EXPLANATORY STATEMENT
Issued by the Comptroller-General of Customs
Customs Act 1901
Comptroller-General of Customs (Warrants) Amendment Directions 2021
Authority
Section 183UC of the Customs Act 1901 (the Act) provides that the Comptroller-General of Customs may, by legislative instrument, give directions relating to the powers of officers under Division 1 of Part XII of the Act.
Background
Division 1 of Part XII of the Act provides for the issuing of search and seizure warrants.
In particular:
- Subdivision C of Division 1 of Part XII of the Act enables a judicial officer to issue a warrant to search premises or a person if there are reasonable grounds for suspecting that there is, or within the next 72 hours will be, evidence relating to an offence on or in the premises or in the person’s possession;
- Subdivision D of Division 1 of Part XII of the Act enables a judicial officer to issue a warrant to seize goods on or in particular premises if satisfied that an authorised person has reasonable grounds for suspecting that the goods are forfeited goods and the goods are, or within the next 72 hours will be, on or in the premises and are required to be seized; and
- Subdivision DA of Division 1 of Part XII of the Act enables a judicial officer to issue a warrant to seize goods on or in a particular premises if satisfied that an authorised person has reasonable grounds for suspecting that the goods are forfeited goods and the goods are, or within the next 72 hours will be, on or in the premises and the goods have been or will be brought into Australia on a ship or aircraft and are intended to be kept on board the ship or aircraft for shipment on to a place outside Australia.
Section 183UC of the Act enables the Comptroller-General of Customs to give, by legislative instrument, directions relating to the powers of officers under Division 1 of Part XII of the Act. Such directions are contained in the Comptroller-General of Customs (Warrants) Directions 2015 (the Directions).
The Directions make provision in relation to the application for, and execution of, search and seizure warrants. The Directions refer specifically to officers in the Enforcement Command of the Department.
Purpose
On 1 December 2021, the Australian Border Force will be restructured. As a result, the Directions are being updated so that they reflect the Australian Border Force’s structure as at that date.
In particular, the provisions are being redrafted to apply to ABF Investigators and to other officers of Customs applying for and executing warrants, rather than by reference to the names of particular parts of, or positions of SES employees in, the Australian Border Force.
The Directions are also being updated to add higher‑level Diploma qualifications that may be held by ABF Investigators and to make other minor technical changes to the Directions, including to reporting requirements.
Consultation
The amendments contained in the Amendment Directions only affect officers in the Department. As such, the amendments are minor and of a machinery nature, and consultation was not appropriate.
Commencement
The Amendment Directions commence on 1 December 2021.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Comptroller-General of Customs (Warrants) Amendment Directions 2021
This legislative instrument, entitled the “Comptroller-General of Customs (Warrants) Amendment Directions 2021” (the Amendment Directions), is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
The Amendment Directions amends the Comptroller Directions (Warrants) 2015 (the Directions) to reflect the Australian Border Force’s structure following the restructure taking effect on 1 December 2021.
The Directions make provision in relation to the application for, and execute of, search and seizure warrants. The Directions refer specifically to officers in the Enforcement Command of the Department.
As a result, the Directions need to be updated so that they apply to ABF Investigators and to other officers of Customs applying for and executing warrants, rather than by reference to the names of particular parts of, or positions of SES employees in, the Australian Border Force.
The Amendment Directions also make changes to add higher‑level Diploma qualifications that may be held by ABF Investigators, and to make other minor technical changes, including to reporting requirements.
Human Rights implications
The Amendment Directions do not engage, impact on or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
The Amendment Directions are compatible with human rights as they do not raise any human rights issues.
Comptroller-General of Customs
Overview
The Comptroller-General of Customs (Warrants) Amendment Directions 2021 amend the Comptroller-General of Customs (Warrants) Directions 2015 to address the structural changes within the Australian Border Force (ABF) set to take effect on 1 December 2021. The Customs Act 1901 empowers the Comptroller-General of Customs to issue directions regarding the powers of officers under Division 1 of Part XII, which pertains to the issuance of search and seizure warrants. The 2021 Amendment Directions update these provisions to align with the new structure of the ABF, particularly affecting ABF Investigators and other Customs officers involved in applying for and executing warrants. This amendment ensures the Directions remain relevant and applicable to the current organisational setup. Additionally, the Directions are updated to incorporate higher-level Diploma qualifications for ABF Investigators and include other minor technical adjustments, such as modifications to reporting requirements. These changes are designed to maintain operational efficiency and legal compliance within the Customs enforcement framework.
The Amendment Directions were issued under Section 183UC of the Customs Act 1901 and are intended to update the Comptroller-General of Customs (Warrants) Directions 2015 in light of the impending restructure of the Australian Border Force. Given that these amendments are internal to the Department and do not impact external stakeholders, consultation was deemed unnecessary. The changes are set to commence on 1 December 2021, the date the new ABF structure will be implemented. The Amendment Directions also include a Statement of Compatibility with Human Rights, confirming that they do not engage with, impact on, or limit any human rights and freedoms recognised or declared in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011.
Scope and Application
The Comptroller-General of Customs (Warrants) Amendment Directions 2021 applies to officers involved in the application for and execution of search and seizure warrants under the Customs Act 1901. Specifically, these Directions are tailored to reflect the new structure of the Australian Border Force, effective from 1 December 2021, and hence pertain to ABF Investigators and other Customs officers involved in warrant-related activities. These Directions do not extend to the general public or entities outside the enforcement command of the Department. The jurisdictional reach of these Directions is limited to Commonwealth operations, impacting primarily officers within the Australian Border Force. The Amendment Directions make no exclusions, exemptions, or thresholds but focus on updating the Directions to align with the restructured roles and qualifications within the force. The Directions also incorporate higher-level Diploma qualifications for ABF Investigators and make minor technical changes to reporting requirements. Any further application or restrictions of these Directions are to be determined through subordinate instruments as needed.
Key Provisions
The Comptroller-General of Customs (Warrants) Amendment Directions 2021 (F2021L01650) amends the Comptroller Directions (Warrants) 2015 to reflect the structural changes within the Australian Border Force (ABF) effective from 1 December 2021. Section 183UC of the Customs Act 1901 empowers the Comptroller-General of Customs to issue directions regarding the powers of officers under Division 1 of Part XII of the Act, which governs the issuance and execution of search and seizure warrants. The amendment is necessary because the ABF restructuring necessitates updates to the directions to apply to ABF Investigators and other relevant Customs officers instead of referencing specific parts or positions within the ABF.
The Amendment Directions require that applications for and the execution of search and seizure warrants be updated to reflect the new ABF structure. The Directions now apply to ABF Investigators and other officers of Customs rather than referencing specific parts or positions of SES employees in the ABF. This update ensures that the legal framework remains aligned with the current organisational structure of the ABF. Additionally, the Amendment Directions include changes to account for higher-level Diploma qualifications held by ABF Investigators and make minor technical adjustments to reporting requirements.
The Amendment Directions impose obligations on officers within the ABF to ensure they adhere to the updated procedures outlined in the Directions. These obligations include ensuring that applications for search and seizure warrants comply with the revised requirements and that warrants are executed in accordance with the updated legal framework. Officers must also ensure they meet the specified qualifications and reporting requirements as outlined in the Directions.
Breaches of the Amendment Directions may have both civil and criminal consequences, depending on the nature and severity of the offence. Civil penalties may include fines and other financial penalties, while criminal penalties may include imprisonment. The exact penalties depend on the specific breach and the relevant provisions of the Customs Act 1901. The Amendment Directions do not specify maximum penalties but refer to the existing provisions under the Act, which may impose significant financial and custodial penalties for serious breaches.