EXPLANATORY STATEMENT
Issued by authority of the Comptroller of the Indian Ocean Territories Customs Service
Customs Act 1901 (C.K.I) and Customs Act 1901 (C.I)
Customs (Warrants—Cocos (Keeling) Island and Christmas Island) Directions 2025
Legislative authority
Customs Ordinances made under the Christmas Island Act 1958 and Cocos (Keeling) Islands Act 1955 apply the Customs Act 1901 (the Customs Act) in the Territories as if the Customs Act were a law of the Territories, except to the extent that it purports to deal with duties of customs. The application of the Customs Act in the Territories 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) (the Acts).
Sections 183UC of the Customs Act 1901 (C.K.I.) and section 183UC of the Customs Act 1901 (C.I.) provide that the Comptroller-General of Indian Ocean Territories Customs Service (the Comptroller) may, by legislative instrument, give directions concerning:
- the circumstances in which the powers in Division 1 of Part XII in both of the Acts may be exercised;
- 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 these powers.
Subsection 33(3) of the Acts Interpretation Act 1901 (the AIA) provides that, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.
Background
The Customs Ordinances establish the Indian Ocean Territories Customs Service (the IOTCS) in relation to each of the Indian Ocean Territories. The Customs Ordinances provide for the IOTCS to consist of the Comptroller and officers of Customs appointed by the Comptroller. The Comptroller-General of Customs is the Comptroller of the Indian Ocean Territories Customs Service, and the officers in the Australian Border Force (ABF) are appointed as officers of Customs.
The Customs Ordinances apply the Customs Act in the Territories as if the Customs Act were a law of the Territories, except to the extent that it purports to deal with duties of customs.
The Acts concern customs-related functions and contain the legislative authority that set out the customs requirements for the importation of goods into, and the exportation of goods from, the Indian Ocean Territories.
Division 1 of Part XII in both of the Acts provides for the issuing of search and seizure warrants. In particular:
- Subdivision C enables a judicial officer to issue a warrant to search premises or a person if there are reasonable grounds for suspecting that there is, or within the next 72 hours will be, evidence relating to an offence on or in the premises or in the person’s possession;
- Subdivision D enables a judicial officer to issue a warrant to seize goods on or in particular premises if satisfied that an authorised person has reasonable grounds for suspecting that the goods are forfeited goods, and the goods are, or within the next 72 hours will be, on or in the premises and are required to be seized; and
- Subdivision DA enable a judicial officer to issue a warrant to seize goods or in a particular premises if satisfied that an authorised person has reasonable grounds for suspecting that the goods are forfeited goods, and the goods are, or within the next 72 hours will be, on or in the premises and the goods have or will be brought into Australia on a ship or aircraft and are intended to be kept on board the ship or aircraft for shipment on to a place outside Australia.
Sections 183UC of the Customs Act 1901 (C.K.I.) and section 183UC of the Customs Act 1901 (C.I.) enable the Comptroller of the IOTCS to give, by legislative instrument, directions relating to the powers of officers under Division 1 of Part XII in both of the Acts. For the purposes of section 183UC of the Customs Act 1901 (C.K.I.) and section 183UC of the Customs Act 1901 (C.I.), the Comptroller Directions (Warrants) 2015 (the Previous Instrument) specified directions relation to the powers of officers to issue warrants under Division 1 of Part XII of both of the Acts, including circumstances where powers of that Division can be exercised, who may exercise these powers and the manner and frequency of the reporting requirements to the Comptroller.
Purpose and effect
The Previous Instrument sunsets on 1 October 2025, and as such, is automatically repealed by operation of Part 4 of the Legislation Act 2003 (the Legislation Act).
The purpose and effect of the Customs (Warrants—Cocos (Keeling) Island and Christmas Island) Directions 2025 (the 2025 Instrument) is to remake the Previous Instrument, in order to ensure the powers of officers of Customs under Division 1 of Part XII in both of the Acts continue to be exercised appropriately and in accordance with the previous arrangements.
The 2025 Instrument does not change the scope of the Previous Instrument and will continue to ensure consistent compliance with legal obligations and operational standards in the application and execution of warrants conducted by the ABF. This includes outlining the process for applying and executing search warrants and seizure warrants, the eligibility requirements that officers of Customs must satisfy to perform their duties, and the reporting requirements that the officers of Customs must complete.
Consultation
The 2025 Instrument substantially replicates what was provided for in the Previous Instrument. Any changes that have been implemented as part of the 2025 Instrument are structural in nature and do not themselves change the scope of powers of officers of Customs.
Internal consultation has occurred across the ABF. No external consultation was undertaken as the 2025 Instrument does not impose any new obligations or regulatory burdens on external parties and continues to apply only to internal ABF operations.
Details and operations
Details of the 2025 Instrument are set out in Attachment A.
The 2025 Instrument is a disallowable legislative instrument under section 42 of the Legislation Act.
The 2025 Instrument commences on 1 October 2025.
Other matters
A Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment B.
Attachment A
Details of the Customs (Warrants - Cocos (Keeling) Island and Christmas Island) Directions 2025
Part 1—Preliminary
Section 1 Name
This section provides that the name of the 2025 Instrument is the Customs (Warrants—Cocos (Keeling) Island and Christmas Island) Directions 2025 (2025 Instrument).
Section 2 Commencement
This section has the effect that the 2025 Instrument commences on 1 October 2025.
Section 3 Authority
This section provides that the authority to make the 2025 Instrument is section 183UC of the Customs Act 1901 (C.K.I) and section 183UC of the Customs Act 1901 (C.I) (the Acts).
Section 4 Definitions
Section 4 provides the meaning of defined terms used in the 2025 Instrument.
The note at the start of section 4 provides that certain definitions used in the 2025 Instrument, being the definitions of ‘authorised person’, ‘judicial officer’ and ‘person assisting’ are defined in section 183UA of the Customs Act 1901 (C.K.I.) and section 183UA of the Customs Act 1901 (C.I.).
The term ABF Investigator is defined to mean an officer of Customs who holds, occupies or performs the duties of the position of an investigator in the Australian Border Force.
The term Australian Border Force (ABF) has the same meaning as the Australian Border Force Act 2015.
The term Acts means the Customs Act 1901 (C.K.I.) and the Customs Act 1901 (C.I.).
The term Case Manager is defined to mean the officer supervising an investigation relevant to a particular warrant. By way of example, an officer in the ABF who holds, occupies or performs the duties of an inspector or supervisor could be a case manager.
The term Case Officer is defined to mean the officer responsible for conducting the investigation relevant to the warrant. By way of example, an officer in the ABF who holds, occupies or performs the duties of a Senior Border Force officer or a supervisor could be a case officer.
The term Comptroller means Comptroller of the Indian Ocean Territories Customs Service.
The term Legal Group is defined to mean the organisational unit by that name within the Department of Home Affairs that provides legal services to officers of Customs.
The term Officer in Charge (OIC) is defined to mean the highest-ranking officer on duty at a regional section undertaking the warrants at the time. By way of example, the officer in a regional ABF unit that holds, occupies or performs the duties of an inspector or superintendent may be the OIC.
The term Officer of Customs is defined to have the same meaning as defined in section 4 of the Customs Act 1901 (C.K.I) and section 4 of the Customs Act 1901 (C.I.).
The term SES employee is defined to have the same meaning as the Public Service Act 1999.
The term warrant is defined to mean a search warrant or a seizure warrant obtained through an application in the instrument, and within the meaning of section 183UA of the Customs Act 1901 (C.K.I.) and section 183UA of the Customs Act 1901 (C.I.).
Section 5 Schedules
Section 5 provides that each instrument that is specified in a Schedule to the 2025 Instrument is amended or repealed as set out in the applicable items in the Schedule concerned and that any other item in a Schedule to the 2025 Instrument has effect according to its terms.
Part 2—Directions relating to warrants
Section 6 Applying for a search warrant
This section combines and substantially replicates items 2.1 and 2.3 of the Comptroller Directions (Warrants) 2015 (the Previous Instrument. This section concerns who may apply for a search warrant and the vetting and consultation processes required prior to applying for a search warrant. The modifications made concentrates all matters relating to applying for a search warrant into one provision; they do not change the scope or operation from the Previous Instrument.
Subsection 6(1) specifies that an ABF Investigator must hold one or more of the following qualifications to be eligible to apply for a search warrant:
- A Certificate IV in Government Investigations; or
- A Diploma of Government Investigation; or
- An Advanced Diploma of Government (Investigations).
Subsection 6(2) provides that search warrant applications should be vetted by the Case Manager or the OIC prior to being submitted to a judicial officer where practicable.
Subsection 6(3) notes that Legal Group or the Commonwealth Director of Public Prosecutions may be consulted in relation to the search warrant application as appropriate.
Section 7 Applying for a seizure warrant
This section combines and substantially replicates items 2.2 and 2.3 of the Previous Instrument. This section outlines who may apply for a seizure warrant (including a seizure warrant for goods in transit) and the vetting and consultation processes required prior to applying for a seizure warrant. The modifications made concentrate all matters relating to applying for a seizure warrant into one provision; they does not change the scope or operation from the Previous Instrument.
Subsection 7(1) specifies that an officer of Customs may apply for a seizure warrant (including a seizure warrant for goods in transit) if they are:
- an ABF Investigator who holds a Certificate IV in Government Investigations, a Diploma of Government Investigations, or an Advanced Diploma of Government (Investigations); or
- is otherwise trained in warrant application procedures.
Subsection 7(2) notes that, where practicable, seizure warrant applications should be vetted by the Case Manager or the OIC prior to being submitted to a judicial officer.
Subsection 7(3) notes that Legal Group or the Commonwealth Director of Public Prosecutions may be consulted in relation to the seizure warrant application as appropriate.
Section 8 Warrant application
This section substantially replicates item 2.4 of the Previous Instrument and concerns other matters relevant to warrant applications. The modifications made further clarify the expression of matters and do not change the scope or operation of the section.
Subsection 8(1) provides that all warrant applications should be made in the State of Western Australia.
Subsection 8(2) provides that officers of Customs must comply with any requirements specified by the Acts when applying for warrants.
Section 9 Deficiencies in warrant applications
This section substantially replicates item 2.5 of the Previous Instrument and concerns deficiencies in warrant applications. The modifications made are to make expression of matters clearer and do not change the scope or operation of the section.
Section 9 provides that if a warrant application is rejected by a judicial officer due to a substantive deficiency, no further application is to be made without the prior permission of the relevant OIC. The section notes that a substantive deficiency includes a deficiency that involves something more significant than an administrative error.
Section 10 Confirmation of necessity prior to warrant execution
This section substantially replicates item 2.7 of the Previous Instrument and concerns confirmation of necessity prior to warrant execution. The modifications made further clarify the expression of matters and do not change scope or operation of the section.
Section 10 provides that the OIC or Case Manager must provide confirmation in writing that the proposed warrant is necessary and in accordance with the interests and functions of the ABF, before a warrant is executed.
Section 11 Potentially sensitive matters
This section substantially replicates item 2.8 of the Previous Instrument and concerns procedures in relation to when a warrant relates to a potentially sensitive matter. The modifications made further clarify the expression of matters and do not change the scope or operation of the section.
Section 11 provides that the OIC must ensure that they brief an SES employee in their work area prior to the execution of the warrant if the warrant relates to a potentially sensitive matter.
Section 12 Officers authorised to execute warrants
This section substantially replicates item 2.9 of the Previous Instrument. This section concerns which officers are authorised to execute a search warrant or a seize warrant (including a seizure warrant for goods in transit). The modifications made further clarify the expression of matters and do not change the scope or operation of the section.
Subsection 12(1) provides that only ABF investigators who meets the qualification requirements in subsection 6(1) may execute a search warrant.
Subsection 12(2) provides that only an officer of Customs trained in the examination of cargo or goods or an ABF Investigator who meets the qualification requirements in subsection 7(1) may execute a seizure warrant. This includes a seizure warrant for goods that are in transit.
Subsection 12(3) provides that an executing officer or person assisting with the execution of the warrant must comply with all of the conditions of the warrant.
Section 13 Persons assisting with warrants
This section provides that a person assisting with the execution of a warrant must either be an authorised person (as defined in section 183UA of the Customs Act 1901 (C.K.I.) and section 183UA of the Customs Act 1901 (C.I.)), or be otherwise authorised by the Comptroller.
Section 14 Reporting by ABF Investigators
This section combines and substantially replicates items 2.11 and item 3 of the Previous Instrument and relates to reporting requirements for search and seizure warrants obtained from an application made by the ABF Investigators including pre- warrant reporting, post warrant reporting, use of force reporting and allegations of damage reporting. The modifications made concentrate all matters relating to reporting requirements by ABF investigators into one provision and do not change the scope or operation of the items in the Previous Instrument.
Subsection 14(1) provides that the reporting requirements in the following subsections apply to search and seizure warrants obtained from an application made by ABF Investigators.
Pre- warrant report
These subsections substantially replicate item 3.1.2 of the Previous Instrument, concerning the reporting requirements for Case Officers before a warrant is obtained. The modifications made further clarify the expression of matters and do not change the scope or operation of the section.
Subsection 14(2) provides that the Case Officer must complete a pre-warrant report that provides in detail, the nature and purpose of the proposed warrant action after the Case Manager approves the making of a warrant application but before the execution of the warrant. A risk assessment must be included in the pre-warrant report.
Subsection 14(3) provides that the pre-warrant report must be recorded in the case management system. The pre-warrant report must then be disseminated according to any applicable ABF operational reporting requirements. Such reporting requirements would apply only to ABF officers, and not to external parties or members of the public. As such, these requirements are not publicly available.
The pre-warrant report must be provided to the OIC and an SES employee of the work area within which the OIC is holding, occupying or performing the duties.
Post-warrant report
These subsections substantially replicate item 3.1.1 and 3.1.3 of the Previous Instrument, concerning the reporting requirements for Case Officers after a warrant is executed. The modifications make expression of matters clearer and do not change the scope or operation of the section.
Subsection 14(4) provides that a post-warrant report detailing the events and outcome of the warrant action must be compiled by the Case Officer after the warrant is executed.
Subsection 14(5) provides that the post-warrant report must be recorded in the case management system and disseminated according to any applicable ABF operational reporting requirements. Such reporting requirements would apply only to ABF officers, and not to external parties or members of the public. As such, these requirements are not publicly available.
The post- warrant report must also be provided to the OIC and an SES employee of the work area within which the OIC is holding, occupying or performing the duties.
Allegations of Damage Report
These subsections expand on item 2.11 of the Previous Instrument, concerning the reporting requirements for allegations of damage caused by officers in the execution of a warrant. The modifications made to these subsections provide greater clarity around the record keeping requirements in relation to these allegation of damage reports.
Subsection 14(6) provides that if there is any alleged damage to property caused by the officer executing or person assisting the execution of the warrant in the execution of the warrant, a report of the allegations must be made to the OIC and to an SES employee of the work area within which the OIC is holding, occupying or performing the duties as soon as practicable.
Subsection 14(7) provides that if a report made for the purpose of subsection (6) was made verbally, a written record of that report must be recorded in the case management system as soon as practicable.
Use of Force Report
These subsections substantially replicate item 3.1.4 of the Previous Instrument, concerning the reporting requirements where force was exercised during the execution of a warrant. The modifications make expression of matters clearer and do not change the scope or operation of the section.
Subsection 14(8) provides that if the use of force was exercised during the execution of a warrant, a report with full details of the incident must be reported to the OIC as soon as practicable after the incident.
Subsection 14(9) provides that if the report made for the purpose of subsection (8) was made verbally, a written record of that report must be recorded in the case management system as soon as practicable.
Section 15 Reporting by officers of Customs
This section incorporates item 4.1 of the Previous Instrument and relates to the reporting requirements that apply to officers of Customs who are not ABF investigators. The modifications made ensure there is a degree of flexibility in relation to reporting requirements on officers of Customs to allow for operational or administrative factors.
Subsection 15(1) states that the reporting requirements in the following subsections apply to officers of Customs who are not ABF Investigators and apply for a seizure warrant in accordance with section 7.
Subsection 15(2) states that the reporting requirements in section 14 are to be complied with unless operational and administrative needs require modification to the reporting requirements.
Subsection 15(3) states that any modifications to the reporting requirements should be minimal in order to ensure consistency and accountability.
Section 16 Record-keeping
This section combines and substantially replicates items 2.6 and 2.12 of the Previous Instrument and concerns record-keeping requirements in relation to warrant applications. The modifications made concentrate all matters relating to record-keeping into one provision and do not change the scope or operation of the items in the Previous Instrument.
Subsection 16(1) provides that all decisions and considerations regarding whether to apply for, and whether to execute a warrant, must be recorded.
Subsection 16(2) provides that a formal record of warrants applications, regardless of outcome, must be maintained by each OIC of the work area responsible for warrants. Formal records must also be made for executed warrants, all searches conducted, and for reports made.
Subsection 16(3) provides that records made for the purposes of subsections 16(1) and 16(2) must be kept according to the applicable record-keeping requirements, including any requirements imposed by any case management system.
Section 17 Transitional and savings provisions
Subsection 17(1) specifies that the section applies to any action or non-action done under, or in relation to the Previous Instrument before the commencement of the 2025 Instrument, including warrants made but not yet issued, issued but not yet executed, and obligations to report on a warrant’s execution or any related incident.
Subsection 17(2) specifies that any actions or non-actions for the purposes of the Previous Instrument are taken to have been done or omitted under the corresponding provisions of the 2025 Instrument.
Subsection 17(3) specifies that the provisions of the 2025 Instrument will apply, including any necessary modifications to the things that subsection (1) applies, despite the repeal of the Previous Instrument.
Schedule 1—Repeals
Item 1 of Schedule 1 to the 2025 Instrument has the effect of repealing the Previous Instrument.
Attachment B
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Customs (Warrants— Cocos (Keeling) Island and Christmas Island) Directions 2025
This Disallowable Legislative Instrument is compatible with the human rights and freedoms contained in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
The Customs (Warrants—Cocos (Keeling) Island and Christmas Island) Directions 2025 (the 2025 Instrument) are made for the purposes of section 183UC of the Customs Act 1901 (C.I) and the Customs Act 1901 (C.K.I) (the Acts).
The purpose of the 2025 Instrument is to remake the Comptroller Directions (Warrants) 2015 (the Previous Instrument), before its expiry, in order to ensure the powers of officers under Division 1 of Part XII in both of the Acts continue to be exercised appropriately and in accordance with previous arrangements.
Section 183UC of the Customs Act 1901 (C.K.I.) and section 183UC of the Customs Act 1901 (C.I.) provide that the Comptroller of the Indian Ocean Territories Customs Service may, by legislative instrument, give directions concerning:
- the manner in which the powers relating to warrants in Division 1 of Part XII in both the Acts may be exercised;
- the officers of Customs who are entitled to exercise those powers in relation to warrants; and
- the manner and frequency of reporting required concerning the exercise of those powers relating to warrants.
The 2025 Instrument specifies that a search warrant may only be executed by an Australian Border Force (ABF) Investigator who meets the qualification requirements in subsection 6(1) of the 2025 Instrument. For seizure warrants, it can only be executed by an officer of Customs who is involved in the examination of cargo or goods or an ABF Investigator who meets the qualification requirements in subsection 7(1) of the 2025 Instrument.
The 2025 Instrument set out the application for, and execution of search and seizure warrants granted respectively under Subdivisions C, D and DA of Division 1 of Part XII in both of the Acts. Search and seizure warrants may only be applied for and executed by an Officer of Customs or ABF Investigators who have the necessary training and qualifications.
The 2025 Instrument contains requirements to ensure records relating to warrants are recorded appropriately and securely. This includes provisions specifying record keeping requirements relating to the recording and storage of documents relating to warrant applications and the execution of warrants.
In instances where there is damage alleged due to the execution of a warrant, the 2025 Instrument provides that details relating to the warrant execution must be reported to the OIC as soon as practicable after the incident.
In instances of use of force, the 2025 Instrument provides that a use of force report must be completed and provided to the OIC as soon as practicable. It needs to provide that any use of force that was exercised in the execution of a warrant and must include all details of the incident.
The 2025 instrument provides, before a warrant is executed, that an ABF Investigator must complete a pre-warrant report detailing the nature and purpose of the proposed warrant action, including a risk assessment. Following the execution of the warrant, a post warrant report must be completed and recorded. The post warrant report details the events and outcomes of the warrant.
Similar procedures must be followed for warrants applied for officers of Customs other than ABF Investigators to ensure consistency and accountability.
Human Rights implications
The 2025 Instrument does not engage any of the applicable rights or freedoms contained in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
The 2025 Instrument is compatible with human rights as it does not raise any human rights issues.
Gavan Reynolds AO, Comptroller of the Indian Ocean Territories Customs Service