Analysis of Border Force Bill by Combined Refugee Action Group March 2015

Analysis 

by Combined Refugee Action Group

March 2015

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  • Border Force Bill
    
    
    Section 9 gives The Australian Border Force Commissioner control of the operations of the Australian Border Force, responsible only to the Minister for Immigration.
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    Section 10 gives the Australian Border Force Commissioner power to do all things necessary or “convenient” to be done for, or in connection with, the performance of his or her duties. This is easily open to abuse of power.
    
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    Section 13 states that the Border Force Commission must make and subscribe to an oath, but there is no detail on what that oath will entail. There is no information on what the Commissioner will be bound to by the oath.
    
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    Section 23 allows the Minister to give directions to the Border Force Commission about policies that should be pursued, or priorities that should be followed, in relation to the operations of the Australian Border Force. The Minister does not have to declare these directions to the House of the Parliament until 15 sitting days after the direction has been given. This gives the Minister far too much power and removes his accountability to the Parliament, by allowing him to act ahead of its approval.
    
    Section 24 allows the Border Force Commission to request that staff, including people who work for agencies under the public service definition; people who work for State and Territory Government Departments; people who work for foreign governments; and people who work for public international organisations, to make and subscribe to an oath. Again, there is no detail about what that oath will entail. Oaths or affirmations by Immigration and Border Protection workers
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    Section 25 states that the Immigration and Border Protection workers must, in performing functions or exercising powers under a delegation, comply with any written directions of the Australian Border Force Commissioner and the Border Force Secretary. Therefore, there is no provision for Immigration and Border Protection staff to refuse to comply with directions if they conflict with conscience. Further to this, the Bill states that the provision of the Fair Work Act 2009 dealing with unfair dismissal, will not apply to members of the Australian Public Service in some circumstances.
    
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    Section 26 states that the Australian Border Force Commissioner may, by writing, give directions to people who work for agencies under the public service definition; people who work for State or Territory Government Departments; people who work for foreign governments; people who work for public international organisations; consultants and contract workers; people who work for companies which are subcontracted to provide services. These directions must be followed.
    While certain workers will be compelled to give information, answer questions or produce documents which may incriminate them or others or expose them to penalties, the information, answers or document will not be admissible as evidence in legal proceedings.
    

  
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    Section 36 and 40 state that if a person is killed or seriously injured in an incident in which a staff member is under the influence of drugs or alcohol, the worker will be required to be subjected to testing. However, the results of the test will not be admissible in any proceedings, and the Secretary will decide if they continue in their duties or if their employment is terminated. This applies to death or injury caused by use of force or firearms or in operations with vessels or vehicles.
    
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    An entire ‘Part’ is entitled, “Secrecy”. Section 41 and 42 say that the disclosure of protected information will carry a penalty of two years imprisonment, unless the information has been requested by a tribunal or court.
    Therefore, whistle blowers will be subject to two years imprisonment. No information will ever be requested by a court or tribunal if no-one is permitted to report problems in the first place.
    
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    Section 52 gives the Secretary or the Australian Border Force Commissioner power to terminate the engagement of a person as a consultant or contractor if the person fails to comply with a direction under the legislation. Consultants or contractors will not be permitted to act according to conscience.
    
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    Section 58 gives the Minister power to make rules prescribing the carrying out of the Act wherever required, necessary or “convenient”. This gives the Minister far too much power.
    
    
    Good Order in Detention Centres Bill
    

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    The Bill allows an authorised officer to use whatever force he/ she reasonably believes is necessary to not only protect the life, health and safety of any person, but to “maintain the good order, peace or security of an immigration detention facility”. It also allows authorised officers to use whatever force they decide is necessary to prevent action which “disturbs the good order, peace and security of the facility”. There is no definition of what “good order”, “peace” or “security” mean. A measure of “reasonably believed to be necessary” for the amount of force allowed, is far too subjective. This bill allows for force to be used against detainees who are protesting.
    
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    It gives permission for an authorised officer to undertake actions which are likely to cause grievous bodily harm if the authorised officer reasonably believes that action is necessary to protect life or prevent serious injury to another person (including the authorised officer). Absurdly, it effectively allows an officer to take the life of, or seriously harm, a detainee in the interests of protecting that detainee from trying to take their own life or harm themselves
    
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    No proceedings may be instituted or continued in any court against the Commonwealth in relation to an exercise of the above powers if it was “exercised in good faith”. This is “despite anything else in this Act or any other law”. This is complete removal of natural justice and makes authorised officers above the law.
    
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    The Bill also says that an authorised officer must not “subject a person to greater indignity than the authorised officer reasonably believes is necessary in the circumstances.” The Bill effectively states that subjecting people to indignity is a given.
    

  
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    Under this Bill, the Minister alone will be allowed to determine the training and qualification requirements for authorised officers. They are not listed in the Bill.
    
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    While detainees will have opportunity to lodge a complaint about their treatment in detention facilities, the investigation will be “conducted in any way the Secretary thinks appropriate.”, or not at all. The Secretary may decide not to investigate if he/she believes that the complaint is “frivolous, vexatious, misconceived, lacking in substance or is not made in good faith”; or “not justified in the circumstances.” In other words, complaints can be made but will most likely never be investigated due to ‘loopholes’ in the legislation.
    
    
    Biometrics Bill
    
    
    
    This Bill makes adjustments and repeals to the Migration Act to allow the extended use of biometric data (finger prints, iris scans, voice recordings, photographs, signatures etc) to determine identity at Australia’s borders. While it appears that the Bill’s intention is to increase the likelihood that known criminals and terrorists are prevented from entering Australia, we are concerned that the increased emphasis on biometric data may lead to people being refused entry if it is not possible to source baseline data to compare to data collected on arrival. 
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