Senate debates

Thursday, 14 May 2015


Australian Border Force Bill 2015, Customs and Other Legislation Amendment (Australian Border Force) Bill 2015; Second Reading

1:25 pm

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | | Hansard source

The measures in the Australian Border Force Bill 2015 and related bill are ones that the opposition will be supporting. They fulfil a commitment that was made by the member for Blaxland when he was the Minister for Justice in the former Labor government. Merging the border control functions of the Australian Customs and Border Protection Service and the Department of Immigration and Border Protection into a single integrated agency was formally proposed last year by the National Commission of Audit, but the need for the structural and cultural change in border control was identified in 2013 by the capability review of the Customs and Border Protection Service, which Labor established. The review recognised the work of Customs as growing much more complex, requiring fundamental revision of the management systems, intelligence capabilities and business processes. Substantially increasing volumes of passengers and cargo traffic, the increased complexity of travel routes and supply chains and the threat of criminal infiltration all require constant enhancement of border protection.

The task reforms set out by the capability review began under Labor. We began the move towards full electronic data reporting for goods arriving and departing our border. We strengthened the investigative relationship between Customs and the Australian Federal Police and created a special integrity adviser to manage cases of serious misconduct. Labor understands that improving border control and processes requires constant refinement to keep up with best practice, and we will continue to support reform in that vein.

The Australian Border Force Bill 2015 brings the Department of Immigration and Border Protection clearly within the national security sector. Importantly, however, the Australian Border Force will not have greater powers than are currently possessed by the Customs Service and the Department of Immigration and Border Protection. Specifically, the bill establishes the Office of the Australian Border Force Commissioner, who will control the operations of the new agency. The commissioner and Australian Border Force members will be able to exercise powers under the Customs Act, the Migration Act, the Maritime Powers Act and other relevant Commonwealth legislation.

The bill is consequential to the ABF Bill. It repeals the Customs Administration Act and therefore abolishes the Australian Customs and Border Protection Service. The ABF Commissioner will also hold the office of Comptroller-General of Customs, with responsibility for the enforcement of Customs law and the collection of relevant revenues.

Because of the hour I will not go through the detail of the measures, but I will simply say that we understood that it had been agreed across the chamber that this legislation would be dealt with as non-controversial legislation. I understand that that has changed with the view that amendments are now being sought. We received no notice of the amendment. We were not consulted about it and we do not believe that the amendment is necessary. Labor supports the existing whistleblower arrangements and would oppose any attempt to dilute those protections. The advice we have received is that this bill does not include any provisions that would prevent an employee of the Department of Immigration and Border Protection, including the Australian Border Force, from making a public interest disclosure in accordance with the Public Interest Disclosure Act 2013, which is the act that provides protection for whistleblowers.

I will leave my contribution at that point, given that time is pressing for the treatment of this legislation.

1:29 pm

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

I rise today to speak on the Australian Border Force Bill 2015 and the Customs and Other Legislation Amendment (Australian Border Force) Bill 2015 on behalf of the Australian Greens. The combined effect of the two bills is to merge the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service into one new department, the Department of Immigration and Border Protection, with the newly created Australian Border Force to function as the department's operational enforcement arm, taking responsibility for immigration compliance, enforcement and detention services and other operational functions. In his second reading speech the minister said that the Australian border is: 'a national asset' that 'supports strong national security by interdicting prohibited goods and people who seek to do us harm'. The Australian Greens accept it is imperative to Australian national security that rigorous immigration and customs laws be enforced by professional, well-trained personnel. But the Australian border is already well served by these laws and these personnel, and the cynical rebranding of this service as a 'border force' will not protect us any further than do the laws that we currently have. Rather, the notion that our border needs a force to protect it is one that has been concocted by the government to exploit the base fears of those here in Australia who are concerned about what is going on in our region, what is going on in our world. It is being exploited by the government for their own political ends.

Language is really important. It dictates the culture of an organisation such as the immigration department. It sends a message to those who work there and to those who rely on its services. And in this case, language is so important. We have already seen this government direct public servants in this place to refer to asylum seekers as 'illegal arrivals' when, of course, there is nothing illegal about seeking asylum here in Australia. In fact, even the Migration Act does not refer to asylum seekers as illegal arrivals. Language is so important. In this case it sends a message to asylum seekers, who are entitled to seek Australia's protection, that for some reason they are not welcome here. They have every legal right under international law and under Australian law to seek Australia's protection and to arrive here as asylum seekers. Language ostracises large sections of Australian society who might see themselves reflected in the faces of these asylum seekers and the people who want to come to Australia, to contribute to our community and to call Australia home.

We all know that this rebranding of the immigration department through the establishment of this Border Force is all about Tony Abbott's get-tough-on-immigration stance. It is a front for Tony Abbott's government to say that they are the ones being the toughest on people who arrive at our borders. Of course we are talking about asylum seekers; we are talking about refugees; we are talking about people who have fled war zones and torture. These are not people we need to be afraid of. These are people for whom we need to put in place a proper processing regime—to find out who they are, where they have come from and why they are entitled to or need Australia's help. They are not people that we should necessarily instantly have to be afraid of. The last thing asylum seekers want to do is to cause us harm—they are fleeing harm. The irony of this entire debate is that it is refugees who are fleeing harm, and they are coming to Australia not to breach our borders but to invoke the protection of our borders.

There are many, many concerning aspects to the entire regime of this government, and they are exemplified by this government's establishment of Border Force. You have got to wonder: how does a group of asylum seekers feel when they have been intercepted on the high seas, confronted by Customs personnel who say they are working for Australia's Border Force and then have their claims—as we know is happening—screened out on the boats, without access to proper legal assistance and without even access to proper interpreters to be able to explain their case? But there they are, confronted at the very first point of call by Australia's Border Force. Is that really how we should be engaging with some of the most vulnerable people who come to our region asking for our help?

We, the Australian Greens in this place, will continue to remind our colleagues that asylum seekers are not a threat to us. They do not require a military response or a 'border force'. They are overwhelmingly refugees in need of our protection. Why else would they put their lives in danger just to get here? It would be much easier to buy a ticket with Qantas and fly here yourself, if, indeed, you had the freedom to be able to do that. Obviously, they are fleeing persecution where their lives are at even greater risk. Why would you put yourself in harm's way if you did not need to?

You have to wonder what the rest of the world is thinking when Australia continues on this path that the current government is taking us down when it comes to our engagement with our region and our immigration policies. The Australian Greens in this place will continue to remind people that refugees are not an economic burden to our country but are in fact some of the most motivated, eager to contribute immigrants we will ever have. They are people who want to contribute, they want safety for their families and they want to feel part of a safe and vibrant community. That is why they have chosen Australia to be their home. And it is why they are asking Australia to welcome them and to help them to put their lives back together; to help them to be able to give proper education and care to their children and to allow them simply to get on with the rest of their lives.

You have got to wonder, when you look at this week's budget papers, why on earth we are spending almost half a million dollars per person—per woman, per child, per man—to detain asylum seekers in Nauru. This government has all of this so backwards. There are many, many concerning points in relation to this government's direction, but one of the last things I want to mention—which is really important in relation to this Border Force legislation—is around the issue of secrecy. This government is obsessed with covering up and keeping both the Australian people and, indeed, the parliament in the dark with what is going on inside their Border Force operations. These bills will further entrench the unjustified and dangerous culture of secrecy of the department of immigration. This is yet another example of the government's eagerness to compromise the basic principle of transparent government in the name of national security.

The bill entrenches secrecy by making it a criminal offence, punishable by two years imprisonment, for Department of Immigration employees to disclose information. This bill will also allow employees to be summarily fired for this, and removes their right of review for unfair dismissal. You have to wonder why the Labor Party is not jumping up and down about the right of public servants in this place to have a proper review when they have been fired for standing up for what is right.

This is an issue that is going to impact on 15,000 employees of the Department of Immigration. Those people deserve proper protections by this parliament. Those people deserve to know that if there is something being done that is wrong, and which it is in the public interest to know, that the Senate has their backs. Those staff who we ask to go out onto the high seas to carry out these dangerous operations and to work in our detention centres to deal with the human misery of this policy, deserve to know that the Australian parliament has their backs. When there is a matter that is in breach of the law or in breach of government policy, or when there is a matter that is in breach of what is considered to be morally acceptable, those people deserve the opportunity to have a proper public interest test applied before they are simply thrown out on their ears.

They need a right of review, and they need to know that if information is in the public interest that this parliament will have their backs. We want public servants to be able to give advice without fear or favour. We want public servants to be able to stand up when they believe it is in the public interest to do so. This bill further entrenches the culture of secrecy of this government, particularly the culture of secrecy that is being carried out in the immigration department.

The Australian Law Council of Australia recommended a very simple amendment to this bill in its submission to the Senate inquiry, proposing the radical idea that whistleblowing not be criminalised—imagine that!—where the disclosure would be in the public interest. This is a very basic amendment. It makes sure that here, in this place, elected representatives are protecting our public servants and giving them the best cover they can get to ensure that there is no intimidation against offering advice without fear or favour.

You have to wonder, with all of the accusations that are currently coming out of the Nauru detention centre—child abuse, sexual assault of women, intimidation of staff and even asylum seekers who raise concerns about what is going on—why this bill comes before this place, today, removing the ability for public servants to stick their heads up and say, 'You know what—things aren't okay. The government needs to look at this. The minister needs to take responsibility for this action.'

A really important signal to send to our public servants is that, in the course of their service to the country, the best thing they can do is to ensure that, when it is in the public interest that something be known, they act in the public interest—and that they have protection to do that. I will be moving that amendment to this bill.

It is not the case that what we don't know cannot hurt us. Government secrecy is causing us considerable damage. It is leaving a stain on our national character. And I do not say that lightly. The current culture inside our detention centres, inside our immigration department and inside our minister's office is about secrecy and cover-up. This bill would stop public servants from being able to raise genuine, serious concerns about what is going on. That is not the type of culture that we should be endorsing or entrenching in our Public Service.

The Greens strongly condemn the changing direction of this government's immigration policies. This bill takes us down that path even further. It represents another regrettable step in that direction. The Australian Greens do not support this piece of legislation. We will be moving the amendment to protect public servants from at least the very basic element of being dismissed just because they wanted to stand up for what was in the public interest. And it is not just a matter of being fired. If it is going to be a criminal offence to speak out against what is going on in the department we need to make sure that people have at least a public interest test by which their actions are judged.

1:43 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

I just want to add some brief comments—I am well aware that time is fairly short—in addition to those put on the record by my colleague Senator Hanson-Young. As she spoke of the penalties introduced in this bill for speaking out about some of the horrors that occur in our immigration detention centres she spoke of two-year jail terms for disclosing some of the human rights abuses that are being perpetrated in our name.

The question that occurs to me is: how would they track down who is talking to journalists? It is extraordinary to discover that this is happening six weeks after this parliament debated mandatory data retention legislation, which basically scoops up all of the material generated by any device connected to the internet and telecommunications devices of every Australian, whether they are assumed to be doing anything wrong or not.

Senator Brandis made a great show of narrowing the range of agencies that would be able to access this collected material. And here we are in parliament, on the very next sitting week after that mandatory data retention bill passed, and the first example of scope creep lies on the table today. Of course, the Australian Border Force wants to be able to scrape people's home and email records and find out who they have been talking to and where they were. This is the first instance of scope creep. It gives me absolutely no pleasure to say 'we told you so', but we did; we said at the time of the data retention debate that the bill has scope creep written into it.

There is another kink, though. The normal way in which the range of agencies who would be able to access this material would be expanded is that it would be declared by the Attorney-General and the new agency is then able to collect that material. Of course, it has to be subjected to eventual approval by the Parliamentary Joint Committee on Intelligence and Security and then this parliament. But something very different is happening here. The Border Force legislation that is before us today sidesteps even this feeble check and balance by simply amending the Telecommunications (Interception and Access) Act to change the classification of the Border Force agency to allow it to access extra classes of telecommunications data. That is done by the turn of a switch: we will call them a criminal law enforcement agency and now they are added to the list of agencies that can go through our phone and email records—not just those of employees, not just asylum seekers, but anybody in the country. It is absolutely remarkable and it is precisely what we said would happen when the Labor Party, which is in the process of waving this bill through as non-controversial, also rubberstamped the government's controversial data retention legislation. We are going to need to keep a very careful watch on any machinery-of-government change that adds or subtracts or merges or demerges government departments to see if these kinds of riders are going to be contained in it.

The Border Force's access to private information is particularly troubling given its terrible history of securing its own data. The Senate will recall that the immigration department last year accidentally disclosed the personal details of nearly 10,000 asylum seekers in one of the largest data breaches in Australian history. It attracted more than 1,600 complaints. These are people for whom the release of their names, their locations, where they have been and other personal records could be a matter of life and death. As Senator Hanson Young has explained in detail persistently over a number of years, these are people fleeing, in some cases, murderous regimes. You say if they have nothing to hide they have nothing to fear. But people do have things to fear from the Iranian secret police, or the Sri Lankan government or the Taliban. That is why that data breach was such a disgrace—and now the successor agency to the one that let that material walk out the door and remain on a public website for days is asking to be able to access all Australians' private records as well.

There are also moves by the government, which again Senator Hanson-Young has outlined at length, to refer leaks involving asylum seekers to the Australian Federal Police for investigation. When you hear evidence of sexual abuse and violence inside our detention camps, do you move in there to try and sort things out or to get people out of these places of horror? No, you do not. You refer to the Federal Police the journalists who wrote the reports to try and find out who they have been talking to. How will the Federal Police find out? How will Border Force find out? They will be vacuuming up people's data—people who have not committed any crimes but are trying to disclose crimes. That is why the debate around immigration detention has become so corrupt.

For anybody who is wondering just how dangerous these powers of telecommunications access can be, here is an example sitting on the table before us today. It is entirely plausible to imagine the Border Force tracking down sources through their contacts with journalists and attempting to prosecute them for leaking information about asylum-seeker issues to journals. They will have access—and anyone who is contemplating employment in this agency needs to be aware of this—to the personal private records of everyone of their employees, their families, everyone they come into contact with and everyone they talk to. Whether they are accused of committing a crime or not, they can access that material by rubberstamping a single piece of A4 paper and submitting it to the telecommunications provider—no warrants needing to be entered into. That bill had scope creep written into it. It is extremely distressing to discover, particularly with the task before the Australian Border Force, that even the narrow checks and balances that were incorporated into the data retention bill are entirely circumvented by the legislation we see before us today.

Every time an agency sticks its hand up, either overtly or covertly, to be able to access the private records of ordinary people I am going to make an absolute point of pointing it out and putting it on the record so that maybe the government, once they are safely back in opposition, or the Australian Labor Party might want to rethink what they did to all Australian citizens when they waved through the data retention legislation upon all of us.

Bill read a second time.