Customs Act 1901 - CEO Directions No. 1 of 2014

Link to law: https://www.comlaw.gov.au/Details/F2014L00428

CEO DIRECTIONS NO. 1  OF 2014
 
SUBSECTION 4(4) OF THE CUSTOMS ADMINISTRATION ACT 1985
AND SECTION 183UC OF THE CUSTOMS ACT 1901
 
COMMONWEALTH OF AUSTRALIA
 
I, Michael Pezzullo, Chief Executive Officer of Customs, under subsection 4(4) of the Customs Administration Act 1985 and section 183UC of the Customs Act 1901 (the Customs Act), give the following directions as to:
 
§  the manner in which the powers relating to 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 warrants; and
 
§  the manner and frequency of reporting required concerning the exercise of those powers relating to warrants.
 
 
1. Preamble
 
1.1         These Chief Executive Officer Directions regarding warrants (the Directions) outline the policy of the Australian Customs and Border Protection Service (ACBPS) in relation to the application for, and execution of search 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 Customs Act and the Directions, the Customs Act shall apply.
 
1.3         The terms used herein shall have the same meaning as in the Customs 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. the Manager or Director of the regional Investigation, Compliance and Enforcement (ICE) or Special Investigations and Programmes (SIP) Branches.
 
1.5         The term ‘Case Manager’ refers to the supervising officer of the case relevant to a particular warrant.
 
1.6         The term ‘Case Officer’ refers to the investigating officer of the case relevant to a particular warrant.
 
 
2.  Directions regarding warrants
 
2.1         Applying for a search warrant
A search warrant may only be applied for by an officer of Customs who:
 
a)     has obtained Certificate IV in Government (Investigations); and
 
b)     occupies a position in the ICE or SIP Branches as an investigator.
 
2.2         Applying for a seizure warrant or seizure of goods in transit warrant
 
A seizure warrant or seizure of goods in transit warrant may only be applied for by an officer of Customs who:
 
a)    is aware of warrant application procedures; or
 
b)    has obtained Certificate IV in Government (Investigations) and occupies a position in the ICE or SIP Branches as an investigator.
 
2.3         Vetting of ICE and SIP Branch 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 Services Branch or the Commonwealth Director of Public Prosecutions (CDPP) may be consulted as appropriate.
 
2.4         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 Customs Act when applying for warrants.  
 
2.5         Deficiencies in warrant applications

If a judicial officer rejects a warrant application because of a substantive deficiency, a further application must not be made without the prior permission of the OIC of the regional Branch.
 
2.6         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 ICE and SIP Branches these records must also be kept in the case management system.
 
2.7         Warrants to be executed only when in the interest of ACBPS

ICE and SIP Branches (all warrants):
Prior to warrant execution, the OIC of the regional ICE or SIP Branch must confirm that the proposed search warrant is necessary and in accordance with the interests and functions of the ACBPS. This is done through the approval of the Pre Warrant Report (see paragraph 3.1).
 
            Other Branches (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 ACBPS. This is done by providing written approval to the officer applying for the seizure warrant.
 
2.8         Officers authorised to execute warrants

An executing officer or person assisting must comply with all of the conditions of the warrant.
A search warrant may only be executed by an officer of Customs who:
a)        has obtained Certificate IV in Government (Investigations); and
b)        occupies a position in the ICE or SIP Branches as an investigator.
           
A seizure warrant or seizure of goods in transit warrant may only be executed by an officer of Customs who:
a)        is involved in the examination of cargo or goods; or       
b)        has obtained Certificate IV in Government (Investigations) and occupies a position in the ICE or SIP Branches as an investigator.
 
2.9         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 Chief Executive Officer of Customs (or his delegate).
 
3.         Directions regarding ICE and SIP Branch reporting
 
3.1         These requirements apply to search and seizure warrants applied for by ICE or SIP Branch 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)        Regional Commander (for information); and
c)         Strategic Border Command Centre (SBCC) (for information).
 
3.3         The OIC will ensure that the National Manager ICE or SIP or Director Operations is briefed prior to the execution of a warrant relating to a potentially sensitive matter.
 
3.4         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. 
 
3.5         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. A Customs Use of Force Report must also be submitted.
 
3.6         Allegations of Damage: allegations of damage to property caused by officers during the execution of a warrant must be reported to the OIC and National Manager ICE or SIP (for information) as soon as practicable after the warrant is executed.
 
3.7         Regional Branch records: each OIC of a regional Branch should maintain a formal record of all warrant applications (regardless of outcome), executed warrants, frisk/ordinary searches, Customs Use of Force Reports and allegations of damage.  
 
 
CEO Directions No. 1 of 2009 made pursuant to subsection 4(4) of the Customs Administration Act 1985 and section 183UC of the Customs Act dated 1 May 2009 are revoked.
 
This instrument takes effect on the day after it is registered.
 
 
Dated: 14 April 2014
 
 
 
 
 
MICHAEL PEZZULLO
Chief Executive Officer of Customs
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