Customs (Narcotics Inquiries) Regulations (Amendment) 1998 No. 15
EXPLANATORY STATEMENT
Statutory Rules 1998 No. 15
Issued by the authority of the Minister for Customs and Consumer Affairs
Customs Act 1901
Customs (Narcotics Inquiries) Regulations (Amendment)
Section 270 of the Customs Act 1901 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or matters necessary or convenient to be prescribed for carrying out or giving effect to the Act or for any business relating to the Customs.
The Customs (Narcotics Inquiries) Regulations prescribe the forms of judicial warrant authorising the use of listening devices by the Australian Federal Police or the National Crime Authority under Division 1A of Part XII of the Customs Act 1901 (the Act) for purposes connected with the investigation of narcotics offences. The Telecommunications (Interception) and Listening Device Amendment Act 1997 (the Amendment Act) amends the Act to provide, among other things, that the Minister administering Division 1A of Part XII of the Act - at present the Attorney-General or the Minister for Justice - may nominate certain members of the Administrative Appeals Tribunal (the AAT) to undertake the work of issuing listening device warrants to the Australian Federal Police and the National Crime Authority in connection with narcotics inquiries. Other amendments of the Act confer on AAT members the power to issue warrants once they have been duly nominated. The amendments to the Act commenced on 1 February 1998 by Proclamation.
The purpose of the Customs (Narcotics Inquiries) Regulations (Amendment) is to amend the forms of warrant to refer to nominated AAT members as persons capable of exercising the statutory authority to issue listening device warrants to the Australian Federal Police and the National Crime Authority. The amendments are required because the existing prescribed forms are based on the premise that only judges may issue wan-ants under Division 1A of Part XII of the Act References to judges will remain in the prescribed forms of warrant.
Details of the regulations are attached.
The regulations commenced on gazettal.
DETAILS OF THE CUSTOMS (NARCOTICS INQUIRIES) REGULATIONS (AMENDMENT)
Regulation 1: Amendment
This regulation gives effect to the amendments.
Regulation 2: Schedule 1 (Warrant under subsection 219B (5) in relation to a particular person)
This regulation inserts into the prescribed form references to 'a nominated AAT member (within the meaning of the Customs Act 1901)' in addition to the existing references to 'a Judge'. As a result of the amendment, the prescribed form of warrant, issued in respect of a particular person, refers to both 'a Judge' and 'a nominated AAT member' as alternative persons capable of exercising the statutory power to issue a listening device warrant to the Australian Federal Police or the National Crime Authority under Division 1A of Part XII of the Act.
Regulation 3: Schedule 1 (Warrant under subsection 219B (7) in relation to a particular premises)
This regulation makes the same amendments to the form prescribed for section 219B(7) of the Act. This form is prescribed for listening device warrants issued in respect of particular premises.
Overview
The Customs (Narcotics Inquiries) Regulations (Amendment) 1998 was enacted to address the gap in the Customs Act 1901 that arose following amendments introduced by the Telecommunications (Interception) and Listening Device Amendment Act 1997. The latter Act enabled the nomination of certain members of the Administrative Appeals Tribunal (AAT) to issue warrants for the use of listening devices in the investigation of narcotics offences, previously an exclusive power of judges. The Customs (Narcotics Inquiries) Regulations (Amendment) 1998, issued under the authority of the Minister for Customs and Consumer Affairs, modifies the existing warrant forms to reflect these legislative changes. The policy objective is to streamline the process of issuing warrants by allowing AAT members, in addition to judges, to authorise the use of listening devices, thereby enhancing efficiency and responsiveness in narcotics investigations. The regulations commenced upon gazettal, ensuring that the legal framework promptly adapts to the new roles assigned to AAT members.
Scope and Application
The Customs (Narcotics Inquiries) Regulations (Amendment) 1998 pertains to the amendment of the existing regulations under the Customs Act 1901, specifically addressing the forms of judicial warrants for the use of listening devices by the Australian Federal Police or the National Crime Authority in narcotics investigations. The amendment is necessitated by the Telecommunications (Interception) and Listening Device Amendment Act 1997, which allows the Minister administering Division 1A of Part XII of the Customs Act to nominate certain members of the Administrative Appeals Tribunal (AAT) to issue these warrants. The Act applies to both federal and state jurisdictions in Australia, as it deals with national law enforcement and customs matters. The regulations were made under the authority of the Minister for Customs and Consumer Affairs and came into effect upon gazettal, updating the forms to reflect the expanded authority of AAT members alongside judges. The amendment ensures that the prescribed forms of warrants now recognise nominated AAT members as capable of exercising the statutory power to issue these warrants, thereby extending the scope of who can authorise the use of listening devices in narcotics investigations.
Key Provisions
The Customs (Narcotics Inquiries) Regulations (Amendment) 1998 No. 15 primarily serves to update the forms of judicial warrants used for authorising the use of listening devices by the Australian Federal Police and the National Crime Authority under Division 1A of Part XII of the Customs Act 1901. These amendments are necessitated by the Telecommunications (Interception) and Listening Device Amendment Act 1997, which allows the Minister to nominate certain members of the Administrative Appeals Tribunal (AAT) to issue such warrants. Regulation 1 gives effect to these amendments, while Regulations 2 and 3 specifically alter the forms of warrants for individuals and premises respectively, to include references to 'a nominated AAT member' alongside 'a Judge'. These changes ensure that the warrant forms are compliant with the updated legal framework.
The Customs (Narcotics Inquiries) Regulations (Amendment) imposes specific obligations on the Australian Federal Police, the National Crime Authority, and nominated AAT members. These entities are now required to adhere to the updated warrant forms that include references to nominated AAT members as authorised to issue listening device warrants. This update aligns with the legislative changes introduced by the Telecommunications (Interception) and Listening Device Amendment Act 1998, ensuring that the processes for obtaining and executing warrants are in line with current law. It is imperative that these parties correctly follow the new procedures to maintain the integrity and legality of the narcotics investigations they are involved in.
Under the Customs (Narcotics Inquiries) Regulations (Amendment), there are no explicit offences or penalties outlined for breaches of the regulations themselves. However, misuse or improper execution of listening device warrants could potentially lead to legal repercussions under the broader Customs Act 1901 and other related legislation. For instance, if a warrant is issued or executed in a manner that contravenes the statutory requirements or the law, the individuals involved could face criminal charges or civil penalties. The precise penalties would depend on the nature and severity of the breach, but they could include fines or imprisonment in cases of criminal offences.