EXPLANATORY STATEMENT
Issued by the Comptroller of the Indian Ocean Territories Customs Service
Customs Act 1901 (C.I) and Customs Act 1901 (C.K.I)
Comptroller (Warrants) Amendment Directions 2021
Authority
Section 183UC of the Customs Act 1901 (C.I.) and Customs Act 1901 (C.K.I.) provides that the Comptroller of the Indian Ocean Territories Customs Service may, by legislative instrument, give directions relating to the powers of officers under Division 1 of Part XII of the Acts.
Background
Customs Ordinances made under the Christmas Island Act 1958 and Cocos (Keeling) Islands Act 1955 establish the Indian Ocean Territories Customs Services (the IOTCS) in relation to each of the Territories.
The Customs Ordinances also apply the Customs Act 1901 (the Customs Act) in the Territories as if that Act were a law of the Territories, except to the extent that it purports to deal with duties of customs. In its application in the Territories, the Customs Act is modified in accordance with the Ordinances and is cited as the Customs Act 1901 (C.I) and the Customs Act 1901 (C.K.I) (the applied Customs Acts).
In particular:
- Division 1 of Part XII of the applied Customs Acts provide for the issuing of search and seizure warrants;
- Subdivision C of Division 1 of Part XII of the applied Customs Acts 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 applied Customs Acts 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 applied Customs Acts 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.
The Customs Ordinances provides for the IOTCS to consist of the Comptroller of the IOTCS and officers of Customs appointed by the Comptroller. The Comptroller-General of Customs is the Comptroller of the IOTCS, and the officers in the Australian Border Force are appointed as officers of Customs.
Section 183UC of the applied Customs Acts enables the Comptroller of the IOTCS to give, by legislative instrument, directions relating to the powers of officers of Customs under Division 1 of Part XII of the applied Customs Acts. Such directions are contained in the Comptroller Directions (Warrants) 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 Australian Border Force. 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 (Warrants) Amendment Directions 2021
This legislative instrument, entitled the “Comptroller (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 of the Indian Ocean Territories Customs Service