Second Reading Speech
Mr Dutton (Minister for Immigration and Border Protection)I move:
That this bill be now read a second time.
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 IAB, which deals with 'controlled operations', and part IAC, 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 IAB 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 IAC 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 everyday 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 focuses 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 judgements, 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.
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 21st century as we deal with increased 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 House.