Bills Digest no. 94 2014–15
PDF version [912KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Cat Barker
Foreign Affairs, Defence and Security Section
14 July 2014
Contents
The
Bills Digest at a glance
Purpose and structure of the Bills
Commencement
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statements of Compatibility with Human Rights
Key issues and provisions
Date introduced: 25
February 2015
House:
House of Representatives
Portfolio: Immigration
and Border Protection
Commencement: The Australian
Border Force Act 2015 will commence on 1 July 2015. For the
Customs and Other Legislation Amendment (Australian Border Force) Bill 2015,
see page 4 of this Digest for details.
Links: The links to the Bills, their
Explanatory Memoranda and second reading speeches can be found on the Bills’ home
pages for the Australian
Border Force Bill 2015 and the Customs
and Other Legislation Amendment (Australian Border Force) Bill 2015, or
through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
In May 2014, the Minister for
Immigration and Border Protection announced that the Government would consolidate
the border control functions of the Department of Immigration and Border
Protection (DIBP) and the Australian Customs and Border Protection Service (Customs)
into a single agency, to be known as the Australian Border Force (ABF). This
was a recommendation of the National Commission of Audit.
The Australian Border Force Bill 2015 (ABF Bill) will
establish the ABF within the DIBP, and an ABF Commissioner who will be
responsible directly to the Minister for the operations of the ABF. The ABF
Commissioner will also be the Comptroller-General of Customs and be responsible
in that capacity for enforcement of customs laws and border-related revenue
collection. The establishment of the ABF has bipartisan support.
Many of the amendments in the Customs and Other
Legislation Amendment (Australian Border Force) Bill 2015 (Customs Bill)
are savings and transitional measures, consequential amendments or simply
reflect changes in terminology resulting from the establishment of the ABF and
consolidation of Customs into DIBP; for instance, replacing ‘CEO’ with
‘Comptroller-General of Customs’ in Customs legislation. However, some are
substantive. In particular, the Bill gives significant law enforcement powers to
all officers of DIBP and enables wide declarations be made to exclude or
limit work health and safety obligations.
The Bills will extend several integrity-related regimes
that currently apply only to law enforcement agencies not just to the ABF but right
across the consolidated DIBP. These include:
- the
targeted integrity testing regime that currently applies to the Australian Federal
Police (AFP), Australian Crime Commission (ACC) and Customs (Schedules 5
and 6 of the Customs Bill). Integrity tests simulate
situations that may be faced by officers in the course of their work, to test
whether they will respond in an illegal manner or one that does not accord with
an agency’s integrity standards
- a
drug and alcohol testing regime similar to those that currently apply to the
AFP, ACC, Customs and the Australian Defence Force (ABF Bill, proposed
Part 5)
- powers
for the Secretary and the ABF Commissioner to make declarations that exclude
the operation of Fair Work Act 2009 provisions where an employee has
been terminated for serious misconduct, similar to those currently available to
the heads of the AFP, ACC and Customs (ABF Bill, proposed Part 4)
- the
ability for the ABF Commissioner and the Secretary to require mandatory
reporting by DIBP workers of serious misconduct and criminal activity where it
affects, or is likely to affect, the operations, responsibilities or reputation
of the DIBP (ABF Bill, proposed Part 7 and Division 7
of proposed Part 2). This is equivalent to the ability of the
Customs CEO and AFP Commissioner
- the
ability of the Secretary to give directions relating to organisational
suitability assessments, for which a non-statutory scheme currently exists in
Customs (ABF Bill, proposed Part 7) and
- oversight
by the Australian Commission for Law Enforcement Integrity (ACLEI)
(Schedule 6 of the Customs Bill).
The Bills would also extend to the whole of the DIBP
access to certain law enforcement powers currently available to Customs, in
particular:
- powers
under the Crimes Act 1914 relating to controlled operations (covert
operations in which participants are protected from criminal or civil liability
that may otherwise arise), to acquire and use an assumed identity, and witness
identity protection certificates for operatives
- powers
under the Proceeds of Crime Act 2002 relating to search and
seizure, applications for freezing orders and monitoring orders, and receiving
information and documents, and for the Secretary of the DIBP to issue notices
requiring financial institutions to provide information and
- access,
subject to some limitations, to telecommunications data and stored
communications (but not interception powers) under the Telecommunications
(Interception and Access) Act 1979.
Submissions to an inquiry into the Bill from the Law
Council of Australia, refugee and asylum seeker advocacy groups and the
Community and Public Sector Union identify a range of issues, primarily
relating to the secrecy provisions and extension of law enforcement powers and
some integrity measures to the consolidated DIBP.
The purpose of the ABF Bill is to:
- establish
the Australian Border Force (ABF) in the Department of Immigration and Border
Protection (DIBP) (Parts 1 and 2)
- establish
the role of ABF Commissioner to control the operations of the ABF and serve as
Comptroller‑General of Customs (Parts 1 and 2)
- give
powers to the Secretary of the DIBP and the ABF Commissioner concerning
resignations from, and termination of, employment in the DIBP related to serious
misconduct (Parts 3 and 4 respectively)
- introduce
powers to require DIBP workers to undergo alcohol and prohibited drug tests (Part 5)
- apply
new secrecy and disclosure provisions to the Secretary of DIBP, the ABF
Commissioner and DIBP workers (Part 6) and
- enable
the Secretary of DIBP and the ABF Commissioner to issue written directions to
DIBP workers in connection with the administration and control of DIBP and the
ABF respectively, and in relation to the performance of duties or exercise of
powers (Part 7 and Division 7 of Part 2).
The purpose of the Customs Bill is to:
- amend
the Law Enforcement Integrity Commissioner Act 2006 and other
legislation to bring the DIBP within ACLEI’s jurisdiction and under a targeted
integrity testing regime (Schedules 5 and 6)
- amend
the Crimes Act, Proceeds of Crime Act and the Telecommunications
(Interception and Access) Act (TIA Act) to provide the DIBP with
access to investigative powers currently available to Customs (Schedules 5
and 6)
- amend
the Work Health and Safety Act 2011 to allow the ABF Commissioner to declare
that specified provisions of that Act do not apply, or apply subject to
modifications (Schedule 4)
- repeal
the Customs Administration Act 1985 and make consequential amendments to
the Customs Act 1901 (Schedules 1 and 2)
- amend
the Migration Act 1958 to allow the ABF Commissioner to exercise certain
powers under the Act (Schedule 3) and
- make
consequential amendments to a range of customs-related and other legislation to
reflect the new structure and terminology introduced by the Bills (Schedules 5
to 8)—note that many Acts are amended by more than one Schedule.
The ABF Act will commence on 1 July 2015.
Sections 1 to 3 of the Customs Bill will
commence on the day it receives Royal Assent. Schedules 1–7 and
Schedule 9 will commence on 1 July 2015. For commencement
details on Schedule 8 of the Bill, refer to the commencement table in the Bill
with reference to the commencement of the Biosecurity Act 2015, Crimes
Legislation Amendment (Psychoactive Substances and Other Measures) Act 2015,
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 and
the Telecommunications (Interception and Access) Amendment (Data Retention)
Act 2015.
Customs was moved from the Attorney-General’s portfolio to
the Immigration and Border Protection portfolio when the Abbott Government came
to power in 2013.[1]
In its February 2014 report, the National Commission of Audit recommended
the consolidation of the border control functions of DIBP and Customs into a
single agency:
Given recent trends and developments (including in
technology) a more effective approach to border management will require a
series of integrated activities both beyond and within the border. A continued
effort to improve intelligence-led, risk-based approaches will ensure better
border management to deal with material threats while the vast majority of
people and cargo, which are low risk, are easily moved.
Continued growth in electronic lodgement and on-line
processing, which reduce transaction cost and improve information capture, is
essential. More efficient collaboration, integration and communication between
stakeholders along with early interventions upstream will enhance Australia’s
capacity to manage its borders.
Our existing multiple border agency and portfolio
arrangements do not provide the optimal structure to pursue these objectives.
The Commission suggests a single, integrated border agency,
to be known as Border Control Australia be considered. This would combine the
border control functions of Customs and the Department of Immigration and
Border Protection in a single agency.[2]
The then Minister for Immigration and Border Protection,
Scott Morrison, announced on 9 May 2014 that the Government would
adopt the Commission’s recommendation and establish the ABF, ‘a single
frontline border agency, to enforce our customs and immigration laws and
protect our border’, from 1 July 2015.[3]
The 2014–15 Budget outlined funding of $480.5 million over four years for
the measure ‘Smaller government—strengthen and enhance Australia’s border
protection services’ (see ‘Anticipated efficiencies’ below for further details).[4]
Structure and composition of the
ABF
The then Minister stated that the ABF would be headed by a
Commissioner reporting directly to the Minister, but would not be a standalone
agency. Instead it would be situated within DIBP with ‘a reporting link’ to the
Secretary for administrative purposes.[5]
This will be the case under the ABF Bill, which would establish an ABF
Commissioner who has, under the Minister, control of the ABF and provide that a
person appointed as ABF Commissioner is also the Comptroller-General of
Customs.[6]
The May 2014 announcement and the Minister’s second
reading speech for the ABF Bill both indicated that the ABF would comprise
frontline staff from Australia’s air and sea ports; those working in
immigration or customs investigations, compliance and enforcement; management
of detention facilities and removal activities; and staff working in
operational roles overseas; while all corporate services and policy functions
would sit within DIBP.[7]
Visa and trade service functions would be undertaken by DIBP, but consideration
would be given to moving them across to the ABF at a later stage.[8]
The distribution of functions is further detailed in the Blueprint for
integration released in October 2014, which states that:
- the
DIBP will be responsible for:
- policy
and strategy
- the
Migration and Humanitarian Programmes
- visa
and citizenship application assessments
- corporate
services
- assisting
people and traders to understand their obligations
- facilitation
and education and
- information
strategy and intelligence and
- the
ABF will be responsible for:
- verification
of identity and intent
- enforcement,
compliance and investigation and
- specialised
border capabilities.[9]
The structure of the merged DIBP will comprise six
groups—policy, corporate, intelligence and capability, visa and citizenship
services, immigration status resolution, and border operations.[10]
ABF staff working outside Canberra will be led by Regional Commanders, and
staff working in Canberra in other areas of the DIBP, by Regional Directors.[11]
Process leading to establishment of
ABF
When he announced the establishment of the ABF in May
2014, the then Minister indicated it would happen in two stages. During
2014–15, a series of reforms and capability improvements would be implemented
in Customs, including anti-corruption and integrity measures initiated under the
previous Government, and from 1 July 2015 reforms would continue to
be rolled out ‘across the full spectrum of [ABF] operations’.[12]
The reforms initiated under the previous Government
culminated in the release of Customs’ Blueprint for Reform: 2013–18, in
July 2013.[13]
The Blueprint outlined how Customs would pursue reforms focused on three
‘tracks’—its people and operating model, modernisation (business systems,
processes and intelligence) and integrity.[14]
Development of the Blueprint was informed by the first report of the Customs
Reform Board established in December 2012, an interim report by ACLEI on
its investigation of alleged corruption by Customs officers at Sydney
International Airport, and the results of a capability review conducted by the
Australian Public Service Commission.[15]
On 23 February 2015, in his opening statement at a Senate
Estimates hearing, the Secretary of the DIBP stated that the Immigration and
Border Protection portfolio would operate in a fully integrated structure based
on the six groups listed above, from 2 March 2015.[16]
The Plan for integration released in February 2015 details
‘integration and reform milestones’ from March 2015 through to June 2016,
and states that many of the major capability enhancements will be in place by then,
but that others ‘will still be under development or take many years to fully
mature’.[17]
The consolidation of the two agencies has and will result
in staffing reductions, as outlined in the following section.
Anticipated efficiencies
The National Commission of Audit considered the
consolidation of border protection functions had ‘the potential to generate
significant savings by removing duplication, better integrating and improving
operational systems and practices, reducing staff, as well as consolidating
back office functions and rationalising property’.[18]
When the ABF’s establishment was announced in
May 2014, it was characterised more as a reform measure than a savings
measure, with the then Minister stating ‘The hundreds of millions in savings
that will be achieved in the creation of the agency will all be re-invested
back into the agency’.[19]
This is echoed in the Blueprint for integration, which states:
Bringing together our functions is more than a machinery of
government change. This will be a comprehensive integration of our
complementary functions and capabilities, to drive better outcomes for
Australia, to lift and broaden our policy role, to strengthen our protection of
the border, to deliver better services to clients, and to provide more diverse
and interesting jobs and careers for our people, supported by better training,
an increased sense of professionalism and a culture resistant to corruption.[20]
As noted above, the 2014–15 Budget included $480.5 million
over four years ‘to strengthen Australia’s border protection services’.[21]
A Budget media release stated the package would be funded through efficiency
savings resulting from the consolidation of DIBP and Customs, increased revenue
and reallocation of existing funds.[22]
The consolidation, combined with the transfer of other
functions out of DIBP and Customs in the 2013 machinery of government changes, has
been estimated to lead to a staffing reduction of approximately 480 full‑time
positions (or 3.4 per cent).[23]
It appears all of these positions are expected to go during 2014–15 and mostly
from the DIBP, with the average staffing levels of the DIBP and Customs
respectively forecasted to drop by 400 and 80 (which includes the transfer of
the Anti-Dumping Commission out of Customs).[24]
Integrity measures
Despite the title of the ABF Bill, many of the reforms it
contains, in particular those relating to integrity, will apply across the
whole of the DIBP, as will some of the amendments in the Customs Bill.
The Law Enforcement Integrity Legislation Amendment Act
2012 introduced a range of integrity measures announced in March and
April 2012 in the wake of reports in the Fairfax media about investigations
into ‘more than two dozen’ Customs officials for corruption or misconduct.[25]
The Act introduced targeted integrity testing of Customs, AFP and ACC officers,
as had been recommended in November 2011 by the Parliamentary Joint Committee
on the Australian Commission for Law Enforcement Integrity (PJC-ACLEI).[26]
It also introduced new measures for Customs that mirrored those already in
place for the AFP and the ACC, in particular, drug and alcohol testing,
declarations that an officer’s employment was terminated for serious misconduct
and mandatory reporting of corruption and misconduct.[27]
A ‘tougher’ organisational suitability assessment regime was one of the
non-legislative measures announced in June 2013 to build on the 2012
reforms.[28]
The then Minister for Home Affairs and Justice stated it would:
... better detect and deal with officers with criminal
associations by: increasing the range of intelligence sources against which
prospective employees are checked; continual monitoring, education and risk
mitigation post‑employment; an early identification and intervention
system to proactively identify and work with staff to correct potential
problematic behaviours before they become an issue; and integration of
integrity and HR processes so that positive behaviours are rewarded and
recognised.[29]
The Bills will extend each of these measures to apply
across the whole of the DIBP, and will bring the consolidated department under
ACLEI’s jurisdiction.
Some justification is provided in the Explanatory Memoranda,
including that DIBP workers ‘will make decisions that affect the safety, rights
and freedoms of individuals as well as trade and commerce in Australia’, have access
to sensitive information, and work in close cooperation with law enforcement
agencies.[30]
The rationale for applying the measures across DIBP is explained more fully in
the Blueprint for integration and the Plan for integration, which
highlight the following factors:
- there
have been well-documented instances of corruption in both Customs and the DIBP
- the
consolidated department will have a large number of staff based overseas in a
variety of roles, many in countries with higher levels of public sector corruption
than Australia and
- corruption
risks can arise from factors other than organised crime—in the immigration
context, this may include family or friends seeking favourable outcomes for
themselves or others.[31]
The Blueprint for integration also recognises that the
level of risk of criminal infiltration, corruption and serious misconduct will
not be uniform across the different functions of DIBP or different officers,
and indicates that integrity measures will be applied using a layered approach
according to the particular risks identified.[32]
Extending ACLEI’s jurisdiction
ACLEI’s key functions are to prevent, detect and
investigate corruption in Commonwealth law enforcement agencies. When ACLEI was
first established it had jurisdiction over the AFP and the ACC (and the former
National Crime Authority). However, its jurisdiction has since been expanded to
also include Customs, the Australian Transaction Reports and Analysis Centre
(AUSTRAC), CrimTrac and certain staff in the Department of Agriculture.
In 2011, the Parliamentary Joint Committee on the
Australian Commission for Law Enforcement Integrity (PJC‑ACLEI)
recommended the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act)
be amended to establish a second tier of jurisdiction for agencies with a law
enforcement function, which would be subject to a more limited oversight
regime.[33]
It further recommended that jurisdiction should initially comprise the Australian
Taxation Office (ATO), AUSTRAC, the Australian Quarantine and Inspection
Service (now part of the Department of Agriculture) and the Department of
Immigration and Citizenship (now DIBP).[34]
In 2013, the Parliamentary Joint Committee on Law
Enforcement recommended the PJC-ACLEI inquire into the feasibility of extending
ACLEI’s jurisdiction to include the Australian Securities and Investments
Commission, Attorney-General’s Department and the ATO.[35]
The PJC-ACLEI is currently conducting a broader inquiry into ACLEI’s
jurisdiction. [36]
It will consider the addition of those and other agencies (including DIBP), as
well as whether an activity-based jurisdiction would be more appropriate than
the current agency-based approach. The PJC-ACLEI will consider the most
appropriate method of implementing any jurisdiction changes and the budgetary
implications of any changes. No reporting date has been set for the inquiry.
The Customs Bill will provide ACLEI with jurisdiction over
the DIBP in place of Customs.
Senate Legal and Constitutional
Affairs Legislation Committee
The Bills have been referred to the Senate Legal and
Constitutional Affairs Legislation Committee for inquiry and report by 7 May 2015.
Details of the inquiry are at the inquiry
homepage.[37]
Senate Standing Committee for the
Scrutiny of Bills
The Scrutiny of Bills Committee commented on several aspects
of the ABF Bill in its 18 March 2015 Alert Digest. In
particular, the Committee sought the Minister’s advice on:
- the
intended availability of judicial review of decisions made by a private
contractor or consultant under a delegation made by the ABF Commissioner in
that role (clause 25) or as Comptroller-General of Customs (clause 54);
while the Committee did not raise it, the same issue could arise in relation to
the Secretary of DIBP’s delegation power (clause 53)
- whether
a derivative use immunity, in addition to a use immunity, could be provided
where the privilege against self-incrimination will be abrogated in the context
of mandatory reporting of serious misconduct or criminal activity under clauses
26 and 55. A use immunity prevents self-incriminating information
from being used directly as evidence against the person who provided it.
Derivative use immunity also prevents the use in evidence against that person
of further information gathered subsequent to the self-incriminating
information
- why
it is appropriate for some of the matters relating to the alcohol and drug
testing regime to be dealt with in rules (made under clause 39)
instead of in the primary legislation and
- justification
for the inclusion of a rule-making power to prescribe additional bodies or
persons to which protected information, including personal information, may be
disclosed under clause 44, and if there is sound justification,
whether guidance for the exercise of that power should be included in the
legislation.[38]
At the time of writing this Digest, the Committee had not
published any response from the Minister.
The Committee commented on other provisions, but noting
information provided in the Explanatory Memorandum, left the question of
whether they are appropriate to the Senate as a whole. In particular, it noted:
- the
exemption of written directions given by the ABF Commissioner under clauses
26 and 27 from the Legislative Instruments Act 2003
(it did not refer to an equivalent exemption for directions given by the Secretary
of the DIBP under clauses 55 and 56) and
- the
power under clause 30 for the Secretary of DIBP or the ABF
Commissioner to substitute a later date of effect for the resignation of a DIBP
worker who is an APS employee, where the employee is being, or has been,
investigated for serious misconduct.
The Committee made no comment on the Customs Bill.[39]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights deferred
its consideration of the Bills on 18 March 2015 and had not reported
on them as at the time of writing.[40]
The Australian Labor Party supports the Bills, which were
passed by the House of Representatives with bipartisan support.[41]
As at the time of writing, the Australian Greens had not
made public their position on the Bills. However, the Greens were critical of
the proposed ABF when it was announced in May 2014, with immigration
spokesperson Senator Hanson-Young branding it ‘a deliberate move to cut jobs
and demonise refugees’.[42]
Other non-government parties and independents did not
appear to have a publicly stated position on the Bills as at the time of
writing.
Law Council of Australia
The Law Council of Australia (LCA) has expressed concern
about several aspects of the Bills and recommended amendments. These relate to:
- the
extension of law enforcement powers currently available to Customs to the whole
of the consolidated DIBP (under Schedules 5 and 6 of
the Customs Bill)
- the
extension of integrity testing (Schedule 5 of the Customs Bill)
and the power to make a declaration that an officer’s employment was terminated
for serious misconduct (proposed Part 4 of the ABF Bill) to
the whole of the consolidated DIBP
- the
proposed secrecy provisions (under proposed Part 6 of the ABF
Bill) and
- the
setting of essential qualifications (under proposed Parts 2 and 7
of the ABF Bill).[43]
Further detail is provided in the relevant parts of the ‘Key
issues and provisions’ section of this Digest.
Refugee and asylum seeker advocacy
groups
The Asylum Seeker Resource Centre (ASRC) and the Combined
Refugee Action Group (CRAG) are opposed to the Bills in their entirety.[44]
The Refugee Council of Australia (RCOA) has not opposed the Bills, but has
recommended several amendments.[45]
These organisations are all concerned that the overall
effect of the Bills will be an inappropriately securitised response to asylum
seeker and immigration issues, coupled with increased secrecy about the
treatment of asylum seekers. For example, the RCOA states that its key concern
is ‘the apparent shift away from a facilitation‑centred approach to
migration, refugee protection and citizenship to an enforcement-centred approach’.[46]
These concerns echo those in some recent commentary about a shift in focus and
culture associated with the merging of the DIBP and Customs—the ‘Customisation
of Immigration’—and the recent departure of several senior bureaucrats.[47]
The organisations highlight the secrecy provisions as being
of particular concern in the context of the existing lack of transparency around
implementation of the Government’s asylum seeker policies.[48]
The ASRC argues the provisions ‘risk further entrenching a lack of information
and accountability to the public from the Department of Immigration and Border
Protection’.[49]
The RCOA is also concerned about the extension of law
enforcement powers to the consolidated DIBP, declarations about terminations
for serious misconduct and the power for the ABF Commissioner to declare that
specified provisions of the Work Health and Safety Act 2011 do not apply,
or apply subject to modifications (under Schedule 3 of the Customs
Bill).[50]
Further detail on the latter is provided in the relevant part of the ‘Key
issues and provisions’ section of this Digest.
The CRAG is also concerned about provisions requiring DIBP
workers, including those from international organisations providing services on
the DIBP’s behalf, to comply with all written directions from the ABF
Commissioner or Secretary of the DIBP (under proposed Parts 2 and 7
respectively of the ABF Bill). In particular, it notes that there is no
provision made for refusal on the grounds that directions conflict with an
individual’s conscience, raise humanitarian concerns or, in the case of workers
from an international organisation, prevent the person from following the
policies of that organisation.[51]
It expressed similar misgivings about the requirement for DIBP workers in the
ABF to make an oath or affirmation (under Division 7 of Part 2
of the ABF Bill).[52]
Community and Public Sector Union
The Community and Public Sector Union (CPSU) is opposed to the
extension of several integrity measures that currently apply across Customs to
the whole of the consolidated DIBP. In particular, it is concerned about:
- the
power to make a declaration that an officer’s employment was terminated for
serious misconduct
- alcohol
and drug testing (proposed Part 5 of the ABF Bill)
- setting
of essential qualifications and
- the
ability to make directions requiring mandatory reporting of serious misconduct
(under proposed Parts 2 and 7 of the ABF Bill).[53]
It also opposes the proposed power for the Secretary of the DIBP
or the ABF Commissioner to substitute a later date of effect for the
resignation of a DIBP worker who is an APS employee, where the employee is
being, or has been, investigated for serious misconduct (under Part 3
of the ABF Bill).[54]
It stated that the CPSU ‘supports efforts to prevent
corruption in Commonwealth law enforcement agencies’ but is concerned that a
‘blanket approach’ is unnecessary, expensive and supported by ‘little to no’
evidence.[55]
Further detail is provided in the relevant parts of the ‘Key
issues and provisions’ section of this Digest.
The CPSU raised many
of the same concerns when enhanced integrity measures were introduced across
Customs by the Law Enforcement Integrity Legislation Amendment Act 2012.[56]
The Senate Legal and Constitutional Affairs Legislation Committee, chaired by
Senator Barry O’Sullivan, considered the CPSU’s concerns in its report on the
originating Bill for that Act, and did not recommend any changes in response.[57]
The Explanatory Memorandum to the ABF Bill states that it will
have no financial impact.[58]
This contradicts the Government’s May 2014 statement that establishing the ABF
would result in ‘hundreds of millions in savings’.[59]
While the Government has decided those savings will be reinvested back into the
ABF, meaning there is no net impact (see ‘Anticipated efficiencies’ above),
that was a policy decision taken independently of the legislation.
The Explanatory Memorandum to the Customs Bill states that
the financial impact of the amendments in that Bill is low.[60]
However, it does not identify which provisions will have that impact or how.
Amendments to the LEIC Act that will expand ACLEI’s jurisdiction to include the
whole of the DIBP would have resource implications for ACLEI. Previous
extensions of ACLEI’s jurisdiction have been accompanied or followed by
increases in the agency’s budget.[61]
ACLEI has stated that it expects the resourcing implications of its extended
jurisdiction ‘will be considered through the normal budget processes of
government’.[62]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bills’ compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bills are compatible.[63]
The Statement of Compatibility recognises that the ABF
Bill engages:
- rights
to equality and non-discrimination in Article 26 of the International
Covenant on Civil and Political Rights (ICCPR), in relation to setting of
essential qualifications (Part 7 and Division 7 of Part 2)
- rights
of people with disability in the Convention on the Rights of Persons with
Disabilities in relation to setting of essential qualifications (Part 7
and Division 7 of Part 2)
- the
right to take part in public affairs and elections in Article 25 of the ICCPR
in relation to:
- setting
of essential qualifications (Part 7 and Division 7 of Part 2)
and
- subscription
of an oath or affirmation (Division 6 of Part 2)
- the
right to work and rights at work, including rights in the workplace in Articles 6
and 7 of the International Covenant on Economic Social and Cultural
Rights (ICESCR) in relation to:
- setting
of essential qualifications (Part 7 and Division 7 of Part 2)
- subscription
of an oath or affirmation (Division 6 of Part 2) and
- delaying
the date of resignation for an employee reasonably believed to have engaged in
serious misconduct (Part 3)
- rights
to freedom of assembly and association in Articles 21 and 22 of the ICCPR
in relation to:
- organisational
suitability assessments (Part 7) and
- mandatory
reporting of serious misconduct or criminal activity (Part 7 and Division 7
of Part 2)
- the
prohibition on unlawful or arbitrary interference with privacy and attacks on
reputation in Article 17 of the ICCPR in relation to:
- organisational
suitability assessments (Part 7)
- drug
and alcohol testing (Part 5)
- mandatory
reporting of serious misconduct or criminal activity (Part 7 and Division 7
of Part 2) and
- secrecy
and disclosure provisions (Part 6)
- the
right to an effective remedy under Article 2(3)(a) of the ICCPR in
relation to declarations following termination of employment related to serious
misconduct that remove the right to seek a remedy through the Fair Work Act
(Part 4)
- the
right to the enjoyment of just and favourable conditions of work under the ICESCR
in relation to declarations following termination of employment related to
serious misconduct that remove protections relating to payment of outstanding
entitlements under the Fair Work Act (Part 4) and
- rights
to a fair trial or hearing and minimum guarantees in criminal proceedings in
relation to abrogation of the privilege against self-incrimination in the
context of mandatory reporting of serious misconduct or criminal activity (Part 7
and Division 7 of Part 2).
It also states that the drug and alcohol testing regime in
Part 5 of the ABF Bill promotes the protection of worker’s
rights in the workplace in Article 22 of the ICCPR by ensuring the
workplace is drug and alcohol free.
The Statement of Compatibility recognises that some
provisions in the Customs Bill engage certain human rights; in
particular:
- amendments
to the WHS Act in Schedule 4 enabling the ABF Commissioner,
in certain circumstances, to issue a declaration that particular provisions of
the WHS Act do not apply, or apply subject to modifications, engage the right
to just and favourable conditions at work under Article 7 of the ICESCR
and
- amendments
to the LEIC Act in Schedule 6 to extend ACLEI’s jurisdiction
to the whole of DIBP engage the prohibition on unlawful or arbitrary
interference with privacy and attacks on reputation in Article 17 of the ICCPR.
The Statement of Compatibility states that the remaining
amendments in the Customs Bill ‘are technical in nature and do not engage human
rights’.[64]
ABF Bill definitions
Clause 4 of the ABF Bill sets out definitions for the
purposes of the ABF Act. Some of these are outlined in the following
sections of this Digest where relevant. A fundamental definition is that of
‘Immigration and Border Protection worker’, which will mean:
(a) an APS employee in the
Department; or
(b) a person covered by
paragraph (d), (e) or (f) of the definition of officer of Customs in
subsection 4(1) of the Customs Act 1901;[65]
or
(c) a person covered by
paragraph (f) or (g) of the definition of officer in
subsection 5(1) of the Migration Act 1958;[66]
or
(d) a person who is:
(i) an employee of an
Agency (within the meaning of the Public Service Act 1999); or
(ii) an officer or
employee of a State or Territory; or
(iii) an officer or
employee of an agency or authority of the Commonwealth, a State or a Territory;
or
(iv) an officer or
employee of the government of a foreign country, an officer or employee of an
agency or authority of a foreign country or an officer or employee of a public
international organisation;
and whose services are made available to the Department; or
(e) a person who is:
(i) engaged as a
consultant or contractor to perform services for the Department; and
(ii) specified in a
determination under subsection 5(1); or
(f) a person who is:
(i) engaged or
employed by a person to whom paragraph (e) or this paragraph applies; and
(ii) performing
services for the Department in connection with that engagement or employment;
and
(iii) specified in a
determination under subsection 5(2).
Establishment of the ABF and the
ABF Commissioner
Clause 9 of the ABF Bill will establish the
Australian Border Force Commissioner (ABF Commissioner) and provide that the
Commissioner has, under the Minister, control of the operations of the ABF.
‘Australian Border Force’ will be defined in clause 4 to be that
part of the Department known as the Australian Border Force.
Clause 10 will provide the ABF Commissioner
has ‘power to do all things necessary or convenient to be done for or in
connection with the performance of his or her duties’.
Division 3 of Part 2 of the ABF Bill will
provide for appointment of the ABF Commissioner, including:
- the
Commissioner is to be appointed by the Governor-General by written instrument (subclause
11(1)) for a term of up to five years (clause 12)
- the
person holding office as ABF Commissioner is also the Comptroller-General of
Customs (subclause 11(3))
- before
taking office, the ABF Commissioner must make and subscribe an oath or
affirmation as prescribed in rules made for that purpose (clause 13) and
- making
provision for appointment of a person by the Minister to act as ABF
Commissioner during a vacancy or absence (clause 14).
Division 4 of Part 2 will set out the terms
and conditions of employment for the ABF Commissioner, including:
- remuneration
will be determined by the Remuneration Tribunal (clause 16)
- the
ABF Commissioner must not engage in outside work without the Minister’s
approval (clause 18)
- the
ABF Commissioner must provide written notice to the Minister of any direct or indirect
pecuniary interests that conflict or might conflict with the proper performance
of the Commissioner’s functions (clause 19)
- the
Governor-General may suspend or terminate the appointment of the ABF
Commissioner in certain circumstances, and that if that occurs, the Minister
must table a statement outlining the grounds on which the decision was taken in
each House of Parliament within seven sitting days (clause 21).
Division 5 of Part 2 (clause 23) will allow
the Minister to give the ABF Commissioner written directions about policies to
be pursued, or priorities to be followed, in relation to the operations of the
ABF. Before issuing directions, the Minister must obtain and consider the
advice of the ABF Commissioner and the Secretary of the DIBP. The Minister must
table any directions in each House of Parliament within 15 sitting days.
Directions are not legislative instruments.
Clause 25 (in Division 7 of Part 2) will
allow the ABF Commissioner to delegate any of his or her powers under
Commonwealth law to the Secretary of the DIBP or to a DIBP worker who is in the
ABF or whose services are made available to, or who is performing services for,
the ABF, except for powers under clauses 30 and 32 (which relate to
dealing with serious misconduct).
Lack of clarity around which DIBP
workers are part of the ABF
The functions of the ABF will not be set out in
legislation. As the ABF is not a separate entity, individuals working in the
ABF will be employed by the DIBP. Parts of the ABF Bill, such as the
requirement to make an oath or affirmation or to follow directions given by the
ABF Commissioner, apply only to DIBP workers who are ‘in the Australian Border
Force’ or ‘whose services are made available to, or who is performing services
for’, the ABF. However, the ABF Bill does not include a mechanism for
establishing when a person fits into one of those categories. As membership of the ABF potentially carries greater
responsibilities and attracts fewer rights, this is an odd omission.
Requirement to make an oath or
affirmation
Division 6 of Part 2 (clause 24) of the
ABF Bill will provide that the ABF Commissioner may require DIBP workers who
are in the ABF or whose services are made available to, or who are performing
services for, the ABF (other than consultants or contractors) to make and
subscribe an oath or affirmation as prescribed in rules made for that purpose.
Under subclauses 24(3) and (4), a DIBP worker who
has made an oath or affirmation must not engage in conduct inconsistent with
it, even if the worker is no longer in the ABF, or providing or performing
services for the ABF.
See the separate section on page 21 for information
on the consequences for a DIBP worker who engages in conduct inconsistent with
an oath or affirmation.
ABF Commissioner’s powers to issue
directions
Clause 26 of the ABF Bill will provide the ABF
Commissioner with broad powers to give written directions in connection with
the control and operations of the ABF to DIBP workers who are in the ABF or
whose services are made available to, or who are performing services for, the
ABF. A general power is provided under subclause 26(1) that mirrors
subsection 4B(1) of the Customs Administration Act and section 38
of the Australian Federal Police Act 1979 (AFP Act).[67]
Without limiting that provision, subclauses 26(2)
and (4) provide for two specific types of directions:
- directions
relating to essential qualifications, which under subclause 26(3),
include but are not limited to physical and psychological health or fitness,
professional or technical qualifications and learning and development
requirements and
- directions
relating to reporting serious misconduct by DIBP workers who are in the
ABF or whose services are made available to, or who are performing services
for, the ABF or criminal activity involving such a person, where the
serious misconduct or criminal activity affects, or is likely to affect, the
operations, responsibilities or reputation of the DIBP.
‘Serious misconduct’ will be defined in clause 4 to
mean:
(a) corrupt conduct engaged in, a serious abuse of power,
or a serious dereliction of duty, by the worker; or
(b) any
other seriously reprehensible act or behaviour by the worker, whether or not
acting, or purporting to act, in the course of his or her duties as an
Immigration and Border Protection worker.
Subclause 26(5) will provide that a person to
whom a direction is issued must comply with the direction.
Subclause 26(8) will remove the privilege
against self-incrimination with respect to information and documents a DIBP
worker may be required to provide to comply with a direction about reporting
serious misconduct or criminal activity. Subclause 26(9) provides that information
or documents provided by person in compliance with a direction are not
admissible in evidence against that person in any proceedings (a ‘use immunity’).
However, the information or documents may be used to gather other evidence
against that person that would be admissible (that is, no ‘derivative use’
immunity applies).
The provisions concerning reporting of serious misconduct
and criminal activity are equivalent to sections 4B and 4C of the Customs
Administration Act, which were inserted by the Law Enforcement Integrity
Legislation Amendment Act 2012.[68]
As outlined in the Background section of this Digest, the Act was part of a
reform package introduced in the wake of corruption allegations.
Clause 27 will allow the ABF Commissioner to
give written directions in relation to the performance of functions or exercise
of powers under Commonwealth laws (except for the Migration Act 1958,
under which the Minister may already give such directions). Directions may be
issued to DIBP workers who are in the ABF or whose services are made available
to, or who are performing services for, the ABF. Subclause 27(3)
will provide that a person to whom a direction is issued must comply with the
direction.
See the separate section on page 21 for information
on the consequences for a DIBP worker who fails to comply with a direction.
Powers to deal with serious
misconduct
Proposed Parts 3 and 4 of the ABF
Bill will introduce powers for the Secretary of the DIBP and ABF Commissioner
to deal with serious misconduct by APS employees in the Department.
Resignation
Clause 29 will require an APS employee who
wishes to resign to provide written notice to the Secretary of the DIBP and
specify a date of effect generally between 14 days and four months from
the time it is given.
Clause 30 is intended to prevent employees
from resigning in anticipation of being terminated for serious misconduct. It
applies where an APS employee has given notice of resignation under
clause 29 and either:
(i) the Secretary or the Australian Border Force
Commissioner reasonably believes that the employee has engaged in serious
misconduct and the Secretary is considering terminating the employee’s
employment; or
(ii) the employee is being investigated for serious
misconduct and the Secretary is not in a position to decide whether to
terminate the employee’s employment because the findings of the investigation
are not yet known.
The Secretary of the DIBP or the ABF Commissioner will be
able to give the employee a written notice substituting a day up to
90 days later than that provided by the employee as the day on which the
employee’s resignation takes effect. More than one notice may be given. Subclause 30(6)
requires that on or before the substituted date, the Secretary of the DIBP must
either notify the employee that his or her resignation takes effect or
terminate his or her employment. The delay is intended to provide time for an
investigation into alleged serious misconduct to be concluded and acted upon,
including the issue of a declaration under clause 32 where
relevant.[69]
As at 20 October 2014, eight Customs officers had been arrested or
charged in relation to corruption matters since August 2012 (six of those
convicted as at 23 February 2015) and a further six were subject to
code of conduct inquiries—of the 14 officers, ten had resigned.[70]
These provisions mirror sections 30 and 30A of the AFP
Act.[71]
There are no equivalent provisions in the Australian Crime Commission Act
2002 (ACC Act) or the Customs Administration Act.[72]
The CPSU is opposed to this measure. It argues that the powers
made available in July 2014 to all APS agencies to continue an investigation
and make findings even if an employee resigns during that investigation are
sufficient, and that the proposed measure simply duplicates existing powers.
However, as the CPSU itself notes, the existing powers do not allow sanctions
to be applied to employees who have already ceased employment.[73]
The ability to apply sanctions appears to be the rationale for introducing this
more specific power.[74]
Declarations following termination
for serious misconduct
Part 4 (clause 32) will allow the
Secretary of the DIBP or the ABF Commissioner to make a declaration if all of
the following apply:
- the
Secretary of the DIBP has terminated an APS employee’s employment (acting under
section 29 of the Public Service Act 1999 (PS Act); proposed
Part 4 would not provide a new process or mechanism for
termination)
- the
Secretary of the DIBP or the ABF Commissioner reasonably believes the
employee’s conduct or behaviour, or any part of it, amounts to serious
misconduct and
- the
Secretary of the DIBP or the ABF Commissioner reasonably believes the
employee’s conduct or behaviour, or any part of it, is having, or is likely to
have, a damaging effect on:
- the
professional self-respect or morale of some or all APS employees in the DIBP or
- the
reputation of the DIBP with the public or part of it, an Australian or foreign
government or a person or body to whom it discloses information.
Subclauses 32(3) and (4) will require
such a declaration to be made within 24 hours of the Secretary’s decision
to terminate the employee’s employment and for a copy to be given to the
employee. Subclause 32(7) will require a written report about such
a declaration to be given to the Minister as soon as practicable.
The effect of a declaration is set out in subclause 32(5).
Specifically, the Fair Work Act (other than Part 3–1, which deals
with general protections in the workplace and Division 9 of Part 3–3,
which deals with payments relating to periods of industrial action) will not
apply to the termination of the APS employee’s employment or to the making of
the declaration.[75]
This will remove the employee’s access to provisions under the Fair Work Act
that deal, for example, with unfair dismissal (Part 3–2) and notice of
termination or payment in lieu (Subdivision A, Division 11 of
Part 2-2). Declarations do not affect legal rights associated with
termination available under other legislation or at common law.[76]
The power to make such a declaration currently exists for
the Customs CEO under section 15A of the Customs Administration Act
(inserted by the Law Enforcement Integrity Legislation Amendment Act 2012),
the ACC CEO under section 47A of the ACC Act and the AFP Commissioner
under sections 40K and 69B of the AFP Act.[77]
As at 31 May 2014, the Customs CEO had not used the power under
section 15A of the Customs Administration Act.[78]
The CPSU is strongly opposed to this measure, arguing that
the power should never have been introduced for Customs and should not be
rolled out across the consolidated DIBP. Its position is that the measure
‘would seriously curtail employees’ rights to natural justice, without being
necessary or effective in combating corruption’.[79]
The LCA, while outlining several concerns with the
measure, has not recommended it be removed from the Bill entirely, but rather
that it be restricted to DIBP workers in the ABF.[80]
Both organisations are particularly concerned about the exclusion of the unfair
dismissal provisions of the Fair Work Act. While recognising that some
avenues of appeal remain open to an employee in relation to whom a declaration
has been made, they consider they are not necessarily fit for purpose in
situations where a person has been wrongly accused, and can be time consuming
and expensive to pursue.[81]
Further, the LCA takes issue with the rationale provided in the Explanatory
Memorandum, stating:
It is difficult to accept the proposition that the community
or workforce would receive a ‘mixed signal’ if an employee is reinstated
because an independent Commission found that they should not have been
dismissed (for example, because the misconduct did not in fact take place).[82]
The RCOA has also questioned the need for the exclusion of
Fair Work Act protections, stating ‘[w]e find it hard to believe, for instance,
that the Fair Work Act 2009 would require a person to be reinstated to
their position if they had genuinely engaged in serious misconduct’.[83]
Alcohol and drug tests
An alcohol and testing regime for Customs was inserted
into the Customs Administration Act by the Law Enforcement Integrity
Legislation Amendment Act 2012, based on similar schemes already in place
under Division 8 of Part IV of the AFP Act and the ACC’s Drug
and Alcohol Policy.[84]
Proposed Part 5 of the ABF Bill will apply a
similar regime across the whole of the DIBP. The Explanatory Memorandum states
that this is appropriate ‘as, given the expanded law enforcement role of the
Department, the workforce is exposed to increased attempts by criminal elements
to penetrate, compromise and corrupt officers’.[85]
Further, it states that testing will be administered under the DIBP’s Drug and
Alcohol Management Program, which ‘reflects policy settings commensurate to
risks to the Department from employees violating drug laws and the resulting
potential for employees to be manipulated and agency systems and information
compromised’.[86]
All DIBP workers will be able to be randomly selected for testing, but the
focus will be on operational and high risk areas.[87]
The key features of the
regime are that:
- workers
may be required to undergo an ‘alcohol screening test’ (to determine if alcohol
is present on the person’s breath) or an ‘alcohol breath test’ (to determine
the amount of alcohol in the person’s blood), or provide a ‘body sample’
(biological fluid or tissue, or breath) for a ‘prohibited drug test’ (to
determine the presence, if any, of a prohibited drug in the sample)—clause 35;
definitions are in subclause 4(1)
- tests
may be required only by an ‘authorised person’, that is, the Secretary of the DIBP,
the ABF Commissioner, or a person authorised in writing by the Secretary or
Commissioner (definition in clause 4)
- tests
may be required randomly (clause 35) or following certain
incidents, such as after a person has been killed or injured in an incident in
which the worker was involved (clause 36)
- alcohol
screening tests may also be required if an authorised person reasonably
suspects that a DIBP worker is under the influence of alcohol while in the
course of performing his or her duties (clause 34)
- the
conduct of tests and provision of samples must be in accordance with the rules
that will provide the detail of the scheme (clauses 38 and 39)
and
- test
results and related information are not admissible in evidence against a DIBP
worker in proceedings, except:
- in
relation to a decision to terminate the worker’s employment or engagement
- under
the Safety, Rehabilitation and Compensation Act 1988 or
- in
tort against the Commonwealth instituted by the worker (clause 40).
The CRAG has expressed concern at the proposed limitations
in clause 40 on the use of test results in evidence. While it notes
that a DIBP worker who kills or seriously injures a person while under the
influence of drugs or alcohol may face administrative sanctions such as
termination of employment, it argues the provisions will prevent DIBP workers from
being properly held to account for their actions through other (criminal or
civil) legal proceedings.[88]
The CPSU has raised broader issues with the measure as a
whole. It states that it does not object to alcohol testing in certain
circumstances, but argues that the measure would apply more broadly than would
be necessary to fulfil its stated objectives. Its recommendations are that:
- testing
should be limited to DIBP workers performing operational roles in the ABF
- the
Bill should be more specific about when testing may be used and the use of
testing results
- prescription
medications should be excluded and
- processes
and procedures should be developed in consultation with employees and the CPSU.[89]
See the separate section on page 21 for information
on the consequences for a DIBP worker who fails to comply with a requirement to
undergo an alcohol or drug test under clause 34, 35
or 36.
Integrity testing
As noted in the Background to this Digest, Part IABA
of the Crimes Act was inserted in 2012 to introduce an integrity testing
scheme covering the AFP, ACC and Customs in line with a PJC-ACLEI
recommendation. It is a targeted scheme under which an integrity testing
operation may be authorised only if there is reasonable suspicion that an
officer has committed, is committing, or is likely to commit an offence with a
maximum penalty of 12 months imprisonment or more.[90]
Items 40–45 of Schedule 5 of the
Customs Bill will amend the Crimes Act to extend the integrity testing
scheme to the whole of the consolidated DIBP, including by replacing Customs
with the DIBP in the definition of ‘target agency’ in section 15JC.
The LCA has recommended integrity testing of DIBP workers be
permitted only for those who are in the ABF, noting that the regime involves
the use of covert investigative techniques and arguing that testing of other
DIBP workers would fall outside the objectives of the scheme, which was
designed to prevent corruption and misconduct in operational law enforcement
roles.[91]
The CPSU did not comment on this measure in its submission to the inquiry into
the Bill.
Secrecy and disclosure provisions
Proposed part 6 of the ABF Bill will introduce
provisions about the recording and disclosure of information a person has
obtained in his or her capacity as the Secretary of the DIBP, the ABF
Commissioner (including as the Comptroller-General of Customs) or a DIBP
worker. The provisions are similar to section 16 of the Customs
Administration Act, which will be repealed by the Customs Bill, but will
apply across the DIBP.[92]
Subclause 42(1) will provide that it is an offence
for someone who is, or has been an ‘entrusted person’ (Secretary of DIBP, ABF
Commissioner or DIBP worker) to make a record of, or disclose, ‘protected
information’ (information obtained in the person’s capacity as an entrusted
person, see clause 4). The maximum penalty for the offence is
imprisonment for two years.[93]
This is the same penalty that applies to the general offence of unauthorised
disclosure by a Commonwealth officer under section 70 of the Crimes Act.[94]
Subclause 42(2) will provide that the offence
does not apply if:
(a)
the making of the record or disclosure is authorised by section 43,
44, 45, 47, 48 or 49; or
(b)
the making of the record or disclosure is in the course of the
person’s employment or service as an entrusted person; or
(c)
the making of the record or disclosure is required or authorised by or
under a law of the Commonwealth, a State or a Territory; or
(d) the
making of the record or disclosure is required by an order or direction of a
court or tribunal.
A defendant will bear an evidential burden in relation to
a matter listed above, in accordance with subsection 13.3(3) of the Criminal
Code Act 1995.[95]
Clauses 43, 44, 45, 47, 48
and 49 set out circumstances in which use and disclosure of protected
information is permitted, in particular where:
- the
recording or disclosure is for the purposes of the ABF Act or the
LEIC Act (clause 43)
- the
person has written authorisation from the Secretary of the DIBP to disclose
information, or a class of information, to certain bodies and persons in
Australia, including government agencies and police, for certain purposes (clause 44)
- the
person has written authorisation from the Secretary of the DIBP to disclose
information, or a class of information, to a foreign country, agency or
authority of a foreign country, or public international organisation, that has entered
into an agreement with the Commonwealth or one of its agencies, for certain
purposes (clause 45)
- the
disclosure is in accordance with consent given by the person or body to whom
the information relates (clause 47)
- an
entrusted person reasonably believes it is necessary to prevent or lessen a
serious threat to the life or health of an individual (clause 48) or
- the
information has already been lawfully made available to the public (clause 49).
Under clauses 44 and 45, a more
stringent test is required for the disclosure of protected information that
contains ‘personal information’ (which will be defined in
subclause 4(1) to have the same meaning as in the Privacy Act 1988).[96]
It may be disclosed only for a purpose listed in clause 46.
Public interest disclosures
The LCA and RCOA questioned the absence of a public
interest exception to the secrecy offence.[97]
While the secrecy offence in clause 42 does
not include a specific exception for public interest disclosures, the general
exception that applies where the making of the record or disclosure is required
or authorised by or under a law of the Commonwealth, a state or a territory
would appear to apply to disclosures made in accordance with the Public
Interest Disclosure Act 2013 (PID Act).[98]
The PID Act includes protections for current and former public officials
who make public interest disclosures (as defined in that Act), including
protection from civil, criminal and administrative liability for doing so.[99]
The definition of ‘public official’ set out in section 69 of the PID
Act is reasonably comprehensive, and includes contractors, subcontractors
and individuals who exercise powers or perform functions conferred by
Commonwealth law (the latter with limited exceptions).[100]
However, the PID Act does not protect the
disclosure outside the agency of information that consists of, or includes, ‘sensitive
law enforcement information’.[101]
This is information which, if disclosed, is reasonably likely to prejudice
Australia’s law enforcement interests, including its interest in:
... avoiding disruption to national and international efforts
relating to law enforcement, criminal intelligence, criminal investigation,
foreign intelligence, security intelligence or the integrity of law enforcement
agencies.[102]
Privacy
The LCA has recommended reconsideration of the exception
permitting disclosures with the consent of the person or body to whom
information relates. It states such disclosures are not always appropriate,
giving the example of where personal information about a particular individual
is relevant to an ongoing investigation of someone else.[103]
It also recommended a privacy impact assessment be conducted of the proposed
secrecy and disclosure provisions.[104]
Powers for the Secretary to issue
directions
Clause 55 of the ABF Bill will provide the
Secretary of the DIBP with broad powers to give written directions to DIBP
workers in connection with the administration and control of the DIBP. The
powers are similar to those of the ABF Commissioner under clause 26,
but two additional matters in relation to which directions may be made are
explicitly included—security clearances (as a component of the power to give
direction relating to essential qualifications in subclause 55(3)) and
organisational suitability assessments (subclause 55(4)). Under subclause 55(6),
directions given by the Secretary of the DIBP will prevail over those given by
the ABF Commissioner under clause 26 to the extent of any
inconsistency.
Clause 56 will allow the Secretary of the DIBP
to give written directions to DIBP workers in relation to the performance of
functions or exercise of powers under Commonwealth laws (except for the Migration
Act 1958, under which the Minister may already give such directions). Under
subclause 56(3), directions given by the Secretary of the DIBP will
prevail over those given by the ABF Commissioner under clause 27 to
the extent of any inconsistency.
See the separate section below for information on the
consequences for a DIBP worker who fails to comply with a direction.
Organisational suitability
assessments
As noted earlier in this Digest, enhancements to Customs’
organisational suitability assessment (OSA) regime were announced in
June 2013. The updated scheme was rolled out in 2013–14.[105]
The Customs Guideline for completing the organisational suitability
assessment documentation and the Explanatory Memorandum provide an
indication of what an OSA will entail, namely providing:
- consent
for Customs to obtain personal information
- general
information such as current and previous addresses
- information
about any criminal charges, convictions or findings of guilt
- information,
to the best of their knowledge, about any family (including close, extended,
estranged), friends and associates ever having engaged in criminal activity or
having an association with organised crime or an Outlaw Motorcycle Gang.[106]
The Explanatory Memorandum indicates that OSAs will
contribute to DIBP’s integrity framework by ‘providing a screening process to
assess whether an individual is suitable, from an integrity and character
perspective, to have access to non-public assets, information, systems or
premises’.[107]
The DIBP will issue instructions and guidelines for OSAs, and employees with an
‘adverse decision’ will be provided reasons and a chance to respond.[108]
If the OSA identifies particular risks, an employee or prospective employee may
be required to cease an association or comply with reporting requirements such
as declaring any further contact with a particular person.[109]
The Explanatory Memorandum indicates such arrangements would be considered on a
case by case basis and taking account of individual circumstances.[110]
Consequences for employees who fail
to comply with legislated requirements
The inclusion in the ABF Bill of provisions explicitly
requiring compliance with the following provisions means that DIBP workers who
are APS employees would breach the APS Code of Conduct by failing to comply
with:
- the
requirement not to engage in conduct inconsistent with an oath or affirmation
made under clause 24
- a
direction given by the ABF Commissioner under clause 26 or 27
- a
requirement to undergo a drug or alcohol test under clause 34, 35
or 36 or
- a
direction given by the Secretary of DIBP under clause 55 or 56.
The APS Code of Conduct is set out at section 13 of the PS
Act. Subsection 13(4) requires APS employees, when acting in
connection with APS employment, to comply with all applicable Australian laws.[111]
Section 15 of the PS Act outlines sanctions that may be imposed
on employees found to have breached the Code of Conduct, which can include
suspension (under section 28) and termination of employment
(section 29).
Clause 57 of the ABF Bill will provide for
termination of a consultant or contractor who fails to comply with a direction given
under clause 26, 27, 55 or 56 or a requirement
to undergo a drug or alcohol test under clause 34, 35
or 36, and arrangements to ensure subcontractors who fail to comply
cease to provide services for the Department.
Repeal of the Customs
Administration Act
The Customs Administration Act provides the
statutory basis for Customs and the CEO of Customs. With the merging of Customs
into DIBP and the establishment of the ABF and the ABF Commissioner in DIBP,
the Act will become redundant. Part 1 of Schedule 2 of
the Customs Bill will repeal the Customs Administration Act in its
entirety.
Amendments to the Customs Act
Part 1 of Schedule 1 of the
Customs Bill will make amendments to the Customs Act consequential to
the establishment of the ABF and the ABF Commissioner and the repeal of the Customs
Administration Act. As noted above, the ABF Bill will provide that the
person holding office as ABF Commissioner is also the Comptroller‑General
of Customs.
Part 2 of Schedule 1 contains
savings and transitional provisions relevant to the amendments in Part 1,
to ensure the continuity of customs-related functions and powers (for example,
licences, authorisations and approvals associated with imports and exports) despite
the merging of Customs into DIBP and associated changes.
Amendments to the Migration Act
Schedule 3 of the Customs Bill will amend the Migration
Act to enable the ABF Commissioner to perform certain functions and
exercise certain powers currently available to the Secretary of the DIBP.
As noted above, the ABF Bill will provide that the ABF
Commissioner has, under the Minister (who may issue directions), control of the
operations of the ABF. The amendments will allow the ABF Commissioner to
perform functions or exercise powers relevant to the ABF in line with the
division of responsibilities outlined in the ‘Background’ section this Digest
(verification of identity and intent and enforcement, compliance and
investigation).
The amendments will not result in the Secretary of the
DIBP losing authority to perform any functions or exercise any powers under the
Migration Act—they will be available to both the Secretary of DIBP and
the ABF Commissioner.
Declarations modifying the
application of the Work Health and Safety Act
Background
The Work Health and Safety Act (WHS Act)
imposes obligations on employers (including the public sector) about ensuring
the health and safety of their employees, and on employees about taking
reasonable care to ensure their own health and safety and that of others.[112]
Division 4 of Part 1 of the WHS Act sets
out the scope and application of the Act. Subsections 12C(1) and 12D(1)
provide that nothing in the WHS Act requires or permits a person to take
any action, or refrain from taking any action, that would be, or could
reasonably be expected to be, prejudicial to Australia’s national security or
Australia’s defence respectively. Without limiting those general parameters subsections 12C(2)
and (2A) enable the heads of the Australian Security Intelligence Organisation (ASIO)
and the Australian Secret Intelligence Service (ASIS) to declare in writing
that specified provisions of the WHS Act do not apply, or apply subject
to particular modifications, to persons carrying out work for one of those
agencies. Similarly, under subsection 12D(2), the Chief of the Defence
Force may make an equivalent declaration in relation to a specified activity, a
specified member of the Defence Force or a specified class of Defence Force
members.
The Chief of the Defence Force made the Work Health and
Safety (Operation Sovereign Borders) Declaration 2013 (OSB Declaration) under
subsection 12D(2) in December 2013.[113]
As the Declaration was made in relation to activities, it applies not only to
members of the Defence Force, but other Commonwealth officers involved in OSB,
including Customs officers. The OSB Declaration states that paragraphs 28(a)
and (b), 29(a) and (b) and section 39 of the WHS Act do not apply
to particular activities under OSB outlined in the declaration relating to
interception, boarding, control or movement of a vessel suspected of carrying
an ‘illegal maritime arrival’ (IMA) or the control or movement at sea of a
person suspected of being an IMA. Those provisions of the WHS Act relate
to duties of workers and other persons at workplaces to take reasonable care
for their own safety and that their conduct does not adversely affect the
health and safety of others, and the duty to preserve incident sites.
The OSB Declaration received media attention at the time,
some of it suggesting Navy personnel were being stripped of workplace safety
protections.[114]
The Minister and Chief of Defence responded, stating that the Declaration would
prevent individual officers working under OSB from being subject to criminal or
civil penalties in the event of a breach of the WHS Act, but not exempt
the Government from its responsibilities under the WHS Act.[115]
Amendments to the WHS Act
Schedule 4 of
the Customs Bill will amend the WHS Act as follows:
- item 1
will insert definitions relating to the ABF into section 4
- items 2–4
will amend section 12C (national security) so the ABF Commissioner has
equivalent powers to declare that specified provisions of that Act do not
apply, or apply subject to modifications, to those currently available to the
heads of ASIO and ASIS
- items 5–7
will amend section 12D (defence) so the ABF Commissioner has equivalent
powers to declare that specified provisions of that Act do not apply, or apply
subject to modifications, to those currently available to the Chief of the
Defence Force and
- items 8
and 9 will amend section 273B to require the ABF Commissioner to make
declarations under proposed subsection 12D(2A) (defence) by
legislative instrument, and provide that a declaration by the ABF Commissioner
under proposed subsection 12C(2B) (national security) is not a
legislative instrument. This is consistent with the treatment of other
instruments made under sections 12C and 12D.
Proposed subsection 12C(2C) will require the
ABF Commissioner to consult the Secretary of the DIBP and the Director-General
of Security before making an instrument in relation to national security under proposed
subsection 12C(2B). Proposed subsection 12D(2B) will
require the ABF Commissioner to consult the Secretary of DIBP and the Chief of
the Defence Force before making an instrument in relation to defence under proposed
subsection 12D(2A).
Comcare indicated it does not foresee any difficulties
with its own operations or the regulation of work health and safety of the ABF
due to these amendments.[116]
Scope of allowable exclusions and
modifications
As outlined above, the existing OSB Declaration is aimed
at exempting individual officers from liability. However, neither the existing
nor the proposed provisions allowing declarations that exclude or limit the
operation of provisions in the WHS Act place any restrictions on which
obligations may be excluded or limited.
The RCOA raised concerns about the potential implications
of Schedule 4 for the conduct of maritime operations involving asylum
seekers:
In our view, these operations—which typically involve
vulnerable people (including children), unseaworthy vessels and significant
risks of injury or even loss of life at sea—are conducted in precisely the
types of circumstances in which consideration of health and safety is of vital
importance.[117]
The RCOA recommends the removal of these amendments from
the Customs Bill.[118]
An alternative approach would be to place specific
limitations on which provisions of the WHS Act may be excluded or
limited by a declaration made under section 12C or 12D of that Act.
Bringing the DIBP under ACLEI’s
jurisdiction
Items 84–90 of Schedule 6 of the Customs
Bill will amend the LEIC Act to provide ACLEI with jurisdiction over the
DIBP in place of Customs.[119]
The key provisions are item 87, which will replace Customs with the
DIBP in the definition of ‘law enforcement agency’ in subsection 5(1), and
item 88, which will repeal and replace subsection 10(2A) to
set out who is taken to be a ‘staff member’ of the DIBP for the purposes of the
LEIC Act. Staff members will be the Secretary of the DIBP, ABF
Commissioner (including in the capacity as Comptroller‑General of
Customs), APS employees of DIBP, and certain officers identified in the
definitions of ‘officer of Customs’ in the Customs Act and of ‘officer’
in the Migration Act.
The Explanatory Memorandum states that the DIBP’s key role
in relation to Australia’s national security and economy means it is ‘important
to ensure ACLEI’s unhindered ability to investigate suspected law enforcement
related corrupt activity across the Department regardless of the role, location
or job title of an individual officer’.[120]
In evidence to the current PJC-ACLEI inquiry, ACLEI
highlighted difficulties with its current partial jurisdiction over the
Department of Agriculture:
In relation to the Department of Agriculture, the partial
inclusion of a department or agency within ACLEI's jurisdiction can present
some problems. For example, ACLEI recently received advice about alleged
corrupt activity involving a Department of Agriculture staff member who fell
outside ACLEI's jurisdiction, so it could not assist in that matter. As you
know, our current jurisdiction is limited to staff who have access to the
Integrated Cargo System or have authority to release or dispatch vessels and
cargoes. There is also the problem that it may be difficult to determine, in a
particular situation, if a relevant officer is included in the definition of
'staff member'. It is possible that this uncertainty could lead to a legal
challenge either to the exercise of ACLEI's statutory powers in an
investigation or to the use of the information or evidence obtained through
those statutory powers.[121]
At an earlier hearing, the Integrity Commissioner outlined
a preference for a ‘whole of agency’ approach partly in the context of matters
identified in previous investigations:
Recent ACLEI investigations across a number of agencies have
brought to my attention the potential law enforcement risks for backroom staff
with support functions to be compromised or corrupted. I must be circumspect in
my comments, as these investigations are still afoot. Although they do not have
front-line roles, some staff members can access valuable law enforcement
information held by an agency, or have decision making authority that
intersects with law enforcement functions. Furthermore, they often have the
skills and ability to cover their own tracks or the tracks of others. A partial
agency or activities based model may preclude the Integrity Commissioner from
investigating such matters. In my written submission I used the term 'black
spot' to describe the problem of artificially limiting the Integrity
Commissioner's jurisdiction within an agency. The black spot and grey spot
problems are especially pertinent because we know that corrupt conduct will often
involve conspirators working together, across boundaries, to conceal evidence
of their misconduct.[122]
That position is restated in ACLEI’s submission to the
inquiry into the Bill.[123]
Funding implications
As noted earlier in this Digest, the financial implications
of bringing the whole of the DIBP within ACLEI’s jurisdiction are not addressed
in the Financial Impact Statement for the Customs Bill. ACLEI’s funding is
determined not just by the number of agencies or officers over which it has
oversight, but also by the level of risk associated with those agencies or
parts of them.[124]
However, the addition of an estimated 8,824 DIBP officers along with the
possibility, as identified by ACLEI, of additional corruption opportunities at
the border while the model is being implemented, could be expected to warrant
additional ongoing funding.[125]
Extending access to investigative
powers to DIBP
Customs officers currently have access to a range of
investigative powers available to law enforcement agencies. The Customs Bill
will amend several Acts to make these powers available not just to the ABF, but
to the consolidated DIBP.
Crimes Act powers
Customs is defined as a ‘law enforcement agency’ for the
purposes of the controlled operations, assumed identities and witness identity
protection provisions in the Crimes Act.[126]
These provisions can be broadly summarised as follows:
- controlled
operations are covert operations in which law enforcement officers and other authorised
participants are protected from criminal and civil liability for conduct that
might otherwise attract sanction, for the purpose of obtaining evidence of a
serious Commonwealth offence or a serious State offence that has a Commonwealth
aspect (offences relating to particular matters and that have a maximum penalty
of three years imprisonment or more).[127]
The relevant provisions are in Part IAB of the Crimes Act
- the
assumed identities scheme in Part IAC of the Crimes Act enables
authorised persons, including law enforcement officers and intelligence
officers, to acquire and use an assumed identity for certain purposes,
including investigation of, or intelligence gathering in relation to, criminal
activity and
- a
witness identity protection certificate may be issued to protect the identity
of an ‘operative’ who is or may be required to give evidence in a proceeding if
the chief officer of a law enforcement agency is satisfied on reasonable
grounds that disclosure of the operative’s identity or where they live is
likely to endanger a person’s safety, prejudice an investigation or prejudice a
security activity. An operative is a person who is or was a participant in a
controlled operation or authorised to acquire and use an assumed identity
(other than an intelligence officer). The relevant provisions are in Part IACA
of the Crimes Act.
Items 29–39 and 46–53 of Schedule 5,
and items 51–60 of Schedule 6, of the Customs Bill will
extend these powers to the whole of the consolidated DIBP. The key provisions
are:
- items 30,
47 and 52 of Schedule 5, which will amend sections 15GC,
15K and 15M of the Crimes Act to define the DIBP as a law
enforcement agency for the purposes of the controlled operations, assumed
identities and witness identity protection regimes respectively and
- items 51,
57 and 58 of Schedule 6, which will amend the
same sections to replace references to the CEO of Customs with references to
the Secretary of the DIBP in the definitions of ‘chief officer’ for the
purposes of the controlled operations, assumed identities and witness identity
protection regimes respectively.
Proceeds of Crime Act powers
The Proceeds of Crime Act provides a scheme to
trace, restrain and confiscate the proceeds of crime and unexplained wealth.[128]
The CEO of Customs and Customs officers authorised by the CEO may exercise
certain powers under the Act, in particular:
- the
CEO of Customs may issue notices requiring financial institutions to provide
information (section 213)
- authorised
officers may:
- apply
for and execute search warrants (Division 1 of Part 3–5)
- stop
and search conveyances without a warrant (Division 2 of Part 3–5)
- apply
to the courts for freezing orders (Part 2–1A) and monitoring orders
(Part 3–4) and
- receive
information and documents under magistrate-issued production orders (Part 3–2).
Items 175–181 of Schedule 6 of the
Customs Bill will amend the Proceeds of Crime Act to reflect the merging
of Customs into DIBP. Item 175 will amend paragraph 213(3)(g) so
that the Comptroller-General of Customs (instead of CEO of Customs) may issue
notices to financial institutions. Item 178 will repeal and replace
paragraph (c) of the definition of ‘authorised officer’ to include a DIBP
worker who is an APS employee and who is authorised by the Comptroller-General
of Customs.
Access to telecommunications data
and stored communications
Customs currently falls within the definition of ‘criminal
law enforcement agency’ in the Telecommunications (Interception and Access)
Act (TIA Act) and will remain within that definition when
relevant amendments in the Telecommunications (Interception and Access)
Amendment (Data Retention) Act 2015 commence on 13 October 2015.[129]
This allows the agency to access telecommunications data under an authorisation
given under Chapter 4 of the TIA Act and stored communications
under a notice given under Chapter 3 of the TIA Act.
Items 162–170 of Schedule 5 and item 188
of Schedule 6 will amend the TIA Act to make the powers
currently available to Customs available to the consolidated DIBP, and to
allow lawfully intercepted information to be shared with the head of ACLEI and
the Secretary of the DIBP if it relates, or appears to relate, to an integrity
matter in the DIBP.
Items 10–13 of Schedule 8 will
make additional amendments to the TIA Act when amendments to the
definition of criminal law enforcement agency commence on
13 October 2015. Items 10 and 11 will amend
subsection 110A(1) and insert proposed subsection 110A(1A) to
provide that the DIBP is a criminal law enforcement agency only in connection
with investigation of a contravention of certain Acts (including Acts, or
certain provisions of Acts prescribed by legislative instrument). Item 12
will insert proposed section 110B to provide that the
Attorney-General may declare, by legislative instrument, that particular
provisions in Chapters 3 or 4 of the TIA Act either do not
apply to DIBP, or apply only to the extent specified in the declaration.
Do appropriate limits apply?
Given the delineation of responsibilities between the ABF
and the rest of the DIBP, it seems only the ABF could properly be characterised
as a law enforcement agency. It would be preferable then to limit the
availability of law enforcement powers to the ABF. This point has been made by
the LCA, which states that the extension of powers ‘should be demonstrated to
be necessary, reasonable and proportionate’ and that in several instances, the
proposed amendments fail to meet that test.[130]
The LCA recommends all the powers outlined above should be explicitly limited
to the ABF, not the DIBP.[131]
The RCOA made a similar recommendation.[132]
In relation to the TIA Act, there will be limits
placed around the extent to which DIBP is taken to be a criminal law
enforcement agency for the purposes of that Act, though the extent of those
limitations will depend to some extent on a declaration, if any, made by the
Attorney-General. Parliament may wish to consider whether it would be
preferable for all limits to be set out in the primary legislation.
In relation to the Proceeds of Crime Act, because
of the way ‘authorised officer’ is defined, any limits (beyond being an APS
employee of DIBP) will be determined by the authorisation made by the
Comptroller-General of Customs. Consideration might be given to amending item 178
of Schedule 6 of the Customs Bill so that only APS employees of the
DIBP who are in the ABF may be so authorised, or alternatively whether
limitations modelled on those proposed in Schedule 8 for the TIA Act
could be included.
There are no limitations placed around the extent to which
the DIBP is taken to be a law enforcement agency for the purposes of the
controlled operations, assumed identities and witness identity protection
provisions of the Crimes Act. Further, the Secretary of DIBP, not
the ABF Commissioner, will be the chief officer in the DIBP for the purposes of
those provisions. These are significant law enforcement powers available only
to a small number of key Commonwealth law enforcement agencies. Consideration might
be given to amendments to limit access to these powers to APS employees of the
DIBP who are in the ABF, or alternatively whether limitations modelled on those
proposed in Schedule 8 for the TIA Act could be
included. Consideration might also be given to whether the responsibility for
the exercise of those powers would rest more appropriately with the ABF
Commissioner, as the statutory officer responsible to the Minister for the
operations of the ABF.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Commonwealth
of Australia, Administrative
Arrangements Order, 18 September 2013, accessed
3 March 2015.
[2]. National
Commission of Audit, Towards
responsible government: phase one, February 2014, p. 207,
accessed 3 March 2015. The Commission considered the biosecurity
functions of the Department of Agriculture should remain separate for the time
being.
[3]. S Morrison
(Minister for Immigration and Border Protection), A
new force protecting Australia’s borders: address to the Lowy Institute for
International Policy, Sydney, media release, 9 May 2014,
accessed 3 March 2015.
[4]. Australian
Government, Budget
measures: budget paper no. 2: 2014–15, 2014, pp. 157–8,
accessed 4 March 2015.
[5]. S Morrison,
A new force protecting Australia’s borders, op. cit.
[6]. ABF
Bill, proposed sections 9 and 11.
[7]. S Morrison,
A new force protecting Australia’s borders, op. cit.; P Dutton, ‘Second
reading speech: Australian Border Force Bill 2015’, House of
Representatives, Debates, 25 February 2015, pp. 1204–7,
accessed 5 May 2015.
[8]. S Morrison,
A new force protecting Australia’s borders, op. cit.
[9]. Department
of Immigration and Border Protection (DIBP) and Australian Customs and Border
Protection Service (Customs), Blueprint
for integration, Australian Government, Canberra, p. 18, accessed
13 March 2015.
[10]. Senate
Legal and Constitutional Affairs Legislation Committee, Official
committee Hansard (proof copy), 23 February 2015, p. 4,
accessed 4 March 2015.
[11]. DIBP
and Customs, Plan for
integration, Australian Government, Canberra, February 2015,
p. 11, accessed 13 March 2015.
[12]. S Morrison,
A new force protecting Australia’s borders, op. cit.
[13]. J
Clare (Minister for Home Affairs and Justice), A
blueprint for reform of the Australian Customs and Border Protection Service,
media release, 3 July 2013, accessed 4 March 2015.
[14]. Customs,
Blueprint
for reform: 2013–18, Customs, Canberra, June 2013, p. 19,
accessed 4 March 2015.
[15]. Customs
Reform Board, Customs
Reform Board first report, Commonwealth of Australia, June 2013;
Australian Commission for Law Enforcement Integrity, ‘Operation
Heritage—a joint investigation of alleged corrupt conduct among officers of the
Australian Customs and Border Protection Service at Sydney International
Airport (interim report)’, Investigation report, 02/2013, Australian
Government, 2013; Australian Public Service Commission, Capability
review: Australian Customs and Border Protection Service, Australian
Government, May 2013; all accessed 4 March 2015. A progress
update on those reforms was provided in Customs, Annual
report 2013–14, Customs, Canberra, 2014, pp. 53–59, accessed
4 March 2015.
[16]. Senate
Legal and Constitutional Affairs Legislation Committee, Official committee
Hansard (proof copy), 23 February 2015, op. cit.
[17]. DIBP
and Customs, Plan for integration, op. cit., pp. 38–45, 47.
[18]. National
Commission of Audit, Towards responsible government: phase one,
op. cit., p. 208.
[19]. S Morrison,
A new force protecting Australia’s borders, op. cit.
[20]. DIBP
and Customs, Blueprint for integration, op. cit., p. 5.
[21]. Australian
Government, Budget
measures: budget paper no. 2: 2014–15, op. cit.
[22]. S Morrison
(Minister for Immigration and Border Protection), A
stronger border—establishment of an Australian Border Force, media release,
13 May 2014, accessed 4 March 2015. See also C Barker, ‘Australian
Border Force’, Budget review 2014–15, Research paper, 2014–15,
Parliamentary Library, Canberra, 2014, accessed 4 March 2015.
[23]. Australian Government,
Portfolio
budget statements 2014–15: budget related paper no. 1.11: Immigration and
Border Protection Portfolio, p. 3, accessed
4 March 2015.
[24]. Ibid., pp. 26,
33, 41 and 97.
[25]. Law Enforcement Integrity
Legislation Amendment Act 2012; J Clare (Minister for Home Affairs and
Justice), Transcript
of press conference: Sydney Airport: 30 March 2012: AFP at Sydney Airport;
introduction of integrity testing laws, media release,
30 March 2012; J Clare (Minister for Home Affairs and Justice), Next
stage of reforms to crack down on organised crime: making Commonwealth law
enforcement more corruption resistant, media release,
28 April 2012; N McKenzie and R Baker, ‘Customs
staff accused of drug smuggling’, The Sydney Morning Herald,
28 March 2012, p. 1; all accessed 13 March 2015.
As at 23 February 2015, eight former Customs officers had been
arrested or charged in relation to corruption matters since August 2012.
Six had been convicted, one of whom was conditionally released on a good
behaviour bond; the other five were sentenced to imprisonment ranging from
14 months to nine years. Another officer was suspended without pay,
pending a prosecution listed for trial in March 2015. Additionally, as at
20 October 2014, code of conduct inquiries had been instigated into
six officers, resulting in sanctions against three, including one termination
of employment. See: Senate Legal and Constitutional Affairs Legislation Committee,
Official
committee Hansard, 20 October 2014, p. 142; Senate Legal
and Constitutional Affairs Legislation Committee, Official
committee Hansard, 23 February 2015 p. 82 (proof copy);
both accessed 17 March 2015.
[26]. Parliamentary
Joint Committee on the Australian Commission for Law Enforcement Integrity
(PJC-ACLEI), Inquiry
into integrity testing, Commonwealth of Australia, Canberra,
November 2011, accessed 13 March 2015.
[27]. Law
Enforcement Integrity Legislation Amendment Act 2012, op. cit.
[28]. J Clare
(Minister for Home Affairs and Justice), Operation
Heritage—Interim report released, media release,
22 June 2013, accessed 24 March 2014. Organisational
suitability assessments are undertaken separately and in addition to security
clearance processes conducted by the Australian Government Security Vetting
Agency; within Customs they are used to ‘determine whether or not there is
anything in [an employee’s] background that might pose an unacceptable risk to
the operational and security interests’ of the agency: Customs, ‘General recruitment’,
Customs website, accessed 24 March 2015.
[29]. J Clare,
Operation Heritage—Interim report released, op. cit.
[30]. Explanatory
Memorandum, Australian
Border Force Bill 2015 (ABF Bill), p. 2 (including quote), accessed
3 March 2015; Explanatory Memorandum, Customs
and Other Legislation Amendment (Australian Border Force) Bill 2015
(Customs Bill), p. 72, accessed 4 March 2015.
[31]. DIBP
and Customs, Blueprint for integration, op. cit., pp. 32–33;
DIBP and Customs, Plan for integration, op. cit., pp. 30–31.
[32]. DIBP
and Customs, Blueprint for integration, op. cit., p. 33.
[33]. Parliamentary
Joint Committee on the Australian Commission for Law Enforcement Integrity
(PJC-ACLEI), Inquiry
into the Operation of the Law Enforcement Integrity Commissioner ACT 2006,
Final report, The Senate, Canberra, July 2011, p. 9, accessed
26 March 2015.
[34]. Ibid.,
p. 16.
[35]. Parliamentary
Joint Committee on Law Enforcement, Inquiry
into the gathering and use of criminal intelligence, Parliament of
Australia, Canberra, May 2013, p. 93, accessed
26 March 2015.
[36]. See
PJC-ACLEI, ‘Inquiry
into the jurisdiction of the Australian Commission for Law Enforcement
Integrity’, Australian Parliament website, accessed
26 March 2015.
[37]. Senate
Legal and Constitutional Affairs Legislation Committee, ‘Australian
Border Force Bill 2015 and the Customs and Other Legislation Amendment
(Australian Border Force) Bill 2015’, Australian Parliament website,
accessed 13 March 2015.
[38]. Senate
Standing Committee for the Scrutiny of Bills, Alert
Digest No. 3 of 2015, The Senate, Canberra,
18 March 2015, pp. 1–6, accessed 26 March 2015.
[39]. Ibid.,
p. 9.
[40]. Parliamentary
Joint Committee on Human Rights, Twentieth
report of the 44th Parliament, The Senate, Canberra,
18 March 2015, accessed 26 March 2015.
[41]. See
the second reading speeches of J Elliot, G Gray and M Thistlewaite in ‘Second
reading: Australian Border Force Bill 2015, Customs and Other Legislation
Amendment (Australian Border Force) Bill 2015’, House of Representatives, Debates,
24 March 2015, accessed 26 March 2015.
[42]. S Hanson-Young,
Australian
Border Force is Morrison’s dog whistle, media release,
9 May 2014, accessed 26 March 2015.
[43]. Law
Council of Australia (LCA), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Border Force Bill 2015 and the Customs and Other
Legislation Amendment (Australian Border Force) Bill 2015,
9 April 2015, accessed 15 April 2015.
[44]. Asylum
Seeker Resource Centre (ASRC), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Border Force Bill 2015 and the Customs and Other
Legislation Amendment (Australian Border Force) Bill 2015,
9 April 2015; Combined Refugee Action Group (CRAG), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Border Force Bill 2015 and the Customs and Other
Legislation Amendment (Australian Border Force) Bill 2015, n.d; both
accessed 15 April 2015.
[45]. Refugee
Council of Australia (RCOA), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Border Force Bill 2015 and the Customs and Other
Legislation Amendment (Australian Border Force) Bill 2015, n.d.,
accessed 17 April 2015.
[46]. Ibid.,
p. 4.
[47]. See
for example N Towell, ‘Top
jobs to go in agencies shake-up’, The Canberra Times,
23 October 2014, p. 1; T Kevin, ‘Tracing
the far-reaching changes in immigration and border protection’, The
Conversation, 22 January 2015; S Easton, ‘A
“culture of fear”: how the hawks took over the Immigration nest’, Crikey,
10 February 2015; all accessed 17 April 2015.
[48]. Ibid.;
ASRC, op. cit.; CRAG, op. cit.
[49]. ASRC,
op. cit., p. 5.
[50]. RCOA,
op. cit.
[51]. CRAG,
op. cit.
[52]. Ibid.
[53]. Community
and Public Sector Union (CPSU), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Border Force Bill 2015 and the Customs and Other
Legislation Amendment (Australian Border Force) Bill 2015,
1 April 2015, accessed 4 May 2015.
[54]. Ibid.
[55]. Ibid.,
p. 1.
[56]. Community
and Public Sector Union (CPSU), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Law Enforcement Integrity Legislation Amendment Bill 2012,
October 2012, accessed 4 May 2015.
[57]. Senate
Legal and Constitutional Affairs Legislation Committee, Law
Enforcement Integrity Legislation Amendment Bill 2012 [Provisions],
The Senate, Canberra, 20 November 2012, pp. 9–18, accessed
16 March 2015.
[58]. Explanatory
Memorandum, Australian
Border Force Bill 2015 (ABF Bill), p. 2, accessed
3 March 2015.
[59]. S Morrison,
A new force protecting Australia’s borders, op. cit.
[60]. Explanatory
Memorandum, Customs
and Other Legislation Amendment (Australian Border Force) Bill 2015
(Customs Bill), p. 3, accessed 4 March 2015.
[61]. Australian
Government, ‘Part
2: expense measures: Attorney-General’s’, Budget measures: budget paper
no. 2: 2012–13, accessed 4 March 2015; Australian Government, Portfolio
budget statements 2013–14: budget related paper no. 1.2:
Attorney-General’s Portfolio, p. 67, accessed
4 March 2015.
[62]. Australian
Commission for Law Enforcement Integrity (ACLEI), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Border Force Bill 2015 and the Customs and Other
Legislation Amendment (Australian Border Force) Bill 2015,
27 March 2015, accessed 15 April 2015.
[63]. The
Statements of Compatibility with Human Rights can be found at page 3 of the
Explanatory Memorandum for the ABF Bill and page 4 of the Explanatory
Memorandum for the Customs Bill.
[64]. Explanatory
Memorandum, Customs Bill, p. 5.
[65]. Customs Act 1901,
accessed 6 May 2015.
[66]. Migration Act 1958,
accessed 6 May 2015.
[67]. Customs Administration
Act 1985, accessed 5 March 2015; Australian Federal Police
Act 1979 (AFP Act), accessed
17 March 2015.
[68]. Customs
Administration Act, op. cit. Part 3 of Schedule 2 of the
Customs Bill includes a savings provision so subsections 4C(2) and (3) of Customs
Administration Act (use immunity) will continue to apply to information or
answers given, or documents produced under section 4C, despite the repeal
of that Act by Part 1 of the same Schedule.
[69]. Explanatory
Memorandum, ABF Bill, p. 35.
[70]. Senate
Legal and Constitutional Affairs Legislation Committee, Official committee
Hansard, 20 October 2014, op. cit.; Senate Legal and
Constitutional Affairs Legislation Committee, Official committee Hansard,
23 February 2015 op. cit. See also Customs, Three
ACBPS officers resign following joint ACLEI investigation, media
release, 22 July 2014, accessed 17 March 2015.
[71]. AFP
Act, op. cit.
[72]. Australian Crime
Commission Act 2002 (ACC Act), accessed 17 March 2015;
Customs Administration Act, op. cit.
[73]. CPSU,
op. cit., p. 2.
[74]. DIBP
and Customs, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Border Force Bill 2015 and the Customs and Other
Legislation Amendment (Australian Border Force) Bill 2015, n.d.,
accessed 17 April 2015.
[75]. Fair Work Act 2009,
accessed 7 May 2015.
[76]. Explanatory
Memorandum, ABF Bill, p. 37.
[77]. Customs
Administration Act, op. cit.; ACC Act, op. cit.; AFP
Act, op. cit. Part 3 of Schedule 2 of the Customs Bill
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[80]. LCA,
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[81]. Ibid.,
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[82]. LCA,
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[83]. RCOA,
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[84]. Explanatory
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[85]. Explanatory
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[86]. Ibid.,
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[87]. Ibid.,
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[88]. CRAG,
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[89]. CPSU,
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[90]. Crimes Act 1914,
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[91]. LCA,
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[92]. Part 3
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to in relation to the making of a record, or the disclosure, of protected
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[93]. Section
4D of the Crimes Act provides that a penalty specified for a
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[94]. Crimes Act,
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[95]. See
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[96]. See
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[97]. LCA,
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[98]. Public Interest
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[99]. Ibid.,
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[100]. Ibid.,
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[101]. Ibid.,
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[102]. Ibid.,
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[103]. LCA,
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[104]. Ibid.,
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[105]. Customs,
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[106]. Customs,
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[107]. Explanatory
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[108]. Ibid.,
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[109]. Ibid.,
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[110]. Ibid.,
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[119]. Law Enforcement Integrity
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[131]. Ibid.,
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[132]. RCOA,
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