CHAPTER 2
Key Issues
2.1
The ABF Bill and the ABF Amendment Bill raise quite distinct issues. It
follows that this chapter will examine each of the bills separately.
The ABF Bill
2.2
Submissions to the inquiry identified a number of key issues affecting the
ABF Bill. These issues related to the provisions dealing with directions, oaths
and affirmations, resignation from and termination of employment, alcohol and
drug tests, and secrecy.
Directions
2.3
As noted in chapter 1, the ABF Bill empowers the minister, the secretary
and the ABF Commissioner to give binding directions. Some submissions have
argued that the ABF Bill allows for a dangerous lack of accountability,
providing the minister and the ABF Commissioner with open‑ended powers.[1]
However, the joint submission of the department and customs explained that the
ABF Bill is substantively based on the Customs Administration Act 1985
(Cth) (CA Act) and, as such, the majority of the provisions in the ABF Bill,
including those related to directions, have been made 'subject to parliamentary
scrutiny on various occasions in the past'.[2]
For example, the provision allowing the minister to direct the ABF Commissioner
on the policies and priorities to be pursued and then to ensure that a copy of
the direction is laid before each House of the Parliament within 15 sitting
days correlates to section 4A of the CA Act.[3]
The joint submission also stated that the minister's power to direct the ABF Commissioner
would be consistent with the direct accountability of the ABF Commissioner
to the minister and, furthermore, the minister would remain bound by section 19
of the Public Service Act 1999 (Cth), limiting the minister's capacity
to make directions on breaches of the APS Code of Conduct and other individual
employment matters.[4]
2.4
Some submitters claimed that, as directions of the secretary and the ABF
Commissioner would be binding, IBP workers, including contractors, would be compelled
to adhere to a directive, irrespective of individual conscience, organisational
code of conduct or perceived duty of care.[5]
2.5
The joint submission of the department and customs explained that:
Immigration and Border Protection workers will make decisions
and exercise powers that affect the safety, rights and freedoms of individuals
(sometimes significantly and irrevocably) as well as trade and commerce in
Australia. They will hold a privileged place at the border and in the
community, with access to secure environments and law enforcement databases.
They will also exercise significant enforcement powers under the Customs Act,
the Migration Act, the Maritime Powers Act and other Commonwealth laws. The
community and Government trust Immigration and Border Protection workers to
exercise these powers reasonably, lawfully, impartially and professionally...It
is imperative that the ABF be established as a disciplined and professional
workforce that can be flexibly deployed in line with changing requirements and
risks.[6]
2.6
The department and customs clarified that the provisions that would empower
the secretary and the ABF Commissioner to make binding written directions on
the administration and control of the department and the ABF, respectively, were
broadly modelled on section 4B of the CA Act.[7]
2.7
The Community and Public Sector Union (CPSU) and the Asylum Seeker
Resource Centre (ASRC) in-principle did not have an objection to the specific
legislative power to issue directions requiring essential qualifications but
both criticised the lack of specificity as to how and when essential qualifications
could be introduced.[8]
The ASRC did acknowledge that the Explanatory Memorandum to the ABF Bill
contemplates that IBP workers may need to undergo psychometric and resilience
training to ensure that they have the 'emotional and mental disposition suitable
for the performance of certain duties'.[9]
The Law Council of Australia (LCA) stated that the person making a direction on
essential qualifications should ensure that they are consistent with relevant
obligations not just under the Disability Discrimination Act 1992 (Cth),
but also the Age Discrimination Act 2004 (Cth), the Racial
Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984
(Cth).[10]
2.8
The department and customs stated:
Establishing a specific legislative power to issue such
directions will assist the department to ensure the workforce has the necessary
skills and attributes relevant to the roles being performed within the
integrated department and enable the highest standards of operational
effectiveness and professional integrity to be achieved.[11]
2.9
The CPSU challenged the need for a specific legislative power to allow
the secretary or the ABF Commissioner to make directions on mandatory
reporting. The CPSU submitted:
The deployment of these powers will produce a work
environment that is lacking in trust; a poor workplace culture that is likely
to drive behaviours that are not conducive to uncovering the very behaviour
that this legislation aims to prevent. Efforts to promote teamwork and bonds
necessary between workers performing difficult and dangerous duties and their
management will be undermined by this requirement. The introduction of these
powers will only serve to make potentially criminal or corrupt elements within
the Department more secretive and harder to detect by anyone.[12]
2.10
By contrast, the Australian Commission for Law Enforcement Integrity
(ACLEI) stated:
Integrity measures, such as Mandatory Reporting and
Organisational Suitability Assessments, help to mitigate the likelihood of
staff members exercising inappropriate discretion about what to report.
To promote procedural fairness and accountability...it is
appropriate and advisable for the Secretary and the ABF Commissioner to have a
legislative basis for issuing binding directions relating to these integrity
controls.[13]
2.11
The Explanatory Memorandum to the ABF Bill notes that the proposed
mandatory reporting powers would be consistent with subsection 4B(2) of the Customs
Administration Act 1985 (Cth). The Explanatory Memorandum reasons that:
The intention of the power for the ABF Commissioner to impose
mandatory reporting requirements is to support the identification and
investigation of potential criminal behaviour or corruption that is likely
affect the operation or reputation of the Department...Given the type of work
that IBP workers perform and the importance of maintaining a high integrity
workplace, mandatory reporting of such conduct or activities is considered a
useful preventative, deterrence and response tool.[14]
Oaths and affirmations
2.12
A few submissions commented on the requirement for the ABF Commissioner
to make and subscribe to an oath before beginning to discharge his or her
duties. The submissions argued that the particular form of the oath has not
been specified as it would be prescribed by the relevant rules.[15]
The LCA and the Combined Refugee Action Group (CRAG) also questioned the need
for a provision which would allow the ABF Commissioner to request an IBP worker
to make and subscribe to an oath or affirmation, respectively arguing that
junior clerks of the department and contractors should not be made subject to
this provision.[16]
Moreover, the Australian Public Service Commissioner recommended that the
content of any such oath or affirmation should be consistent with the APS
Values, Employment Principles and Code of Conduct.[17]
2.13
The department and customs commented that the requirement to make and
subscribe to an oath or affirmation would be:
...critical in an
environment where significant enforcement powers are being exercised
and there is community
expectation of the highest standards
of integrity.
The ABF Commissioner will have the same standing
as the Chief of the Defence Force
and the Australian Federal
Police Commissioner. These
offices have oaths or affirmations attached to them. It
is therefore appropriate that the ABF Commissioner should also be required to make and subscribe an oath or affirmation and that he or she should be able to request certain
ABF officers to make
and subscribe an oath or affirmation as well. It is anticipated that the oath or affirmation given by
these officers would be similar to the kind prescribed for certain Australian Federal Police officers under section 36 of
the Australian Federal Police Act 1979
(Cth).[18]
2.14
The committee notes that ABF Bill would only empower the ABF
Commissioner to request an IBP worker in the ABF or a person whose
services were made available to or who was performing services for the ABF, not
junior clerks of the department, to make and subscribe to an oath or
affirmation.[19]
The Explanatory Memorandum to the ABF Bill states:
Requiring employees responsible for exercising significant
enforcement powers to subscribe to behaviour that upholds public service
professionalism and ethics is essential to safeguard the reputation of the
Department and the safety of the general public. The oath or affirmation is
intended to be similar to the kind prescribed for certain AFP officers in the
AFP Regulations.[20]
Resignation and termination
2.15
The CPSU challenged both the resignation and termination powers proposed
by the ABF Bill arguing that they were superfluous, given that existing powers
under the Australian Public Service Act 1999 (Cth) would be sufficient
to secure the integrity of the workplace.[21]
Other submitters, including the LCA, submitted concerns relating to the
proposed provisions limiting the extent to which an employee could seek
remedies under the Fair Work Act 2009 (Cth) after a declaration is made
by the secretary or the ABF Commissioner confirming termination of employment on
grounds of serious misconduct.[22]
The CPSU and LCA argued that the proposed termination provision and associated
declaration power would curtail an employee's right to natural justice by
taking away any appeal mechanism to examine the merits of the decision to
terminate the employment and removing the defence of reasonable excuse.[23]
The CPSU, LCA and the Refugee Council of Australia (RCOA) came to the same
conclusion: that the existing provisions in the Public Service Act 1999
(Cth) that apply to serious misconduct are adequate to ensure the integrity of
the immigration and border protection workforce as the Fair Work Commission
would not overturn a termination decision that had merit; the Fair Work
Commission would only question a case where the alleged misconduct was found not
to have occurred, where it occurred but the employee had a reasonable excuse or
where the misconduct was not serious enough to warrant dismissal.[24]
2.16
The department and customs justified the proposed resignation powers by
stating:
Under current provisions of the Public Service Act, an
investigation into a breach of the APS Code of Conduct can continue after an
employee has resigned but there is no provision to apply a sanction to the
person as he or she is no longer an employee. This confines the ability of the
department to address instances of serious misconduct and corrupt conduct. The
proposed power to delay the date of effect of a person's resignation is an
appropriate measure to address this issue as it will permit any investigation
to be concluded, and where warranted, sanctions to be applied. This is an
important demonstration to staff, the Government and the wider community of the
department's commitment to professionalism and high standards of integrity and
its unwillingness to tolerate conduct that threatens these values.[25]
2.17
The department and customs also explained that the termination provision
and associated declaration power would be an essential part of securing the
integrity of the department as they would provide the secretary and the ABF
Commissioner an ability to quickly and decisively remove an employee, thereby
removing any possibility that highly sensitive information could be exposed.
Furthermore, the efficient termination of an employment contract would avoid mixed
signals being sent to other employees and the general public about the
department's level of tolerance for serious misconduct.[26]
The LCA and the joint submission of the department and customs highlighted that
the termination and declaration-making powers of the secretary and the ABF
Commissioner would not affect an employee's right of review under the Administrative
Decisions (Judicial Review) Act 1977 (Cth).[27]
The joint submission also noted that general protections claims under the Fair
Work Act 2009 (Cth) and claims under anti-discrimination legislation would
not be affected by the proposed provisions, adding that:
This provision mirrors the declaration provision currently
applicable to ACBPS workers under section 15A of the Customs Administration Act
and it is proposed to replicate its effect across the integrated department.
Section 15A of the Customs Administration Act was modelled on the declaration
of serious misconduct provisions applicable to Australian Crime Commission and
Australian Federal Police staff. The provision was introduced in 2012 as part
of a series of measures designed to increase the resistance of Commonwealth law
enforcement agencies to corruption and to enhance the range of tools available
to agencies to respond to suspected corruption. The declaration
provisions were subject to parliamentary scrutiny at that time and the
Committee recommended passage of the provisions in their entirety.[28]
Alcohol and drug tests
2.18
Although the CPSU had no objections to the concept of drug and alcohol
testing, the CPSU stated that it was concerned with the way in which the ABF
Bill proposed to introduce the testing. The CPSU contended that the proposed universal
drug and alcohol testing regime may act to undermine employee trust and the
testing regime may be abused by management, opening up the possibility that
certain employees could be unfairly targeted for tests or harassed by repeated
requests for tests. Additionally, the CPSU was not convinced that the benefit
of alcohol and drug testing certain employees, such as those in administrative
roles, could justify the cost.[29]
2.19
ACLEI supported the proposed regime contending that passive integrity
measures are not sufficient to address the emerging threat of corruption‑enabled
border crime. ACLEI cited operational experience that showed that mandatory
reporting and drug testing have provided an effective deterrent to corrupt
behaviour and a general rise in professional standards and threat awareness.
ACLEI, through recent investigations, observed that law enforcement staff had
used illicit drugs, but considered this behaviour to be private and separate
from their law enforcement roles. ACLEI stressed that:
Those investigated...failed to realise that, by using illicit
drugs, they exposed themselves to considerable risk of compromise, including
possible exposure to blackmail in return for keeping their drug use hidden.
Several had also failed to recognise the potential value to organised crime
groups of the information each held as a result of their official duties...Accordingly,
having regard to the sensitive functions undertaken by DIBP employees...broad-based
drug testing of employees is an important corruption deterrence and detection
measure.[30]
2.20
The department and customs reiterated that the proposed alcohol and drug
testing regime would help increase the department's capacity to better resist
corruption and ensure a safer working environment. The joint submission
explained:
Where Immigration and Border Protection workers are privately
participating in the use and possession of illicit drugs, this behaviour is in
direct conflict with their official duties and may enhance vulnerability to
corruption. Corruption can have a significant detrimental effect on the ability
to enforce the law, and the introduction of a drug and alcohol testing regime
will provide another tool to detect corruption and misconduct across the
broader department...The Government also considers that implementation of drug
and alcohol testing is an appropriate response to the significant consequences
that could arise from Immigration and Border Protection workers acting under
the influence of drugs or alcohol in the course of their duties.[31]
2.21
The joint submission indicated that existing drug and alcohol screening
arrangements have proven to operate effectively for customs, the Australian
Federal Police and the Australian Crime Commission. As with the existing
testing arrangements, the department and customs noted an intention that the
testing would be conducted in line with the relevant Australian standards and
procedures, helping to minimise any privacy concerns.[32]
Secrecy and disclosure
2.22
Several submissions were critical of the proposed secrecy and disclosure
provisions in Part 6 of the ABF Bill. The submissions argued that the
provisions essentially criminalise any whistleblowing by IBP workers that does
not fall within an exception, questioning whether the provisions would act to
limit the public disclosure of human rights abuses or breaches of law.[33]
The ASRC highlighted that the evidentiary burden of proving that whistleblowing
falls within an exception would fall on the accused.[34]
The LCA recommended that:
The secrecy offences should include an express requirement
that, for an offence to be committed, the unauthorised disclosure caused, or
was likely or intended to cause, harm to an identified essential public
interest.[35]
2.23
The committee takes the view that such an express requirement is not
necessary as paragraph 42(2)(c) of the ABF Bill already provides an exception
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'.[36]
The term 'a law of the Commonwealth' includes the Public Interest Disclosure
Act 2013 (Cth) that facilitates the 'disclosure and investigation of
wrongdoing and maladministration in the Commonwealth public sector'.[37]
Section 29 of the PID Act defines 'disclosable conduct' as conduct by an
agency, public official or contracted service provider that falls under one or
more items in the following table:
2.24
ACLEI made the point that under clause 43 of the ABF Bill potential
whistleblowers and potential witnesses could also provide any relevant
information directly to ACLEI without the need to seek authorisation, avoiding
the onus of proving a defence.[38]
2.25
The department and customs advised that the proposed secrecy and disclosure
provisions were modelled on section 16 of the Customs Administration Act
1985 (Cth), and adapted to ensure that the new provisions could operate
efficiently and effectively within the context of the broader functions of the
department and with other information protection and disclosure provisions in
related legislation. The joint submission reasoned that:
The proposed application of these information protection
provisions to the integrated department will enable the department to regulate
the disclosure of sensitive information in a way that is appropriate and
measured. This framework will also provide partner agencies and stakeholders,
including industry and international law enforcement and intelligence partners,
with assurances that information provided to the department can only be
disclosed in the manners contemplated by the information protection provisions.
Similar information protection and disclosure provisions also
exist in comparable legislation such as the Australian Federal Police Act 1979,
the Australian Security Intelligence Organisation Act 1979, the Income
Tax Assessment Act 1997 and the Australian Crime Commission Act 2002.[39]
The ABF Amendment Bill
2.26
The key issues pertaining to the ABF Amendment Bill may be broken down
into three separate categories, being issues relating to the proposed
amendments to the WHS Act, issues relating to the proposed extension of ACLEI's
jurisdiction to investigate the whole department, and issues relating to the
proposed consequential amendments to other Acts. Each of these categories will
be examined in turn.
Proposed amendments to the WHS Act
2.27
The RCOA submitted that the proposed provisions of the ABF Amendment Bill
that would permit the suspension of specified sections of the WHS Act are
unnecessary, arguing that the WHS Act 'already offers significant flexibility
in responding to the varied work health and safety issues which may arise in a
wide range of workplaces'.[40]
2.28
The statutory work health and safety regulator, Comcare, noted
declaration powers similar to those proposed in Schedule 4 of the ABF Amendment
Bill are already available to certain agencies under the WHS Act. Comcare cited
that the consultation and approval requirements proposed would provide
sufficient safeguards and submitted that it could not foresee any issues with
its operations or the regulation of work health and safety in the ABF.[41]
2.29
The department and customs added that:
The proposed amendments to the WHS Act appropriately
recognise the risks faced by Australian Border Force officers in protecting
Australia's national security and defence. The declarations are not intended to
weaken protections for workers, or remove any obligations for the department as
an employer to ensure a safe workplace. In contrast, they can only be put in place
where necessary, and with the required consultations and Ministerial approvals,
to remove any uncertainty for ABF workers regarding their obligations under the
WHS Act.
It is intended that ABF officers will continue to undertake
risk assessments, follow instructions and be well-trained and equipped for the
performance of all duties. At all times, the department will prioritise the
health and safety of its workers and promote the objectives of the WHS Act to
the greatest extent consistent with maintenance of Australia's national
security and defence.[42]
Proposed extension of ACLEI's
jurisdiction to the whole department
2.30
Both the department and customs and ACLEI supported the proposed
expansion of ACLEI's jurisdiction, which would allow it to investigate serious
and systemic corruption issues throughout the department, not just the ABF. As
noted by the department and customs:
...Immigration and Border Protection workers will have access
to secure environments, protected systems and sensitive information which are
valuable and therefore attract a heightened integrity risk...The consequences of
any corruption in the department, including in the ABF, would pose a
significant threat to the integrity of the border and Australia's national
security...These provisions will ensure the Integrity Commissioner's unhindered
ability to investigate suspected law enforcement related corrupt activity
across the integrated department regardless of the specific role, location or
job title of the individual worker.[43]
2.31
ACLEI reiterated these points, adding:
...an emerging risk seen in a number of recent ACLEI
investigations is that "back office" staff—administrative and other
support staff who also have access to sensitive information—may be as
vulnerable to compromise as operational staff. In addition, since they may be
less prepared to respond to improper approaches, support staff may be more
exposed to risk than was previously considered to be the case...A whole‑of‑agency
approach also reduces the potential for disputation or legal contest over the
scope of ACLEI’s jurisdiction.[44]
Proposed consequential amendments
to other Acts
2.32
The department and customs explained that the proposed amendments in Schedules
2, 5, 6 and 7 of the ABF Amendment Bill were designed to provide transitional
provisions and consequential arrangements to ensure continuity of operations
and information and intelligence sharing between relevant agencies following the
repeal of the Customs Administration Act 1985 (Cth).[45]
2.33
However, the LCA argued that some of these provisions dealing with the
expansion of powers from customs to the department could be problematic. The
LCA challenged the need to expand the controlled operations scheme and the
assumed identities scheme of Part 1AB and 1AC Crimes Act 1914 (Cth) to
the department, recommending that it should be limited to IBP workers in the
ABF. Similarly, the LCA argued that only authorised IBP workers in the ABF, not
all authorised IBP workers, should be able to apply for a freezing order under
the Proceeds of Crimes Act 2002 (Cth).[46]
The LCA also challenged the proposed amendments to the Telecommunications
(Interception and Access) Act 1979 (Cth), recommending that only the ABF
and not the broader department should be able to obtain a stored communications
warrant. The LCA submitted:
Given the intrusive nature of stored communications warrants
and their ability to reveal sensitive personal information, the Law Council
considers that it is inappropriate to permit the broader IBP Department, rather
than just the ABF, access to stored communications warrants, unless there is a
demonstrated need to do so.[47]
2.34
Finally, the LCA noted that the amendments in Schedule 5 of the ABF
Amendment Bill would expand integrity testing to the department as a whole and
this would allow ACLEI to apply for a warrant to use surveillance devices under
the Surveillances Devices Act 2004 (Cth) for the purposes of that
testing. LCA submitted that these provisions should only apply to operational
staff.
2.35
The minister, in his second reading speech, explained that controlled
operations scheme and the assumed identities scheme of Part 1AB and 1AC of the Crimes
Act 1914 (Cth) were important provisions. The minister stated:
In its 2013 report into organised crime in Australia, the
Australian Crime Commission details the significant impact serious and
organised crime has on the everyday lives of Australians. The commission
conservatively estimates organised crime costs Australia $15 billion annually
and notes the ability for such crime to undermine our border integrity, erode
the confidence in institutions and law enforcement agencies and damage our
prosperity and regional stability. This form of crime reaches across borders
and can include trafficking in drugs or in people, corruption, and money
laundering.
With the increasing threat of serious organised and
transnational crime, it is vitally important that Australia's border
arrangements continue to be able to operate with relevant powers and
protections to conduct operations that counter these threats. Accordingly, the
bill substitutes the Department of Immigration and Border Protection for the
Australian Customs and Border Protection Service as the primary agency with
overarching responsibility for protecting our borders. It therefore ensures
these provisions will continue to apply to officers in my department when the
new organisational arrangements are in place.[48]
2.36
In its submission, ACLEI expressed support for integrity testing, by
stating:
Integrity testing is a specific method of investigating
suspected corrupt conduct, whereby an officer is placed in an observed
situation that is designed to test in a fair way whether he or she will respond
in a manner that is illegal, unethical or otherwise in contravention of the
required standard of integrity. The consequences of failing an integrity test
can include disciplinary action, termination of employment or criminal charges.
The inclusion of this measure reflects and responds to
ACLEI’s experience of the challenges involved in investigating corrupt
conduct. It does so in a way which ensures accountability, protects the rights
and reputations of individuals, and provides appropriate legal protection for
officers who conduct authorised integrity tests.
Having regard to corruption enabled border crime risks, as
well as the desirability of corruption investigation and deterrence measures
being able to be applied across a jurisdiction, ACLEI supports the extension of
integrity testing to DIBP.[49]
2.37
The committee agrees with ACLEI's position on integrity testing and
accepts that the controlled operations scheme and the assumed identities
schemes should be expanded to the department as a whole.
2.38
Furthermore, the committee takes the view that, as the amended Proceeds
of Crimes Act 2002 (Cth) would only allow authorised officers of the
department to apply for a freezing order, the proposed amendments do not
drastically change the status quo. Following the same reasoning, the committee
notes that the amended Telecommunications (Interception and Access) Act 1979
(Cth) would not change the requirement that a certifying officer must be
authorised to apply for a stored communication warrant. The committee cites the
reasoning in the Explanatory Memorandum to the ABF Amendment Bill, which states
that the amendments to the Telecommunications (Interception and Access) Act
1979 (Cth):
...will enable the continued operation capability of key activities
currently performed by the ACBPS, which will in the future be undertaken within
the integrated Department.[50]
Recommendation 1
2.39
The committee recommends that the Senate pass the Australian Border
Force Bill 2015 and the Customs and Other Legislation Amendment (Australian
Border Force) Bill 2015.
Senator
Barry O'Sullivan
Chair
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