Can Border Force search my phone, and must I unlock it?

This page is about Commonwealth law — the Customs Act 1901 — and Australian Border Force policy, not state law. The state pages in this section cover separate statutes: New South Wales, Queensland and Victoria each have their own scheme.

Two questions get run together at the border, and they have different answers. The first is what an officer may do to examine goods under customs control, which is what s.186 of the Customs Act 1901 covers. The second is whether you must unlock your phone for them — and that one works differently.

Under s.186 of the Customs Act 1901, any officer may, subject to subsections (2) and (3), examine any goods subject to customs control, and the expense of the examination, including the cost of removal to the place of examination, is borne by the owner.

Under s.186A, if a document is examined under section 186 or 186AA and, as a result of that examination, an officer of Customs is satisfied that the document or part of the document may contain information relevant to an importation or exportation, or a proposed importation or exportation, of prohibited goods, the commission or attempted commission of any other offence against the Customs Act or of any offence against a prescribed Act, the performance of functions under section 17 of the Australian Security Intelligence Organisation Act 1979 or section 6 of the Intelligence Services Act 2001, or security, the officer of Customs may make a copy of, or take an extract from, the document, or arrange for another officer of Customs or other person having the necessary experience to make such a copy or take such an extract. The ABF’s written answer to the Senate committee, quoted below, refers to the examination of a device under the Customs or Migration acts — and the passcode question is separate.

The Customs Act sections quoted on this page do not mention a passcode. What this site has instead is a written answer (AE22-050) to a question taken on notice at the Senate Standing Committee on Legal and Constitutional Affairs’ Additional Budget Estimates hearing of 14 February 2022. In that answer the Australian Border Force said: “There is no legal compulsion for a traveller to provide a password/passcode or provide assistance to an electronic device at the border.”

That is an agency’s written answer to a parliamentary question, not a section of an Act, and not a court order such as a s.3LA order. It is reported here as what the ABF said, not as a rule of law.

The same written ABF answer said that if an individual refuses to comply with a request or provide a password for an examination of their electronic device, and an ABF officer considers there to be a risk to the border, the ABF officer is authorised to seize that device for further examination prior to being returned. The answer also said that the ABF has powers under the Customs Act 1901, the Migration Act 1958 and the Maritime Powers Act 2013 to examine and copy electronic devices, and that “None of the aforementioned legislation provide a time limit for the retention of goods subject to examination.” That is what the ABF said in its answer, not a section quoted from those Acts. It also said that “current ABF policy” was to retain electronic devices held for examination for no longer than 14 days, unless it is reasonable that the examination will take longer or content is located on the device that renders the device subject to seizure.

The same answer said the ABF does not alter or delete any data as a result of an examination of a device under the Customs or Migration acts, and that copied data can only be shared depending on the type of information and the specific legislation that applies to that type of information, such as Part 6 of the Australian Border Force Act, Privacy Act or Migration Act.

See how this compares with other countries, what to do before you travel, and the wider question of when you must give police the code generally.