Comptroller-General of Customs (Warrants) Directions 2015

Link to law: https://www.comlaw.gov.au/Details/F2015L00890

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COMMONWEALTH OF AUSTRALIA
COMPTROLLER-GENERAL OF CUSTOMS (Warrants) DIRECTIONS 2015
SECTION 183UC OF THE CUSTOMS ACT 1901
 
 
I, ROMAN QUAEDVLIEG, Comptroller-General of Customs, under section 183UC of the Customs Act 1901 (the Customs Act), give the following directions as to:
 
§  the circumstances in which the powers relating to search warrants and seizure warrants in Division 1 of Part XII of the Customs Act may be exercised;
 
§  the officers of Customs who are entitled to exercise those powers in relation to search warrants;
 
§  the officers of Customs who are entitled to exercise those powers in relation to seizure warrants; and
 
§  the manner and frequency of reporting required concerning the exercise of those powers relating to search warrants and seizure warrants.
 
1. Preamble
 
1.1         The Comptroller-General of Customs (Warrants) Directions 2015 (the Directions) regarding warrants outline the policy of the Department of Immigration and Border Protection (the Department) in relation to the application for, and execution of search warrants and seizure warrants granted respectively under Subdivisions C, D and DA of Division 1 of Part XII of the Customs Act.
 
1.2         In the case of a conflict between the Act and the Directions, the Act shall prevail.
 
1.3         The terms used herein shall have the same meaning as in the Act.
 
1.4         The term ‘Officer in Charge’ (OIC) refers to the highest ranking officer in a regional Branch on duty at the time e.g. EL2/Superintendent of the regional Investigations Division office.
 
1.5         The term ‘Case Manager’ refers to the supervising officer of the case relevant to a particular warrant, e.g. EL1/Inspector
 
1.6         The term ‘Case Officer’ refers to the investigating officer of the case relevant to a particular warrant, e.g. APS6/Supervisor.
Directions regarding warrants
 
2.1         Applying for and executing a search warrant
A search warrant may only be applied for or exercised by an officer of Customs who:
 
a)     has obtained a Certificate IV in Government (Investigations); and
 
b)     occupies a position in the Investigations Division as an investigator.
 
An executing officer or person assisting must comply with all of the conditions of the warrant.
 
2.2         Applying for and executing a seizure warrant or seizure of goods in transit warrant
 
An application for a seizure warrant or seizure of goods in transit warrant may only be made by an officer of Customs who:
 
a)    is trained in warrant application procedures; or
 
b)    has obtained a Certificate IV in Government (Investigations) and occupies a position in the Investigations Division as an investigator.
 
The execution of a seizure warrant or seizure of goods in transit warrant may only be undertaken by an officer of Customs who:
a)        is involved in the examination of cargo or goods; or       
b)        has obtained a Certificate IV in Government (Investigations) and occupies a position in the Investigations Division as an investigator.
 
2.3         Authorisation for persons assisting with warrants

Pursuant to section 183UA of the Customs Act, a ‘person assisting’ in the execution of a search or seizure warrant must either be an ‘authorised person’ (as defined in subsection 183UA(1)) or be authorised by the Comptroller-General of Customs (or his delegate).
 
 
2.4         Vetting of Investigations Division applications

Where possible, prior to applying to a judicial officer for a warrant, the warrant application should be vetted by the Case Manager or OIC. Legal Division or the Commonwealth Director of Public Prosecutions (CDPP) may be consulted as appropriate.
 
 
 
2.5         Warrant application

Where possible, the warrant application should be made in the State or Territory that the warrant is to be executed.
 
Officers of Customs must comply with any requirement placed on them in the Act when applying for warrants.  
 
2.6         Deficiencies in warrant applications

If a judicial officer rejects a warrant application because of a substantive deficiency, i.e. something more significant than an administrative error, a further application must not be made without the prior permission of the OIC of the regional Branch.
 
2.7         Recording of decisions regarding the application for and execution of a warrant
 
All decisions and considerations regarding the decision to apply for and execute a warrant must be recorded on the relevant case file, and for Investigations Division these records must also be kept in the case management system.
 
2.8         Warrants to be executed only when in the interest of the Department

Investigations Division (all warrants):
Prior to warrant execution, the OIC of the relevant Investigations Division office must confirm that the proposed search warrant is necessary and in accordance with the interests and functions of the Department. This is done through the approval of the Pre Warrant Report (see paragraph 3.2).
 
Other Divisions (seizure warrants and seizure of goods in transit warrants):
Prior to warrant execution, the OIC of the regional Branch must confirm that the proposed seizure warrant is necessary and in accordance with the interests and functions of the Department. This is done by providing written approval to the officer applying for the seizure warrant.
 
2.9         The OIC will ensure that the SES1/Commander Investigations Division (for Investigations Division initiated warrants) or the Regional Commander (for all other warrants) is briefed prior to the execution of a warrant relating to a potentially sensitive matter.
 
2.10      Allegations of Damage
Allegations of damage to property caused by officers during the execution of a warrant must be reported to the OIC and their SES1/Commander or Regional Commander as soon as practicable after the warrant is executed.
 
2.11      Regional Branch records
Each OIC of the relevant Branch must maintain a formal record of all warrant applications (regardless of outcome), executed warrants, frisk/ordinary searches, departmental Use of Force reports and allegations of damage. 
 
3.         Directions regarding Investigations Division reporting
 
3.1         These requirements apply to search and seizure warrants applied for by Investigations Division officers.

3.2         Pre Warrant Report: following approval of a warrant application and prior to the execution of a warrant, a Pre Warrant Report must be completed by the Case Officer. The report details the nature and purpose of the proposed warrant action including a risk assessment, and is to be forwarded to the:
 
a)        OIC;
b)        SES1/Commander Investigations Division (for Investigations Division initiated warrants); or
c)         Regional Commander and Strategic Border Command Centre (for all other warrants).
 
3.3         Post Warrant Report: following search warrant execution, a Post Warrant Report must be compiled by the Case Officer and recorded in the case management system. The report details the events and outcome of the warrant. 
 
3.4         Use of Force: where use of force was necessary to execute a warrant, full details must be reported to the OIC as soon as practicable after the warrant is executed. Departmental Use of Force procedures/reports must be followed/completed.
 
4.         Directions regarding reporting in other areas of the Department
 
4.1      Other areas of the Department will follow a similar procedure to ensure
consistency and accountability.
 
 
These Directions commence on 1 July 2015.
 
 
Dated: 18 June 2015
 
 
 
 
 
ROMAN QUAEDVLIEG
Comptroller-General of Customs