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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Australian Border Force Bill 2015
No. , 2015
(Immigration and Border Protection)
A Bill for an Act relating to the Australian Border
Force, the Australian Border Force Commissioner
and persons performing work for the Department,
and for related purposes
No. , 2015
Australian Border Force Bill 2015
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Simplified outline of this Act ............................................................. 2
4
Definitions ......................................................................................... 3
5
Consultants and contractors etc. ........................................................ 7
6
Act binds the Crown .......................................................................... 7
7
Extraterritorial application ................................................................. 7
Part 2--Australian Border Force Commissioner
8
Division 1--Simplified outline of this Part
8
8
Simplified outline of this Part ............................................................ 8
Division 2--Office and role of the Australian Border Force
Commissioner
9
9
Establishment ..................................................................................... 9
10
Powers of Australian Border Force Commissioner ........................... 9
Division 3--Appointment of the Australian Border Force
Commissioner
10
11
Appointment .................................................................................... 10
12
Term of appointment ....................................................................... 10
13
Oath or affirmation by Australian Border Force
Commissioner .................................................................................. 10
14
Acting Australian Border Force Commissioner ............................... 11
15
Application of finance law ............................................................... 11
Division 4--Terms and conditions for the Australian Border
Force Commissioner
12
16
Remuneration and allowances ......................................................... 12
17
Leave of absence .............................................................................. 12
18
Outside work .................................................................................... 12
19
Disclosure of interests ...................................................................... 12
20
Resignation of appointment ............................................................. 13
21
Suspension or termination of appointment ...................................... 13
22
Other terms and conditions .............................................................. 14
Division 5--Ministerial directions
15
23
Minister may give directions to Australian Border Force
Commissioner .................................................................................. 15
ii
Australian Border Force Bill 2015
No. , 2015
Division 6--Oaths or affirmations by Immigration and Border
Protection workers
16
24
Oaths or affirmations by Immigration and Border Protection
workers ............................................................................................ 16
Division 7--Delegation and directions
17
25
Delegation ........................................................................................ 17
26
Directions--administration and control of the operations of
the Australian Border Force ............................................................. 18
27
Directions--performance of functions or exercise of powers
under laws of the Commonwealth ................................................... 20
Part 3--Resignation from the Department
22
28
Simplified outline of this Part .......................................................... 22
29
Resignation--general ....................................................................... 22
30
Resignation in anticipation of termination of employment .............. 22
Part 4--Termination of employment in the Department for
serious misconduct
25
31
Simplified outline of this Part .......................................................... 25
32
Termination of employment for serious misconduct ....................... 25
Part 5--Alcohol and drug tests
28
33
Simplified outline of this Part .......................................................... 28
34
Alcohol screening test--suspicion that Immigration and
Border Protection worker under the influence of alcohol ................ 28
35
Alcohol screening, breath or blood test or prohibited drug
test--general .................................................................................... 29
36
Alcohol screening, breath or blood test or prohibited drug
test--certain incidents ...................................................................... 30
37
Performing duties on board a vessel ................................................ 32
38
Conduct of tests and provision of samples to be in
accordance with the rules ................................................................. 32
39
Rules for purposes of this Part ......................................................... 33
40
Admissibility of test results etc. in legal proceedings ...................... 34
Part 6--Secrecy and disclosure provisions
35
41
Simplified outline of this Part .......................................................... 35
42
Secrecy ............................................................................................. 35
43
Records or disclosure for the purposes of this Act or the Law
Enforcement Integrity Commissioner Act 2006 ............................... 36
44
Disclosure to certain bodies and persons ......................................... 36
45
Disclosure in accordance with agreements ...................................... 38
46
Permitted purposes ........................................................................... 40
No. , 2015
Australian Border Force Bill 2015
iii
47
Disclosure with consent ................................................................... 41
48
Disclosure to reduce threat to life or health ..................................... 42
49
Disclosure of publicly available information ................................... 42
50
Exceptions operate independently ................................................... 42
51
Interaction with Privacy Act ............................................................ 42
Part 7--Other matters
43
52
Simplified outline of this Part .......................................................... 43
53
Delegation by Secretary ................................................................... 43
54
Delegation by Comptroller-General of Customs ............................. 44
55
Directions by Secretary--administration and control of the
Department ...................................................................................... 45
56
Directions by Secretary--performance of functions or
exercise of powers under laws of the Commonwealth ..................... 48
57
Termination of engagement of consultant or contractor .................. 49
58
Rules ................................................................................................ 50
No. , 2015
Australian Border Force Bill 2015
1
A Bill for an Act relating to the Australian Border
1
Force, the Australian Border Force Commissioner
2
and persons performing work for the Department,
3
and for related purposes
4
The Parliament of Australia enacts:
5
Part 1--Preliminary
6
7
1 Short title
8
This Act may be cited as the Australian Border Force Act 2015.
9
Part 1 Preliminary
Section 2
2
Australian Border Force Bill 2015
No. , 2015
2 Commencement
1
This Act commences on 1 July 2015.
2
3 Simplified outline of this Act
3
•
There is an Australian Border Force within the Department.
4
•
There is to be an Australian Border Force Commissioner of
5
the Australian Border Force, who is to have the control of the
6
operations of the Australian Border Force.
7
•
The Australian Border Force Commissioner and APS
8
employees in the Australian Border Force are able to exercise
9
powers under the Customs Act 1901, the Migration Act 1958,
10
the Maritime Powers Act 2013 and other Commonwealth
11
laws.
12
•
The Australian Border Force Commissioner may give
13
directions to Immigration and Border Protection workers to do
14
with the administration and control of the operations of the
15
Australian Border Force or the performance of functions or
16
exercise of powers by such workers under a law of the
17
Commonwealth.
18
•
There are resignation and termination provisions that apply to
19
all APS employees in the Department in circumstances
20
involving serious misconduct.
21
•
All Immigration and Border Protection workers may be
22
required to undergo an alcohol screening test, an alcohol
23
breath test, an alcohol blood test or a prohibited drug test.
24
•
There are secrecy and disclosure provisions covering
25
information obtained by the Secretary, the Australian Border
26
Force Commissioner and Immigration and Border Protection
27
workers.
28
Preliminary Part 1
Section 4
No. , 2015
Australian Border Force Bill 2015
3
•
The Secretary may give directions to Immigration and Border
1
Protection workers to do with the administration and control
2
of the Department or the performance of functions or exercise
3
of powers by such workers under a law of the Commonwealth.
4
4 Definitions
5
(1) In this Act:
6
alcohol blood test means a test of a person's blood to determine the
7
amount of alcohol (if any) in the person's blood.
8
alcohol breath test means a test of a person's breath to determine
9
the amount of alcohol (if any) in the person's blood.
10
alcohol screening test means a test of a person's breath to
11
determine whether alcohol is present in the person's breath.
12
Australian Border Force means that part of the Department
13
known as the Australian Border Force.
14
Note:
Immigration and Border Protection workers may perform work for the
15
Australian Border Force. The Australian Border Force Commissioner
16
has the control of the operations of the Australian Border Force.
17
Australian Border Force Commissioner means the Australian
18
Border Force Commissioner of the Australian Border Force.
19
authorised person means:
20
(a) the Secretary; or
21
(b) the Australian Border Force Commissioner; or
22
(c) an Immigration and Border Protection worker who is
23
authorised in an instrument under subsection (2).
24
body sample means any of the following:
25
(a) any human biological fluid;
26
(b) any human biological tissue (whether alive or otherwise);
27
(c) any human breath.
28
corrupt conduct: see engages in corrupt conduct.
29
Part 1 Preliminary
Section 4
4
Australian Border Force Bill 2015
No. , 2015
engages in corrupt conduct: an Immigration and Border Protection
1
worker engages in corrupt conduct if the worker, while an
2
Immigration and Border Protection worker, engages in:
3
(a) conduct that:
4
(i) involves; or
5
(ii) is engaged in for the purpose (or for purposes including
6
the purpose) of;
7
the worker abusing his or her position as an Immigration and
8
Border Protection worker; or
9
(b) conduct that:
10
(i) perverts; or
11
(ii) is engaged in for the purpose (or for purposes including
12
the purpose) of perverting;
13
the course of justice; or
14
(c) conduct that, having regard to the duties and powers of the
15
worker as an Immigration and Border Protection worker:
16
(i) involves; or
17
(ii) is engaged in for the purpose (or for purposes including
18
the purpose) of;
19
corruption of any other kind.
20
entrusted person means:
21
(a) the Secretary; or
22
(b) the Australian Border Force Commissioner (including in his
23
or her capacity as the Comptroller-General of Customs); or
24
(c) an Immigration and Border Protection worker.
25
Immigration and Border Protection worker means:
26
(a) an APS employee in the Department; or
27
(b) a person covered by paragraph (d), (e) or (f) of the definition
28
of officer of Customs in subsection 4(1) of the Customs Act
29
1901; or
30
(c) a person covered by paragraph (f) or (g) of the definition of
31
officer in subsection 5(1) of the Migration Act 1958; or
32
(d) a person who is:
33
(i) an employee of an Agency (within the meaning of the
34
Public Service Act 1999); or
35
Preliminary Part 1
Section 4
No. , 2015
Australian Border Force Bill 2015
5
(ii) an officer or employee of a State or Territory; or
1
(iii) an officer or employee of an agency or authority of the
2
Commonwealth, a State or a Territory; or
3
(iv) an officer or employee of the government of a foreign
4
country, an officer or employee of an agency or
5
authority of a foreign country or an officer or employee
6
of a public international organisation;
7
and whose services are made available to the Department; or
8
(e) a person who is:
9
(i) engaged as a consultant or contractor to perform
10
services for the Department; and
11
(ii) specified in a determination under subsection 5(1); or
12
(f) a person who is:
13
(i) engaged or employed by a person to whom
14
paragraph (e) or this paragraph applies; and
15
(ii) performing services for the Department in connection
16
with that engagement or employment; and
17
(iii) specified in a determination under subsection 5(2).
18
paid work means work for financial gain or reward (whether as an
19
employee, a self-employed person or otherwise).
20
personal information has the same meaning as in the Privacy Act
21
1988.
22
prohibited drug means:
23
(a) a narcotic substance (within the meaning of the Customs Act
24
1901); or
25
(b) any drug prescribed in an instrument under subsection (3).
26
prohibited drug test means a test of a body sample of a person to
27
determine the presence (if any) of a prohibited drug in the sample.
28
protected information means information that was obtained by a
29
person in the person's capacity as an entrusted person.
30
Note:
See also subsection (4).
31
public international organisation has the meaning given by
32
section 70.1 of the Criminal Code.
33
Part 1 Preliminary
Section 4
6
Australian Border Force Bill 2015
No. , 2015
rules means the rules made under section 58.
1
Secretary means the Secretary of the Department.
2
serious misconduct, by an Immigration and Border Protection
3
worker, means:
4
(a) corrupt conduct engaged in, a serious abuse of power, or a
5
serious dereliction of duty, by the worker; or
6
(b) any other seriously reprehensible act or behaviour by the
7
worker, whether or not acting, or purporting to act, in the
8
course of his or her duties as an Immigration and Border
9
Protection worker.
10
unauthorised maritime arrival has the same meaning as in the
11
Migration Act 1958.
12
Authorised person instrument
13
(2) The Secretary or the Australian Border Force Commissioner may,
14
by writing, authorise an Immigration and Border Protection worker
15
for the purposes of paragraph (c) of the definition of authorised
16
person in subsection (1).
17
Prohibited drug instrument
18
(3) The Secretary or the Australian Border Force Commissioner may,
19
by legislative instrument, prescribe drugs for the purposes of
20
paragraph (b) of the definition of prohibited drug in subsection (1).
21
Protected information
22
(4) Without limiting the definition of protected information in
23
subsection (1), information obtained by an entrusted person in the
24
course of performing duties, or in performing functions or
25
exercising powers, under a law of the Commonwealth:
26
(a) as an officer of Customs, or an authorised officer, within the
27
meaning of the Customs Act 1901; or
28
(b) as an officer, or an authorised officer, within the meaning of
29
the Migration Act 1958; or
30
(c) as a maritime officer within the meaning of the Maritime
31
Powers Act 2013; or
32
Preliminary Part 1
Section 5
No. , 2015
Australian Border Force Bill 2015
7
(d) as a delegate of someone else; or
1
(e) in any other capacity;
2
is taken to be information obtained by the person in the person's
3
capacity as an entrusted person.
4
5 Consultants and contractors etc.
5
Consultants and contractors
6
(1) The Secretary or the Australian Border Force Commissioner may,
7
by written determination, specify a person for the purposes of
8
subparagraph (e)(ii) of the definition of Immigration and Border
9
Protection worker in subsection 4(1).
10
Other persons
11
(2) The Secretary or the Australian Border Force Commissioner may,
12
by written determination, specify a person for the purposes of
13
subparagraph (f)(iii) of the definition of Immigration and Border
14
Protection worker in subsection 4(1).
15
Determinations are not legislative instruments
16
(3) A determination under this section is not a legislative instrument.
17
6 Act binds the Crown
18
This Act binds the Crown in each of its capacities.
19
7 Extraterritorial application
20
This Act extends to acts, omissions, matters and things outside
21
Australia.
22
Part 2 Australian Border Force Commissioner
Division 1 Simplified outline of this Part
Section 8
8
Australian Border Force Bill 2015
No. , 2015
Part 2--Australian Border Force Commissioner
1
Division 1--Simplified outline of this Part
2
8 Simplified outline of this Part
3
•
There is to be an Australian Border Force Commissioner of
4
the Australian Border Force.
5
•
The Australian Border Force Commissioner has the control of
6
the operations of the Australian Border Force.
7
•
The Australian Border Force Commissioner and APS
8
employees in the Australian Border Force are able to exercise
9
powers under the Customs Act 1901, the Migration Act 1958,
10
the Maritime Powers Act 2013 and other Commonwealth
11
laws.
12
•
The Australian Border Force Commissioner is also known as
13
the Comptroller-General of Customs.
14
•
The Australian Border Force Commissioner may give
15
directions to Immigration and Border Protection workers to do
16
with the administration and control of the operations of the
17
Australian Border Force or the performance of functions or
18
exercise of powers by such workers under a law of the
19
Commonwealth.
20
Australian Border Force Commissioner Part 2
Office and role of the Australian Border Force Commissioner Division 2
Section 9
No. , 2015
Australian Border Force Bill 2015
9
Division 2--Office and role of the Australian Border Force
1
Commissioner
2
9 Establishment
3
(1) There is to be an Australian Border Force Commissioner of the
4
Australian Border Force.
5
Note:
Many Commonwealth laws confer functions and powers on the
6
Australian Border Force Commissioner.
7
(2) The Australian Border Force Commissioner has, under the
8
Minister, the control of the operations of the Australian Border
9
Force.
10
10 Powers of Australian Border Force Commissioner
11
The Australian Border Force Commissioner has power to do all
12
things necessary or convenient to be done for or in connection with
13
the performance of his or her duties.
14
Part 2 Australian Border Force Commissioner
Division 3 Appointment of the Australian Border Force Commissioner
Section 11
10
Australian Border Force Bill 2015
No. , 2015
Division 3--Appointment of the Australian Border Force
1
Commissioner
2
11 Appointment
3
(1) The Australian Border Force Commissioner is to be appointed by
4
the Governor-General by written instrument.
5
(2) The Australian Border Force Commissioner is to be appointed on a
6
full-time basis.
7
Comptroller-General of Customs
8
(3) While a person holds office as the Australian Border Force
9
Commissioner the person is also the Comptroller-General of
10
Customs.
11
Note:
Many Commonwealth laws confer functions and powers on the
12
Comptroller-General of Customs.
13
12 Term of appointment
14
The Australian Border Force Commissioner holds office for the
15
period specified in the instrument of appointment. The period must
16
not exceed 5 years.
17
Note:
The Australian Border Force Commissioner may be reappointed: see
18
section 33AA of the Acts Interpretation Act 1901.
19
13 Oath or affirmation by Australian Border Force Commissioner
20
(1) The Australian Border Force Commissioner must, before
21
beginning to discharge the duties of his or her office, make and
22
subscribe an oath or affirmation in accordance with the form
23
prescribed by the rules for the purposes of this subsection.
24
(2) The Australian Border Force Commissioner must make and
25
subscribe the oath or affirmation before the Minister.
26
Australian Border Force Commissioner Part 2
Appointment of the Australian Border Force Commissioner Division 3
Section 14
No. , 2015
Australian Border Force Bill 2015
11
Compliance
1
(3) The Australian Border Force Commissioner must not engage in
2
conduct that is inconsistent with an oath or affirmation he or she
3
has made and subscribed under this section.
4
14 Acting Australian Border Force Commissioner
5
(1) The Minister may, by written instrument, appoint a person to act as
6
the Australian Border Force Commissioner:
7
(a) during a vacancy in the office of the Australian Border Force
8
Commissioner (whether or not an appointment has previously
9
been made to the office); or
10
(b) during any period, or during all periods, when the Australian
11
Border Force Commissioner:
12
(i) is absent from duty or from Australia; or
13
(ii) is, for any reason, unable to perform the duties of the
14
office.
15
Note:
Sections 33AB and 33A of the Acts Interpretation Act 1901 have rules
16
that apply to acting appointments.
17
Comptroller-General of Customs
18
(2) A person appointed to act as the Australian Border Force
19
Commissioner is taken, while the person is so acting, to also be the
20
Comptroller-General of Customs.
21
15 Application of finance law
22
For the purposes of the finance law (within the meaning of the
23
Public Governance, Performance and Accountability Act 2013),
24
the Australian Border Force Commissioner (including in his or her
25
capacity as the Comptroller-General of Customs) is an official of
26
the Department.
27
Part 2 Australian Border Force Commissioner
Division 4 Terms and conditions for the Australian Border Force Commissioner
Section 16
12
Australian Border Force Bill 2015
No. , 2015
Division 4--Terms and conditions for the Australian
1
Border Force Commissioner
2
16 Remuneration and allowances
3
(1) The Australian Border Force Commissioner is to be paid the
4
remuneration that is determined by the Remuneration Tribunal. If
5
no determination of that remuneration by the Tribunal is in
6
operation, he or she is to be paid the remuneration that is
7
prescribed by the rules.
8
(2) The Australian Border Force Commissioner is to be paid the
9
allowances that are prescribed by the rules.
10
(3) This section has effect subject to the Remuneration Tribunal Act
11
1973.
12
17 Leave of absence
13
(1) The Australian Border Force Commissioner has the recreation
14
leave entitlements that are determined by the Remuneration
15
Tribunal.
16
(2) The Minister may grant the Australian Border Force Commissioner
17
leave of absence, other than recreation leave, on the terms and
18
conditions as to remuneration or otherwise that the Minister
19
determines.
20
18 Outside work
21
The Australian Border Force Commissioner must not engage in
22
paid work outside the duties of his or her office without the
23
Minister's approval.
24
19 Disclosure of interests
25
(1) The Australian Border Force Commissioner must give written
26
notice to the Minister of any direct or indirect pecuniary interest
27
that the Commissioner has or acquires and that conflicts or could
28
Australian Border Force Commissioner Part 2
Terms and conditions for the Australian Border Force Commissioner Division 4
Section 20
No. , 2015
Australian Border Force Bill 2015
13
conflict with the proper performance of the Commissioner's
1
functions.
2
(2) Subsection (1) applies in addition to section 29 of the Public
3
Governance, Performance and Accountability Act 2013 (which
4
deals with the duty to disclose interests).
5
20 Resignation of appointment
6
(1) The Australian Border Force Commissioner may resign his or her
7
appointment by giving the Governor-General a written resignation.
8
(2) The resignation takes effect on the day it is received by the
9
Governor-General or, if a later day is specified in the resignation,
10
on that later day.
11
21 Suspension or termination of appointment
12
(1) The Governor-General may suspend or terminate the appointment
13
of the Australian Border Force Commissioner:
14
(a) for misbehaviour; or
15
(b) if the Commissioner is unable to perform the duties of his or
16
her office because of physical or mental incapacity.
17
(2) The Governor-General may suspend or terminate the appointment
18
of the Australian Border Force Commissioner if:
19
(a) the Commissioner:
20
(i) becomes bankrupt; or
21
(ii) takes steps to take the benefit of any law for the relief of
22
bankrupt or insolvent debtors; or
23
(iii) compounds with one or more of his or her creditors; or
24
(iv) makes an assignment of his or her remuneration for the
25
benefit of one or more of his or her creditors; or
26
(b) the Commissioner is absent, except on leave of absence, for
27
14 consecutive days or for 28 days in any 12 months; or
28
(c) the Commissioner engages in conduct that is inconsistent
29
with an oath or affirmation he or she made and subscribed
30
under section 13; or
31
Part 2 Australian Border Force Commissioner
Division 4 Terms and conditions for the Australian Border Force Commissioner
Section 22
14
Australian Border Force Bill 2015
No. , 2015
(d) the Commissioner engages, except with the Minister's
1
approval, in paid work outside the duties of his or her office
2
(see section 18); or
3
(e) the Commissioner fails, without reasonable excuse, to
4
comply with:
5
(i) section 19; or
6
(ii) section 29 of the Public Governance, Performance and
7
Accountability Act 2013 (which deals with the duty to
8
disclose interests) or rules made under that Act for the
9
purposes of that section; or
10
(f) the Commissioner fails, without reasonable excuse, to
11
comply with a direction under section 23.
12
(3) The suspension of the appointment of the Australian Border Force
13
Commissioner under this section does not affect any entitlement of
14
the Commissioner to be paid remuneration, and allowances, in
15
accordance with this Act.
16
Statement in Parliament
17
(4) If the Governor-General suspends or terminates the appointment of
18
the Australian Border Force Commissioner, the Minister must
19
cause a statement of the grounds of the suspension or termination
20
to be laid before each House of the Parliament within 7 sitting days
21
of that House after the suspension or termination.
22
22 Other terms and conditions
23
The Australian Border Force Commissioner holds office on the
24
terms and conditions (if any) in relation to matters not covered by
25
this Act that are determined by the Minister.
26
Australian Border Force Commissioner Part 2
Ministerial directions Division 5
Section 23
No. , 2015
Australian Border Force Bill 2015
15
Division 5--Ministerial directions
1
23 Minister may give directions to Australian Border Force
2
Commissioner
3
(1) The Minister may, after obtaining and considering the advice of the
4
Australian Border Force Commissioner and the Secretary, give
5
written directions to the Australian Border Force Commissioner
6
about policies that should be pursued, or priorities that should be
7
followed, in relation to the operations of the Australian Border
8
Force.
9
(2) If the Minister gives a direction under subsection (1), the Minister
10
must cause a copy of the direction to be laid before each House of
11
the Parliament within 15 sitting days of that House after giving the
12
direction.
13
(3) The Australian Border Force Commissioner must comply with all
14
directions under subsection (1).
15
(4) A direction under subsection (1) is not a legislative instrument.
16
Part 2 Australian Border Force Commissioner
Division 6 Oaths or affirmations by Immigration and Border Protection workers
Section 24
16
Australian Border Force Bill 2015
No. , 2015
Division 6--Oaths or affirmations by Immigration and
1
Border Protection workers
2
24 Oaths or affirmations by Immigration and Border Protection
3
workers
4
(1) The Australian Border Force Commissioner may request the
5
following persons to make and subscribe an oath or affirmation in
6
accordance with the form prescribed by the rules for the purposes
7
of this subsection:
8
(a) a person who is covered by paragraph (a) of the definition of
9
Immigration and Border Protection worker in
10
subsection 4(1) and who is in the Australian Border Force;
11
(b) a person who is covered by paragraph (b), (c) or (d) of that
12
definition and whose services are made available to, or who
13
is performing services for, the Australian Border Force.
14
(2) A person must make and subscribe the oath or affirmation before
15
the Australian Border Force Commissioner or a person authorised
16
by the Commissioner.
17
Compliance
18
(3) An Immigration and Border Protection worker who has made and
19
subscribed an oath or affirmation under this section must not
20
engage in conduct that is inconsistent with the oath or affirmation.
21
Note:
See subsection 13(4) and sections 15, 28 and 29 of the Public Service
22
Act 1999 for the consequences of an APS employee in the Department
23
not complying with subsection (3) of this section.
24
(4) Subsection (3) extends to an Immigration and Border Protection
25
worker who has made and subscribed an oath or affirmation under
26
this section but who is no longer a person mentioned in
27
paragraph (1)(a) or (b).
28
Australian Border Force Commissioner Part 2
Delegation and directions Division 7
Section 25
No. , 2015
Australian Border Force Bill 2015
17
Division 7--Delegation and directions
1
25 Delegation
2
(1) The Australian Border Force Commissioner may, by writing,
3
delegate any of his or her functions or powers under a law of the
4
Commonwealth to the following:
5
(a) the Secretary;
6
(b) a person who is covered by paragraph (a) of the definition of
7
Immigration and Border Protection worker in
8
subsection 4(1) and who is in the Australian Border Force;
9
(c) a person who is covered by paragraph (b), (c), (d), (e) or (f)
10
of that definition and whose services are made available to,
11
or who is performing services for, the Australian Border
12
Force.
13
(2) However, subsection (1) does not apply in relation to:
14
(a) section 30 (resignation in anticipation of termination of
15
employment); or
16
(b) section 32 (termination of employment for serious
17
misconduct).
18
Directions to delegates
19
(3) An Immigration and Border Protection worker must, in performing
20
functions or exercising powers under a delegation under
21
subsection (1), comply with any written directions of the
22
Australian Border Force Commissioner.
23
Subdelegation by Secretary
24
(4) If the Secretary is delegated functions or powers under
25
subsection (1), the Secretary may, by writing, delegate any of those
26
functions or powers to any Immigration and Border Protection
27
worker.
28
(5) An Immigration and Border Protection worker must, in performing
29
functions or exercising powers under a delegation under
30
subsection (4), comply with any written directions of the Secretary.
31
Part 2 Australian Border Force Commissioner
Division 7 Delegation and directions
Section 26
18
Australian Border Force Bill 2015
No. , 2015
(6) The Secretary must not give directions under subsection (5) in
1
relation to particular functions or powers that are inconsistent with
2
any directions given under subsection (3) in relation to those
3
functions or powers.
4
(7) A function that is performed or a power that is exercised by an
5
Immigration and Border Protection worker under a delegation
6
under subsection (4) is taken, for the purposes of the law referred
7
to in subsection (1), to have been performed or exercised by the
8
Australian Border Force Commissioner.
9
26 Directions--administration and control of the operations of the
10
Australian Border Force
11
(1) The Australian Border Force Commissioner may, by writing, give
12
directions to the following persons in connection with the
13
administration and control of the operations of the Australian
14
Border Force:
15
(a) a person who is covered by paragraph (a) of the definition of
16
Immigration and Border Protection worker in
17
subsection 4(1) and who is in the Australian Border Force;
18
(b) a person who is covered by paragraph (b), (c), (d), (e) or (f)
19
of that definition and whose services are made available to,
20
or who is performing services for, the Australian Border
21
Force.
22
Essential qualifications
23
(2) Without limiting subsection (1), directions under that subsection
24
may relate to the essential qualifications for persons mentioned in
25
paragraph (1)(a) or (b) for performing their duties.
26
Note 1:
See section 23 of the Public Service Act 1999 for the reduction in the
27
classification of an APS employee in the Department if the employee
28
lacks, or has lost, an essential qualification for performing his or her
29
duties.
30
Note 2:
See section 29 of the Public Service Act 1999 for the termination of
31
the employment of an APS employee in the Department if the
32
employee lacks, or has lost, an essential qualification for performing
33
his or her duties.
34
Australian Border Force Commissioner Part 2
Delegation and directions Division 7
Section 26
No. , 2015
Australian Border Force Bill 2015
19
(3) Without limiting subsection (2), essential qualifications may have
1
one or more of the following components:
2
(a) physical or psychological health or fitness;
3
(b) professional or technical qualifications;
4
(c) learning and development requirements.
5
Reporting of serious misconduct or criminal activity
6
(4) Without limiting subsection (1), directions under that subsection
7
may relate to the reporting by persons mentioned in
8
paragraph (1)(a) or (b) of the following:
9
(a) serious misconduct by such a person;
10
(b) criminal activity involving such a person;
11
where the serious misconduct or criminal activity affects, or is
12
likely to affect, the operations, responsibilities or reputation of the
13
Department.
14
Compliance with directions
15
(5) A person mentioned in paragraph (1)(a) or (b) must comply with a
16
direction under this section.
17
Note 1:
See subsection 13(4) and sections 15, 28 and 29 of the Public Service
18
Act 1999 for the consequences of an APS employee in the Department
19
not complying with subsection (5) of this section.
20
Note 2:
See section 57 of this Act for the termination of a person's
21
engagement as a consultant or contractor, or for the arranging of a
22
person to cease to perform services for the Department, if the person
23
does not comply with subsection (5) of this section.
24
Directions are not legislative instruments
25
(6) A direction under this section is not a legislative instrument.
26
No limit on other powers to give directions
27
(7) This section does not limit any other power of the Australian
28
Border Force Commissioner to give directions to any person.
29
Part 2 Australian Border Force Commissioner
Division 7 Delegation and directions
Section 27
20
Australian Border Force Bill 2015
No. , 2015
Self-incrimination
1
(8) If a person mentioned in paragraph (1)(a) or (b) is required by a
2
direction of the kind mentioned in subsection (4) to give
3
information, answer a question or produce a document, the person
4
is not excused from:
5
(a) giving the information; or
6
(b) answering the question; or
7
(c) producing the document;
8
on the ground that the information, the answer to the question or
9
the production of the document might tend to incriminate the
10
person or expose the person to a penalty.
11
(9) However:
12
(a) the information given, the answer given or the document
13
produced; or
14
(b) giving the information, answering the question or producing
15
the document;
16
is not admissible in evidence against the person in any
17
proceedings.
18
(10) Subsection (9) has effect subject to section 40.
19
27 Directions--performance of functions or exercise of powers
20
under laws of the Commonwealth
21
(1) The Australian Border Force Commissioner may, by writing, give
22
directions to the following persons in relation to the performance
23
of functions, or the exercise of powers, by those persons under a
24
law of the Commonwealth:
25
(a) a person who is covered by paragraph (a) of the definition of
26
Immigration and Border Protection worker in
27
subsection 4(1) and who is in the Australian Border Force;
28
(b) a person who is covered by paragraph (b), (c), (d), (e) or (f)
29
of that definition and whose services are made available to,
30
or who is performing services for, the Australian Border
31
Force.
32
Australian Border Force Commissioner Part 2
Delegation and directions Division 7
Section 27
No. , 2015
Australian Border Force Bill 2015
21
(2) However, subsection (1) does not apply in relation to the Migration
1
Act 1958.
2
Note:
Section 499 of the Migration Act 1958 allows the Minister to give
3
directions to a person or body about the performance of functions or
4
the exercise of powers under that Act.
5
Compliance with directions
6
(3) A person mentioned in paragraph (1)(a) or (b) must comply with a
7
direction under this section.
8
Note 1:
See subsection 13(4) and sections 15, 28 and 29 of the Public Service
9
Act 1999 for the consequences of an APS employee in the Department
10
not complying with subsection (3) of this section.
11
Note 2:
See section 57 of this Act for the termination of a person's
12
engagement as a consultant or contractor, or for the arranging of a
13
person to cease to perform services for the Department, if the person
14
does not comply with subsection (3) of this section.
15
Directions are not legislative instruments
16
(4) A direction under this section is not a legislative instrument.
17
No limit on other powers to give directions
18
(5) This section does not limit any other power of the Australian
19
Border Force Commissioner to give directions to any person.
20
Part 3 Resignation from the Department
Section 28
22
Australian Border Force Bill 2015
No. , 2015
Part 3--Resignation from the Department
1
2
28 Simplified outline of this Part
3
•
An APS employee in the Department must give at least 14
4
days' notice of his or her resignation from the Department.
5
•
If an APS employee in the Department resigns in
6
circumstances where the employee may have engaged in
7
serious misconduct, the Secretary or the Australian Border
8
Force Commissioner may delay the employee's resignation by
9
up to 90 days to allow further investigation of that conduct.
10
29 Resignation--general
11
(1) A person may resign as an APS employee in the Department if,
12
and only if:
13
(a) he or she gives written notice to the Secretary of his or her
14
resignation; and
15
(b) the notice specifies, in accordance with subsection (2), the
16
day his or her resignation is to take effect.
17
(2) The day specified in a notice under paragraph (1)(a) must not:
18
(a) be earlier than 14 days, or such shorter period as the
19
Secretary allows; or
20
(b) be later than 4 months;
21
after the day on which the notice is given to the Secretary.
22
(3) This section is subject to section 30.
23
30 Resignation in anticipation of termination of employment
24
(1) This section applies if:
25
(a) an APS employee in the Department gives the Secretary
26
written notice of the employee's resignation under
27
paragraph 29(1)(a); and
28
Resignation from the Department Part 3
Section 30
No. , 2015
Australian Border Force Bill 2015
23
(b) either:
1
(i) the Secretary or the Australian Border Force
2
Commissioner reasonably believes that the employee
3
has engaged in serious misconduct and the Secretary is
4
considering terminating the employee's employment; or
5
(ii) the employee is being investigated for serious
6
misconduct and the Secretary is not in a position to
7
decide whether to terminate the employee's
8
employment because the findings of the investigation
9
are not yet known.
10
(2) The Secretary or the Australian Border Force Commissioner may,
11
by written notice given to the APS employee, substitute a day, no
12
later than 90 days after the day specified in the employee's notice
13
of resignation, as the day on which the employee's resignation is to
14
take effect.
15
(3) Subsection (2) has effect subject to subsection (7).
16
Multiple notices
17
(4) The Secretary or the Australian Border Force Commissioner may
18
give more than one notice under subsection (2) to the APS
19
employee in relation to the notice of resignation.
20
Timing of first notice
21
(5) To be effective, the first notice given under subsection (2) in
22
relation to the notice of resignation must be given to the APS
23
employee before the day specified in the notice of resignation.
24
Employee's resignation takes effect or employee's employment
25
terminated
26
(6) The Secretary must, on or before the day substituted in the most
27
recent notice given under subsection (2) in relation to the notice of
28
resignation:
29
(a) notify the APS employee that the employee's resignation
30
takes effect; or
31
(b) terminate the APS employee's employment.
32
Part 3 Resignation from the Department
Section 30
24
Australian Border Force Bill 2015
No. , 2015
Note:
See section 29 of the Public Service Act 1999 for the termination of
1
the employment of an APS employee in the Department.
2
(7) If under paragraph (6)(a) the Secretary notifies the APS employee
3
that the employee's resignation takes effect, the employee's
4
resignation takes effect on the day of that notification.
5
Termination of employment in the Department for serious misconduct Part 4
Section 31
No. , 2015
Australian Border Force Bill 2015
25
Part 4--Termination of employment in the
1
Department for serious misconduct
2
3
31 Simplified outline of this Part
4
•
If the Secretary terminates the employment of an APS
5
employee in the Department and the Secretary or the
6
Australian Border Force Commissioner reasonably believes
7
that the employee's conduct or behaviour amounts to serious
8
misconduct, the Secretary or the Commissioner may make a
9
declaration to that effect.
10
•
The effect of the declaration is that provisions of the Fair
11
Work Act 2009 dealing with unfair dismissal, and notice of
12
termination or payment in lieu, will not apply to the APS
13
employee.
14
32 Termination of employment for serious misconduct
15
(1) This section applies if the Secretary terminates the employment of
16
an APS employee in the Department and the Secretary or the
17
Australian Border Force Commissioner reasonably believes that
18
the employee's conduct or behaviour or any part of it:
19
(a) amounts to serious misconduct by the APS employee; and
20
(b) is having, or is likely to have, a damaging effect on:
21
(i) the professional self-respect or morale of some or all of
22
the APS employees in the Department; or
23
(ii) the reputation of the Department with the public or any
24
section of the public, with an Australian or overseas
25
government or with a person or body to whom
26
information may be disclosed under Part 6.
27
Note:
See section 29 of the Public Service Act 1999 for the termination of
28
the employment of an APS employee in the Department.
29
Part 4 Termination of employment in the Department for serious misconduct
Section 32
26
Australian Border Force Bill 2015
No. , 2015
(2) The Secretary or the Australian Border Force Commissioner may
1
make a written declaration that he or she has the belief referred to
2
in subsection (1) in relation to the APS employee.
3
Timing of declaration
4
(3) A declaration under subsection (2) must be made within 24 hours
5
of the Secretary's decision to terminate the APS employee's
6
employment.
7
Copy of declaration to be given to APS employee
8
(4) If the Secretary or the Australian Border Force Commissioner
9
makes the declaration for the APS employee, the Secretary or the
10
Commissioner must give the APS employee a copy of the
11
declaration.
12
Effect of declaration on Fair Work Act
13
(5) If the Secretary or the Australian Border Force Commissioner
14
makes the declaration for the APS employee, the Fair Work Act
15
2009 (other than Part 3-1 and Division 9 of Part 3-3 of that Act)
16
does not apply in relation to:
17
(a) the termination of the APS employee's employment; or
18
(b) the making of the declaration.
19
Note 1:
This means, for example, that the provisions of the Fair Work Act
20
2009 dealing with unfair dismissal, and notice of termination or
21
payment in lieu, do not apply in relation to the APS employee.
22
Note 2:
Part 3-1 of the Fair Work Act 2009 deals with general protections, and
23
Division 9 of Part 3-3 of that Act deals with payments relating to
24
periods of industrial action.
25
(6) To avoid doubt, subsection (5) applies despite section 8 of the
26
Public Service Act 1999.
27
Report to Minister
28
(7) The Secretary or the Australian Border Force Commissioner must
29
give the Minister a written report containing the following, as soon
30
as practicable after making the declaration:
31
Termination of employment in the Department for serious misconduct Part 4
Section 32
No. , 2015
Australian Border Force Bill 2015
27
(a) the grounds for the Secretary's or Commissioner's belief
1
referred to in subsection (1) in relation to the APS employee;
2
(b) the nature and findings of any investigation of, or inquiry
3
into, the APS employee's conduct or behaviour;
4
(c) details of any other matter the Secretary or Commissioner
5
considers relevant.
6
Declaration not a legislative instrument
7
(8) A declaration under subsection (2) is not a legislative instrument.
8
Part 5 Alcohol and drug tests
Section 33
28
Australian Border Force Bill 2015
No. , 2015
Part 5--Alcohol and drug tests
1
2
33 Simplified outline of this Part
3
•
Immigration and Border Protection workers may be required
4
to undergo an alcohol screening test, an alcohol breath test, an
5
alcohol blood test or a prohibited drug test.
6
34 Alcohol screening test--suspicion that Immigration and Border
7
Protection worker under the influence of alcohol
8
(1) An authorised person may require an Immigration and Border
9
Protection worker to undergo an alcohol screening test if:
10
(a) the worker is in the course of performing his or her duties as
11
an Immigration and Border Protection worker; and
12
(b) the authorised person reasonably suspects that the worker is
13
under the influence of alcohol.
14
Compliance with requirement
15
(2) The worker must comply with a requirement given to him or her
16
under subsection (1).
17
Note 1:
See subsection 13(4) and sections 15, 28 and 29 of the Public Service
18
Act 1999 for the consequences of an APS employee in the Department
19
not complying with subsection (2) of this section.
20
Note 2:
See section 57 of this Act for the termination of a person's
21
engagement as a consultant or contractor, or for the arranging of a
22
person to cease to perform services for the Department, if the person
23
does not comply with subsection (2) of this section.
24
Return to duties
25
(3) If the result of the alcohol screening test shows that alcohol is not
26
present in the worker's breath, he or she may return to his or her
27
duties immediately.
28
Alcohol and drug tests Part 5
Section 35
No. , 2015
Australian Border Force Bill 2015
29
Relationship with section 35
1
(4) This section does not limit section 35.
2
35 Alcohol screening, breath or blood test or prohibited drug test--
3
general
4
(1) An authorised person may give an Immigration and Border
5
Protection worker who is in the course of performing his or her
6
duties as an Immigration and Border Protection worker a written
7
direction requiring the worker to do one or more of the following:
8
(a) undergo an alcohol screening test;
9
(b) undergo an alcohol breath test;
10
(c) provide a body sample of a kind specified in the direction for
11
a prohibited drug test.
12
Blood sample if alcohol breath test indicates presence of alcohol
13
(2) If:
14
(a) the worker undergoes an alcohol breath test in accordance
15
with a direction under subsection (1); and
16
(b) the alcohol breath test indicates the presence of alcohol;
17
the worker may provide a sample of his or her blood for the
18
purpose of an alcohol blood test.
19
Compliance with direction
20
(3) An Immigration and Border Protection worker must comply with a
21
direction given to him or her under this section.
22
Note 1:
See subsection 13(4) and sections 15, 28 and 29 of the Public Service
23
Act 1999 for the consequences of an APS employee in the Department
24
not complying with subsection (3) of this section.
25
Note 2:
See section 57 of this Act for the termination of a person's
26
engagement as a consultant or contractor, or for the arranging of a
27
person to cease to perform services for the Department, if the person
28
does not comply with subsection (3) of this section.
29
Part 5 Alcohol and drug tests
Section 36
30
Australian Border Force Bill 2015
No. , 2015
36 Alcohol screening, breath or blood test or prohibited drug test--
1
certain incidents
2
(1) An authorised person may give an Immigration and Border
3
Protection worker a written direction requiring the worker to do
4
one or more of the following if subsection (2) or (3) applies:
5
(a) undergo an alcohol screening test;
6
(b) undergo an alcohol breath test;
7
(c) provide a body sample of a kind specified in the direction for
8
a prohibited drug test.
9
Person killed or seriously injured in an incident involving a motor
10
vehicle or vessel or while detained
11
(2) This subsection applies if:
12
(a) one of the following applies:
13
(i) a person is killed or seriously injured as a result of an
14
incident involving a motor vehicle or vessel;
15
(ii) an incident occurs in which a person is killed or
16
seriously injured while the person is held in custody in
17
relation to an arrest under the Customs Act 1901, the
18
Migration Act 1958 or the Maritime Powers Act 2013 or
19
otherwise detained under any of those Acts;
20
(iii) an incident occurs in which a person is killed or
21
seriously injured while the person is an unauthorised
22
maritime arrival and is being taken to a regional
23
processing country under section 198AD of the
24
Migration Act 1958; and
25
(b) the worker is directly involved in the incident in the course of
26
performing his or her duties as an Immigration and Border
27
Protection worker.
28
Person killed or seriously injured by a firearm discharging or
29
physical force
30
(3) This subsection applies if:
31
(a) all of the following apply:
32
(i) the worker is an officer authorised to carry arms within
33
the meaning of section 189A of the Customs Act 1901;
34
Alcohol and drug tests Part 5
Section 36
No. , 2015
Australian Border Force Bill 2015
31
(ii) an incident occurs in which a person is killed or
1
seriously injured as a result of the discharge of a firearm
2
by the worker;
3
(iii) the incident occurs in the course of the worker
4
performing his or her duties as an Immigration and
5
Border Protection worker; or
6
(b) both of the following apply:
7
(i) an incident occurs in which a person is killed or
8
seriously injured as a result of the application of
9
physical force by the worker;
10
(ii) the incident occurs in the course of the worker
11
performing his or her duties as an Immigration and
12
Border Protection worker.
13
Direction to be given as soon as practicable after the incident
14
(4) A direction under subsection (1) must be given as soon as
15
practicable after the incident concerned and may be given whether
16
or not the worker is still performing his or her duties as an
17
Immigration and Border Protection worker.
18
Provision of blood or body sample while in hospital
19
(5) If:
20
(a) an Immigration and Border Protection worker is involved in
21
an incident referred to in subsection (2) or (3); and
22
(b) the worker attends or is admitted to a hospital for
23
examination or treatment because of the incident;
24
an authorised person may give the worker a written direction
25
requiring the worker to do either or both of the following:
26
(c) provide a sample of his or her blood for the purpose of an
27
alcohol blood test;
28
(d) provide a body sample of a kind specified in the direction for
29
a prohibited drug test.
30
Compliance with direction
31
(6) An Immigration and Border Protection worker must comply with a
32
direction given to him or her under this section.
33
Part 5 Alcohol and drug tests
Section 37
32
Australian Border Force Bill 2015
No. , 2015
Note 1:
See subsection 13(4) and sections 15, 28 and 29 of the Public Service
1
Act 1999 for the consequences of an APS employee in the Department
2
not complying with subsection (6) of this section.
3
Note 2:
See section 57 of this Act for the termination of a person's
4
engagement as a consultant or contractor, or for the arranging of a
5
person to cease to perform services for the Department, if the person
6
does not comply with subsection (6) of this section.
7
37 Performing duties on board a vessel
8
If:
9
(a) an Immigration and Border Protection worker is on board a
10
vessel throughout a period (the onboard period); and
11
(b) the vessel is under the command of an officer of Customs
12
(within the meaning of the Customs Act 1901); and
13
(c) at any time during the onboard period, the worker performs
14
duties as an Immigration and Border Protection worker;
15
the worker is taken, for the purposes of this Part, to be in the course
16
of performing his or her duties as an Immigration and Border
17
Protection worker throughout the onboard period.
18
38 Conduct of tests and provision of samples to be in accordance
19
with the rules
20
Conduct of tests
21
(1) An alcohol screening test, alcohol breath test, alcohol blood test or
22
prohibited drug test under section 34, 35 or 36 is to be conducted in
23
accordance with the rules.
24
Provision of samples
25
(2) A sample of blood for the purpose of an alcohol blood test under
26
section 35 or 36, or a body sample for the purpose of a prohibited
27
drug test under that section, is to be provided in accordance with
28
the rules.
29
Alcohol and drug tests Part 5
Section 39
No. , 2015
Australian Border Force Bill 2015
33
39 Rules for purposes of this Part
1
For the purposes of sections 34, 35 and 36, the rules may make
2
provision for and in relation to the following:
3
(a) the authorisation of persons:
4
(i) to conduct alcohol screening tests, alcohol breath tests,
5
alcohol blood tests or prohibited drug tests for the
6
purpose of those sections; and
7
(ii) to operate equipment for that purpose;
8
(b) the provision of samples of blood for the purpose of alcohol
9
blood tests under those sections;
10
(c) the provision of body samples for the purpose of prohibited
11
drug tests under those sections;
12
(d) the conduct of alcohol screening tests, alcohol breath tests,
13
alcohol blood tests or prohibited drug tests under those
14
sections;
15
(e) the devices used in conducting alcohol screening tests,
16
alcohol breath tests, alcohol blood tests or prohibited drug
17
tests under those sections, including the calibration,
18
inspection and testing of those devices;
19
(f) in the case of alcohol blood tests and prohibited drug tests--
20
the accreditation of persons to conduct analyses in
21
connection with such tests;
22
(g) the procedure for the handling, analysis, storage and
23
destruction of:
24
(i) samples of blood taken in connection with alcohol blood
25
tests under those sections; or
26
(ii) body samples taken in connection with prohibited drug
27
tests under those sections;
28
(h) the giving of the test results in certificates or other documents
29
and the evidentiary effect of such certificates or other
30
documents;
31
(i) the confidentiality and disclosure of the test results;
32
(j) the keeping and destruction of records in relation to alcohol
33
screening tests, alcohol breath tests, alcohol blood tests or
34
prohibited drug tests under those sections.
35
Part 5 Alcohol and drug tests
Section 40
34
Australian Border Force Bill 2015
No. , 2015
40 Admissibility of test results etc. in legal proceedings
1
The following:
2
(a) a certificate or other document recording the results of a test
3
conducted under section 34, 35 or 36 in relation to an
4
Immigration and Border Protection worker;
5
(b) any other information, answer to a question or document
6
relevant to conducting such a test;
7
are not admissible in evidence against the worker in any
8
proceedings other than the following:
9
(c) proceedings in relation to a decision of the Secretary to
10
terminate the employment or engagement of the worker;
11
(d) proceedings under the Safety, Rehabilitation and
12
Compensation Act 1988;
13
(e) proceedings in tort against the Commonwealth that are
14
instituted by the worker.
15
Secrecy and disclosure provisions Part 6
Section 41
No. , 2015
Australian Border Force Bill 2015
35
Part 6--Secrecy and disclosure provisions
1
2
41 Simplified outline of this Part
3
•
An entrusted person must not make a record of or disclose
4
protected information unless the making of the record or
5
disclosure is authorised by a provision of this Part, is in the
6
course of the person's employment or service as an entrusted
7
person or is required or authorised by law or by an order or
8
direction of a court or tribunal.
9
42 Secrecy
10
(1) A person commits an offence if:
11
(a) the person is, or has been, an entrusted person; and
12
(b) the person makes a record of, or discloses, information; and
13
(c) the information is protected information.
14
Penalty: Imprisonment for 2 years.
15
Exception
16
(2) Subsection (1) does not apply if:
17
(a) the making of the record or disclosure is authorised by
18
section 43, 44, 45, 47, 48 or 49; or
19
(b) the making of the record or disclosure is in the course of the
20
person's employment or service as an entrusted person; or
21
(c) the making of the record or disclosure is required or
22
authorised by or under a law of the Commonwealth, a State
23
or a Territory; or
24
(d) the making of the record or disclosure is required by an order
25
or direction of a court or tribunal.
26
Note:
A defendant bears an evidential burden in relation to a matter in
27
subsection (2) (see subsection 13.3(3) of the Criminal Code).
28
Part 6 Secrecy and disclosure provisions
Section 43
36
Australian Border Force Bill 2015
No. , 2015
Geographical jurisdiction
1
(3) Section 15.2 of the Criminal Code (extended geographical
2
jurisdiction--category B) applies to an offence against
3
subsection (1).
4
43 Records or disclosure for the purposes of this Act or the Law
5
Enforcement Integrity Commissioner Act 2006
6
An entrusted person may make a record of, or disclose, protected
7
information if:
8
(a) the making of the record, or disclosure, is for the purposes of
9
this Act or a legislative instrument under this Act; or
10
(b) the making of the record, or disclosure, is for the purposes of
11
the Law Enforcement Integrity Commissioner Act 2006 or
12
regulations under that Act.
13
44 Disclosure to certain bodies and persons
14
Protected information that is not personal information
15
(1) An entrusted person authorised under subsection (3) may disclose
16
protected information, or a class of protected information, that does
17
not contain personal information, to a body or person mentioned in
18
subsection (4) if:
19
(a) the Secretary is satisfied that the information will enable or
20
assist that body or person to perform or exercise any of the
21
functions, duties or powers of that body or person; and
22
(b) if, under subsection (6), that body or person is required to
23
comply with a condition before the disclosure of the
24
information--that body or person has complied with that
25
condition.
26
Protected information that is personal information
27
(2) An entrusted person authorised under subsection (3) may disclose
28
protected information, or a class of protected information, that
29
contains personal information, to a body or person mentioned in
30
subsection (4) for a purpose mentioned in section 46 if:
31
Secrecy and disclosure provisions Part 6
Section 44
No. , 2015
Australian Border Force Bill 2015
37
(a) the Secretary is satisfied that the information will enable or
1
assist that body or person to perform or exercise any of the
2
functions, duties or powers of that body or person; and
3
(b) the Secretary is satisfied that the disclosure of the
4
information to that body or person is necessary for the
5
purpose mentioned in section 46; and
6
(c) if, under subsection (6), that body or person is required to
7
comply with a condition before the disclosure of the
8
information--that body or person has complied with that
9
condition; and
10
(d) in relation to a class of protected information--that body or
11
person is prescribed in the rules and that class of information
12
is prescribed in the rules as a class of information that may be
13
disclosed to that body or person.
14
Authorisation
15
(3) The Secretary may, by writing, authorise an entrusted person for
16
the purposes of subsections (1) and (2).
17
Bodies and persons
18
(4) For the purposes of subsections (1) and (2), the bodies and persons
19
are the following:
20
(a) a Department, agency or authority of the Commonwealth, a
21
State or a Territory;
22
(b) the Australian Federal Police;
23
(c) a police force or police service of a State or Territory;
24
(d) a coroner;
25
(e) any other person who holds an office or appointment under a
26
law of the Commonwealth, a State or a Territory;
27
(f) any other body or person prescribed by the rules for the
28
purposes of this paragraph.
29
(5) Paragraph (4)(f) does not apply in relation to a foreign country, an
30
agency or authority of a foreign country or a public international
31
organisation.
32
Part 6 Secrecy and disclosure provisions
Section 45
38
Australian Border Force Bill 2015
No. , 2015
Conditions
1
(6) The Secretary may, by writing, impose conditions to be complied
2
with by a body or person:
3
(a) before protected information is disclosed to that body or
4
person under subsection (1) or (2); or
5
(b) in relation to protected information disclosed to that body or
6
person under subsection (1) or (2).
7
Instruments are not legislative instruments
8
(7) An instrument under subsection (3) or (6) is not a legislative
9
instrument.
10
45 Disclosure in accordance with agreements
11
Protected information that is not personal information
12
(1) An entrusted person authorised under subsection (3) may disclose
13
protected information, or a class of protected information, that does
14
not contain personal information, to a foreign country, an agency
15
or authority of a foreign country or a public international
16
organisation if:
17
(a) the Secretary is satisfied that the information will be used in
18
accordance with an agreement to which subsection (4)
19
applies; and
20
(b) that foreign country, agency, authority or organisation has
21
undertaken not to use or further disclose the information
22
except in accordance with the agreement or otherwise as
23
required or authorised by law.
24
Protected information that is personal information
25
(2) An entrusted person authorised under subsection (3) may disclose
26
protected information, or a class of protected information, that
27
contains personal information, to a foreign country, an agency or
28
authority of a foreign country or a public international organisation
29
for a purpose mentioned in section 46 if:
30
Secrecy and disclosure provisions Part 6
Section 45
No. , 2015
Australian Border Force Bill 2015
39
(a) the Secretary is satisfied that the information will be used in
1
accordance with an agreement to which subsection (4)
2
applies; and
3
(b) the Secretary is satisfied that the disclosure of that
4
information to that foreign country, agency, authority or
5
organisation is necessary for the purpose mentioned in
6
section 46; and
7
(c) that foreign country, agency, authority or organisation has
8
undertaken not to use or further disclose the information
9
except in accordance with the agreement or otherwise as
10
required or authorised by law; and
11
(d) in relation to a class of protected information--that foreign
12
country, agency, authority or organisation is prescribed in the
13
rules and that class of information is prescribed in the rules as
14
a class of information that may be disclosed to that foreign
15
country, agency, authority or organisation.
16
Authorisation
17
(3) The Secretary may, by writing, authorise an entrusted person for
18
the purposes of subsections (1) and (2).
19
Agreements
20
(4) This subsection applies to an agreement that is in force between:
21
(a) the Commonwealth or an agency or authority of the
22
Commonwealth; and
23
(b) one or more of the following:
24
(i) a foreign country;
25
(ii) an agency or authority of a foreign country;
26
(iii) a public international organisation.
27
Conditions
28
(5) The Secretary may, by writing, impose conditions to be complied
29
with by a foreign country, an agency or authority of a foreign
30
country or a public international organisation in relation to
31
protected information disclosed to it under subsection (1) or (2).
32
Part 6 Secrecy and disclosure provisions
Section 46
40
Australian Border Force Bill 2015
No. , 2015
Instruments are not legislative instruments
1
(6) An instrument under subsection (3) or (5) is not a legislative
2
instrument.
3
46 Permitted purposes
4
For the purposes of sections 44 and 45, the purposes are the
5
following:
6
(a) the administration or enforcement of a law of the
7
Commonwealth, a State, a Territory or a foreign country that
8
relates to:
9
(i) criminal law; or
10
(ii) a law imposing a pecuniary penalty or providing for the
11
forfeiture of property;
12
(b) in relation to a law referred to in paragraph (a), the
13
prevention of crime, or the detection or analysis of criminal
14
conduct, in respect of that law;
15
(c) assisting a coronial inquiry, coronial investigation or coronial
16
inquest under a law of the Commonwealth, a State or a
17
Territory;
18
(d) a purpose relating to the protection of public health, or the
19
prevention or elimination of risks to the life or safety of an
20
individual or a group of individuals;
21
(e) the collection and verification of statistics for the purposes of
22
the Census and Statistics Act 1905 or the performance of the
23
functions of the Australian Bureau of Statistics as set out in
24
section 6 of the Australian Bureau of Statistics Act 1975;
25
(f) the protection of the public revenue of the Commonwealth, a
26
State, a Territory or a foreign country;
27
(g) a purpose relating to matters covered by the Customs Act
28
1901, the Migration Act 1958, the Maritime Powers Act
29
2013, the Australian Citizenship Act 2007, the Immigration
30
(Guardianship of Children) Act 1946 or the Education
31
Services for Overseas Students Act 2000;
32
(h) any of the following:
33
(i) assisting in establishing the identity of a particular
34
person;
35
Secrecy and disclosure provisions Part 6
Section 47
No. , 2015
Australian Border Force Bill 2015
41
(ii) establishing whether or not a particular person is or was
1
an Australian citizen at a particular time or in a
2
particular period;
3
(iii) establishing whether or not a particular person is or was
4
the holder of a particular kind or class of visa under the
5
Migration Act 1958 at a particular time or in a particular
6
period;
7
(i) a purpose relating to immigration, quarantine or border
8
control between Australia and a foreign country;
9
(j) the provision of services to persons who are not Australian
10
citizens;
11
(k) a purpose relating to the performance of functions under
12
section 17 of the Australian Security Intelligence
13
Organisation Act 1979;
14
(l) a purpose relating to the performance of functions under
15
section 6 of the Intelligence Services Act 2001;
16
(m) the administration of the National Anti-Doping Scheme
17
(within the meaning of the Australian Sports Anti-Doping
18
Authority Act 2006);
19
(n) the administration or enforcement of laws with respect to
20
commerce:
21
(i) between a State and another State; or
22
(ii) between a State and a Territory; or
23
(iii) between a Territory and another Territory; or
24
(iv) between Australia and another country; or
25
(v) within a State or Territory;
26
(o) a purpose prescribed by the rules.
27
47 Disclosure with consent
28
An entrusted person may disclose protected information that relates
29
to the affairs of a person or body if:
30
(a) the person or body has consented to the disclosure; and
31
(b) the disclosure is in accordance with that consent.
32
Part 6 Secrecy and disclosure provisions
Section 48
42
Australian Border Force Bill 2015
No. , 2015
48 Disclosure to reduce threat to life or health
1
An entrusted person may disclose protected information if:
2
(a) the entrusted person reasonably believes that the disclosure is
3
necessary to prevent or lessen a serious threat to the life or
4
health of an individual; and
5
(b) the disclosure is for the purposes of preventing or lessening
6
that threat.
7
49 Disclosure of publicly available information
8
An entrusted person may disclose protected information if it has
9
already been lawfully made available to the public.
10
50 Exceptions operate independently
11
Sections 43, 44, 45, 47, 48 and 49 do not limit each other.
12
51 Interaction with Privacy Act
13
For the purposes of the Privacy Act 1988:
14
(a) the making of a record, in accordance with section 43, of
15
protected information, to the extent that the protected
16
information contains personal information, is taken to be a
17
use that is authorised by this Act; and
18
(b) the disclosure, in accordance with section 43, 44, 45, 47, 48
19
or 49, of protected information, to the extent that the
20
protected information contains personal information, is taken
21
to be a disclosure that is authorised by this Act.
22
Other matters Part 7
Section 52
No. , 2015
Australian Border Force Bill 2015
43
Part 7--Other matters
1
2
52 Simplified outline of this Part
3
•
The Secretary and the Comptroller-General of Customs can
4
delegate their functions or powers under a law of the
5
Commonwealth.
6
•
The Secretary may give directions to Immigration and Border
7
Protection workers to do with the administration and control
8
of the Department or the performance of functions or exercise
9
of powers by such workers under a law of the Commonwealth.
10
•
The Secretary or the Australian Border Force Commissioner
11
may terminate the engagement of a person as a consultant or
12
contractor if the person fails to comply with a direction under
13
this Act.
14
•
The Minister may make rules for the purposes of this Act.
15
53 Delegation by Secretary
16
(1) The Secretary may, by writing, delegate any of his or her functions
17
or powers under a law of the Commonwealth to:
18
(a) the Australian Border Force Commissioner; or
19
(b) an Immigration and Border Protection worker.
20
(2) However, subsection (1) does not apply in relation to:
21
(a) section 30 (resignation in anticipation of termination of
22
employment); or
23
(b) section 32 (termination of employment for serious
24
misconduct); or
25
(c) the Migration Act 1958 or an instrument under that Act.
26
Note:
Section 496 of the Migration Act 1958 deals with delegation by the
27
Secretary of his or her powers under that Act.
28
Part 7 Other matters
Section 54
44
Australian Border Force Bill 2015
No. , 2015
Directions to delegates
1
(3) An Immigration and Border Protection worker must, in performing
2
functions or exercising powers under a delegation under
3
subsection (1), comply with any written directions of the Secretary.
4
Subdelegation by Australian Border Force Commissioner
5
(4) If the Australian Border Force Commissioner is delegated
6
functions or powers under subsection (1), the Commissioner may,
7
by writing, delegate any of those functions or powers to the
8
following:
9
(a) a person who is covered by paragraph (a) of the definition of
10
Immigration and Border Protection worker in
11
subsection 4(1) and who is in the Australian Border Force;
12
(b) a person who is covered by paragraph (b), (c), (d), (e) or (f)
13
of that definition and whose services are made available to,
14
or who is performing services for, the Australian Border
15
Force.
16
(5) An Immigration and Border Protection worker must, in performing
17
functions or exercising powers under a delegation under
18
subsection (4), comply with any written directions of the
19
Australian Border Force Commissioner.
20
(6) The Australian Border Force Commissioner must not give
21
directions under subsection (5) in relation to particular functions or
22
powers that are inconsistent with any directions given under
23
subsection (3) in relation to those functions or powers.
24
(7) A function that is performed or a power that is exercised by an
25
Immigration and Border Protection worker under a delegation
26
under subsection (4) is taken, for the purposes of the law referred
27
to in subsection (1), to have been performed or exercised by the
28
Secretary.
29
54 Delegation by Comptroller-General of Customs
30
(1) The Comptroller-General of Customs may, by writing, delegate
31
any of his or her functions or powers under a law of the
32
Commonwealth to:
33
Other matters Part 7
Section 55
No. , 2015
Australian Border Force Bill 2015
45
(a) the Secretary; or
1
(b) an Immigration and Border Protection worker.
2
Directions to delegates
3
(2) An Immigration and Border Protection worker must, in performing
4
functions or exercising powers under a delegation under
5
subsection (1), comply with any written directions of the
6
Comptroller-General of Customs.
7
Subdelegation by Secretary
8
(3) If the Secretary is delegated functions or powers under
9
subsection (1), the Secretary may, by writing, delegate any of those
10
functions or powers to an Immigration and Border Protection
11
worker.
12
(4) An Immigration and Border Protection worker must, in performing
13
functions or exercising powers under a delegation under
14
subsection (3), comply with any written directions of the Secretary.
15
(5) The Secretary must not give directions under subsection (4) in
16
relation to particular functions or powers that are inconsistent with
17
any directions given under subsection (2) in relation to those
18
functions or powers.
19
(6) A function that is performed or a power that is exercised by an
20
Immigration and Border Protection worker under a delegation
21
under subsection (3) is taken, for the purposes of the law referred
22
to in subsection (1), to have been performed or exercised by the
23
Comptroller-General of Customs.
24
55 Directions by Secretary--administration and control of the
25
Department
26
(1) The Secretary may, by writing, give directions to Immigration and
27
Border Protection workers in connection with the administration
28
and control of the Department.
29
Part 7 Other matters
Section 55
46
Australian Border Force Bill 2015
No. , 2015
Essential qualifications
1
(2) Without limiting subsection (1), directions under that subsection
2
may relate to the essential qualifications for Immigration and
3
Border Protection workers for performing their duties.
4
Note 1:
See section 23 of the Public Service Act 1999 for the reduction in the
5
classification of an APS employee in the Department if the employee
6
lacks, or has lost, an essential qualification for performing his or her
7
duties.
8
Note 2:
See section 29 of the Public Service Act 1999 for the termination of
9
the employment of an APS employee in the Department if the
10
employee lacks, or has lost, an essential qualification for performing
11
his or her duties.
12
(3) Without limiting subsection (2), essential qualifications may have
13
one or more of the following components:
14
(a) physical or psychological health or fitness;
15
(b) professional or technical qualifications;
16
(c) learning and development requirements;
17
(d) security clearances.
18
Organisational suitability assessments
19
(4) Without limiting subsection (1), directions under that subsection
20
may relate to organisational suitability assessments.
21
Reporting of serious misconduct or criminal activity
22
(5) Without limiting subsection (1), directions under that subsection
23
may relate to the reporting by Immigration and Border Protection
24
workers of the following:
25
(a) serious misconduct by such a worker;
26
(b) criminal activity involving such a worker;
27
where the serious misconduct or criminal activity affects, or is
28
likely to affect, the operations, responsibilities or reputation of the
29
Department.
30
Other matters Part 7
Section 55
No. , 2015
Australian Border Force Bill 2015
47
Relationship with directions under section 26
1
(6) A direction under this section prevails over a direction under
2
section 26 to the extent of any inconsistency.
3
Compliance with directions
4
(7) An Immigration and Border Protection worker must comply with a
5
direction under this section.
6
Note 1:
See subsection 13(4) and sections 15, 28 and 29 of the Public Service
7
Act 1999 for the consequences of an APS employee in the Department
8
not complying with subsection (7) of this section.
9
Note 2:
See section 57 of this Act for the termination of a person's
10
engagement as a consultant or contractor, or for the arranging of a
11
person to cease to perform services for the Department, if the person
12
does not comply with subsection (7) of this section.
13
Directions are not legislative instruments
14
(8) A direction under this section is not a legislative instrument.
15
No limit on other powers to give directions
16
(9) This section does not limit any other power of the Secretary to give
17
directions to any person.
18
Self-incrimination
19
(10) If an Immigration and Border Protection worker is required by a
20
direction of the kind mentioned in subsection (5) to give
21
information, answer a question or produce a document, the worker
22
is not excused from:
23
(a) giving the information; or
24
(b) answering the question; or
25
(c) producing the document;
26
on the ground that the information, the answer to the question or
27
the production of the document might tend to incriminate the
28
worker or expose the worker to a penalty.
29
(11) However:
30
Part 7 Other matters
Section 56
48
Australian Border Force Bill 2015
No. , 2015
(a) the information given, the answer given or the document
1
produced; or
2
(b) giving the information, answering the question or producing
3
the document;
4
is not admissible in evidence against the worker in any
5
proceedings.
6
(12) Subsection (11) has effect subject to section 40.
7
56 Directions by Secretary--performance of functions or exercise of
8
powers under laws of the Commonwealth
9
(1) The Secretary may, by writing, give directions to Immigration and
10
Border Protection workers in relation to the performance of
11
functions, or the exercise of powers, by those workers under a law
12
of the Commonwealth.
13
(2) However, subsection (1) does not apply in relation to the Migration
14
Act 1958.
15
Note:
Section 499 of the Migration Act 1958 allows the Minister to give
16
directions to a person or body about the performance of functions or
17
the exercise of powers under that Act.
18
Relationship with directions under section 27
19
(3) A direction under this section prevails over a direction under
20
section 27 to the extent of any inconsistency.
21
Compliance with directions
22
(4) An Immigration and Border Protection worker must comply with a
23
direction under this section.
24
Note 1:
See subsection 13(4) and sections 15, 28 and 29 of the Public Service
25
Act 1999 for the consequences of an APS employee in the Department
26
not complying with subsection (4) of this section.
27
Note 2:
See section 57 of this Act for the termination of a person's
28
engagement as a consultant or contractor, or for the arranging of a
29
person to cease to perform services for the Department, if the person
30
does not comply with subsection (4) of this section.
31
Other matters Part 7
Section 57
No. , 2015
Australian Border Force Bill 2015
49
Directions are not legislative instruments
1
(5) A direction under this section is not a legislative instrument.
2
No limit on other powers to give directions
3
(6) This section does not limit any other power of the Secretary to give
4
directions to any person.
5
57 Termination of engagement of consultant or contractor
6
(1) If:
7
(a) a person is covered by paragraph (e) of the definition of
8
Immigration and Border Protection worker in
9
subsection 4(1); and
10
(b) the person fails to comply with a direction under section 26,
11
27, 35, 36, 55 or 56 or subsection (2) of this section or with a
12
requirement under subsection 34(1);
13
the Secretary or the Australian Border Force Commissioner may
14
terminate the person's engagement as a consultant or contractor.
15
(2) If:
16
(a) a person (the affected person) is covered by paragraph (f) of
17
the definition of Immigration and Border Protection worker
18
in subsection 4(1); and
19
(b) in connection with that person, paragraph (e) of that
20
definition covers a person (the consultant/contractor); and
21
(c) the affected person fails to comply with a direction under
22
section 26, 27, 35, 36, 55 or 56 or with a requirement under
23
subsection 34(1);
24
the Secretary or the Australian Border Force Commissioner may,
25
by writing, direct the consultant/contractor to arrange for the
26
affected person to cease to perform services for the Department.
27
(3) Subsection (1) does not limit the circumstances in which a person's
28
engagement as a consultant or contractor may be terminated.
29
Part 7 Other matters
Section 58
50
Australian Border Force Bill 2015
No. , 2015
58 Rules
1
(1) The Minister may, by legislative instrument, make rules
2
prescribing matters:
3
(a) required or permitted by this Act to be prescribed by the
4
rules; or
5
(b) necessary or convenient to be prescribed for carrying out or
6
giving effect to this Act.
7
(2) To avoid doubt, the rules may not do the following:
8
(a) create an offence or civil penalty;
9
(b) provide powers of:
10
(i) arrest or detention; or
11
(ii) entry, search or seizure;
12
(c) impose a tax;
13
(d) set an amount to be appropriated from the Consolidated
14
Revenue Fund under an appropriation in this Act;
15
(e) amend this Act.
16