Introduction and Background
Referral of the inquiry
The Australian Border Force Bill 2015 (ABF Bill) and the Customs and
Other Legislation Amendment (Australian Border Force) Bill 2015 (ABF Amendment Bill)
were introduced into the House of Representatives by the Hon Peter Dutton MP,
the Minister for Immigration and Border Protection (minister), on 24 February
Pursuant to a recommendation of the Selection of Bills Committee, on 5 March
2015, the Senate referred the provisions of both the ABF Bill and the ABF
Amendment Bill to the Senate Legal and Constitutional Affairs Legislation
Committee for inquiry and report by 7 May 2015.
The ABF Bill and the ABF Amendment Bill were introduced into the Senate
by the Assistant Minister for Health, Senator Nash, on 25 March 2015.
Conduct of the current inquiry
In accordance with usual practice, the committee advertised the inquiry
on its website and wrote to a number of organisations and individual stakeholders
inviting submissions by 1 April 2014. Details of the inquiry were placed on the
committee's website at http://www.aph.gov.au/senate_legalcon.
The committee received 30 submissions in response to this inquiry. The
submissions are published on the committee's website and are listed at
Appendix 1 to this report. The committee did not hold a public hearing for
The committee thanks the organisations and individuals who made
submissions to the inquiry.
Purpose of the bills
In 2014, the National Commission of Audit recommended the merging of the
border control functions of the Department of Immigration and Border Protection
(department) and the Australian Customs and Border Protection Service (customs)
into a 'single, integrated border agency'.
As noted in the Explanatory Memorandum to the ABF Bill, on 9 May 2014, the government
announced that customs would be integrated into a single department and that
the Australian Border Force (ABF) would be established within the department.
The two bills are aimed at providing the legislative basis for this decision.
The ABF Bill
In his second reading speech on the ABF Bill, the minister stated that:
This bill establishes the statutory office of the Australian
Border Force Commissioner, who will command the Australian Border Force as a
new, front-line operational border control and enforcement entity within the
Department of Immigration and Border Protection that will enforce customs and
immigration laws and protect Australia's borders...This bill also enables the
full integration of the Australian Customs and Border Protection Service and
the Department of Immigration and Border Protection into a single department of
The minister noted that the ABF Bill:
...removes unnecessary duplication and enables the deployment
of a greater proportion of resources into the front line. It also contributes
to a more efficient government footprint that will assist in achieving fiscal
repair and ensuring the sustainability of government operations.
The minister explained that the ABF Bill is also designed to 'underpin
community confidence in Australia's immigration, customs and border
arrangements' by establishing the ABF as a 'professional and disciplined
workforce', enabling the department, and more specifically the ABF, to achieve
the 'highest standards of operational effectiveness and integrity'.
The minister concluded that:
This bill will enable the Australian Border Force and the
department to create stronger borders. Stronger borders will contribute to
safer communities and a prosperous and cohesive society.
The ABF Amendment Bill
As noted by the minister, the ABF Amendment Bill is largely dedicated to
repealing the Customs Administration Act 1985 and making consequential
amendments to a number of other Commonwealth Acts, including the Customs Act 1901.
Australian Customs and Border Protection Service
On 10 June 1985, subsection 4(1) of the Customs Administration Act
1985 (Cth) established the Australian Customs and Border Protection
Service. Customs primarily derives its powers from the Customs Act 1901
(Cth) and related legislation. The service is controlled by a Chief Executive
Officer (CEO), appointed by the Governor-General. With the exception of certain
legislative powers that are vested directly in the minister, the CEO is
responsible for most legislative decisions. The CEO reports to the minister.
Structure and key aspects of the bills
The ABF Bill
The ABF Bill is comprised of seven parts. Part 1 provides a simplified
outline of the bill
and defines the key terms used in the bill.
Part 2 of the ABF Bill would establish the position of Australian Border
(ABF Commissioner) who would also act as the Comptroller‑General of Customs.
Part 2 would also provide for both the mechanism for
appointing the ABF Commissioner,
or acting ABF Commissioner where appropriate,
and would provide the terms and conditions for that appointment.
Clause 23 would allow the minister to give directions to the ABF Commissioner
on policies or priorities affecting the ABF.
Within this framework, clause 10 of the bill would empower the
ABF Commissioner to do all things necessary or convenient in the exercise
of his or her role
and clauses 25 to 27 would enable the ABF Commissioner to delegate functions
and give directions.
Under clause 24, the ABF Commissioner would be allowed to request a specified
person to make and subscribe to an oath or affirmation.
Part 3 of the ABF Bill would require an APS employee of the department
to provide at least 14 days written notice of an intention to resign.
Moreover, under clause 30, if an employee of the department provides notice of
an intention to resign in circumstances where the employee may have engaged in behaviour
that could amount to serious misconduct, the ABF Commissioner would be
empowered to delay the date of resignation by up to 90 days from the date
specified in the notice, to allow for further investigation of the matter.
Where the Secretary of the Department of Immigration and Border
Protection (secretary) has terminated an employment contract where the secretary
or the ABF Commissioner reasonably believed the employee had engaged in conduct
amounting to serious misconduct, Part 4 of the ABF Bill would allow the secretary
or the ABF Commissioner to make a declaration to that effect. The effect of
such a declaration would be that the provisions of the Fair Work Act 2009
(Cth) dealing with unfair dismissal, and notice of termination or payment in
lieu, would not apply to the employment contract.
Part 5 of the ABF Bill would allow an authorised person to require an
Immigration and Border Protection worker (IBP worker) in the course of
performing his or her duty to undergo an alcohol screening test, an alcohol
breath test, an alcohol blood test or a prohibited drug test.
An authorised person would also be empowered to direct a person to take one of
these tests if the IBP worker, in the course of his or her duties and in specified
circumstances, had been directly involved in an incident that resulted in a
person being killed or seriously injured. The IBP worker would not need to
still be performing his or her duties for the direction to be given, but the
direction would need to be given as soon as practicable after the incident
Tests would need to be conducted in accordance with prescribed rules and the
results of a test would only be admissible in specified proceedings.
Part 6 of the ABF Bill would incorporate secrecy and disclosure
provisions. These provisions would provide that without prior authorisation an
entrusted person must not make a record or disclose protected information
unless he or she is authorised by a law or by an order or direction of a court
An authorised disclosed may be made to prescribed bodies and persons for a
and in accordance with agreements, for permitted purposes or by consent.
A disclosure would be considered as authorised if it were made to reduce a
threat to the life or health of an individual or if the information had already
lawfully been made available to the public.
Part 7 of the ABF Bill would empower the secretary or the Comptroller‑General
of Customs to delegate, in writing, any of their respective functions with the
exception of specified functions and allow for the subdelegation of functions
by specified delegates.
A delegation could be accompanied by written directions.
Part 7 of the ABF Bill would also allow the secretary to give written directions
to IBP workers relating to the administration and control of the department or
the performance of functions or exercise of powers by such workers under a law
of the Commonwealth.
Such directions could pertain to an essential qualification for performing
duties, as used in sections 23 and 29 of the Public Service Act 1999
An IBP worker would be compelled to comply with written directions of the ABF
Commissioner, the secretary or the person acting as the Comptroller-General of
Clause 57 would allow the secretary or the ABF Commissioner to terminate the
contract of engagement of a consultant or contractor if that person fails to
comply with a direction.
Finally, clause 58 would let the minister make rules by legislative
instrument to prescribe matters under the bill.
The ABF Amendment Bill
The ABF Amendment Bill comprises nine schedules. Schedules 1, 3 and 4
propose to amend the Customs Act 1901 (Cth), the Migration Act 1958
(Cth) and the Work Health and Safety Act 2011 (Cth) respectively.
Schedule 2 of the ABF Amendment Bill would repeal the Customs Administration
Act 1985 (Cth) and make consequential amendments and savings provisions
related to the repeal. Schedules 5, 6 and 7 of the ABF Amendment Bill propose
to amend acts referring to 'the Customs', 'the CEO of Customs' and 'the
Comptroller-General of Customs' respectively. The remaining two schedules of
the ABF Amendment Bill make contingent amendments and other application and
transitional provisions. As noted in the minister's second reading speech, the
amendments would reflect:
...the changes to organisational arrangements and statutory
roles associated with the integration of the Department of Immigration and
Border Protection and establishment of the Australian Border Force within the
However, as observed by the minister, the proposed changes to the Work
Health and Safety Act 2011 (Cth) (WHS Act) would be substantial amendments.
Schedule 4 of the ABF Amendment Bill would empower the ABF Commissioner to
issue declarations about how the provisions of the WHS Act should apply
to IBP workers in the ABF participating in national security and defence operations.
However, before making such a declaration, the ABF Commissioner would have to
consult the secretary and either the Director‑General of Security or the
Chief of the Defence Force, depending on whether the declaration applied to a
national security or defence operation.
Finally, further amendments to related legislation are noteworthy. Items
28 to 49 of Schedule 5 of the ABF Amendment Bill would have the effect of
extending the provisions of the Crimes Act 1914 (Cth) relating to
controlled operations, integrity testing and assumed identities to officers of
the entire department, not just to customs officers.
Likewise, items 143 to 146 and items 162 to 170 of Schedule 5 respectively would
extend a right of a customs officer to apply for a freezing order under the Proceeds
of Crimes Act 2002 (Cth) and a stored communications warrant under the Telecommunications
(Interception and Access) Act 1979 (Cth) to any employee of the department.
Finally, items 84 to 89 of Schedule 6 of the ABF Amendment Bill would extend
the jurisdiction of the Australian Commission for Law Enforcement Integrity to cover
the entire department, not just the Australian Customs and Border Protection
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