House of Representatives

Explanatory Memorandum

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

Schedule 9 - Other transitional provisions

782. This Schedule sets out the remaining application and transitional provisions for the Bill.

Item 1 - References to APS employee in Australian Border Force Act

783. This item will put beyond doubt the meaning of the term "APS employee in the Department" in the ABF Bill. Under this provision, it will not matter at what time a person became an APS employee in the Department, such that the ABF Bill will apply to people who were already APS employees in the Department on the day that this item commences i.e. 1 July 2015, which is also the same day time that the ABF Bill commences.

Item 2 - Immigration and Border Protection workers-former Customs workers

784. This item contains provisions to transition people who are Customs workers, within the meaning in the Customs Administration Act, to become Immigration and Border Protection workers within the meaning of the ABF Bill.

785. Under the first provision, any person who is a Customs worker under paragraph (b) of that definition will be taken to be an Immigration and Border Protection worker under paragraph (d) of that definition on and after 1 July 2015. For example, if a person from the Department of Agriculture is seconded to the ACBPS on 30 June 2015, they are a Customs worker as they are covered by paragraph (b) of that definition. On 1 July, they will automatically become by definition an IBP worker as they will be covered by paragraph (d) of that definition. This will mean that all of the provisions of the ABF Bill that apply in relation to an IBP worker (to the extent that they apply to a person covered by paragraph (d)) will apply to that secondee person on and from 1 July 2015.

786. Under the second provision, any person who is a Customs worker under paragraph (c) of that definition will be taken to be an Immigration and Border Protection worker under paragraph (e) of that definition on and after 1 July 2015. For example, if X Company has been engaged and is performing services for the ACBPS on 30 June 2015, they are a Customs worker as they are covered by paragraph (c) of that definition. On 1 July, they will automatically become by definition an IBP worker as they will be covered by paragraph (e) of that definition. This will mean that all of the provisions of the ABF Bill that apply in relation to an IBP worker (to the extent that they apply to a person covered by paragraph (e)) will apply to that person on and from 1 July 2015.

787. Under the third provision, any person who is a Customs worker under paragraph (d) of that definition will be taken to be an Immigration and Border Protection worker under paragraph (f) of that definition on and after 1 July 2015. For example, if X Company has employed John Smith to assist in the contract before 30 June 2015, John Smith is a Customs worker as he is covered by paragraph (d) of that definition. On 1 July, he will automatically become by definition an IBP worker as he will be covered by paragraph (f) of that definition. This will mean that all of the provisions of the ABF Bill that apply in relation to an IBP worker (to the extent that they apply to a person covered by paragraph (f)) will apply to that him on and from 1 July 2015.

Item 3 - Immigration and Border Protection workers-Departmental workers

788. This item complements items 1 and 2 contains provisions to set out transitional provisions in relation to persons who are associated (by particular means) with the Department before 1 July 2015.

789. The effect of the first provision is that a reference in paragraph (d) of the definition of Immigration and Border Protection worker in the ABF Bill to a person whose services are made available to the Department is a reference to a person whose services were made available before, and on or after 1 July. For example, if a person from the Attorney-General's Department is seconded to the Department before 1 July 2015 and they are still in the Department on 1 July 2015, they will automatically become by definition an Immigration and Border Protection worker. This will mean that all of the provisions of the ABF Bill that apply in relation to an Immigration and Border Protection (to the extent that they apply to a person covered by paragraph (d)) will apply to that person on and from 1 July 2015.

790. The effect of the second provision is that a reference to "an engagement" in paragraph (e) of the definition of Immigration and Border Protection worker in the ABF Bill is a reference to an engagement before on or after 1 July 2015. For example, For example, if Y Company has been engaged by the Department before 30 June 2015 and the contract is still in effect on and after 1 July, they will automatically become by definition IBP worker as they will be covered by paragraph (e) of that definition. This will mean that all of the provisions of the ABF Bill that apply in relation to an IBP worker (to the extent that they apply to a person covered by paragraph (e)) will apply to that person on and from 1 July 2015.

791. The effect of the third provision is that a reference to "an engagement or an employment" in paragraph (f) of the definition of Immigration and Border Protection worker in the ABF Bill is a reference to an engagement or employment before on or after 1 July 2015. For example, if Y Company has employed Jane Smith to assist in the contract before 30 June 2015 and he is still so employed on 1 July, he will automatically become by definition IBP worker as she will be covered by paragraph (f) of that definition. This will mean that all of the provisions of the ABF Bill that apply in relation to an IBP worker (to the extent that they apply to a person covered by paragraph (f)) will apply to her on and from 1 July 2015.

Item 4 - Prohibited drugs

792. This item applies in relation to the instrument currently in force under section 16H of the Customs Administration Act. This instrument was made by the CEO for the purposes of the definition of "prohibited drug" in section 3 of the Customs Administration Act. This definition is for the purposes of the drug and alcohol testing regime in the Customs Administration Act, which is to be replicated in Part 5 of the ABF Bill. The instrument specified benzodiazepines and performance and image enhancing drugs (PIEDS) as prohibited drugs.

793. The effect of this item will be that the instrument in force under section 16H will become an instrument in force under section 4(3) of the ABF Bill as if made by the Secretary. The power in this section replicates the power in section 16H. This means that these drugs will be prohibited drugs for the purposes of the new drug and alcohol testing regime in Part 5 of the ABF Bill.

Item 5 - Secrecy - protected information

794. Part 6 of the ABF Bill will include the offence of making a record of or disclosing protected information. Part 6 in effect replicates current section 16 of the Customs Administration Act (section 16), which only applies in relation to the ACBPS. New Part 6 will apply across the integrated Department.

795. The first part of this transitional provision is that Part 6 of the ABF Bill will apply in relation to the making of a record or the disclosure of information on or after 1 July 2015, regardless of whether the information was obtained before, on or after 1 July 2015. Therefore, an APS employee in the current Department who obtains protected information in June 2015 and discloses it otherwise than in accordance with Part 6 on or after 1 July 2015 will be covered by this new offence.

796. The effect of the second part of this transitional provision is that a person who was a person to whom section 16 applied will be taken to be an entrusted person for the purposes of Part 6 of the ABF Bill. For example, this means that a person who was employed in the ACBPS prior to 1 July 2015 and who transfers to the integrated Department on 1 July 2015 will need to comply with Part 6 (and not section 16) on and after 1 July in relation to information they obtained before they became an APS employee in the Department.

797. To complement this provision, the effect of the third part of this transitional provision is that any information that was protected information for the purposes of section 16 before 1 July 2015 is taken on and after 1 July 2015 to be protected information for the purposes of the ABF Bill. This means, for example that this information that was obtained by an ACBPS employee in that capacity must be dealt with in accordance with Part 6 of the ABF Bill and not section 16 on and after 1 July 2015.

Item 6 - Secrecy - agreements

798. Under Part 6 of the ABF Bill, disclosures of protected information may be made to a foreign country, an agency or authority of a foreign country, or a public international organisation, if the Secretary is satisfied that the information will be used in accordance with an agreement with that foreign country, that agency or authority of a foreign country, or that public international organisation (subclause 45(1) of the ABF Bill). This item provides that subsection 45(4) (which specifies the agreements relevant to section 45) applies in relation to agreements entered into before, on or after the commencement of the item i.e. 1 July 2015.

799. Section 45 of the ABF Bill largely replicates subsection 16(3D) of the Customs Administration Act, which currently allows for the disclosure of protected information that will be used in accordance with an agreement entered into by the Commonwealth with a foreign country, an agency or authority of a foreign country, or an international organisation. This item also provides that such agreements in force immediately before the commencement of this item i.e. 1 July 2015, are taken on and after 1 July 2015 to have been an agreement entered into by the Commonwealth and to be an agreement to which subsection 45(4) of the ABF Bill applies.

800. Therefore, the effect of the provisions in this item is that agreements in force on 1 July 2015 can be used to ground the disclosure of protected information to foreign countries or bodies on and after 1 July 2015, and that it will not be necessary to enter into new agreements after 1 July for this purpose.

Item 7 - Officer of Customs

801. The effect of this item is that anything done under a law of the Commonwealth by an officer of Customs under the current definition of that term in the Customs Act before 1 July 2015 is taken to have been done by an officer of Customs under the new definition in the Customs Act. The current definition will be repealed and substituted by Schedule 1 to this Bill and this provision will ensure that anything done by an officer of Customs before the repeal and substitution is not affected by it.

Item 8 - Transitional - legal proceedings involving the CEO

802. The effect of this item is that where the CEO was a party to any proceedings pending in a court or Tribunal immediately before 1 July 2015, the Comptroller-General of Customs will be substituted as a party on and after 1 July. Therefore, any such proceedings are unaffected by the abolition of the statutory office of CEO.

Item 9 - Transitional rules

803. This item inserts a head of power for the Minister to make rules prescribing matters of a transitional matter relating to amendments to, or repeals of, Acts made by the Bill or the enactment of this Bill or the ABF Bill. This is the standard transitional rules provision.