Most people pass through customs in and out of Australia without any issue whatsoever. However, if you have prior criminal convictions (even old ones!), or you are being investigated by law enforcement, you may be stopped by Australian Border Force (ABF) and have your phone searched and downloaded. In recent times, we have had numerous clients tell us that every time they come in and out of the country (whether it be for a big overseas trip or a quick family holiday to Bali), they have their phone searched and taken away to be downloaded and returned to them. We are even aware of family members of people being investigated having their phones taken – even though they are not under investigation and have no prior criminal history. This can be inconvenient at the least and very disruptive at the worst.
These instances have become so commonplace that people assume that ABF can search your phone (and even download it) without any limitations on what they do with that information. And once they have that information, there are really no limitations imposed on who they can pass it on to and for what purpose. If the contents of your phone are passed to law enforcement by the Australian Border Force, they can keep the contents of the download forever and pass it on to other investigators. Perhaps more concerning is that, when phones are downloaded, they are downloaded in their entirety. This gives the government intimate information about your family, finances and personal affairs.
By virtue of the opportunities that having complete phone downloads bring, ABF’s powers can be exploited by state based law enforcement, without a proper understanding of the limitations on their powers, or the purposes for which they can utilise them. It is important that people who are being stopped at the border, for no other reason than to have their phone searched and seized for download, know their rights.
Can Australian Border Force Legally Search & Download My Phone?
Under the Customs Act 1901 (Cth), ABF officers have the power to examine and copy documents which include the contents of mobile phones. However, they can only do so for particular purposes. Usually, a search will be commenced because a PACE alert has been placed on a person. A PACE alert is an alert sent to ABF by law enforcement (for example, Police or AFP) that a particular traveller is a person of interest to an investigation. For example, there may be a warrant out for the arrest of a person who law enforcement suspect may be re-entering the country.
PACE alerts can also be utilised so that law enforcement are alerted to the departure or arrival of a person under investigation. It is not unlawful for ABF to alert Victoria Police, for example, that a person of interest is due to fly into the country. However, in order for the ABF to seize a person’s phone, that person must be under investigation for one of the following prescribed investigations:
- Importation or exportation, or the proposed importation or exportation, of prohibited goods;
- The commission or attempted commission of any other offences against the Customs Act or a prescribed act;
- The performance of functions under section 17 of the ASIO Act 1979;
- The performance of functions under section 6 of the Intelligence Services Act 2001; or
- Security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
[Note: there is a list of these offences contained at the conclusion of this article]
What Happens After My Phone Has been Seized by Border Force?
After seizing the phone on one of the above bases, the ABF officer has to actually examine every individual piece of data on the phone to identify whether it contains any information relevant to the five areas of investigation (above). They are not simply entitled to download the entire phone. They have to search the phone and identify the individual documents or data that are relevant to one of the prescribed investigations. If they find anything relevant to one of the prescribed investigations, they are permitted to copy that particular document or piece of data. To be clear, they are not entitled just to download the whole phone warts and all. However, it is apparent from investigations that have occurred to date that, due to the work demands on ABF personnel and the fast paced nature of customs, proper examinations do not occur and, for expediency, the ABF just download the entire contents of the phone without proper consideration of the requirements of the legislation.
The Court of Appeal in a case called DPP v Farmer, found that just because there is a PACE alert for a person does not mean that the ABF should or can automatically copy the person’s phone without first assessing whether the contents are relevant to a prescribed investigation. Importantly, there are a number of serious state-based offences which are not prescribed offences, and which cannot be the basis to search a person’s phone. For example, if a person is being investigated by Victoria Police for drug trafficking in Victoria, this cannot be a basis for the ABF to seize, search and copy that person’s phone because the person is not being investigated for drug importation. Even serious offences such as murder cannot be a basis for the Homicide Squad to create a PACE alert in order for the ABF to seize, copy and download a suspect’s phone.
If an ABF officer makes the decision to copy a person’s phone, they must record the reason for doing so in the BAGS record, NIS report and their notebook. That way, if any evidence is taken from the phone, which is purported to be used in a criminal proceeding, the accused person can scrutinise the basis upon which the evidence was seized and consider challenging the lawfulness of the actions of the ABF.
What Should I Do if a Border Force Officer Requests to Access My Phone?
Practically speaking, however, if you or someone you love has found themselves constantly stopped by ABF with requests to access your phone, you should do the following:
- Ask for the name of the officer who is seizing the phone and the Electronic Examination Officer (EEO) who is going to examine the phone (noting that only a qualified EEO can examine the phone);
- Ask the ABF officer for the prescribed offence being investigated which gives rise to the power to seize your phone: “what am I being investigated for pursuant to section 187A(1)(b) of the Customs Act?”;
- Regardless of whether they tell you what they are investigating (they may not – probably because they don’t know), you should remind them that they are only entitled to inspect the phone in the first instance. Tell them that you do not consent to your phone being downloaded and that they should only download material that may contain information relevant to a prescribed offence;
- Remind them that they must make notes of the reason why they have examined and copied your phone; and
- You should then report it directly to your criminal defence lawyer to note on their file.
If you are currently charged with any criminal offences where evidence has been produced by Police, as a result of an ABF search of a phone, whether it is your phone or another person’s phone, you must ensure that your criminal defence lawyer subpoenas all of the records relating to the seizure, search and download of the phone. It may be that the evidence was illegally obtained because ABF did not have a lawful basis to download the phone and your lawyer should serious consider challenging the evidence and seek to have it excluded.
What Should I Do if I Think My Phone Has Been Downloaded by ABF?
If you are concerned that your phone has been downloaded by ABF, you should consider contacting our office to obtain some advice in relation to the lawfulness of the download, how it is being used and any concerns that you have in relation to the information contained on your device. We have a team of customs offence lawyers who can help.
