Australian Border Force Bill 2015 [and] Customs and Other Legislation Amendment (Australian Border Force) Bill 2015

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.

The Bills Digest at a glance

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.

Purpose and structure of the Bills

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.

Commencement

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.

Background

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.

Committee consideration

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]

Policy position of non-government parties/independents

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.

Position of major interest groups

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]

Financial implications

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]

Statements of Compatibility with Human Rights

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]

Key issues and provisions

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 3435 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 3435 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 3435 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 includes a savings provision so that section 15A Customs Administration Act will continue to apply to any declarations made under subsection 15A(2), despite the repeal of that Act by Part 1 of the same Schedule.

[78].      Senate Legal and Constitutional Affairs Legislation Committee, Answers to Questions on Notice, Immigration and Border Protection Portfolio, Budget Estimates 2014–15, 26–27 May 2014, Question BE14/197, accessed 17 March 2015.

[79].      CPSU, op. cit., p. 3.

[80].      LCA, op. cit., p. 15–17.

[81].      Ibid., CPSU, op. cit.

[82].      LCA, op. cit., p. 16.

[83].      RCOA, op. cit., p. 2.

[84].      Explanatory Memorandum, ABF Bill, p. 39; Customs Administration Act, op. cit.; AFP Act, op. cit.; Australian Crime Commission (ACC), Annual report 2013–14, ACC, Canberra, 2014, Appendix C, accessed 18 March 2015. Part 3 of Schedule 2 of the Customs Bill includes savings provisions relevant to the existing testing regime in the Customs Administration Act, which will be repealed by Part 1 of the same Schedule.

[85].      Explanatory Memorandum, ABF Bill, p. 39.

[86].      Ibid., p. 9.

[87].      Ibid., p. 39.

[88].      CRAG, op. cit.

[89].      CPSU, op. cit.

[90].      Crimes Act 1914, section 15JG, accessed 27 March 2015.

[91].      LCA, op. cit., pp. 8–9.

[92].      Part 3 of Schedule 2 of the Customs Bill includes a savings provision so that section 16 of the Customs Administration Act will continue to apply to in relation to the making of a record, or the disclosure, of protected information before commencement of Part 1 of the same Schedule, which will repeal that Act.

[93].      Section 4D of the Crimes Act provides that a penalty specified for a Commonwealth offence is to be taken as the maximum penalty unless the contrary intention appears.

[94].      Crimes Act, op. cit.

[95].      See the Criminal Code Act 1995, accessed 27 March 2015.

[96].      See subsection 6(1) of the Privacy Act 1988, accessed 7 May 2015.

[97].      LCA, op. cit., pp. 12–13; RCOA, op. cit., pp. 1–2.

[98].      Public Interest Disclosure Act 2013, accessed 15 April 2015.

[99].      Ibid., Subdivision A, Division 1, Part 2.

[100].   Ibid., section 69.

[101].   Ibid., sections 26 and 41.

[102].   Ibid., subsection 41(2).

[103].   LCA, op. cit., p. 13.

[104].   Ibid., pp. 13–14.

[105].   Customs, Annual report 2013–14, op. cit., p. 4.

[106].   Customs, Guideline for completing the organisational suitability assessment documentation, n.d., accessed 24 March 2015; Explanatory Memorandum, ABF Bill, p. 8.

[107].   Explanatory Memorandum, ABF Bill, p. 53.

[108].   Ibid., p. 7.

[109].   Ibid., pp. 7–8.

[110].   Ibid., p. 8.

[111].   Public Service Act 1999 (PS Act), accessed 6 March 2015.

[112].   Work Health and Safety Act 2011, accessed 27 March 2015.

[113].   Work Health and Safety (Operation Sovereign Borders) Declaration 2013, accessed 24 March 2015.

[114].   D Wroe, ‘Sailors now on “war footing”’, The Sydney Morning Herald, 15 January 2014, p. 7; P Farrell, ‘Operation Sovereign Borders personnel exempted from workplace protection’, The Guardian (online edition), 15 January 2014; both accessed 24 March 2015.

[115].   MD Binskin (Acting Chief of the Defence Force), Statement from Acting Chief of the Defence Force—Message to Australian Defence Force personnel conducting border security operations, media release, 15 January 2014; J Doyle, ‘Immigration Minister Scott Morrison suggests Operation Sovereign Borders has reduced asylum seeker arrivals in Indonesia’, ABC News (online); both accessed 24 March 2015.

[116].   Comcare, 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, 31 March 2015, accessed 15 April 2015.

[117].   RCOA, op. cit., p. 3.

[118].   Ibid.

[119].   Law Enforcement Integrity Commissioner Act 2006, accessed 7 May 2015.

[120].   Explanatory Memorandum, Customs Bill, p. 108.

[121].   R Cornall (Acting Integrity Commissioner), Evidence to PJC-ACLEI, Inquiry into the jurisdiction of the Australian Commission for Law Enforcement Integrity, 26 September 2014, accessed 26 March 2015.

[122].   P Moss (Integrity Commissioner), Evidence to PJC-ACLEI, Inquiry into the jurisdiction of the Australian Commission for Law Enforcement Integrity, 19 June 2014, accessed 26 March 2015

[123].   ACLEI, Submission to inquiry, op. cit., p. 8.

[124].   P Moss, op. cit.

[125].   R Cornall, op. cit. The merged DIBP is expected to have an average staffing level of 13,824 in 2014–15, while the average staffing level for Customs in 2013–14 was 5,000: Australian Government, Portfolio budget statements 2014–15: budget related paper no. 1.11: Immigration and Border Protection Portfolio, op. cit., pp. 3, 97.

[126].   Crimes Act 1914, accessed 7 May 2015.

[127].   For further general information about controlled operations and information on specific operations, such as the types of offences they have been used to investigate and the types of conduct authorised, see Australian Federal Police, Controlled operations annual report 2013–14, Australian Government, Canberra, 2014, accessed 27 March 2015.

[128].   Proceeds of Crime Act 2002, accessed 27 March 2015.

[129].   Telecommunications (Interception and Access) Act 1979 and regulation 2AA of the Telecommunications (Interception and Access) Regulations 1987, accessed 27 March 2015; Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, accessed 15 April 2015.

[130].   LCA, op. cit., p. 5.

[131].   Ibid., pp. 3, 5–12.

[132].   RCOA, op. cit., p. 3.

 

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