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House of Representatives

Customs and Other Legislation Amendment (Australian Border Force) Bill 2015

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Border Protection, the Honourable Peter Dutton MP)


The purpose of this Bill is to:

repeal the Customs Administration Act 1985 (Customs Administration Act);
amend the Customs Act 1901 (the Customs Act) as a consequence of the repeal of the Customs Administration Act;
amend other Acts associated with the administration of Customs matters; and
amend several other Commonwealth Acts that refer to the Australian Customs and Border Protection Service (ACBPS) and the Chief Executive Officer of Customs (the CEO);
amend the Migration Act 1958 to enable the Australian Border Force Commissioner (the ABF Commissioner) to exercise certain powers under that Act; and
make other amendments associated with the standing up of the Australian Border Force (the ABF) in the Department of Immigration and Border Protection (the Department) on 1 July 2015.

On 9 May 2014, the Government announced that, from 1 July 2015, the Department and the ACBPS will be integrated into a single Department of State, and that the ABF, an operational border control and enforcement entity, will be established within the Department. The ABF is to be headed by the ABF Commissioner (a statutory officer holder) and will consist of Immigration and Border Protection workers (IBP workers) who are in the ABF, or whose services are made available to, or who are performing services for, the ABF. The Australian Border Force Bill 2015 (the ABF Bill) will provide the legislative basis for establishing the office of the ABF Commissioner, who is to have the control of the operations of the ABF.

To give effect to these arrangements, this Bill will repeal the Customs Administration Act, thereby abolishing both the ACBPS as a separate statutory authority and the statutory office of the CEO. These changes will take effect from 1 July 2015, the same date that the ABF Bill commences (see Schedule 2).

The ABF Bill provides that the person appointed as the ABF Commissioner shall also be the Comptroller-General of Customs and, in that capacity, will have responsibility for the enforcement of customs laws and collection of border-related revenue. The Bill amends the Customs Act to confer on the Comptroller-General of Customs all of the powers and functions that are currently conferred on the CEO (see Schedule 1).

The Bill also confers on the Comptroller-General of Customs all of the powers and functions related to customs functions that are currently conferred on the CEO under other Commonwealth Acts (see Schedule 6).

The Bill also contains amendments to the Work Health and Safety Act 2011 (the WH & S Act), which acknowledges that IBP workers in the ABF will be engaged in a number of unique and high risk environments that are necessary for Australia's national security and defence. It is critical these workers can be confident they are able to perform the tasks required of them professionally and diligently in what can be demanding environments. In this regard, the Bill extends the assurance currently provided to Australia's National Security agencies and Defence Force to the ABF and its workers, to explicitly enable them to address the unique issues that arise in relation to Australia's border protection.

These amendments to the WH & S Act allow the ABF Commissioner, in consultation with the Secretary of the Immigration and Border Protection Department and with the agreement of the Minister for Employment, to declare by instrument in writing that specified provisions of the WH & S Act do not apply, or apply subject to modifications set out in the declaration. The ABF Commissioner is also required to consult with the Director-General of Security prior to seeking the Minister's approval for a declaration to be made under section 12C, or with the Chief of the Defence Force prior to seeking the Minister's approval for a declaration to be made under section 12D. This consultation provision ensures the Minister may have the benefit of their expert opinion when considering a declaration. Enabling the ABF Commissioner to make a declaration that restricts or modifies the application of specified provisions of the WH & S Act provides further certainty of the existing intent of the WH & S Act that a person is not required to take, or refrain from taking, any action under the Act that would be, or could reasonably be expected to be, prejudicial to Australia's national security or defence.

The Bill also contains amendments to the Law Enforcement Integrity Commissioner Act 2006, the Crimes Act 1914, the Surveillance Devices Act 2004, the Telecommunications (Interception and Access) Act 1979 and the Australian Crime Commission Act 2002 to give effect to the extension of the jurisdiction of the Australian Commission for Law Enforcement Integrity (the ACLEI) to the integrated Department.

The special role the Department plays as an immigration and border protection agency with responsibilities for authorising the movement of travellers and goods across Australia's border, managing the stay in Australia and in some cases departure from Australia of non-citizens is valuable and therefore attracts a heightened integrity risk. While some of these functions will be exclusively undertaken by the part of the Department known as the ABF, others will be delivered or supported by other parts of the Department.

Additionally, immigration and border protection workers will, where relevant to the performance of their duties, have access to sensitive information and engage in close working relationships with other law enforcement agencies. The consequences of any corruption in the Department, including in the part of the department known as the ABF, would pose a significant threat to the integrity of the border and Australia's national security.

It is therefore important to ensure the ACLEI's unhindered ability to investigate suspected law enforcement related corrupt activity across the Department regardless of the role, location or job title of an individual officer. Provisions in this Schedule will extend ACLEI's jurisdiction to the Department, which is considered to be an important step in establishing a robust professional integrity system.

The Bill also amends the Customs Act and other Commonwealth Acts to update terminology to reflect the abolition of the ACBPS.

Financial impact statement

The financial impact of the amendments in this Bill is low.

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