Chapter 2 - The Legislation
Introduction
2.1
In introducing the Border Protection Legislation
Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005 the Minister for
Agriculture, Fisheries and Forestry spoke of illegal fishing in Australian
waters, particularly the northern waters, as a growing problem. The problem is
growing not only in terms of the number of illegal foreign vessels apprehended
but also the catches those vessels are taking.
2.2
In the past two calendar years, 299 vessels have been
apprehended in Australia's
northern waters and 18 vessels suspected of illegal fishing had been detained
in the first 2 months of 2005[19]. The
vessels apprehended can be found to have "large freezer storage facilities
on board"[20] and are targeting
large quantities of reef fish and shark fins. The three vessels apprehended on 26 February 2005, with a total of 4000
kilograms of fish on board, and a vessel apprehended on 3 March 2005 with 176 shark fins, provide an
indication of the growing problem[21].
2.3
The illegal foreign fishing vessels originate in Indonesia.
Under a 1974 agreement with Indonesia,
Australia does
permit some Indonesian fishing in the
Australian Fisheries Zone (AFZ). The areas are those that have been
traditionally fished by the Indonesians and
the arrangements provide for the fishing of specific species.[22] However, the increases in both the
number of vessels and the size of the catches may have an impact on the
sustainability of Australia's
fish stocks.[23]
2.4
The Committee acknowledges that the problem of illegal
foreign fishing in Australian waters cannot be ignored and notes that the
legislation forms part of a government program which includes other measures,
including the provision of additional resources to both the Australian
Fisheries Management Authority (AFMA) and the Australian Quarantine and
Inspection Service (AQIS).[24]
2.5
The Committee did not receive any evidence during the
inquiry to suggest that there was not general support for the principles of the
legislation. However, the inquiry provided an opportunity for the Committee to
tease out a number of issues, including the proposed new powers provided under
the act and the accountability mechanisms included.
Issues
Training Requirements
2.6
During the inquiry the Committee explored the
responsibilities and duties of a new class of officers proposed by the
legislation.
2.7
The current legislation[25] provides for AFMA or the Minister to
appoint officers, including those who are members of the Australian Federal
Police or a state or territory force, the Defence Force or the Customs Service.
There is no proposed change to these existing appointment arrangements. Under
the amendments proposed in the bill, officers appointed under the Torres Strait Fisheries Act 1984 (Torres
Strait Act) will have their powers extended to include the power to detain.
Officers appointed under the Fisheries
Management Act 1991 (Fisheries Act) currently have this power.[26]
2.8
However, there are also two classes of officers defined
in the legislation:
2.9
Under the proposed amendments to both the Fisheries Act
and the Torres Strait Act, detention officers are appointed by the Minister and
may include contract employees.[27] While
detention officers will not have the power to detain a person, they are
responsible for the detainees continuing detention, as well as moving the
detainees if required.[28]
2.10
Both detention officers and fisheries officers can be authorised
by AMFA. Those that are 'authorised' become authorised officers and, depending
on the authorisation, can conduct "searches, screening, identification
tests and those sorts of activities."[29]
Authorisation can be made by employment classification providing the necessary
training protocols are met, with the exception of authorisations for strip
searches. Authorisations for strip searches are made for individual officers.[30]
2.11
The Committee notes the link made between training and
authorisation. It was highlighted by the Minister when introducing the bill:
An important part of the authorisation process, will see any
prospective officers receive comprehensive training in the effective and
responsible use of these powers under the relevant Acts.[31]
2.12
However, during the hearings, when the Committee sought
to establish the legislative provision for the training requirements that would
be provided prior to authorisation, the Committee was advised:
There is no requirement in the bill for that [training]. It is
part of the discretion of AFMA when authorising those officers.[32]
2.13
This evidence would seem at odds with the Minister's
advice to the House. In the ensuing discussion it became clear that AFMA's
intention was to replicate the training arrangements that already exist under
the current immigration regime.[33]
2.14
In its submission, the Community and Public Sector
Union (CPSU) indicated that it:
...believes that minimum training requirements should be inserted
into the bill...[34]
2.15
The CPSU argued that the requirement under the Australian
Public Service (APS) Code of Conduct and Values for
sensitivity to the diversity of the Australian public:
should be equally applicable to the conduct of all Commonwealth
employees, including private sector contractors, to illegal foreign fishers
with regard to language and cultural differences.[35]
2.16
The powers that can be exercised by authorised officers
are significant. The bill proposes that authorised officers will also be
granted the power to carry out identification tests, by force if necessary and
if authorised.[36]
2.17
Furthermore, searches, including strip searches, can be
conducted without a warrant. Strip searches, however, will be subject to the
approval of the Managing Director of AFMA, or the Secretary or a Deputy
Secretary of Department of Agriculture, Fisheries and Forestry (DAAF).[37] The legislation also provides that the
detainee may request an independent person to be present during the strip
search, provided that the independent person is readily available.[38]
2.18
Although the Committee accepts the advice from DAFF
that AFMA will largely put in place the training currently required by the Department
of Immigration and Multicultural and Indigenous Affairs (DIMIA), it continues
to be concerned that the gravity of the powers provided to authorised officers
under the proposed amendments will not be met with commensurate training. The
Committee notes the advice provided in the joint submission from DAFF, DIMIA
and AFMA; under current Migration Series Instruction 347 Strip Searches of
Immigration Detainees, the training is mandatory. It advises that:
The strip search training includes:
Civil rights and liberties
Cultural awareness
The grounds for conducting a strip
search
The pre-conditions for a strip search
The role of officers involved in
conducting a strip search
The procedure for conducting a strip
search
The procedures relating to items
retained during a search
Record keeping
Reporting
requirements.[39]
2.19
The Committee is of the view that strip searches are,
by their nature an intimidating experience for those that are subject to them.
As such, the requirement for training that is linked with these powers in
particular, should be explicit in the legislation and subject to parliamentary
scrutiny. Given that DIMIA has already detailed the training provisions for
those "who are to be authorised to search, screen or strip search a
detainee"[40] the Committee
believes that the legislation would benefit by the inclusion of a specific
requirement for training. Accordingly, the Committee makes the following
recommendation:
Recommendation 1
2.20 The Committee recommends that the bill be amended to
insert a requirement that officers, prior to becoming authorised officers,
undertake the training prescribed in a disallowable instrument to be made under
the Act.
Contract employees
2.21
The bill provides for the employment of contract staff.
These employees are subject to the same authorisation processes as other
officers and will therefore undertake the duties of either detention officers
or authorised officers. In its submission, the CPSU raised a number of inter-related
concerns over the employment of contract staff, particularly given the
"serious law enforcement style powers...".[41] These concerns include adherence to
the APS Code of Conduct;
accountability and the protection of employees.
APS Code of Conduct
2.22
Employees of the APS are bound by the Code of Conduct to a stated high
standard of professionalism and ethics. The CPSU "believes that this high
standard of professional conduct...has no equivalence in the private
sector."[42] They argue that:
The flexibility and responsiveness of the modern APS means that
there is no arguable reason why these positions cannot be fulfilled by APS
employees.[43]
2.23
The Committee itself has reservations about the use of
contract employees to undertake the duties that include the use of significant
powers. During the hearings it sought assurances regarding the selection
process of these employees. It was informed that the proposal was similar to
that which DIMIA operated and that the contract with the employer imposed
certain requirements:
The provisions of the contract outline the nature of the
employees. That is not just a security clearance: it is also a character
assessment. There are some other criteria within the contract which apply to
employees. So it goes beyond just the security clearance.
...
There is also a requirement in the contract for the police
checks which are done prior to a contract
employee being engaged in a centre. There is also a requirement for an annual
police check thereafter, so that we have ongoing review of, at least, the
criminal aspect.[44]
2.24
The Committee also sought information about any code of
conduct that relates to detention officers. DIMIA informed the Committee that
GSL Australia, which is contracted by DIMIA, has such a code:
...it is important to have a code of conduct
for detention officers and for that to be adhered to. GSL Australia have a code
of conduct for their officers and they very vigorously apply that code of
conduct. Our experience is that when an issue arises they pursue that issue. [45]
2.25
The Committee notes that GSL Australia's code of conduct
requires the staff to "perform their duties professionally and ethically,
at all times. (14.1.8)."[46]
2.26
The joint submission provides a comparative analysis of
GSL Australia's code of conduct and the APS Code. It identifies 7 of 13
obligations imposed on a public servant under the APS Code of Conduct as being
equivalent to those imposed by GSL Australia's code of conduct.[47]
2.27
The joint submission further identifies the APS Code of
Conduct obligations that do not have direct equivalents under the GSL Australia
code as the following:
(a)
act with honesty
and integrity;
(b)
act with care and
diligence;
(c)
act in accordance
with APS values;
(d)
not to make
improper use of Commonwealth resources; and
(e)
not to disclose
information which could be prejudicial to the effective working of government.[48]
2.28
The joint submission continues by suggesting that the
obligations are either encompassed in another set of obligations (honesty and
integrity and care and diligence), dealt with elsewhere (use of resources or
disclosure), or not strictly relevant (APS Values).[49]
2.29
The Committee does not accept that the code of conduct
operated by DIMIA's contractors sufficiently incorporates all the necessary
obligations stated in the APS Code of
Conduct. The argument put forwarded that those obligations that do not have
equivalents in the GSL code of conduct are implied by other obligations is not
substantiated. While obligations 1, 3, 4, 12 and 14 in the GSL code, for
example, are important obligations relating to how the contract employees
conduct their duties and present themselves, these obligations do not require
honesty.
2.30
The Committee regards honesty and integrity and a
requirment to conduct duties with care and diligence as essential in the environment
that these contractors will be employed in. Although it could be argued that
these values are so fundamental anyone meeting the other obligations would also
have those characteristics, the Committee is of the view that these values
should be required by an explicit statement, just as the GSL code of conduct
places a requirement on the staff to act professionally and ethically at all
times.
2.31
In this context the Committee notes AFMA's stated
intention to "as closely as possible, replicate the system that DIMIA are
using."[50] The Committee is of the
view that AFMA need to improve on that system in relation to obligations
required in the code of conduct developed by any contractor. It therefore makes
the following recommendation.
Recommendation 2
2.32 The Committee recommends that AFMA, in negotiating a
contract relating to services to be provided in fisheries detention centres,
require that a code of conduct be developed for contract staff that includes
the values of honesty and integrity and to act with care and diligence, in
addition to those obligations that already exist in GSL's code of conduct.
Accountability
2.33
In its submission, the CPSU also raised the question of
the accountability of contract officers in comparison with that of an APS
officer. It argues that AFMA would be required "to sue the contractor for
breach of contract in the courts"[51]
if it wished to act upon breaches of the GSL Australia code of conduct by
officers. The expense and time involved in taking matters to court would result
in only the "most significant breaches"[52] being pursued.
2.34
It counters that any breaches of the APS Code of Conduct could be pursued by AFMA
in the first instance or the Public Service Commissioner or the Merit
Protection Commissioner without recourse to the courts.[53]
2.35
In response to the Committee's questions, DAFF
indicated that suing the contractor for breach of contract was indeed one
option for ensuring that contract employees are accountable for their actions.
However, the Committee was also informed that "a complaint could be made
through the Ombudsman or to HREOC",[54]
or "civil or criminal proceedings against them if they [the contractors]
have operated beyond their powers."[55]
2.36
In evidence, DIMIA provided the Committee with a snapshot
of how it manages accountability with its contract employees. Its management
focuses on monitoring the work preformed by contracted staff on a day to day
basis by on-site DIMIA staff and also through regular visits by Canberra
based staff. Also, experts are engaged to "look at particular aspects of
service delivery."[56] A further
role is played by the Ombudsman and HEROC who make regular visits to the DIMIA
facilities. Finally, DIMIA's policy on suggestions or allegations of a criminal
nature is to refer the matter to the police immediately.[57]
2.37
AFMA confirmed that a monitoring program would be set
in place, in addition to a continuation of the existing complaints mechanism.
This complaints mechanism is open to anyone who is detained, complaints are
investigated and AFMA "follow through on it and remedy the cause".[58]
2.38
Furthermore, the Committee was informed that:
The power to detain and continue to detain as well as the powers
and the manner in which searches, screens, strip searches and identification
tests are conducted pursuant to the Bill, are all subject to review under the Administrative Decisions(Judicial Review)
Act 1997. Decisions made by officers are also reviewable in some cases
under section 75(v) of the Constitution or section 39B of the Judiciary Act 1903.[59]
2.39
The Committee accepts that the Government would be
required to take a breach of contract through the courts. However, it is of the
view that other action and processes would forestall such action. It notes that
the monitoring process operated by DIMIA is regarded as successful and that DIMIA
considers the contractors to be diligent in pursuing any matters arising out of
the code of conduct.[60]
2.40
AFMA proposes to apply a similar process, together with
a complaints process.
Protection of employees
2.41
Finally, concerns were raised as to the protection
afforded to contracted employees if they are called upon to perform duties which
are outside the terms prescribed by the legislation.
2.42
The CPSU's submission argued that for contract employees
there will "be no culture of protection to an individual who is under
pressure to misuse his or her powers." It continued by inferring that such
workers may worry about maintaining future employment contracts with the
employers should they resist the pressure.[61]
2.43
The Committee explored another aspect of this concern,
which is the protection afforded to those who are "whistleblowers".
It was advised that the provisions of the Public
Service Act 1999 which provide protection to staff of the APS who act as
"whistleblowers" do not apply to contract officers. Instead:
If a detention officer who was a contractor had his or her
appointment or authorisation revoked because he or she had acted as a
whistleblower, review of that decision may be possible under the Administrative Decisions (Judicial Review)
Act 1997.[62]
2.44
The Committee notes that approval from senior officers
within DAFF or AFMA is required prior to any authorised officer exercising a
strip search. Authorisation from a senior authorising officer is also required
prior to the use of force to conduct an identification test. The Committee
believes that these requirements, together with the well developed monitoring
program and complaints procedure (outlined in paragraph 2.36) will act to
inhibit any demands for contract officers to inappropriately exercise any of
the powers provided under the legislation.
2.45
However, the Committee remains concerned over the lack
of consideration that appears to be given to the protection of any contract
employee who may act as a "whistleblower". It urges the Government to
give further consideration to this issue before the passage of the legislation.
Staff consultation
2.46
In its submission, the CPSU noted the lack of
consultation that AFMA and DAFF had undertaken with current staff in relation
to the changes proposed by the Bill. It called
on these organisations "to engage in appropriate consultation with staff
with regards to these issues".[63]
2.47
In giving evidence to the Committee, AFMA admitted that
consultation with its own officers had not been extensive. AFMA argued that,
while the fisheries officers located in Canberra
tended to be familiar with the provisions of the bill, those located outside Canberra
were not. The reason for this was that most officers were state based and
"work with state based agencies".[64]
2.48
AFMA also informed the Committee that a training
program was being developed:
... which will be released to the state based fisheries officers
once we know exactly what the powers will be after the passage of the bill
through parliament.[65]
2.49
The Committee welcomes the attempt to properly inform
officers about significant changes that will be made to the work they preform
and the way in which they do it. However, it does not believe that informing
the workers in the field after the passage of the legislation is the best way
to manage the changes. The bill may well have benefited from a consultation
process with those officers undertaking the affected duties. The Committee considers
it regrettable that no such consultation took place.
Detention
2.50
The Committee also considered the matter of the
appropriateness and length of the detention of those suspected to be illegal
foreign fishers.
2.51
At the outset of the hearing DAFF acknowledged that the
current arrangements for the detention of illegal foreign fishers had
originated on an ad hoc basis and were based on a small number of detainees.
Officers also admitted that the arrangements are presently less than
satisfactory. This, together with an increased number of foreigners detained
for suspected illegal fishing, required the existing arrangements to be made
"more modern".[66]
2.52
Under existing arrangements, detainees can be held on
their boats within a quarantine zone in the middle of Darwin
Harbour. This practice has
attracted some criticism, notably in the 1998 report by the Ombudsman,[67] and more recently in the Coroner's
report on the death of Mansur La ibu. The Coroner, while noting that fisherman preferred
to remain with their boats and there were few complaints, also stated:
Furthermore, the standard of such detention in the case of the
deceased is also to be deprecated; to keep seven men on a vessel such as the 'Yamdena'
for some weeks where their only shelter (and sleeping accommodation) is a small
box...is unacceptable.[68]
2.53
The Committee notes that under the new proposals there
will still be some "boat based detention at Broome and Gove".[69] Temporary accommodation facilities
will be located at Horn Island.
Detainees from the three locations will be transported to facilities in Darwin
in "a matter of days; it is about getting an aircraft lined up to
transport people".[70] Coonawarra,
the facility at Darwin,
will predominately house detainees suspected of illegal fishing but may also
include "a small number of air arrivals and compliance cases".[71]
2.54
The Committee notes the concerns expressed about the
accommodation of suspected illegal foreign fishers on their boats. It shares
the Coroner's view that such accommodation is unacceptable, particularly for an
extended period of time. The Committee is of the view that the proposal for a permanent
accommodation facility in Darwin
is a more satisfactory arrangement.
2.55
The Committee also examined the likely length of stay that
a suspected illegal foreign fisher would have in Australia.
The Explanatory Memorandum to the Bill indicates
that the proposed regime will "facilitate the rapid repatriation of
detainees to their home countries".[72]
In his second reading speech the Minister indicated that an enforcement visa
(under the Migration Act) is automatically issued to foreigners when detained
by fisheries officers.
2.56
The enforcement visa enables fisheries officers to
bring those suspected of illegal fishing into Australia's
migration zone so that the suspected offence can be investigated. It ceases on
the expiration of the fisheries detention and the fisher becomes a non-citizen.
DIMIA has a responsibility to repatriate non citizens "as soon as
reasonably practical",[73] which in
the case of foreign fishers is a short period after their apprehension and
prosecution.[74]
2.57
During the hearing, the General Manager Operations of
AFMA informed the Committee that:
... people are only in fisheries detention for a maximum of seven
days, and often it is a lot less than that.[75]
2.58
The Committee contrasts this statement with the figures
provided in the 1998 Ombudsman's report that indicates the 1997 figures for the
average number of days in detention were 26.58 for Broome and 26.86 for Darwin.[76] It acknowledges that, in addition to
the maximum of 7 days described by AFMA, there are further days in detention
pending repatriation. The Committee understands the argument that the 1997
figures for days in detention should be reduced under the proposed new regime
and looks forward to evidence of this.
Conclusion
2.59
The Committee has considered the provisions of the
bill. It notes that the legislative bases for many of the provisions exist in
other statutes, and the bill largely proposes the extension of many current
practices. Nonetheless, the Committee is of the view that the bill could be
improved and makes a recommendation that a requirement for appropriate training
be inserted in the legislation.
2.60
The Committee has also made a recommendation relating
to the terms of a code of conduct to be developed with any contractor working
in fisheries detention centres. The Committee argues that such fundamental
requirements as honesty and integrity and the need to act with care and
diligence should be explicitly stated.
2.61
Subject to these recommendations the Committee makes
the following recommendation.
Recommendation 3
2.62 The Committee recommends
that, subject to recommendation 1, the Border Protection Legislation Amendment (Deterrence
of Illegal Foreign Fishing) Bill 2005 be passed.
Senator the Hon. Bill
Heffernan
Chair
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