Customs (Warrants—Cocos (Keeling) Island and Christmas Island) Directions 2025

The instrument centres on the concept of a warrant, defined by cross-reference to section 183UA of each Customs Act, meaning a search warrant or a seizure warrant. Two distinct types of warrants are contemplated: search warrants (section 6) and seizure warrants, including seizure warrants for goods in transit (section 7). The core operational concepts are the roles that control the warrant process. An ABF Investigator is an officer of Customs holding the duties of investigator in the Australian Border Force; only an ABF Investigator with a Certificate IV, Diploma or Advanced Diploma in Government Investigations may apply for a search warrant (section 6(1)). For seizure warrants, the applicant can be an ABF Investigator with the same qualifications, or an officer of Customs “otherwise trained in warrant application procedures” (section 7(1)(b)). The Case Manager is the supervising officer of the investigation; the Case Officer is the officer conducting the investigation. The Officer in Charge (OIC) is the highest-ranking officer on duty at the regional section undertaking the warrants. The Comptroller of the Indian Ocean Territories Customs Service makes the directions and also has the power under section 13 to authorise persons assisting with warrant execution. The Legal Group (part of the Department of Home Affairs) and the Commonwealth Director of Public Prosecutions may be consulted as appropriate (sections 6(3) and 7(3)). Another key concept is the jurisdiction of the State of Western Australia for warrant applications (section 8(1)). This reflects the long-standing application of Western Australian law to the Indian Ocean Territories, but the instrument does not explain the precise meaning of that requirement; officers will need to coordinate with Western Australian courts or magistrates. The concept of a substantive deficiency is introduced in section 9: if a judicial officer rejects a warrant application due to something more than a mere administrative error, a further application cannot be made without the prior permission of the OIC. This is a significant safeguard that prevents repeated attempts to obtain warrants on deficient grounds. The pre-warrant report and post-warrant report are separate concepts under section 14, each requiring recording in the case management system and dissemination to the OIC and an SES employee. The Allegations of Damage Report and Use of Force Report are additional concepts under section 14(6)-(9) that arise only if something goes wrong during execution. Finally, the transitional and savings provisions in section 17 treat the old 2015 Directions as continuing under the new instrument, meaning there is no gap in legal authority for warrants already in progress.

The instrument directly binds officers of Customs as defined in the two Customs Acts, but in practice it primarily affects those officers assigned to or working in the Indian Ocean Territories - Christmas Island and the Cocos (Keeling) Islands. Within that group, the most heavily affected are ABF Investigators, who must hold specific qualifications (Certificate IV, Diploma or Advanced Diploma in Government Investigations) to apply for search warrants or seizure warrants. Non-investigator officers of Customs who apply for seizure warrants are also affected but are subject to modified reporting requirements under section 15. Case Managers and Case Officers bear the burden of vetting applications, approving them, preparing pre-warrant and post-warrant reports, and ensuring dissemination. The Officer in Charge (OIC) at the relevant regional section is responsible for confirming necessity before execution (section 10), granting permission for re-applications after a deficiency rejection (section 9), and maintaining a formal record of all warrant applications, executions, searches and reports (section 16). The Comptroller of the IOT Customs Service is the maker of the directions and also authorises persons assisting under section 13. SES employees in the OIC’s work area must be briefed on sensitive matters (section 11) and receive copies of reports (sections 14(3)(c)(ii), 14(5)(c)(ii), 14(6)). The Legal Group and CDPP may be consulted, so their personnel are indirectly affected. Judicial officers in Western Australia are affected because officers must apply in the Western Australian jurisdiction under section 8(1); they will receive applications that must comply with these directions. Persons subject to search or seizure on the islands are affected because the directions govern how warrants are obtained and executed - any failure to follow the directions could affect the lawfulness of the search or seizure. Persons assisting with warrant execution must be authorised by the Comptroller under section 13, which may include police, other Commonwealth officers, or private experts. Businesses and individuals on the islands whose goods, premises or records may be subject to seizure are also affected, as the directions impose procedural rigour that provides some protections against arbitrary state action. The instrument does not directly affect mainland Australian Customs officers, but the definitions of ABF Investigator and Australian Border Force are drawn from the Australian Border Force Act 2015, so there is a conceptual link.

Duties of ABF Investigators applying for search warrants: hold one of the specified government investigations qualifications (section 6(1)); where practicable, have the application vetted by the Case Manager or OIC before applying (section 6(2)); comply with any requirements in the Acts (section 8(2)); not re-apply after a substantive deficiency rejection without OIC permission (section 9). For seizure warrants, similar duties apply under section 7, but non-investigator officers who are “otherwise trained” may also apply. Duty of the OIC or Case Manager: before a warrant is executed, confirm in writing that the warrant is necessary and in accordance with the interests and functions of the Australian Border Force (section 10). Duty of the OIC regarding sensitive matters: ensure an SES employee is briefed before execution (section 11). Duty of executing officers: only an ABF Investigator with the qualifications in section 6(1) may execute a search warrant; seizure warrants may be executed by cargo-trained officers or qualified ABF Investigators (section 12). Executing officers and persons assisting must comply with all conditions of the warrant (section 12(3)). Duty of persons assisting: must be an authorised person or otherwise authorised by the Comptroller (section 13). Duty of Case Officer: complete a pre-warrant report after approval and before execution (section 14(2)), and a post-warrant report after execution (section 14(4)). These reports must be recorded in the case management system and disseminated to the OIC and an SES employee. Duty to report damage allegations: if damage is alleged, the person or officer must report to the OIC and an SES employee as soon as practicable, and any verbal report must be recorded in writing in the case management system (section 14(6)-(7)). Duty to report use of force: full details must be submitted to the OIC as soon as practicable, with verbal reports recorded in writing (section 14(8)-(9)). Duty of officers of Customs (non-ABF Investigators): comply with section 14 reporting requirements unless operational needs require minimal modifications (section 15). Duty to record decisions: all decisions and considerations regarding whether to apply for and execute a warrant must be recorded (section 16(1)). Duty of each OIC: maintain a formal record of all warrant applications (regardless of outcome), executed warrants, all searches conducted, and reports under sections 14(6) and 14(8) (section 16(2)). Rights of persons affected: the instrument does not explicitly confer rights on persons subject to warrants, but the procedural duties create implicit protections. For example, the requirement for a written confirmation of necessity and vetting applications reduces the chance of unlawful or unjustified warrants. However, the instrument does not give a right to be notified of those procedures, nor a right to challenge non-compliance separately from the underlying warrant. The main legal right remains in the Customs Acts themselves: a person can challenge the validity of a warrant in court if these directions are not followed. The transitional provisions (section 17) give a deemed lawfulness to acts under the old directions, but do not create rights for affected persons.

The instrument itself does not prescribe penalties. It is a set of directions made under section 183UC of each Customs Act; that section likely provides that contravention of a direction does not itself constitute an offence, but may have consequences for the validity of warrants or internal discipline. The enforcement mechanisms operate indirectly. First, if an officer applies for a warrant without the required qualifications (contravention of section 6 or 7), the application may be rejected by a judicial officer, and if a warrant is granted on the basis of a defective application, the affected person could challenge the warrant in court. Second, if a warrant is executed without the written confirmation of necessity required by section 10, the lawfulness of the search or seizure could be challenged. Third, failure to maintain records as required by section 16 could lead to administrative action, loss of evidentiary continuity, and potential contempt proceedings if records are later required for court. Fourth, failure to comply with reporting requirements (sections 14 and 15) could lead to internal disciplinary measures, including suspension or termination of employment, under the Australian Border Force Act 2015 or the Public Service Act 1999. The instrument notes that Australian Border Force operational safety procedures must be followed (note to section 14(9)), so any breach of these directions may also be a breach of those broader procedures. Enforcement by external actors: a person whose property is searched or seized can seek a remedy in court (e.g., under the Customs Acts, the Criminal Code, or tort law) if the directions were not followed, because failure to comply may mean the warrant was not properly issued or executed. However, the instrument does not create a private right of action; the court would rely on the underlying Acts and common law. Disciplinary risk: the Comptroller, as the maker of the directions, has the authority to enforce compliance among officers of Customs. The instrument does not specify a penalty rate or sanction, leaving that to the general law and workplace policies. Practical enforcement difficulty: officers on remote islands may face pressure to bypass procedural steps due to limited resources or urgent operational needs. The requirement that modifications to reporting for non-ABF Investigator officers be “minimal” (section 15(3)) suggests an expectation of near-complete compliance, but the absence of penalties may encourage corner-cutting if oversight is weak. The court-based enforcement is expensive and reactive, making it more of a deterrent than a guarantee.

The instrument is made under section 183UC of the Customs Act 1901 (C.K.I.) and the equivalent provision of the Customs Act 1901 (C.I.). These are separate enactments for the Indian Ocean Territories, which replicate the main Customs Act 1901 with modifications for the territories. The instrument must be read together with Part XIIA (or the relevant part) of those Acts, particularly sections 183UA and 183UC, which define “warrant”, “authorised person”, “judicial officer” and “person assisting”. The instrument does not alter the substantive powers to issue warrants; it only directs how officers must exercise those powers. Section 8(2) requires officers to comply with “any requirements placed on them by the Acts” when applying for warrants, which incorporates the procedural rules of the Customs Acts themselves. The instrument requires warrant applications to be made in the jurisdiction of Western Australia (section 8(1)). This means the application must be made to a judicial officer of Western Australia, raising interaction with Western Australian court procedures and the Magistrates Court Act 1977 (WA) and possibly the Criminal Procedure Act 2004 (WA). The instrument also references the Australian Border Force Act 2015 in defining the Australian Border Force, and the Public Service Act 1999 in defining SES employee. This means the directions operate within the broader scheme of Commonwealth public service law and the Australian Border Force’s own policy instruments. The instrument interacts with the common law on search and seizure, including the law of trespass and the tort of unlawful search. If a warrant is executed without following these directions, the common law may provide remedies for affected persons, though the instrument itself does not create a statutory cause of action. The instrument does not interact with state criminal procedure laws except through the requirement for Western Australian jurisdiction. There is no mention of the Criminal Code 1995 (Cth), but conduct that amounts to a corruption, forgery or other offence in the course of obtaining a warrant would be separately prosecutable. The transitional provision in section 17 interacts with the Acts Interpretation Act 1901 (Cth) in that it preserves the effect of things done under the repealed 2015 Directions. The instrument does not interact with international law or treaties, as it is purely domestic. The reporting and record-keeping requirements may intersect with the Privacy Act 1988 (Cth) if personal information is collected, but the instrument does not address that. Similarly, the Freedom of Information Act 1982 could be used to seek access to records, subject to exemptions. The instrument does not override any other federal laws; it is subordinate to the Customs Acts under which it is made.

The instrument is a new legislative instrument that replaces the Comptroller Directions (Warrants) 2015 in its entirety. The 2015 Directions were repealed by Schedule 1, item 1. The new instrument was made on 25 September 2025 by Gavan Reynolds AO, Comptroller of the Indian Ocean Territories Customs Service, and commences on 1 October 2025. There is no amendment history for the 2025 Directions themselves because they are new. The 2015 Directions were presumably the only previous iteration; there is no indication of earlier versions. The transitional provisions (section 17) treat acts or omissions under the 2015 Directions as having been done under the corresponding provisions of the 2025 Directions, which means the 2025 Directions effectively apply retroactively to any ongoing matters. However, this is a savings and transitional provision typical of such replacement instruments: it avoids legal gaps for warrants that were applied for or issued but not yet executed when the new directions commence. The instrument does not amend any other Commonwealth legislation. There is no mention of consultation with stakeholders or exposure draft, which is common for directions of this nature. The amendment history is therefore limited to the repeal of the 2015 Directions and the commencement of the 2025 Directions. For practitioners, the key point is that the 2015 Directions are no longer in force and any references should be updated. The 2025 Directions are substantively similar but add more explicit definitions and additional reporting and record-keeping obligations, particularly the formal requirement for a written confirmation of necessity prior to execution (section 10) and the prohibition on re-applying after a substantive deficiency rejection without OIC permission (section 9). The 2015 Directions may have had less detailed requirements for pre-warrant and post-warrant reports; the 2025 version makes those mandatory for all ABF Investigator applications and, with minimal modifications, for other officers. There are no amendment history notes within the instrument, such as tables of amendments or sunset clauses. The instrument does not state whether it will be subject to periodic review.

The instrument itself has not been the subject of litigation because it is new and commences on 1 October 2025. There is no case law cited in the instrument or in its explanatory materials. The previous instrument, the Comptroller Directions (Warrants) 2015, may have been considered in litigation about the validity of warrants on Christmas Island or the Cocos (Keeling) Islands, but the instrument does not reference any cases. In the broader context, warrants under the Customs Acts in the Indian Ocean Territories have likely been challenged in state and federal courts, but none are mentioned here. Potential areas of litigation that could arise under the 2025 Directions include: (1) Whether a warrant obtained without the required qualifications in sections 6(1) or 7(1) is invalid. Courts may hold that compliance with the directions is mandatory and that non-compliance vitiates the warrant. (2) Whether the requirement in section 10 for a written confirmation of necessity before execution is a precondition to lawful execution. Failure to obtain that confirmation could render the execution a trespass. (3) Whether a warrant applied for in the wrong jurisdiction (not Western Australia, contrary to section 8(1)) is void. (4) Whether the OIC’s permission under section 9 for a re-application after a deficiency rejection is an administrative decision reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The instrument does not provide a merits review mechanism. (5) Whether the reporting and record-keeping obligations create an implied duty of care to persons whose property is damaged, breach of which could give rise to a civil action. (6) Whether the transitional provisions in section 17 are effective to validate a warrant that was applied for under the 2015 Directions but executed after the 2025 commencement. A court might need to interpret “corresponding provision” if the 2025 Directions contain materially different requirements. There is no known litigation directly interpreting the phrases “substantive deficiency” or “administrative error” in section 9. That is likely to be a fact-rich issue. Because the instrument applies only to the small population of the Indian Ocean Territories, reported litigation is likely to be rare. Any litigation would probably occur in the Federal Court of Australia (General Division) or the Supreme Court of Western Australia, given the territorial jurisdiction. Practitioners should expect that constitutional challenges based on the separation of powers or the requirement for judicial officers are unlikely because the underlying Acts have been in place for decades.

Several provisions hide compliance traps. Section 6(1) requires an ABF Investigator to hold a Certificate IV, Diploma or Advanced Diploma in Government Investigations to apply for a search warrant. If an officer has only a Certificate II or III, or does not have a diploma but has extensive experience, they cannot apply. This is a literal requirement; there is no “equivalent experience” exception. Section 7(1)(b) for seizure warrant applicants says “otherwise trained in warrant application procedures” - but that phrase is not defined. It could invite subjective interpretation by the OIC or a court, creating uncertainty. Section 8(1) - “application for a warrant should be made in the jurisdiction of the State of Western Australia” - uses the word “should”, which is weaker than “must”. This may cause confusion: is it a direction or a recommendation? In the context of a legislative instrument made under a “must” power, “should” likely indicates a direction that admits of limited exceptions, but the instrument does not specify any exceptions. Officers who apply in a different jurisdiction risk the warrant being quashed. Section 9 - if a judicial officer rejects an application for a substantive deficiency (beyond administrative error), a further application requires “prior permission of the relevant OIC”. What if the OIC is unavailable, or the deficiency is contested? The instrument does not set a timeframe for obtaining permission. Section 10 - the OIC or Case Manager must confirm in writing that the warrant is necessary and in accordance with the interests and functions of the Australian Border Force before execution. If this confirmation is not obtained, any search or seizure could be unlawful. The confirmation must be “in writing”; an oral confirmation followed by a written note may not suffice. Section 11 - “potentially sensitive matter” is not defined. The OIC must use judgment. Over-briefing may cause delay; under-briefing may lead to failure to comply. Section 12(2)(a) - seizure warrants may be executed by “an officer of Customs who is trained in the examination of cargo or goods”. What qualifies as training? There is no reference to any training standard. Section 13 - persons assisting must be an “authorised person” or otherwise authorised by the Comptroller. If someone assists without proper authorisation, the warrant execution may be tainted. Section 14(6)-(9) - reporting obligations for damage and use of force are triggered as soon as possible. But the instrument does not say what happens if the report is not made. It also does not require a report if no damage or force occurred, which could lead to missing records. Section 15(2) - officers of Customs who are not ABF Investigators must comply with section 14 reporting “unless operational and administrative needs require modification”. That is a vague escape hatch. It could be abused to avoid reporting. Modifications must be “minimal” - but who judges? Section 16(2) requires each OIC to maintain a formal record of “all search conducted” - but the instrument only authorises search and seizure warrants. Does “all searches conducted” include consensual searches or searches without a warrant? The wording is ambiguous. Transitional provisions (section 17) - they deem acts under the 2015 Directions to be acts under the 2025 Directions. But if the 2025 Directions impose stricter requirements (e.g., written confirmation of necessity), does that apply to warrants issued before 1 October 2025 but executed after? Section 17(3) says “with any necessary modifications”, which is a major source of uncertainty.

Compliance begins with identifying which officers are ABF Investigators and which have the required qualifications. Each officer who may apply for a search warrant must hold at least a Certificate IV in Government Investigations (or higher). Those without such qualifications must not apply. For seizure warrants, non-ABF Investigators must be “otherwise trained” - this should be documented and formally recognised by the OIC. The OIC should create a register of qualifications. Before any warrant application the Case Manager or OIC should vet the application where practicable. Legal input from the Legal Group or CDPP should be sought for complex or sensitive cases. Officers must ensure the application is made to a Western Australian judicial officer. The case management system must be used to record applications and decisions. If a warrant application is rejected due to a substantive deficiency, the OIC must be notified and must give written permission before a further application is made. That permission should be recorded. Before executing a warrant the OIC or Case Manager must produce a written confirmation of necessity, stating that the warrant is necessary and in accordance with ABF interests and functions. This document should be retained in the case file. If the warrant relates to a sensitive matter (broadly interpreted), the OIC must brief an SES employee before execution. The briefing should be documented. Execution must be done only by qualified officers: search warrants by qualified ABF Investigators; seizure warrants by qualified officers or cargo-trained officers. All conditions of the warrant must be followed. Persons assisting must have written authorisation from the Comptroller. Reporting must be rigorous. The Case Officer must complete a pre-warrant report (after approval, before execution) and a post-warrant report (after execution). These must be recorded in the case management system and sent to the OIC and the SES employee. If damage is alleged or force is used, reports must be made as soon as practicable, with verbal reports transcribed promptly. Record-keeping is critical. The OIC must maintain a formal record of all applications (including rejected ones), all executed warrants, all searches, and the damage/use-of-force reports. The governing Acts’ requirements under section 8(2) must also be satisfied - officers should be familiar with the procedural rules in Part XIIA of the Customs Acts. For non-ABF Investigator officers applying for seizure warrants, they should follow the same reporting requirements as ABF Investigators unless operational needs truly require modification. Any modification should be documented and kept minimal; ideally none. Staff training should cover the specific roles: Case Manager, Case Officer, OIC, and SES Employee. All officers should know that failure to comply may not only attract internal discipline but could render warrants invalid, leading to legal challenges and potential liability. The transitional provisions mean that matters carried over from the 2015 Directions are deemed compliant, but it is safer to re-confirm compliance with the new directions even for existing warrants. Regular audits of warrant files should be conducted to ensure the formal record is complete and that the case management system logs all reports. Finally, any departure from the directions should be escalated to the Comptroller or legal advisor immediately, especially if an officer believes an exception is necessary. The instrument offers a clear framework; following it exactly is the safest path.