parliament passed the first Australian Customs Act in 1901.

We are obviously not going to agree on this matter and as I have said previously my knowledge base is way past its use by date.

Edit: In fairness I must add that in over 35 years in Customs I only dealt directly with passengers for less than 1% of my career. If you wish to discuss Tariff Classification or Customs Valuation of goods, Anti-Dumping measures, The Ships Bounty Act, International Terms of Trade or the audit of importers or exporters etc I am more comfortable.

 

[nutwood]

These questions always end up hinging on definitions. I know it was a different act, but does "goods under Customs Control" include the contents of someone's phone? The description provided by the OP sounds very much more like a search for information rather than a search for contraband.

 

[MEL_Traveller]

In many of those cases I still believe that the release of possibly confidential information would be prohibited under the Act. Especially, when there is no requirement or need to release it.

Thanks Ozduck.

And here is the potential detachment between ABF and the person being detained or searched (my bolding in the above quote).

ABF may see there is no need or requirement to release the information, but the the person being searched there may be every need. It helps with closure.

What we have is a border force dressed in para-military uniforms, sometimes with dogs, who are able to separate people away from percevied safety, and conduct a search without providing any information - eiher about what's being looked for, or the rights of the person being detained.

These are things that can't happen outside the airport and are therefore likely to be unfamilair when in an airport setting.

Notwithstanding any provisions around protected information, perhaps a simple solution would be to provide better communication?

Every arriving passenger is given a leaflet, available in multiple langauges that reads something like the following:

Searches:

• you may be subject to a search by customs
• officers may not be able to disclose the reason for the search
• you may request to speak to a senior officer at any time
• at the conclusion of your search you will be given a reference number
• you can use this reference number to request an independent review of your search

The independent review:

• will be conducted by a senior officer who was not present or involved in the original search
• may not be able to disclose the reason for your search but will review whether it was lawful and appropriate
• will not be recorded or used against you in future border crossings
• will provide you with a further avenue to seek review if you are not satisfied with the outcome

The above is just me thinking quickly, and probably can be refined a bit. But what it attempts to do is partially address the imbalance of power and remove some of the intimidation. It might also put officers on notice that there is a very real chance that their actions that day will be subject to review.

There is also probably scope for better communications during the search. When asked why, a gruff 'we don't have to tell you' might be lawfully correct, but it can also be intimidating. (An 'I'm sorry, the Act doesn't allow us to disclose reasons due to potential sensitive information' (or whatever) might be less so.)

 

[MEL_Traveller]

These questions always end up hinging on definitions. I know it was a different act, but does "goods under Customs Control" include the contents of someone's phone? The description provided by the OP sounds very much more like a search for information rather than a search for contraband.

The scope does extend to documents and electronic devices now.

 

[OZDUCK]

These questions always end up hinging on definitions. I know it was a different act, but does "goods under Customs Control" include the contents of someone's phone? The description provided by the OP sounds very much more like a search for information rather than a search for contraband.

Again with all my previous caveats about lack of current knowledge etc. Like all the Australian Federal legislation I have run across there is a "definitions" section in the Customs Act. In this case it is Section 4 where " goods" are defined as such -:

goods means movable personal property of any kind and, without limiting the generality of the expression, includes documents, vessels and aircraft.

So a phone is "goods" and as such can be examined i.e. contents checked etc.

(Mel-Traveller just beat me to it but for what it is worth this is the actual definition.)

And for a bit extra "documents" means :-

documents include:

(a) any paper or other material on which there is writing; and

(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c) any paper or other material on which a photographic image or any other image is recorded; and

(d) any article or material from which sounds, images or writing is capable of being produced with or without the aid of a computer or of some other device.

 

[wandering_fred]

Perhaps we should travel with the SIM and battery removed from our phones?

Just wandering
Fred

 

[opusman]

Should little old ladies be exempt from security screening?

If so, I know who the terrorists are going to be recruiting PDQ.