House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Honourable Bob Debus MP)

SCHEDULE 17 - SEARCH AND SEIZURE WARRANTS

Customs Act 1901

Background

240. Under section 198 of the Customs Act, a judicial officer may issue a warrant to search premises for, and seize, evidential material relating to specified offences under the Customs Act. Under section 203 of the Customs Act, a judicial officer can also issue a warrant for the seizure of forfeited goods on premises. "Forfeited goods" are those goods that are forfeited to the Crown under various sections of the Customs Act and the Commerce (Trade Descriptions) Act 1905 . Under section 203DA, a warrant may also be issued for the seizure of certain in-transit goods, for example goods related to the carrying out of a terrorist act.

Carrying out a frisk or ordinary search under a search or seizure warrant for seizable items

241. Under sections 199 and 203 of the Customs Act, a search or seizure warrant may authorise the frisk or ordinary search of a person at or near the warrant premises if the executing officer or person assisting has reasonable grounds to suspect that the person has evidential material (under a search warrant) or forfeited goods (in a seizure warrant) in his or her possession. However, unlike section 3F of the Crimes Act 1914 , there is no power to conduct such a search for anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody. This poses a safety risk for Customs officers and other people at or near warrant premises.

242. In addition, a seizure warrant issued under section 203 cannot presently authorise the seizure of any evidential material found on the warrant premises relating to an offence committed in respect of forfeited goods and special forfeited goods. At present, a search warrant would also have to be issued in relation to the same premises covered by a seizure warrant.

243. The amendments in items 1 to 10 in this Schedule amend the relevant sections of the Customs Act to allow a search warrant to also authorise the frisk or ordinary search of a person at or near the warrant premises if the executing officer or person assisting has reasonable grounds to suspect that the person has seizable items in his or her possession. These amendments will also extend to a seizure warrant in the same terms and will also allow a seizure warrant to authorise a frisk or ordinary search for evidential material relating to an offence committed in respect of forfeited goods and special forfeited goods.

Item 1 Paragraph 198(4)(b)

244. This item amends paragraph 198(4)(b) to include a reference to "seizable item". This will allow a judicial officer to state in a search warrant that the warrant authorises a frisk or ordinary search of a person at or near warrant premises for a seizable item.

245. The definition of "seizable item" (see the amendments in items 1, 2, 3, 5, 8 and 9 of this Schedule) is being inserted into subsection 183UA(1) of the Customs Act by Schedule 10 to this Bill. "Seizable item" is defined as anything that would present a danger to a person or that could be used to assist a person to escape from custody.

Items 2 and 3 Subparagraphs 199(1)(e)(i) and (ii)

246. These items amend subparagraphs 199(1)(e)(i) and (ii) to also include a reference to "seizable item" and "items" respectively. Subsection 199(1) sets out the activities authorised by a search warrant. This will mean, if a warrant allows a frisk or ordinary search of a persons at or near warrant premises for a seizable item to be conducted, that the search can be carried out and that any seizable item found in the course of the search can be seized.

Item 4 Paragraph 203(6)(b)

247. This item amends paragraph 203(6)(b) to include a reference to seizable items. Similar to item 1, this will allow a judicial officer to state in a seizure warrant that the warrant authorises a frisk or ordinary search of a persons at or near warrant premises for a seizable item.

Item 5 At the end of subsection 203(6)

248. This item inserts a new paragraph (c) into subsection 203(6). Under new paragraph (c), a judicial officer will also be able to state in a seizure warrant whether the warrant authorises the ordinary search or frisk search of a person who is at or near premises when a warrant is being executed, if the executing officer or person assisting suspects on reasonable grounds that that person has in his or her possession any relevant evidential material.

Item 6 At the end of section 203

249. This item inserts new subsection 203(10), which contains a definition of "relevant evidential material" for the purposes of new paragraph 203(6)(c). This will be evidential material in relation to an offence by reason of the commission or which goods are believed to be:

a)

forfeited goods of a kind referred to in paragraph 203(5)(a) (i.e. the goods to which the warrant relates); or

b)

special forfeited goods.

Therefore, the power to seize evidential material under a seizure warrant will not extend to all evidential material but only to the evidential material that relates to the offence that makes the goods the subject of the warrant forfeited or special forfeited goods.

Items 7 and 8 Subparagraphs 203A(1)(e)(i) and (ii)

250. These items amend subparagraphs203A(1)(e)(i) and (ii) to also include a reference to "seizable item" and "items" respectively. Subsection 203A(1) sets out the activities authorised by a seizure warrant. This will mean, if a warrant allows a frisk or ordinary search of a persons at or near warrant premises for a seizable item to be conducted, that the search can be carried out and that any seizable item found in the course of the search can be seized.

Item 9 At the end of subsection 203A(1)

251. This item amends subsection 203A(1) by inserting new paragraph (f). This new paragraph applies if a seizure warrant authorises the ordinary search or frisk search of a person who is at or near premises when a warrant is being executed if the executing officer or person assisting suspects on reasonable grounds that that person has in his or her possession any relevant evidential material. In those circumstances, the search can be conducted and any relevant evidential material found in the course of that search can be seized.

Item 10

252. This item inserts new subsection 203A(7), which contains a definition of "relevant evidential material" for the purposes of new paragraph 203A(1)(f), in the same terms as new subsection 203(10).

Requirement to give name and address

253. Under the Customs Act, Customs officers do not currently have to power to request the name and address of a person located at premises that have been entered under the authority of either a search warrant or a seizure warrant. This power is considered essential, particularly if it is considered that a person may be able to assist in the execution of the warrant. In addition, if a person's identity can be confirmed, this may assist in pursuing action that might be required to be taken in respect of that person, or may assist in evaluating any potential risks to Customs officers or other people present at the warrant premises.

254. New section 203HA of the Customs Act sets out the power whereby a Customs officer or an authorised person may request a person at premises that are the subject of a warrant issued under either section 199, 203 or 203DA to provide their name and address. It shall be an offence for the arrested person to refuse to comply with this request, with a penalty of 5 penalty units.

Item 11 After section 203H

255. This item inserts new section 203HA into the Customs Act.

256. New subsection 203HA(1) provides that if:

a)

a search warrant or a seizure warrant in relation to premises is being executed; and

b)

the designated warrant officer believes on reasonable grounds that a person who is at or near the premises may be able to assist the officer in the execution of the warrant

the officer may request the person to provide his or her name or address, or name and address, to the officer.

257. Under subsection 203HA(2), the person commits an offence if a designated warrant officer makes such a request, the officer has informed the person of the reason for the request and has complied with a request that a person may make under subsection 203HA(4), and the person refuses or fails to comply with the request or gives a name or address that is false in a material particular. The offence is punishable by a penalty of 5 penalty units and the offence will not apply if the person has a reasonable excuse (subsection 203HA(3)).

258. Under subsection 203HA(4), a person, after being requested to provide a name and/or address by a designated warrant officer, may request that that officer provide his or her name and/or address of their place of duty, or if the officer is not in uniform and it is practicable to do so, to provided evidence that he or she is an officer of Customs. The officer commits an offence if they refuse or fail to comply with the request or give a name or address that is false in a material particular. The offence is also punishable by a penalty of 5 penalty units.

259. Subsection 203HA(5) sets out the definition of designated warrant officer for the purposes of section 203HA. Only an executing officer (who is the Customs officer named in a warrant as being responsible for its execution) or a Customs officer who is assisting in the execution of the warrant is a designated warrant officer. In some circumstances in relation to a seizure warrant, an executing officer or a officer assisting may also be an officer of police or a member of the Australian Defence Force.