I was recently asked whether Australian Border Force (ABF) had powers to stop an incoming passenger and require them to hand over their electronic devises and provide passwords.
The short answer is that you are required to hand up electronic devices. Under s186 Customs Act 1901 (“the Customs Act”), ABF officers can search goods being carried by passengers and without a warrant to do so. hand over their electronic devices or device.
Section 186A of the Act allows ABF officials to take an electronic copy of a document stored
on the electronic device if it relates to a potential criminal offence or is simply of interest to
Australia’s intelligence agencies. While Section 186 of the Customs Act applies to Australian
citizens section 252 of the Migration Act 1958 (“the Migrations Act”) applies to noncitizens
entering Australia.
No obligation to provide your passwords
The ABF do not however, have the powers to require a passenger to disclose the password to said devices. The ABF have the powers under the Customs Act to keep the device for 14 days which in most cases will cause the passenger a degree of hardship.
To save the hardship of having you electronic devices seized at the airport only to be returned after 14 days it may be more prudent to give the ABF your password/s in cases where you have no fear that unlawful material is stored on the device.
If in doubt, speak to an experienced criminal lawyer to assist you.
