EXPLANATORY STATEMENT
CUSTOMS (NARCOTICS INQUIRIES) REGULATIONS (AMENDMENT)
1990 No. 131
The Customs (Narcotics Inquiries) Regulations (Amendment) substitute a new form of words for the addressing of warrants prescribed under the Customs (Narcotics Inquiries) Regulations. The amendment is not intended to do anything other than to clarify who may execute listening device warrants issued under the Customs Act 1901.
Under section 219B of the Act a nominated Judge may issue warrants in accordance with the prescribed form authorising the use of listening devices in relation to persons or premises. Section 219D provides that the authority conferred by a warrant may only be exercised by the Commissioner of the AFP or Chairman of the NCA or approved officers of those respective agencies.
The appropriateness of the wording of the form of warrant currently prescribed has recently been considered. Warrants prior to the making of this Amendment were addressed to: Officials of the AFP or NCA within the meaning of Division 1A of Part XII of the Customs Act 1901. This wording arguably directs the warrant to that class of persons as defined in section 219A, namely to each officer of the AFP or NCA and hence may not be consistent with the limitation placed by section 219D upon the class of persons authorised to exercise the warrant.
The amendment in the regulations will put beyond doubt the validity of warrants issued under the Customs Act by amending the address of the warrants so that it more accurately reflects the class of persons which the Act authorises to exercise a warrant’s authority.
Authorised by the Attorney-General
Overview
The Customs (Narcotics Inquiries) Regulations (Amendment) 1990 No. 131 was introduced to clarify and rectify the wording of warrants issued under the Customs Act 1901, specifically those that authorise the use of listening devices. This amendment was enacted by the Australian Parliament and aims to ensure the clarity and legal validity of warrants by accurately reflecting the class of persons authorised to exercise the warrant’s authority. Prior to this amendment, warrants were addressed to officials of the Australian Federal Police (AFP) or the National Crime Authority (NCA) within a specific division of the Customs Act, which may have been inconsistent with the limitations set out in the Act regarding who can exercise the authority conferred by such warrants. The amendment seeks to align the warrant wording with the policy objective of ensuring that only the appropriate authorised officers can legally execute these warrants, thereby maintaining the integrity and effectiveness of the law enforcement process.
Scope and Application
The Customs (Narcotics Inquiries) Regulations (Amendment) 1990 No. 131 serves to clarify the scope and application of warrants issued under the Customs Act 1901, specifically those related to the use of listening devices for narcotics inquiries. The amendment focuses on ensuring the wording of warrants aligns with the intended authorisation as specified by the Act, thereby rectifying any ambiguity that may have existed. These warrants are now explicitly addressed to the Commissioner of the Australian Federal Police (AFP) or the Chairman of the National Crime Authority (NCA), or approved officers of these agencies, as defined under section 219D of the Act, ensuring that only those authorised by the Act can execute the warrant’s authority. This amendment applies to all warrants issued under the Customs Act concerning narcotics inquiries and is intended to ensure compliance with the legal framework governing the use of listening devices in such contexts. The amendment does not extend the application of the Act but aims to refine the execution of existing provisions, ensuring clarity and precision in the legal instruments employed.
Key Provisions
The Customs (Narcotics Inquiries) Regulations (Amendment) 1990 No. 131 primarily focuses on modifying the form of words used in warrants issued for the use of listening devices under the Customs Act 1901. The amendment, as stated in section 219B, clarifies who is authorised to execute these warrants, ensuring the warrant is directed to the correct class of individuals. Prior to the amendment, warrants were addressed to officials of the Australian Federal Police (AFP) or the National Crime Authority (NCA) as defined in Division 1A of Part XII of the Customs Act 1901. However, this wording was found to potentially be inconsistent with the limitations set out in section 219D, which specifies that only the Commissioner of the AFP, the Chairman of the NCA, or approved officers of those agencies can exercise the authority conferred by a warrant. By amending the wording, the new regulation ensures that the warrants are directed to the appropriate individuals as defined by the Act.
The amended regulations impose clear obligations on the authorised individuals to correctly interpret and execute the warrants in accordance with the limitations set out in the Act. The warrant now specifically addresses the Commissioner of the AFP, the Chairman of the NCA, or their approved officers, ensuring that only those explicitly authorised under section 219D can exercise the warrant’s authority. This requirement ensures that the execution of the warrant remains within the legal confines prescribed by the Act, thereby maintaining the integrity and legality of the surveillance activities.
Failure to adhere to the new wording and limitations prescribed by the amendment could result in the warrant being deemed invalid, leading to potential legal complications. While the amendment itself does not introduce new offences, it does clarify the existing framework for warrant execution. The consequences of issuing or executing an invalid warrant could include civil liability for any resulting damages and potential criminal charges if the execution of the warrant was carried out with intent to cause harm or contravene the law. Although the amendment does not specify maximum penalties for these potential breaches, the existing provisions under the Customs Act and related legislation would apply.