House of Representatives

Explanatory Memorandum

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

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

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

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The Customs and Other Legislation Amendment (Australian Border Force) Bill 2015 will repeal the Customs Administration Act 1985 (Customs Administration Act) and make amendments to the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act), the Work, Health and Safety Act 2011 (WH & S Act) and technical amendments to a range of other Commonwealth Acts that reference the Australian Customs and Border Protection Service (ACBPS), the Chief Executive Officer of Customs (the CEO) and "Customs". The purpose of these amendments is to reflect the new organisational arrangements that follow the Government decision to integrate the ACBPS and the Department of Immigration and Border Protection (the Department) into a single Department of State, including the framework for the Australian Border Force (ABF), a single frontline operational border control and enforcement entity within the Department.

A separate Bill, the Australian Border Force Bill (ABF Bill) will also be introduced to provide the legislative framework for the ABF within the Department from 1 July 2015. Since the Customs and Other Legislation Amendment (Australian Border Force) Bill 2015 repeals the Customs Administration Act, which applies certain measures to workers in the ACBPS, the ABF Bill will establish the office of the ABF Commissioner and apply relevant measures for the management of the workforce in the integrated department. The human rights implications of those measures are addressed in the Statement of Compatibility for the ABF Bill.

Overview of the Bill

The following measures in the Bill engage human rights:

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Amend the WH & S Act - provisions under section 12C "act not to prejudice national security" to enable the ABF Commissioner, in consultation with the Secretary of the Department and Director-General of Security and with approval of the Minister responsible for the WH & S Act, to make a declaration that specified provisions of the WH & S Act do not apply, or apply subject to modification in relation to an ABF worker.

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Amend the WH & S Act - provisions under section 12D "act not to prejudice Australia's defence" to enable the ABF Commissioner, in consultation with the Secretary, the Chief of the Defence Force and with approval of the Minister responsible for the WH & S Act, to make a declaration that provisions of the WH & S Act do not apply, or apply subject to modification in regards to an ABF worker in relation to specified operations or a specified operation of the ABF, or a specified ABF worker, or ABF workers included in a specified class of such workers.

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Prescribe the Department as law enforcement agency under the LEIC Act, allowing the Australian Commission for Law Enforcement Integrity (the ACLEI) to investigate suspected law enforcement related corrupt activity on a whole of agency basis.

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The human rights implications of these measures are outlined below. The remainder of the measures in this Bill are technical in nature and do not engage human rights.

Human rights implications

Amendments to the WH & S Act

The WH & S Act imposes duties on persons conducting a business or 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.

Section 12C of the WH & S Act already provides that nothing in that Act requires or permits a person to take any action or refrain from taking any action that would be, or could reasonably be expected to be prejudicial to national security.

Similarly, section 12D of the WH & S Act already provides that nothing in that Act requires or permits a person to take any action or refrain from taking any action that would be, or could reasonably be expected to be, prejudicial to Australia's defence.

These are long standing components of work health and safety obligations in Australia, and identical provision existed in the predecessor to the WH & S Act, the Occupational Health and Safety Act 1991.

Currently sections 12C and 12D of the WH & S Act do not provide that the ABF Commissioner is able to make a declaration that specified provisions of the WH & S Act do not apply, or apply subject to modifications or adaptations set out in the declaration, in relation to persons carrying out work for him or her. If this were not to be rectified, it could result in legal uncertainty around the application of sections 12C and 12D and the status of duties and obligations that apply to the ABF workers who will work under the command and control of the ABF Commissioner, once that role is established by the ABF Bill.

Some ABF workers will be required to be deployed in a number of unique and high risk environments that are necessary for Australia's national security and defence. Given this, it is critical these workers can be confident they are able to perform the tasks required of them in the protection of Australia's interests. This includes, for example, work undertaken in the maritime security domain, where ABF workers may, at times, be required to exercise time-critical judgements that potentially place at heightened risk their own safety or the safety of others in order to rescue people from a sinking vessel or the water or board a suspected illegal entry vessel that appears to have prohibited cargo on-board. These types of activities will always be conducted by trained officers and with a primary regard to the safety of ABF workers and others in the work environment. However, there may be circumstances in which the actions required to be taken to maintain Australia's national security and/or Australia's defence are incompatible with full compliance with one or more of the duties and obligations under the WH & S Act.

The 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.

These amendments will enable the ABF Commissioner to provide certainty about the way the WH & S Act is to apply in such circumstances. In so doing, the ABF Commissioner will be able to extend to the ABF workforce the same assurance currently provided to certain persons by the Director-General of Security and the Chief of the Defence Force.

This amendment also recognises the broader duties and objectives within the WH & S Act to protect workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work.

The amendments to the WH & S Act contained in the Bill engage Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 7 of the ICESCR provides that State Parties recognise the right of everyone to the enjoyment of just and favourable conditions at work. This right encompasses a number of elements, including safe and healthy work conditions (see Article 7(b)).

While on its face these amendments may appear to restrict the right to safe and healthy work conditions, the amendments are only intended to provide legal clarification to the operation of existing provisions of the WH & S Act to people who will perform work for the ABF Commissioner.

Any potential for these amendments to engage the ICESCR Article 7(b) right to safe and healthy work conditions are considered to be reasonable, necessary and proportionate to the inherent risks associated with measures that are necessary for Australia's national security and Australia's Defence. In making a declaration under section 12C or 12D, the ABF Commissioner must first obtain the approval of the Minister for Employment and there remains an explicit obligation on the Commissioner to take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia's national security and Australia's defence respectively. These requirements mean that a declaration could only be made and be valid where the content of such a declaration is consistent with these requirements in the particular operating context.

Amendments to the LEIC Act

Under the LEIC Act, the ACBPS is currently prescribed as a law enforcement agency. This Bill amends the LEIC Act to extend the jurisdiction of the Law Enforcement Integrity Commissioner to DIBP on a whole of agency basis. This would ensure the Integrity Commissioner'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.

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 ACLEI are empowered to detect and investigate corrupt conduct by using a combination of coercive information gathering and law enforcement powers.

Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence and unlawful attacks on their honour or reputation. The right to privacy may be subject to permissible limitations. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity.

This measure engages the right to privacy because the LEIC Act provides that employees of agencies under ACLEI's jurisdiction, or other individuals with information that is relevant to corruption, can be required to provide information to ACLEI or to answer questions. A failure to provide the information or answer a question is an offence.

As such, this measure impacts the right to privacy of employees as well as other individuals who may have information relevant to corruption matters.

Amendments to the LEIC Act are necessary owing to 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 entry into, stay in Australia, and in some cases departure from Australia of non-citizens places officers in a position of trust and therefore attracts a heightened integrity risk. While some of these functions will be exclusively undertaken by the ABF, others will be delivered or supported by other parts of the Department.

IBP 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 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. The consequence of any corruption in DIBP, including the ABF, would therefore be very significant.

It is therefore important to ensure the ACLEI's unhindered ability to investigate suspected law enforcement related corrupt activity across DIBP regardless of the role, location or job title of an individual officer is necessary as this would include situations where the involvement of employees in non-operational roles is suspected.

The ability to require an individual to provide information or answer questions is limited to situations where it will be relevant to an investigation of a corruption issue or the conduct of a public inquiry into corruption. The LEIC Act also prescribes how information that is provided by individuals to ACLEI is able to be used and disclosed. Disclosure is generally only permitted for the purposes of investigating a corruption issue or other purposes connected with the exercise of the functions of the Integrity Commissioner.

A person's privacy is also protected by the provision of a 'use' immunity in relation to self-incriminatory evidence given by them at a hearing. This means that self-incriminatory evidence is not admissible in evidence against the person in criminal proceedings. The immunity protection does not apply to a small number of offences including providing false and misleading information or obstruction of a Commonwealth official.

As such, although the right to privacy is limited by this measure, it is appropriate and reasonable in the circumstances and includes protections to limit information from inappropriate use or disclosure. The extension of ACLEI's jurisdiction to the Department is considered an important step in establishing a robust professional integrity system.

Conclusion

This Bill is compatible with human rights because it is consistent with Australia's human rights obligations and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.