Concerns regarding Border Force's search powers
It has been reported that the Australian Border Force searched more than 40,000 mobile phones and other data storage devices of travellers entering the country in just five years.
During 2021, border officials demanded passwords to examine 822 mobile phones belonging to people entering the country, sometimes copying data while holding the phones for lengthy periods.
The demand prompted some concerned travellers to ask whether Border Force was exceeding its powers to search travellers without giving a reason.
Border Force's legal authority to examine electronic devices
The powers laid out under the Customs Act leave room to argue generally that there is no legal obligation for people to hand over passwords to their electronic devices to Border Force.
But if you refuse to comply with a request to examine your phone or laptop, you might be held for what the Act says is "further enforcement action". This means you might not be leaving the airport for some time.
Under sections 186A and 203B of the Customs Act, Border Force does have the power to examine any goods entering Australia, including the contents of your mobile phone, laptop or SIM card.
"Risks to the border" as justification for Border Force inspections
If Border Force considers there is a "risk to the border", they can take away the device for further examination.
All they need to tell you is that they want to inspect the electronic device for "suspicious content". They don't have to say what that suspicious content is.
They can keep the device for as long as they deem necessary to examine it, but the agency says its policy is not to keep them for more than 14 days unless further examination is needed. (Please see Crossing the border, Australian Border Force.)
The "risk to the border" can include terrorism-related material, illegal pornography and media that has been, or would be, refused classification.
Border Force can question travellers and inspect goods for suspected breaches of immigration, customs, biosecurity, health, law enforcement or national security reasons. This can include breaches of visas, such as tourists illegally taking a job.
Border Force's role in law enforcement operations
A Border Force spokesman told the ABC: "Information seized from passengers' phones has contributed to the success of many domestic law enforcement operations targeting illegal activities." (Please see Border Force asks to search your phone when you are travelling back to Australia — what can you do? ABC News, 24 January 2022.)
Border Force can use technology such as Cellebrite or Grayshift to scan the contents of a phone or laptop without needing the password. The owner doesn't have to be present during the examination of the phone or laptop.
The agency has the legal power to make copies of documents related to any offence against a prescribed act, or information relevant to Australia's spy agencies. This may later be used in any charges laid for breaches of the Customs Act or Crimes Act.
But Border Force does not have the power to access files stored "in the cloud" without a warrant. Nor does it have the power to alter or delete data found while examining the device.
Differences between Border Force and state police powers
State police powers to search a phone are different. Under NSW law, police can stop and seize anything they suspect "on reasonable grounds" may break the law, such as carrying drugs, stolen goods or concealed weapons.
NSW Police do need "probable cause" to search a phone or vehicle and may need to demonstrate that they have a basis for their suspicion of an offence.
Molly Hayter
Criminal law
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
