Fiona Nash (NSW, National Party, Assistant Minister for Health) Share this | Link to this | Hansard source

I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

AUSTRALIAN BORDER FORCE BILL 2015

Australia's border is a national asset that defines the space within which our democratic and sovereign nation state can prosper. It supports a strong economy by serving as a global gateway for trade, and enabling business and the operation of free markets. It supports strong national security by interdicting prohibited goods and people who seek to do us harm. The border also contributes to a prosperous and cohesive society with a rich and diverse culture, by promoting the freedoms and responsibilities of Australian citizenship and helping to create safer communities.

In short, our border creates the space where we can be who we are and become who we want to be as a nation.

Maintaining our borders as a secure platform for legitimate trade, travel and migration is a core responsibility of the Australian Government and this is a responsibility we take very seriously. There is little point in having a planned migration program or laws around the movement of goods and people if we cannot protect the integrity of those programs.

In the environment of ongoing growth in trade and travellers to Australia, the Australian Border Force Bill 2015 and the other border protection reforms being implemented by this Government position our nation to confront the challenges posed by increased border interactions.

This Bill establishes the statutory office of the Australian Border Force Commissioner, who will command the Australian Border Force as a new, front-line operational border control and enforcement entity within the Department of Immigration and Border Protection that will enforce customs and immigration laws and protect Australia's borders.

The Australian Border Force Commissioner will be our most senior border law enforcement officer who will lead a professional and agile team of highly trained officers tasked with protecting and managing our borders.

The Commissioner will have the same standing as other heads of key national security related agencies, such as the Commissioner of the Australian Federal Police or the Chief of the Defence Force.

The powers and functions of the Commissioner are conferred under the Customs Act 1901, the Migration Act 1958, the Maritime Powers Act 2013 and other Commonwealth laws.

The Commissioner will also be the Comptroller-General of Customs, with responsibility for the enforcement of customs law and the collection of border related revenue.

The Australian Border Force will not be a separate agency for the purposes of the Public Service Act 1999, the Public Governance, Performance and Accountability Act 2013, or the Privacy Act 1988. The Secretary of my Department will remain the Accountable Authority for PGPA Act purposes and will remain the Agency Head for Public Service Act purposes.

The Secretary will make available the resources, strategy, policy corporate and enabling support the Australian Border Force needs to operate effectively.

This removes unnecessary duplication and enables the deployment of a greater proportion of resources into the front line. It also contributes to a more efficient government footprint that will assist in achieving fiscal repair and ensuring the sustainability of government operations.

The Australian Border Force will bring together the people, capability and systems from across my portfolio that protect the border and facilitate the lawful passage of people and goods.

This Bill also enables the full integration of the Australian Customs and Border Protection Service and the Department of Immigration and Border Protection into a single department of state.

Staff performing operational functions in the Australian Customs and Border Protection Service will move into the Australian Border Force. Departmental staff who will transfer into the Australian Border Force include those working in immigration compliance, enforcement, detention services and other operational functions. All other functions from the Service will be integrated within the broader Department.

By removing the traditional silos of immigration and customs, my Department – and within it the Australian Border Force – will deliver an improved capability that truly focuses border policies, strategy and operations in an integrated and holistic way.

The establishment of an integrated border entity is not a new concept. It has been a theme of global border reform, in particular in the United States through the Homeland Security Department and a series of reforms at the UK Home Office.

In bringing forward our reforms, we have studied these overseas experiences carefully. The model the Government is implementing takes account of what has worked well for other countries, but also takes into account the unique challenges we face here.

The Australian Border Force will encompass not only those people who staff our air and sea borders at airports and ports, but also those involved in detection, investigations, compliance and enforcement in relation to illicit goods and illegal visitors. This includes management of detention facilities and the removal of non-citizens who do not have a right to remain in Australia.

The Australian Border Force will also include staff who serve beyond our borders, working in operational roles with our regional partners to secure Australia's maritime zone, prevent and deter illegal arrivals and the movement of prohibited goods.

While the Australian Border Force will deliver an important law-enforcement and national security capability in its own right, it won't operate alone. The Australian Border Force will work in close collaboration with national security, defence, law enforcement and intelligence partners domestically and overseas to deliver a secure border.

This integrated approach has proved to be a key element of our Government's success under Operation Sovereign Borders in stopping the destructive people smuggling trade.

To underpin community confidence in Australia's immigration, customs and border arrangements, it is imperative that the Australian Border Force is established as professional and disciplined workforce.

The Bill provides that certain immigration and border protection workers in the Australian Border Force or performing services for the Force may be requested to make and subscribe an oath or affirmation. This requirement sets an upfront marker that the Government and the public expect the highest standards of professionalism and integrity for officers that are exercising significant enforcement powers. The Commissioner will also be required to make and subscribe an oath or affirmation on commencement of his or her office.

An employee who has made or subscribed such an oath or affirmation must not engage in conduct that is inconsistent with the oath or affirmation.

This Bill also gives power to the Secretary and ABF Commissioner to give written directions in connection with the administration and control of the Department and Australian Border Force respectively, and the performance of functions or exercise of powers.

Directions may be made in relation to the setting of essential qualifications for the performance of duties, the mandatory reporting of serious misconduct or criminal activity, and the implementation of the professional integrity system for my Department.

These directions are binding and failure to follow them represents a breach of the Australian Public Service Code of Conduct.

These provisions will enable the highest standards of operational effectiveness and professional integrity to be achieved throughout my Department.

To ensure a safe working environment and increase resistance to corruption, the Bill provides that all immigration and border protection workers may be required to undergo an alcohol screening test, an alcohol breath test, an alcohol blood test or a prohibited drug test.

While the focus of the testing will be on operational and high risk areas, any departmental employee may be selected randomly for testing.

In addition, the Bill provides that alcohol screening involving a breath or blood test, and/​or a prohibited drug test, may be required if an incident occurs such as a workplace injury or death involving a motor vehicle, vessel, the discharge of a firearm or physical force.

The Australian Federal Police, Australian Crime Commission and Australian Customs and Border Protection Service all currently apply similar drug and alcohol testing arrangements. The Australian Defence Force also operates a prohibited substance testing programme.

To further strengthen integrity arrangements, the Bill establishes resignation and termination provisions in circumstances involving serious misconduct.

Where an employee is suspected of serious misconduct such as corruption, a serious abuse of power, a serious dereliction of duty, or any other seriously reprehensible act or behaviour and they tender their resignation, the Secretary of the Department or the ABF Commissioner would be able to defer the date of effect of resignation by up to 90 days.

This will enable an APS code of conduct investigation to be finalised and where a breach decision is made, consider whether to impose a termination of employment sanction.

Additionally, in cases where the employment of a departmental officer is terminated under the Public Service Act 1999 as a result of serious misconduct, the Secretary or ABF Commissioner will be able to make a serious misconduct declaration that excludes the termination of employment from review for unfair dismissal under the Fair Work Act 2009.

These provisions provide a strong signal that serious misconduct will not be tolerated.

Part 6 of the Bill establishes important information protections, similar to provisions that are in place within the Australian Customs and Border Protection Service and a range of other Commonwealth agencies.

These protections prohibit the unauthorised making of a record or disclosure of protected information. Breach of this requirement is punishable by imprisonment for two years.

This provision provides assurance to industry and our domestic and international law enforcement and intelligence partners that sensitive information provided to the Australian Border Force and my Department more broadly will be appropriately protected. The provision also enables authorised disclosure where this is appropriate.

In summary, the reforms delivered through this Bill support the Government's priority of ensuring Australia's ongoing success as an open economy and as the world's most successful immigration nation.

This Bill will enable the Australian Border Force and the Department to create stronger borders. Stronger borders will contribute to safer communities and a prosperous and cohesive society.

This Bill deserves the support of all parties. We must take this opportunity to enhance Australia's capacity at the border to manage exponential growth in trade and travellers and combat transnational crime syndicates seeking to exploit our systems.

The government is serious about border protection. The measures in this Bill underscore that commitment, and I commend it to the Senate.

CUSTOMS AND OTHER LEGISLATION AMENDMENT (AUSTRALIAN BORDER FORCE) BILL 2015

The Customs and Other Legislation Amendment (Australian Border Force) Bill 2015 will repeal the Customs Administration Act 1985 and amend a number of other Commonwealth Acts, including the Customs Act 1901.

Consequential amendments proposed in this Bill will ensure that all Commonwealth legislation reflects the changes to organisational arrangements and statutory roles associated with the integration of the Department of Immigration and Border Protection and establishment of the Australian Border Force within the Department.

The Australian Border Force Bill 2015 establishes the statutory office of the Australian Border Force Commissioner and also designates the Commissioner as the "Comptroller-General of Customs". In that capacity, the holder of the position will have general administration of the Customs Act and the various provisions within other Commonwealth Acts and Regulations that confer powers and responsibilities on Customs and on officers of Customs.

This Act generally substitutes references to the "Chief Executive Officer of Customs" with "Comptroller-General of Customs" or "Secretary of the Department of Immigration and Border Protection"; and the "Department of Immigration and Border Protection" will generally be substituted as the successor agency to the Australian Customs and Border Protection Service.

The terms "officer of Customs" and "Collector" are being retained, and the provisions in a range of Commonwealth laws that are linked to these defined terms generally remain unchanged. The associated powers will be exercised by those officers within my Department who are appropriately authorised and trained, in accordance with established protocols and guidelines. In many, but not all cases, these officers will be within the Australian Border Force.

There are three matters in the Bill that I specifically want to mention. These are the amendments to the Crimes Act 1914, the Law Enforcement Integrity Commissioner Act 2006 and the Work, Health and Safety Act 2011.

First, in relation to the Crimes Act: there are several provisions that currently apply to officers of Customs or the Australian Customs and Border Protection Service that will be crucial to maintain when the Service integrates with the Department of Immigration and Border Protection.

The Australian Customs and Border Protection Service currently falls within the definition of a law enforcement agency within Part 1AB, which deals with "controlled operations", and Part 1AC, which deals with "assumed identities". A controlled operation involves the participation of officers from law enforcement agencies and is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence, or State offence with Commonwealth aspects. An assumed identity is a false identity that is authorised to be adopted by an officer of a law enforcement agency to facilitate the collection of intelligence and investigation of offences of Commonwealth laws.

Part 1AB currently exempts officers of Customs who are involved in a controlled operation from criminal liability for a Commonwealth, State or Territory offence.

In addition, Part 1AC currently exempts officers of Customs from criminal liability for a Commonwealth, State or Territory offence in respect to things done in the course of acquiring or using an assumed identity.

These are important provisions. In its 2013 report into Organised Crime in Australia, the Australian Crime Commission details the significant impact serious and organised crime has on the every day lives of Australians. The Commission conservatively estimates organised crime costs Australia $15 billion annually and notes the ability for such crime to undermine our border integrity, erode the confidence in institutions and law enforcement agencies and damage our prosperity and regional stability. This form of crime reaches across borders and can include trafficking in drugs or in people, corruption, and money laundering.

With the increasing threat of serious organised and transnational crime, it is vitally important that Australia's border arrangements continue to be able to operate with relevant powers and protections to conduct operations that counter these threats. Accordingly, the Bill substitutes the Department of Immigration and Border Protection for the Australian Customs and Border Protection Service as the primary agency with overarching responsibility for protecting our borders. It therefore ensures these provisions will continue to apply to officers in my Department when the new organisational arrangements are in place.

The second matter I want to highlight relates to amendments to the Law Enforcement Integrity Commissioner Act, or the LEIC Act.

The broad objectives of the LEIC Act are to strengthen the integrity of prescribed Commonwealth law enforcement agencies and to enable the prosecution of corrupt officials and their criminal counterparts. To this end, the Law Enforcement Integrity Commissioner and staff at the Australian Commission for Law Enforcement Integrity (ACLEI) are empowered to detect and investigate corrupt conduct by using a combination of coercive information gathering and law enforcement powers.

The Commission for Law Enforcement Integrity focusses on serious and systemic corruption risks, such as criminal compromise, infiltration and other corruption.

The Australian Customs and Border Protection Service is currently prescribed as a law enforcement agency under the LEIC Act. This Bill proposes that the Integrity Commissioner's jurisdiction would be broadened to apply to the Department of Immigration and Border Protection on a whole of agency basis, from 1 July 2015.

My Department plays a critical role in protecting Australia's sovereignty and managing the movement, each year, of millions of people and goods across the border. In fulfilling this role, immigration and border protection workers have access to secure environments, protected systems and sensitive information. Officers are also entrusted with powers to authorise or prevent the movement of people and goods across the border and also the power to grant permissions associated with the stay of non-citizens in Australia. The Australian community expect these workers to demonstrate the highest level of integrity and professionalism in the exercise of such powers and in the protection of sensitive information.

I have every confidence that the vast majority of officers meet that expectation.

As a department charged with responsibilities that are so integral to strong national security and a strong economy, however, it is only appropriate that there are strong controls in place to detect and investigate corrupt behaviour and to ensure any workers who act corruptly are prosecuted to the full extent of the law.

This Bill will therefore ensure the Law Enforcement Integrity Commissioner has an unhindered ability to investigate suspected law enforcement related corrupt activity across my Department, regardless of the role, location or job title of an individual officer, including in non-operational roles.

There is one further matter in this Bill I would like to mention, and that relates to proposed amendments to the Work, Health and Safety Act, or the WHS Act.

The WHS Act imposes duties on persons conducting a business undertaking and workers to protect the health and safety of themselves and others. The thresholds imposed by these provisions are that workers should exercise 'reasonable care'.

The WHS Act also provides that nothing in the Act requires a person to take or refrain from taking any action that would or could reasonably be expected to be prejudicial to Australia's national security or defence.

Sections 12C and 12D of the WHS Act enable the Director-General of Security and the Chief of the Defence Force to make declarations clarifying how the provisions within the WHS Act apply or are modified in cases relating to Australia's national security and defence. These declaration provisions importantly assist in providing assurance to front line officers about how they can meet their obligations under the WHS Act while also fulfilling their obligation to protect Australia's national security and defence.

These declarations can only be made with the agreement of the Minister for Employment.

The Chief of the Defence Force currently has a declaration in place under this section of the WHS Act to cover certain elements of Operation Sovereign Borders. This declaration covers both Australian Defence Force personnel and ACBPS workers who are working together to protect Australia's sovereignty.

Into the future, workers in the Australian Border Force, like their counterparts in the Australian Defence Force and some other national security agencies will at times be involved in fast moving and inherently high-risk activities. This is particularly evident in the on-water maritime border protection environment, where some of the risks are difficult to predict and control in comparison to other workplace environments. Employees involved in these special operations (such as fishery or Southern Ocean Patrols) often need to make difficult, time-critical judgments, and any uncertainty could threaten the effectiveness of the activity or the safety of the officer or others.

Amendments proposed in this Bill will give the ABF Commissioner the ability to assure Australian Border Force workers in these environments and remove any doubt that they can professionally and diligently perform the tasks required of them, without any legal or operational uncertainty about how the WHS Act applies. It will do this by enabling the ABF Commissioner to make declarations under the section 12C national security provision and section 12D defence provision of the Act clarifying how the Act applies or is modified in particular operations.

At all times, the Secretary of my Department and the ABF Commissioner will continue to give precedence to the health and safety of immigration and border protection workers and other persons in the workplace, and promote the objectives of the WHS Act. Employees will continue to undertake risk assessments and be provided with the training and equipment they need to undertake the important roles the Government and the Australian community need them to do.

The bill also includes important safeguards around the making of a declaration by the ABF Commissioner. The ABF Commissioner must take into account the need to promote the objects of the WHS Act to the greatest extent consistent with the maintenance of Australia's national security and Defence. To make a declaration, the ABF Commissioner must consult with the Secretary of the Department. In addition, for declarations under section 12C, the Director-General of Security must be consulted; and for a declaration under section 12D, the Chief of the Defence Force must be consulted. The ABF Commissioner must also seek the Employment Minister's approval prior to a declaration being made.

This amendment to the WHS Act appropriately recognises the risks faced by Australian Border Force officers in protecting Australia's sovereignty and security.

This Bill deserves the support of all parties. Together with the Australian Border Force Bill 2015, it will assist us to remain prosperous, strong and secure in the twenty-first century as we deal with increasing demands and threats to our immigration and border protection systems.

This government is serious about strong and effective border protection. The measures in this Bill underscore that commitment, and I commend it to the Senate.

Ordered that further consideration of the second reading of this bill be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.

Sitting suspended from 19:00 to 19:30