As Australians travel overseas again, with COVID-19 border restrictions easing, on the way home they could be stopped by Australian Border Force (ABF) officials for a search of their belongings.
Say Border Force officials want to search your phone, and take it into another room while they do so — can you refuse?
Yes, according to both an ABF spokesperson and a lawyer, but that could lead to you being detained.
The ABF spokesperson says individuals can refuse to comply with a request for an examination of an electronic device, but you might be "referred for further law enforcement action".
Daniel Hannay, director of Hannay Lawyers, said if you refused a search, the ABF had the power to detain you and then search those items.
What can they search or seize?
The agency has powers to examine any goods at the border, including electronic documents and photos on mobile phones and other personal devices, the ABF spokesperson said.
"ABF officers may question travellers and examine goods if they suspect the person or goods may be of interest for immigration, customs, biosecurity, health, law enforcement or national security reasons," the spokesperson said.
"Information seized from passengers' phones has contributed to the success of many domestic law enforcement operations targeting illegal activities.
"The ABF exercises its functions and powers at the border in order to protect the Australian community and deliver its mission to enable legitimate travel and trade."
The spokesperson said if a passenger had any concerns about questioning or examination, they were entitled to raise these with the officer or their supervisor at the time of questioning and could provide feedback through the Department of Home Affairs website.
"All complaints are acknowledged, taken seriously and, where necessary, investigated," the spokesperson said.
What could they do with your phone data?
After examining an item, ABF officers may copy a document where they are satisfied it could contain information about prohibited goods, an offence against the Customs Act, or a security matter.
A document is considered to include information stored on mobile phones, SIM cards, laptops, personal electronic recording apparatus and computers.
There is no requirement for a person to be present when a document, such as one on your phone, is being copied.
Is it possible to request stored data be deleted?
Mr Hannay said after the search, if you're let through, you could later ask the ABF to delete the data stored.
"You can make an application and apply to Customs to have whatever has been extracted, deleted," he said.
"If they search, if there's a reasonable suspicion, and then you're allowed through, well then the basis of that would be that they found nothing on there that's subject to Customs' control or a breach of an offence under the Crimes Act.
"If it's the case, that it is a seize and search, and then they search those items and there's something on there that they think amounts to an offence on the Crimes Act, then they will keep those items.
"The reality is [in that case] that you'll most likely be charged with an offence under the Crimes Act or one of the Customs Act or Duties Act by the Australian Federal Police."
Mr Hannay said it then became a question of whether or not you wanted to defend those charges later in court.
What agencies can access that stored data?
Mr Hannay said any Commonwealth agency had the power to access that data, and they had the power to provide it to a state agency.
What can you bring into Australia?
Check the Australian Border Force website to see what you can and cannot bring with you into Australia.
This article is general in nature and individuals are encouraged to seek information from the Australian Border Force website or their own legal advice.
