Federal Register of Legislation - Australian Government

Primary content

Directions/Other as made
Directions relating to powers of Customs officers.
Administered by: Attorney-General's
Made 05 Sep 1995
Registered 05 Feb 2007
Tabled HR 16 Oct 1995
Tabled Senate 17 Oct 1995
Gazetted 13 Sep 1995
Date of repeal 09 May 2009
Repealed by Customs Act 1901 - CEO Directions No. 1 of 2009

 

Directions by Chief Executive Officer

 

 

Customs Administration Act 1985 - Subsection 4(4)

Customs Act 1901 - Section 183UC

 

 

I, Lionel Barrie Woodward, Chief Executive Officer of the Australian Customs Service, pursuant to subsection 4(4) of the Customs Administration Act 1985 and subsection 183UC(1) of the Customs Act 1901, hereby give the following directions as to:

 

.           the circumstances in which the powers provided by Division 1 of Part XII of the Customs Act 1901 (the Act) may be exercised; and

 

.           the officers of Customs who are entitled to exercise those powers;  and

 

.           the manner and frequency of reporting to me concerning the exercise of those powers.

 

Preamble

 

.           In interpreting these directions, the terms used herein shall have the same meaning as in the Act;

 

.           In the case of a conflict between the Act and any direction, the Act shall apply;

 

.           The title Regional Manager, Investigation Branch means the person from time to time performing the duties as the most senior officer in the Investigation Branch in a region;

 

.           These directions are given in the context that it is the clear intent of Parliament and the Government that the powers of search or seizure should only be used after other reasonable options have been considered and a decision taken that those options are not appropriate in the circumstances of a particular case;

 

.           Except where the Act or these directions apply, officers of Customs should refer to the relevant Customs Manual for practical guidance regarding operational procedures.

 

LW


 

 

Directions

 

Directions will apply to implementation of the Act under the following broad headings:

 

1.         General

 

2.         Search warrants - Subdivision C of Division 1 of Part XII of the Act (sections 198 to 202A)

 

3.         Seizure warrants - Subdivision D of Division 1 of Part XII of the Act (sections 203 to 203D)

 

4.         Provisions applicable to both search warrants and seizure warrants -

            Subdivision E of Division 1 of Part XII of the Act (sections 203E to 203Q)

 

5.         Dealing with things seized as evidence or goods seized under warrant -Subdivisions F and G of Division 1 of Part XII of the Act (sections 203R and 205D)

LW


 

1.       General

 

1.1       Officers shall use powers in Division 1 of Part XII of the Act in relation to suspected offences against the Act, unless an offence against other legislation is reasonably suspected necessitating the use of provisions under that other legislation.

 

1.2       Where possible, an officer should obtain approval from his/her senior officer or local supervisor prior to laying an information for a warrant. 

 

1.3       Where there is a need to contact the officer performing the duties of the positions named in this direction (ie, Regional Director; National Manager, Investigation Branch; or Regional Manager, Investigation Branch) and he/she cannot be contacted , an officer may contact a Deputy Chief Executive Officer or a National Director.

 

1.4       A Regional Director may appoint an officer or officers in the Regional Director's region to perform duties of another regional officer named in this direction other than in relation to his/her own position.  Such appointments shall be notified in writing to the National Manager, Investigation Branch.

 

1.5       An officer must comply with any requirement placed on him/her by the issuing judicial officer, including reporting, on the use of a warrant.

 

1.6       The outcome of all senior officer considerations pursuant to these directions, whether made orally or in writing, shall be recorded on the relevant case file as part of the case record.

 

1.7       The National Manager, Investigation Branch, must, on a monthly basis, provide me with a report of the circumstances and underlying reasons for each warrant sought and for each warrant issued by a judicial officer, and the results of the execution of each warrant.  The same report shall be forwarded to all Regional Directors.

 

1.8       The Regional Manager, Commercial Services Division and the Regional Manager, Border Management Division in each region shall each establish local procedures to provide to the Regional Manager, Investigation Branch, on a monthly basis, full details of every warrant sought and of every warrant executed by officers in his/her respective Division.

 

1.9       Officers performing the duties of positions in this direction shall consult other senior officers, as appropriate, on situations where issues of mutual interest and responsibility arise in the application for or in the execution of a warrant or both.

LW


 

2.       Search Warrants - sections 198 to 202A

 

2.1       Without the written prior approval of either the Regional Director or the National Manager, Investigation Branch, only an officer in the Investigation Branch or an officer involved in the conduct of a cargo examination in a place other than a Customs place may lay an information pursuant to section 198 or section 203M of the Act.  A Regional Director may determine separate arrangements for district offices and shall notify the National Manager, Investigation Branch accordingly.

 

2.2       Prior to an officer of Customs laying a formal written information pursuant to section 198 or section 203M, the information itself should, wherever possible, be checked by the Regional Manager, Investigation Branch who shall consult with the Legal Services Branch, the Australian Government Solicitor (AGS) or the Director of Public Prosecutions (DPP) in that region as appropriate.  The content of an information must be as comprehensive as possible.

 

2.3       No officer shall seek to lay an information pursuant to section 198 or section 203M unless he/she has satisfied his/her supervisor that he/she has received appropriate training and is proficient in warrant application procedures.

 

2.4       Only the Regional Director or the Regional Manager, Investigation Branch may approve a change of officer named in a search warrant.

 

2.5       Prior approval shall, wherever possible, be sought from either the Regional Director or the Regional Manager, Investigation Branch before an officer may seek authority from a judicial officer to undertake a frisk search or an ordinary

search. 

 

2.6       In the event that the judicial officer issues a search warrant with authority to undertake either a frisk or ordinary search, the search shall only be executed if:

 

            (a) an officer suspects that evidence is being concealed and that the provisions of section 209A of the Act are likely to apply; and

 

            (b) the searching officer is of the same sex as the person being searched.

           

2.7       An officer who lays an information before a judicial officer shall as soon as possible thereafter, but in every case before the search warrant is executed, advise the Regional Manager, Investigation Branch he/she has done so.

 

2.8.      In the event of a judicial officer refusing an application for a search warrant, no further approach is to be made to that or any other judicial officer in respect to that application without the prior permission of the Regional Director, the National Manager, Investigation Branch or a Deputy Chief Executive Officer.

 

LW

 

2.9       The Regional Manager, Investigation Branch shall keep a formal record of all     applications for a search warrant, regardless of the outcome of the application,

            and shall keep a record of the outcomes of executed search warrants and, at the conclusion of each month, shall provide a comprehensive summary of search warrant activity to the Regional Director and National Manager, Investigation Branch.

 

2.10     Whenever possible, a search warrant should be sought in the State or Territory in which it is to be executed.

 

2.11     Allegations of damage to equipment by officers of Customs must be reported to the Regional Manager, Investigation Branch without delay.

 

2.12.    A copy of each document seized under a section 198 or a section 203M warrant must be provided to the person from whom it was seized as soon as practicable after seizure, except in the circumstances set out in subsection 202A(2) of the Act.

LW


 

3.       Seizure warrants - sections 203 to 203D

 

3.1       Without the written prior approval of the Regional Director, a Deputy Chief Executive Officer or a National Director, only an officer in the Investigation Branch may seek to lay an information pursuant to section 203 or section 203M of the Act in respect of the seizure of forfeited goods or special forfeited goods that are imported for commercial, trade or business purposes.  A Regional Director may determine separate arrangements for district offices and shall notify the National Manager, Investigation Branch accordingly.

 

3.2       At a Customs place, neither special forfeited goods nor evidential material relating to an offence committed in respect of those special forfeited goods may  be seized without the prior approval of an officer at the level of Customs Officer Band 3 or higher except in the case of special forfeited goods that are imported for commercial, trade or business purposes.  In such cases, prior approval should be given by the Regional Manager, Commercial Services and the Regional Manager, Investigation Branch.  Officers should be encouraged to seek advice from Investigation Branch on specific cases as required, in particular when considering seizure of small numbers of goods or parts of shipments of goods where the goods are goods imported for commercial, trade or business purposes.  The Regional Director should be consulted as required.

 

3.3       No officer shall seek to lay a formal written information pursuant to section  203 or section 203M unless he/she has satisfied his/her supervisor that he/she has received appropriate training and is proficient in seizure warrant application procedures.

 

3.4       Prior to an officer laying an information pursuant to section 203 or section 203M, the information itself should, wherever possible, be checked by the Regional Manager, Investigation Branch who shall consult with the Legal Services Branch, the AGS or the DPP in that region as appropriate.  The content of an information must be as comprehensive as possible.  Particular attention is to be given to providing all possible information to the judicial officer to assist in demonstrating the necessity for seizure of the goods.

 

3.5       In the event of a judicial officer refusing an application for a seizure warrant, no further approach is to be made to that or any other judicial officer in respect of that application without the prior permission of  the Regional Director, the National Manager, Investigation Branch or a Deputy Chief Executive Officer.

 

3.6       Only the Regional Director or the Regional Manager, Investigation Branch may approve a change of the officer named in a seizure warrant.

 

3.7       Whenever possible, a seizure warrant shall be sought in the State or Territory in which it is to be executed.

 

LW

 

3.8       Prior approval shall, wherever possible, be sought from either the Regional Director or the Regional Manager, Investigation Branch before an officer may seek authority from a judicial officer to undertake a frisk search or an ordinary search. 

 

3.9       In the event that the judicial officer issues a seizure warrant with authority to undertake either a frisk or ordinary search, the search shall only be executed if:

 

            (a) an officer suspects that evidence is being concealed and that the provisions of section 209A of the Act are likely to apply; and

 

            (b) the searching officer is of the same sex as the person being searched.

                                                                                     

3.10.    An officer who lays an information before a judicial officer shall as soon as possible thereafter, but in every case before the seizure warrant is executed, advise the Regional Manager, Investigation Branch he/she has done so.

 

3.11     The Regional Manager, Investigation Branch shall keep a formal record of all applications for a seizure warrant, regardless of the outcome of the application, and keep a record of the outcomes of executed seizure warrants and at the conclusion of each month shall provide a comprehensive summary of seizure warrant activity to the Regional Director and the National Manager, Investigation Branch.

 

3.12     Subject to the Act and these directions, any exercise of powers under section 203C of the Act must be done in a way consistent with the Ministerial Agreement between the Minister responsible for Customs and the Minister responsible for the Australian Federal Police.

LW


 

4.       Provisions applicable to both search warrants and seizure warrants - sections 203E to 203Q

 

4.1       Officers of Customs involved in the execution of a search warrant or a seizure warrant are to extend normal courtesies to persons at the warrant premises, though care must be exercised to ensure the execution of the warrant is not frustrated.

 

4.2       Each frisk or ordinary search conducted must be reported to the officer of Customs who approved the laying of the information for the search warrant or seizure warrant and to the Regional Manager, Investigation Branch, as soon as practicable after the search is conducted.

 

4.3       In situations where force was necessary to execute a search warrant or a seizure warrant, full details of the matter must be reported to the officer of Customs who approved the laying of the information for the warrant and to the Regional Manager, Investigation Branch, as soon as practicable after the warrant is executed.

 

4.4       Where an officer of Customs has decided to apply by telephone for a search warrant or a seizure warrant, the officer should, where practicable, advise his/her immediate supervisor of his/her proposed course of action including his/her reasons for that course.

 

4.5       No officer shall apply by telephone for a search warrant or a seizure warrant or both, unless he/she has satisfied his/her supervisor that he/she has received appropriate training and is proficient in applying for warrants by telephone.

 

4.6       In the event of a judicial officer refusing an application by telephone for a search warrant or a seizure warrant, no further approach is to be made to that or any other judicial officer in respect to that application without the prior permission of  the Regional Director, the National Manager, Investigation Branch or a Deputy Chief Executive Officer.

 

4.7       Every application made by telephone for a search warrant or a seizure warrant must be reported to the Regional Manager, Investigation Branch regardless of the outcome.  The Regional Manager, Investigation Branch shall maintain comprehensive records of  the circumstances of all applications made by telephone.  Refusal by a judicial officer to issue a search warrant or a seizure warrant by telephone must be advised to the Regional Manager, Investigation Branch as soon as practicable after the refusal was received.

 

4.8       The Regional Manager, Investigation Branch shall refer to the DPP all suspected cases of destruction or concealment of evidentary material or forfeited goods under section 209A of the Act.

LW

 

4.9       An officer of Customs, acting pursuant to a search arrant under section 198 or section 203M of the Act, should exercise all reasonable care when operating equipment or examining things on any premises.  The officer should give the occupant every opportunity to co-operate to ensure that such operation will not damage the equipment, other equipment, or data stored on the equipment, where the equipment is a computer.

LW


 

 

5.       Dealing with things seized as evidence or goods seized under warrant - sections 203R and 205D

 

5.1       Officers of Customs shall consult with the Legal Services Branch, the AGS or the DPP as appropriate, on commencing action to retain things seized under a search warrant or a seizure warrant or under section 203B or section 203C of the Act.  Such consultations shall commence at least ten working days before the 60 day time limit.

 

5.2       It will be the responsibility of the Division or Branch whose officers executed the search warrant or seizure warrant and seized the things which shall be the subject of the proceedings before the Court to initiate the consultations described in direction 5.1 above.

 

5.3       Decisions to release seized goods or evidential material shall be expedited to facilitate the earliest practicable return of the goods or the evidential material to the owner.  A report shall be prepared and sent to the Regional Manager, Investigation Branch on the circumstances of each seizure and subsequent return of goods or evidential material.  Such reports shall be sent within 2 working days of the return of the goods or evidential material.  The Regional Manager, Investigation Branch shall report on returns of goods or evidential material or both to the National Manager, Investigation Branch.

LW


 

 

Commencement

 

These directions shall commence on gazettal.

 

 

 

 

 

 

 

 

 

Lionel Barrie Woodward

Chief Executive Officer

Australian Customs Service

 

Signed at      Canberra    on the      5th       day of      September    1995