EXPLANATORY STATEMENT

CEO Directions No. 2 of 2015

Customs Act 1901 (C.I.) and Customs Act 1901 (C.K.I.)

Subsection 4(4) of the Customs Administration Act 1985 (C.I.) and Customs Administration Act 1985 (C.K.I.) (the applied Administration Acts) provide that the Comptroller of the Indian Ocean Territories Customs Service (the Comptroller) may give directions to customs officers of the Indian Ocean Territories Customs Service.  Subsection 183UC(1) of the Customs Act 1901 (C.I.) and subsection 183UC(1) of the Customs Act 1901 (C.K.I.) (the applied Customs Acts) provide that, without limiting the generality of subsection 4(4) of the applied Administration Acts, the Comptroller may give directions concerning:

-            the circumstances in which the powers under Division 1 of Part XII of the applied Customs Acts may be exercised; and

-            the officers of Customs who are entitled to exercise those powers; and

-            the manner and frequency of reporting to the Comptroller concerning the exercise of those powers.

Subsection 183UC(2) of the applied Customs Acts 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

In 2001, responsibility for the administration of the Customs in the Territories of Christmas Island and Cocos (Keeling) Islands (the Territories) was transferred to the Australian Customs and Border Protection Service.  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 IOTCS consists of the Comptroller and customs officers.  The then Minister for Justice and Customs appointed the Chief Executive Officer of Customs to be the Comptroller of the IOTCS.  The Comptroller can appoint persons to be customs officers. 

The Customs Ordinances also apply the Customs Act 1901 (the Customs Act), as in force on 18 July 2005, 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).  Similarly, the Customs Administration Act 1985 applies in the Territories and is cited as the Customs Administration Act 1985 (C.I.) and the Customs Administration Act 1985 (C.K.I).

Section 189A of the applied Customs Acts provides authority for customs officers of the IOTCS to carry arms in certain circumstances.

Subsection 189A(2) provides that, without limiting the matters that may be the subject of directions under subsection 4(4) of the applied Administration Acts as modified by section 183UC of the applied Customs Acts, the Comptroller may give directions relating to:

(a)   the circumstances in which approved firearms and other approved items of personal defence equipment may be issued; and

(b)   the circumstances in which such firearms and other items of equipment are to be recalled; and

(c)    the circumstances in which such firearms and other items of equipment can be used and the manner of their use; and

(d)   the nature of the secure storage of such firearms and other items of equipment when recalled; and

(e)   any other matters relating to the deployment of such firearms and other items of equipment the Comptroller thinks appropriate.

Directions

CEO Directions No. 2 of 2015 (the Directions) contain directions made in accordance with subsection 189A(2) of the applied Customs Acts and provide for the operation of the Use of Force Order (2015) (the 2015 Order) in the Territories.  The 2015 Order contains an updated policy on the use of force and may be obtained from the Australian Customs and Border Protection Service. 

As a result, the Directions will:

(a)   revoke CEO Directions No. 1 of 2012, dated 14 August 2012, which provided for the operation of CEO Order 1 (2010) - Use of Force in the Territories; and

(b)   extend the operation of the 2015 Order to customs officers in the Territories by providing identical directions to those given to officers of Customs in CEO Direction No. 1 of 2015 under section 189A of the Customs Act 1901. 

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 Directions will take effect on the day after they are registered on the Federal Register of Legislative Instruments.

Statement of Compatibility with Human Rights

(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

CEO Directions No. 2 of 2015 (incorporating the Use of Force Order (2015))

CEO Directions No. 2 of 2015 (the Directions) and the Use of Force Order (2015) (the Order) are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

An overview of the human rights implications of the Directions and the Order is below.

Overview

In accordance with section 189A(2) of the Customs Act 1901 (C.I) and the Customs Act 1901 (C.K.I) (the applied Customs Acts), the Comptroller of the Indian Ocean Territories Customs Service (IOTCS) may give directions relating to the deployment of approved firearms and other approved items of personal defence equipment (PDE). 

The Directions set out such directions by reference to complying with requirements set out in the Order.  They impose the same obligations on customs officers of the Indian Ocean Territories of Christmas Island and Cocos (Keeling) Islands in relation to the deployment and use of firearms and items of personal defence equipment, and the use of force in the performance of duties, that apply to officers of Customs in mainland Australia.

The Order provides a policy framework for the issue and use of approved firearms and other items of PDE to authorised officers of Customs in the exercise of their statutory powers.  It covers competency standards, the accreditation of trainers, the qualification and re-qualification of officers of Customs in operational safety, reporting mechanisms, and management structures for the training and monitoring of operational safety in the Australian Customs and Border Protection Service (ACBPS).  It also includes the requirement for the safe handling of firearms and other items of PDE.  The ACBPS Operational Safety Principles and Use of Force Model is detailed in the Order and guides officers of Customs in the use of appropriate force in the exercise of statutory powers.  It provides that the ACBPS policy is for the minimum amount of force to be used that is reasonable and appropriate for the effective exercise of statutory powers.  It also emphasises the use of negotiation and conflict de-escalation in any interaction between officers of Customs and members of the public.  Any use of force against another person by an officer of Customs in the course of their duties, must be in accordance with the Order.

The Directions will replace CEO Direction No. 1 of 2012 which applied CEO Order 1 (2010) – Use of Force in the IOTCS in Christmas Island and Cocos (Keeling) Islands.  The new Directions and Order have been updated to include amendments based on a transition to the Australian Federal Police (AFP) operational safety training model and the recent re-structure of the ACBPS.

Human Rights Implications

The Order promotes the following human rights:

Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

The Order promotes the right to safe and healthy working conditions in Article 7(b) of the ICESCR by: 

(a)   Ensuring that appropriate technical and vocational guidance and training programmes are provided to officers of Customs to enable them to safely use firearms and other items of PDE in the exercise of their statutory powers;

(b)   Promoting safe and healthy working conditions for the use of force by officers of Customs (for example, providing officers who patrol remote areas with appropriate PDE for protection from assault by other persons and emphasising that ACBPS considers the safety of officers of Customs and members of the public to be of paramount importance); and

(c)    Ensuring that persons injured or affected by use of force situations receive appropriate medical attention as soon as practicable.

Article 6 of the International Covenant on Civil and Political Rights (ICCPR)

Article 6 of the ICCPR accords every human being the inherent right to life.  Under the Order principles of negotiation and conflict de-escalation are always emphasised as the first consideration prior to using physical force.  The Directions and Order promote the inherent right to life as they only direct officers of Customs to use lethal force when reasonably necessary (noting that they must act appropriately and in proportion to the seriousness of the circumstances), when other options are insufficient and only in self-defence from the immediate threat of death or serious injury or in defence of others against who there is an immediate threat of death or serious injury.  The Order specifically states that lethal force is an option of last resort, and that an officer of Customs who considers using lethal force must do so with a view to preserving human life. 

The Order also directs that if an officer of Customs uses force against another person, they must ensure that any person injured or affected by the use of force receives appropriate medical attention.  This further promotes the inherent right to life. 

Articles 7 and 10 of the ICCPR

These two articles provide the right for individuals to be free of cruel, inhuman or degrading treatment, as well as the right to be treated with humanity and respect when deprived of liberty. 

The Order promotes these rights by:

(a)   Directing that it is ACBPS policy for officers of Customs to use the minimum amount of force reasonable and appropriate for the effective exercise of statutory powers;

(b)   Ensuring that only those officers who have completed operational safety training are approved to use items of PDE and firearms; and

(c)    Providing additional controls to suspend and / or revoke an officer’s permit to carry firearms and PDE if:

(i)      the officer is served with an interim domestic violence protection order, a domestic violence protection order, a restraining order, or any court order relating to the possession of an official or private firearm or PDE (note that where an officer of Customs is served with any of these orders, they are required to immediately report the fact and supply a copy of the order to his or her Manager or Director);

(ii)    the decision maker has reasonable concern that the officer is unfit or unsuitable to carry, access or use approved firearms and approved items of PDE;

(iii)  the officer is suspended from duty; or

(iv)  the decision maker reasonably considers that the officer is unfit to hold the authority.

The current approved operational safety training package contains a module on human rights which links the conditions of the Order with, inter alia, international human rights conventions.   The ACBPS operational safety principles and use of force model specifically refers to the expectation that officers of Customs will utilise negotiation and conflict de-escalation as a first option before considering the use of force. 

The Order also promotes:

1. Article 24 of the ICCPR – the right of a child to be afforded protection required by his status as a minor; and

2.      Article 40 of the Convention on the Rights of the Child (CRC) – the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth,

because an officers of Customs may only use necessary and reasonable force in the exercise of statutory powers.

The Order also contains specific directions on situations where children and young people may be handcuffed, in particular, that handcuffs may not be used on children or young people unless an officer of Customs believes on reasonable grounds it is essential to safely transport the child to protect the welfare and/or security of the child or any other person.  In promoting Article 24 of the ICCPR and Article 40 of the CRC an officer of Customs must consider the following before deciding whether or not to handcuff a child or young person:

• whether the person in custody is violent, or believed to be violent, or his or her demeanour gives rise to the apprehension of violence;
• whether the person in custody has attempted, or is likely to attempt to escape;
• whether the person in custody is required to be escorted with other detainees;
• the necessity to prevent the person in custody from injuring him or herself, or any other person;
• the necessity to restrain the person in custody to prevent the loss, concealment or destruction of evidence; or
• whether the person threatens to expel a bodily fluid or has done so.

Conclusion

This legislative instrument is compatible with human rights as it applies and seeks to promote a number of human rights in the ICESCR, ICCPR and CRC. 

Comptroller of the Indian Ocean Territories Customs Service