CEO DIRECTIONS NO. 1 OF 2009

SUBSECTION 4(4) OF THE CUSTOMS ADMINISTRATION ACT 1985

AND SUBSECTION 183UC(1) OF THE CUSTOMS ACT 1901

COMMONWEALTH OF AUSTRALIA

I, Michael Carmody, Chief Executive Officer of Customs, under subsection 4(4) of the Customs Administration Act 1985 and subsection 183UC(1) 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 in relation to the application for, and execution of search and seizure warrants granted respectively under Subdivisions C and D 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 Investigations Branch, Cargo Operations Branch, Enforcement Operations Branch, or Internal Affairs Unit (IAU).

1.5             It is expected that officers of Customs will comply with other Chief Executive Officer Directions (including the Directions relating to the Use of Force), relevant Customs policies and procedures and relevant agreements with other agencies in so far as they are not inconsistent with these Directions or the Customs Act.

2.   Directions regarding warrants

2.1             Applying for a warrant

A search or seizure warrant may only be applied for by an officer of Customs who:

a)       has completed Certificate IV in Government (Investigations) training and is aware of proper warrant application procedures; and

b)       occupies a position in the Investigations Branch as an Investigations Officer (Investigations Officer) or in the IAU as an Internal Affairs Unit Officer (IAU Officer).

Other officers of Customs who require a (seizure) warrant under Subdivisions C and D of Division 1 of Part XII of the Customs Act, such as those involved in the conduct of a cargo examination at a place other than a Customs place and officers working in a District Office requiring the immediate seizure of prohibited goods, will need to arrange for their regional Investigations Branch to apply for the warrant. 

2.2             Warrants to be executed only when in the interest of the Australian Customs and Border Protection Service
 

2.2.1      Investigations Officers:
Prior to warrant execution, the National Manager Investigations, or the Director Investigations (Central Office) or the National Director Enforcement and Investigations must confirm that the proposed warrant(s) are in accordance with the interests and functions of the Australian Customs and Border Protection Service.  This is done through the approval of the Pre Warrant Report (see paragraph 3.1).

2.2.2      IAU Officers:
Prior to warrant execution, the National Manager IAU must confirm that the proposed warrant(s) are in accordance with the interests and functions of the Australian Customs and Border Protection Service.

2.3             Vetting of applications
 

2.3.1      Investigations Officers:
Where possible, prior to applying to a judicial officer for a warrant, the warrant application should be vetted by the Case Manager or OIC. The Commonwealth Director of Public Prosecutions (CDPP) or the Australian Government Solicitor (AGS) may be consulted as appropriate.

2.3.2      IAU Officers:
Where possible, prior to applying to a judicial officer for a warrant, the warrant application must be vetted by an IAU Manager, IAU Director or the National Manager IAU. The CDPP or the AGS may be consulted as appropriate.

2.3.3      Other Officers:
Where possible, prior to requesting their regional Investigations Branch to apply for a warrant, the request should be vetted by the OIC of the region.

2.4             Warrant application
 

 Where possible, the warrant application should be made in the State or Territory that the warrant is to be executed.

An officer must comply with any requirement placed on them by the issuing judicial officer.

2.5             Deficiencies in warrant applications
 

2.5.1      Investigations Officers:
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 National Manager Investigations or the National Director Enforcement and Investigations or the Deputy Chief Executive Officer (DCEO) Border Enforcement.

2.5.2      IAU Officers:
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 National Manager IAU or the DCEO Corporate Operations.

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.

2.7             Officers authorised to execute warrants
 

A search or seizure warrant may be executed by an officer who;

a)       has completed Certificate IV in Government (Investigations) training and is aware of proper warrant execution procedures; and

b)       occupies a position as an Investigations Officer or IAU Officer.

A seizure warrant may be executed if the officer:

a) is involved in the conduct of a cargo examination at a place other than a Customs place; or

b) works in a District Office and is required to immediately seize  prohibited goods.

2.8             Authorisation for persons assisting with warrants
 

2.8.1      Warrants being executed by Investigations Officers and Officers other than IAU officers:
 

An ‘authorised person’ as defined in section 183UA of the Customs Act, must obtain the approval of the:

a)       National Manager Investigations;

b)       Director Investigations (Central Office); or

c)        National Director Enforcement and Investigations;

 before assisting in the execution of a warrant.

2.8.2      Warrants being executed by IAU Officers:
 

An ‘authorised person’ as defined in section 183UA of the Customs Act must obtain the approval of the:

a)     National Manager IAU;

b)     DCEO Corporate Operations; or

c)     Chief Executive Officer of Customs;

  before assisting in the execution of a warrant.

3.                  Directions regarding reporting

3.1             Pre Warrant Report: prior to the execution of 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 as required by the table below.
 

3.2             Post Warrant Report: following warrant execution, a Post Warrant Report must be compiled by the Case Officer (or Other Officer if warrants were executed without the assistance of Investigations).  This report also contains details of any personal searches conducted during the warrant, and should be forwarded in the same manner as the Pre Warrant Report.

3.3             Use of Force: where use of force was necessary to execute a warrant, a Customs Use of Force Report must be submitted. Additionally, full details must be reported to the OIC as soon as practicable after the warrant is executed.

3.4             Allegations of Damage: as soon as practicable the officer responsible for executing the warrant must report any allegations of damage to equipment caused by officers during the warrant to their OIC.

3.5             Regional Branch records: each OIC of a regional Investigations, Enforcement Operations or Cargo Operations Branch or IAU should maintain a formal record of all warrant applications (regardless of outcome), executed warrants, frisk/ordinary searches and use of force incidents.

3.6             Monthly reports by regional Investigations Branches: Each regional Investigations Branch must provide the National Manager Investigations with a report detailing any warrant applications (regardless of outcome), executed warrants, frisk/ordinary searches and use of force incidents. 

Regional Investigations Branches will also report warrant applications and executed (seizure) warrants on behalf of other Branches for inclusion in monthly reports (see paragraph 3.8).

3.7             Monthly reports by the IAU: the National Manager IAU must provide the DCEO Corporate Operations or the CEO (as appropriate) with a report detailing any warrant applications (regardless of outcome), executed warrants, frisk/ordinary searches and use of force incidents.

3.8             Monthly reports by Investigations Branch for Customs and Border Protection Executive: the National Manager Investigations must provide a report to the National Director Enforcement and Investigations and DCEO Border Enforcement on the volume of warrant actions each month.  The circumstances surrounding each warrant applied for and the results of all warrants executed (excluding any details that relate to warrants undertaken by IAU) must be maintained centrally and made available if required.

Customs Administration Act 1985 (s4(4)) and Customs Act 1901 (s183UC) – Directions by Chief Executive Officer, dated 5 September 1995 is revoked.

This instrument takes effect on the day after it is registered.

Dated:  1 May 2009

MICHAEL JOSEPH CARMODY

Chief Executive Officer of Customs