EXPLANATORY STATEMENT
CEO Directions No 2 of 2006
Customs Act 1901
Subsection 4(4) of the Customs Administration Act 1985 (the Administration Act) provides that the CEO of Customs (the CEO) may give directions to Customs officers. Subsection 183UC(1) of the Customs Act 1901 (the Act) provides that, without limiting the generality of subsection 4(4) of the Administration Act, the CEO may make directions relating to the powers of officers under Division 1 of Part XII of the Act. Subsection 183UC(2) of the Act provides that such directions are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. Under subparagraph 6(d)(i) of the Legislative Instruments Act 2003, disallowable instruments are legislative instruments.
Background
Subsections 184B(6) and 184C(3) of the Act provide statutory authority for the use of force by Customs officers in certain circumstances. Those circumstances are defined in section 185 and include the use of reasonable and necessary force, consistent with international law, to enable the boarding of vessels, including the firing of a gun as a signal and firing at or into a vessel.
Directions
CEO Directions No 2 of 2006 (the Directions) make directions in accordance with section 183UC of the Act and provide for the operation of CEO Order 2 (2006) - Rules of Engagement, which contains the mechanism for developing both general and specific Rules of Engagement for Customs marine units. CEO Order 2 (2006) - Rules of Engagement is not intended to be made publicly available on the basis that it is classified (owing to its operational sensitivity), and unauthorised access could prejudice operational security and officers’ actions in the event of an operational incident.
The instrument making the Directions also revokes CEO Directions No 2 of 2005 which provided for the operation of CEO Order 2 - Rules of Engagement. CEO Order 2 (2006) - Rules of Engagement contains Customs’ updated policy on the use of force. Due to the operation of section 14 of the Legislative Instruments Act 2003, it is necessary to remake the Directions to ensure that they incorporate the updated CEO Orders.
Consultation
No consultation was undertaken under section 17 of the Legislative Instruments Act 2003 before the Directions were made as they are of a minor or machinery nature and do not substantially alter existing arrangements.
Commencement
The instrument will take effect on the day after it is registered.
Overview
CEO Directions No 2 of 2006 were enacted to align with the Customs Act 1901 and the Customs Administration Act 1985, which empower the CEO of Customs to provide directions to Customs officers. These directions, particularly those concerning the Rules of Engagement for Customs marine units, were introduced to address the need for updated policies on the use of force by Customs officers, including the use of reasonable and necessary force, in line with international law. This was necessary to replace the outdated CEO Directions No 2 of 2005 with the more current CEO Order 2 (2006) - Rules of Engagement, which was deemed too sensitive and operationally critical to be made publicly available. The Directions were made under the authority of the Parliament of Australia and were not subject to consultation as they were considered minor adjustments to existing machinery. The instrument will take effect immediately upon registration, ensuring that Customs officers have the most recent guidelines for their operational activities.
Scope and Application
CEO Directions No 2 of 2006 applies to Customs officers under the authority granted by the Customs Act 1901, and specifically pertains to the powers and operations of Customs marine units as outlined in CEO Order 2 (2006) - Rules of Engagement. These directions are designed to govern the mechanisms for developing general and specific Rules of Engagement, which dictate the use of force by Customs officers in maritime operations. The Directions are applicable nationally, given the overarching jurisdiction of the Commonwealth in matters related to Customs and border protection. However, the specific Rules of Engagement are classified and not publicly available to protect operational security. The Directions do not apply to any persons or entities outside the scope of Customs officers and their maritime operations, and they do not extend beyond the national jurisdictional reach of Australia. The Directions are a disallowable instrument, meaning they can be reviewed and potentially disallowed by Parliament. No consultation was required prior to their creation as they are considered minor or machinery in nature. The Directions took effect the day after their registration.
Key Provisions
CEO Directions No 2 of 2006, under section 183UC of the Customs Act 1901, provide the operational framework for Customs officers regarding their powers, particularly focusing on the use of force in maritime operations. These directions specifically pertain to the enforcement mechanisms detailed in CEO Order 2 (2006) - Rules of Engagement, which delineate the conditions under which Customs marine units can employ force. This encompasses the use of reasonable and necessary force, consistent with international law, to facilitate boarding of vessels, including the use of firearms for signaling and in defensive measures. The Directions are crucial for ensuring that Customs officers are guided by a clear, legally sanctioned framework when dealing with potentially hazardous situations at sea.
The obligations imposed by these directions on Customs officers and the entities they govern are significant. Officers must adhere strictly to the Rules of Engagement as outlined in CEO Order 2 (2006), ensuring that any use of force is justified and proportionate to the threat. This includes meticulous documentation and reporting of any incidents involving the use of force, to maintain transparency and accountability. The Directions also necessitate that officers undergo appropriate training to understand and apply the Rules of Engagement effectively, ensuring they are prepared for real-world scenarios.
Breach of these directions and the associated Rules of Engagement can lead to serious consequences. If Customs officers fail to comply with the stipulations on the use of force, they may face disciplinary action, including potential termination of employment. Additionally, there are legal ramifications for actions that exceed the boundaries set by the Directions, which could result in criminal charges for unlawful use of force or other related offences. The severity of penalties would depend on the nature of the breach and could include substantial fines and imprisonment, underscoring the importance of adherence to these operational guidelines.