Justine Elliot (Richmond, Australian Labor Party) Share this | Hansard source

I rise to speak on the Australian Bo rder Force Bill 2015 and the Customs and Other Legislation Amendment (Australian Border Force) Bill 2015. I rise to support these bills. I note that our previous speaker, the member for Kingsford Smith, appropriately outlined Labor's record in government in our commitment to modernising and streamlining our customs and border protection services. The purpose of the bills is to establish the role of Australian Border Force Commissioner. It is also to enable the operation of the Australian Border Force. Also, it introduces provisions to support the management of a professional and disciplined workforce that exercises its powers and functions with the highest standards of integrity, which it certainly does need to have.

The Australian Bo rder Force Commissioner will be a statutory officer who will have control of the operations of the Australian Bo rder Force . The commissioner is directly accountable to the minister in relation to these operations. In fact, the Australian Bo rder Force Commissioner will have a dual role with responsibility for the enforcement of Customs laws and the collection of border related revenue. It is important to note that the commissioner will have the same standing as other heads of national security related agencies, such as the AFP Commissioner. The Australian Bo rder Force will be a single, integrated, frontline, operational border entity within the department that is charged with enforcing customs and immigration laws.

Immigration and Border Protection workers play a vital role as they make very important decisions every day that affect the safety, rights and freedoms of many individuals that they come in contact with. Indeed, due to the very nature of their work, they do hold quite a privileged place when we talk about the access they have to secure environments and, indeed, to law-enforcement databases, as well. They also exercise significant powers under the Customs Act, the Migration Act, the Maritime Powers Act and other Commonwealth law which, of course, relates to other powers they may have in relation to arrest, detention, entry-and-search provisions, the questioning of people, seizure of certain items or, indeed, in relation to the use of force. There is a whole variety of different powers they have in relation to all of those measures.

Because of all that, naturally the government and the community, very importantly, quite rightly have the expectation and trust that Immigration and Border Protection workers will exercise these powers reasonably, impartially, lawfully and, indeed, professionally. Quite rightly, there is that expectation. Because of these very high expectations, the bill does, indeed, contain a number of integrity provisions. If you like, they are in place to increase the resistance of the possibility of infiltration and corruption and to enhance, also, the government and public confidence in those Immigration and Border Protection workers. As a former police officer myself, I support and understand the necessity for the provisions that relate to the high standards required of the protection workers and I understand the reasons for them. Whilst I support these provisions, at the same time I want to take the opportunity to acknowledge the great work by the overwhelming vast majority of the border protection workers who are often working in very complex and difficult circumstances. Whilst we always say it is important to be striving for high standards of integrity, which we must always be aiming for, it is also equally important to be acknowledging many of the high standards in place and the dedication of those who are working in our border protection or national security agencies.

The bill also includes provisions that enable the setting of standards for this highly trained, disciplined and flexible workforce. Labor supports this bill because we understand how important it is to strengthen our border protection framework by improving the capacity, the abilities and the efficiencies of our border protection agency. I understand the bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee and that it is due to report on 7 May 2015.The bill provides a legislative framework for the Australian Border Force, which will be a single, front-line, operational, border control and enforcement entity that will be formed within the Department of Immigration and Border Protection from 1 July 2015.

The Australian Border Force will bring together the people, capability and systems from across a range of different agencies. The capabilities will be enhanced with the breaking down of traditional government department silos—in this case, those of immigration and customs—allowing this Australian Border Force to better focus on their core business and access the capacity that they need. This new department will incorporate roles and responsibilities in the areas of regulation, enforcement, investigation, facilitation, revenue collection and service delivery, and will be staffed from the Australian Customs and Border Protection Service and some current Department of Immigration and Border Protection staff.

The staff of the Australian Border Force will continue to be employed under the Australian Public Service Act and be subject to the same conditions. Australian Customs and Border Protection Service operational staff will move into the Australian Border Force. Also, departmental staff will transfer to the Australian Border Force, including those working in immigration compliance, enforcement, detention services and other operational functions. The decision to bring all Department of Immigration and Border Protection and ABF staff within the same integrity framework regardless of their specific role will allow greater flexibility for staff to move within departments and also allow staff to have access to the same information and communication systems.

Civilian staff within the new agency will have access to all the same information as the front-line staff and therefore will need to be held to the same integrity standard and framework. All staff will have access to information provided by agencies such as ASIO, ASIS, CIA and the FBI and therefore a baseline security clearance will be required by all. Those baseline security clearances are already in place at the departments of defence and foreign affairs and trade.

A safe and effective working environment is most important and, to maximise anticorruption measures, the bill allows for all staff within Department of Immigration and Border Protection, including the secretary and the ABF commissioner, to be required to undergo drug or alcohol testing. This could include a random test without notice. Currently, Australian Customs and Border Protection Service staff, regardless of where they are employed in Customs, are subjected to the same drug and alcohol regime. This reflects the fact that all Department of Immigration and Border Protection staff will have access to sensitive information and are in a position to have influence at a national and international security level. A similar requirement applies to all Australian Federal Police staff. The bill also provides for the management of serious misconduct, including resignation and termination provisions for employees involved in serious misconduct. This is also a reflection of the sensitivity of the material that they are dealing with in day-to-day their activities.

The Australian Border Force commissioner's statutory authority will be created under this bill and the commissioner will be in charge of all operations of the Australian Border Force. The bill allows the Australian Border Force commissioner and APS employees to exercise powers under the Customs Act, Migration Act, Maritime Powers Act and other Commonwealth laws. The Australian Border Force commissioner and secretary will be able to give binding directions in writing regarding the administration and control of the ABF and the department in respect to the performance of functions or the exercising of powers under laws of the Commonwealth.

The Australian Border Force staff will require certain relevant skills to carry out their duties. In recognition of this imperative, under this bill the commissioner will set and vary the essential qualifications for staff as per different requirements. To demonstrate the need for a professional and ethical culture and as a mark of the standards and professionalism expected by ABF staff, the ABF commissioner will require staff to make and subscribe an oath or affirmation. This provision will only apply to those ABF staff working within the enforcement or policing areas of ABF and will not impact on the terms and conditions of their employment.

The bill provides that if the secretary terminates the employment of an employee in the Department of Immigration and Border Protection and the secretary or the ABF commissioner reasonably believe the employee's conduct or behaviour amounts to serious misconduct, the secretary or the commissioner may make a declaration to that effect. Serious misconduct will be defined as 'corrupt conduct engaged in, a serious abuse of power, or a serious dereliction of duty, by the worker; or 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'. This is consistent with the definition within the AFP Act and the Australian Crime Commission Act. The serious misconduct declaration power cannot be delegated by the secretary or ABF commissioner. This provision brings them in line with staff of the Australian Crime Commission and the AFP, and was introduced as part of integrity measures for all law enforcement agencies. A declaration of serious misconduct has been never been made with the Crime Commission or the Australian Customs and Border Protection Service but approximately twice within the AFP. Procedural fairness in the decision to terminate an employee's employment would still apply—that is, the employee could seek damages under common law.

The bill allows the secretary and ABF commissioner to issue directions that would require mandatory reporting of serious misconduct or criminal activity that they become aware of which affects or is likely to affect the operations, responsibilities or reputation of the department. Similar provisions already apply within the AFP, the Australian Customs and Border Protection Service as well as to other professionals who become aware of misconduct or criminal activity.

This bill contains provisions making it an offence to record or disclose information obtained by a person in their capacity as an 'entrusted person'. An entrusted person is the secretary, ABF commissioner and all staff of the Department of Immigration and Border Protection. A breach of this provision would be punishable by imprisonment of up to two years. The provisions do not remove any obligations under and are consistent with the Privacy Act.

The Customs and Other Legislation Amendment (Australian Border Force) Bill 2015 is consequential to the ABF bill and will repeal the Customs Administration Act upon commencement of the ABF act.

Labor support this bill because we know how important it is to strengthen and streamline our border protection framework. We had that view in government and we certainly support this bill in opposition because we can see how important it is that we have that border protection framework.

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