EXPLANATORY STATEMENT
Statutory Rules of 1988 No. 199
Issued by the Authority of the Minister for Justice
Customs (Narcotics Inquiries) Regulations (Amendment)
Sub-sections 219A-K of the Customs Act 1901 were amended by the Crimes Legislation Amendment Act (No. 2) 1988 to empower the National Crime Authority (NCA) to apply in its own right for a warrant to use a listening device in narcotics investigations on the same basis as the Australian Federal Police (AFP). The National Crime Authority was established in 1984 by the Commonwealth Government to provide the focus for Commonwealth/State efforts to combat organised crime. The Authority has been granted coercive powers for investigations for which it has been granted a ‘special’ reference by the relevant Commonwealth Minister of a State Minister with the approval of the Inter-Governmental Committee. However, the Authority could not make an application in its own right for the use of listening devices to investigate drug offences. It was anomalous that the Authority was denied powers which are available to the AFP.
Sub-sections 219B(5) and 219B(7) of the Customs Act provide for the issuing of a warrant to use listening devices in relation to a particular person or in relation to particular premises in narcotics investigations. The Customs (Australian Federal Police Narcotic Inquiries) Regulations set out the form of warrants as prescribed in sub-sections 219B(5) and 219B(7) of the Customs Act.
The proposed amendments to the above Regulations reflect the amendments to the Customs Act by referring to both the Australian Federal Police and the National Crime Authority and their officials as defined in Section 219A of the amended Act.
Overview
The Customs (Narcotics Inquiries) Regulations (Amendment) Statutory Rules of 1988 No. 199 were enacted to address the discrepancy that prevented the National Crime Authority (NCA) from applying for warrants to use listening devices in narcotics investigations, despite the Australian Federal Police (AFP) having such authority. This legislative amendment was introduced to align the NCA's investigative powers with those of the AFP, ensuring that both entities could apply for the use of listening devices on the same basis. The objective of this regulation was to streamline the process for narcotics investigations by removing the anomaly that restricted the NCA's capabilities in this specific area. These Regulations were issued under the authority of the Minister for Justice and are a direct response to the amendments made to the Customs Act by the Crimes Legislation Amendment Act (No. 2) 1988.
Scope and Application
The Customs (Narcotics Inquiries) Regulations (Amendment) pertains to the use of listening devices in narcotics investigations, affecting both the Australian Federal Police (AFP) and the National Crime Authority (NCA). This legislative amendment, which extends to the Commonwealth jurisdiction, modifies the Customs Act 1901 by enabling the NCA to apply for a warrant to use listening devices on the same basis as the AFP. This change rectifies an inconsistency in the law, ensuring that both agencies have the same investigative tools available to them when dealing with drug offences. The Regulations detail the form of warrants to be issued under the amended Act, reflecting the inclusion of both the AFP and the NCA in the application process. The scope of this legislation is limited to narcotics investigations, and it does not explicitly outline any exclusions or exemptions, though it implicitly confines its application to the investigative powers of the specified agencies.
Key Provisions
The Customs (Narcotics Inquiries) Regulations (Amendment) pertain to the Customs Act 1901, specifically focusing on sections 219A-K, which were amended by the Crimes Legislation Amendment Act (No. 2) 1988. These amendments empower the National Crime Authority (NCA) to apply for a warrant to use a listening device in narcotics investigations, aligning their authority with that of the Australian Federal Police (AFP). This change was necessary as the NCA, established in 1984 to combat organised crime, was previously unable to independently apply for such warrants, despite having coercive powers for investigations approved by the relevant Ministers. The amendments rectify this inconsistency by ensuring both the NCA and AFP have the same investigative tools.
These regulations impose specific obligations on both the NCA and AFP when applying for a warrant to use listening devices. Both entities must adhere to the requirements outlined in sub-sections 219B(5) and 219B(7) of the Customs Act, which detail the process and conditions for issuing such warrants. The form and content of these warrants are prescribed in the Customs (Australian Federal Police Narcotic Inquiries) Regulations, ensuring consistency and legal compliance in their application. Furthermore, the regulations necessitate that any application for a warrant must be made in accordance with the provisions set out in the amended Customs Act, ensuring that both authorities act within their granted powers.
Breaches of the provisions set out in the Customs (Narcotics Inquiries) Regulations can lead to serious consequences. If an application for a warrant is found to be improperly made or if the use of a listening device is not in accordance with the warrant, this could result in legal action against the responsible officials. The potential penalties for such breaches are not explicitly stated in the regulations, but they could include fines, imprisonment, or other civil or criminal sanctions as determined by the relevant courts. It is imperative that both the NCA and AFP strictly adhere to the regulatory framework to avoid these repercussions.