AUSTRALIAN BORDER FORCE ACT

On 14 May 2015, the Australian Border Force Act 2015 (Cth) (the Act) was passed with bipartisan support. The Act represents a significant change in the way Australia’s territorial borders are policed. It has been the subject of significant public commentary, particularly from the medical profession.

The Act

The Act does three things.

        1.    Establishes the Australian Border Force

The Act merges Australia’s Customs and Border Protection Service with elements of the Department of Immigration and Border Protection to form the Australian Border Force (ABF). Under the Act, the ABF is charged with enforcing customs and immigration laws, managing detention centres, and protecting Australia’s borders. The Act also creates the office of the ABF Commissioner, a statutory officer who oversees the ABF’s actions and is directly accountable for those operations to the Minister for Immigration and Border Protection.  

2.    Delegates power to the Minister

The Act delegates extensive power to the Minister, who may give written directions to the ABF Commissioner about policies to pursue or priorities to follow in relation to the ABF’s operations. The ABF Commissioner must comply with the Minister’s directions. The only check on ministerial discretion is a requirement that the Minister present the direction to both Houses of Parliament within 15 days’ of issue.

3.    Regulates ABF staff and creates secrecy and disclosure provisions

The Act sets out the terms of ABF staff employment (including authorising alcohol and drug tests of ABF workers) and applies equally to ABF members performing duties aboard Customs vessels as on land.

The Act also contains a number of “integrity provisions”, the stated purpose of which is to “increase resistance to criminal infiltration and corruption”. These provisions include the imposition of criminal liability on employees, former employees, contractors and consultants of the Department of Immigration and Border Protection who disclose any “protected information” in connection with detention centres. "Protected information" is defined broadly as any information learned by the individual while engaging in their departmental work. The offence is punishable by up to two years in prison.

There are exceptions to this provision, for example, where disclosure of protected information is necessary to prevent risks to the life or safety of an individual. However, the burden of proof that an exception applies lies with the whistleblower.

The response

The Australian Medical Students Association has voiced its opposition to the Act, objecting to the limits placed on healthcare workers’ ability to speak openly about patients they treat in Australian detention centres.

An open letter from a group of senior Australian health professionals was also critical of the criminal liability imposed on ABF workers who speak out, stating that:

“we have advocated, and will continue to advocate, for the health of those for whom we have a duty of care, despite the threats of imprisonment, because standing by and watching sub-standard and harmful care, child abuse and gross violations of human rights is not ethically justifiable.”

In response, both the Minister Peter Dutton and Shadow Minister Richard Marles have said that ABF workers can still raise concerns freely under the Public Interest Disclosure Act 2013 (Cth).

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Last updated 5 August 2015