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Australian Border Force Bill 2015

Part 7 Other matters

   

52   Simplified outline of this Part

•      The Secretary and the Comptroller-General of Customs can delegate their functions or powers under a law of the Commonwealth.

•      The Secretary may give directions to Immigration and Border Protection workers to do with the administration and control of the Department or the performance of functions or exercise of powers by such workers under a law of the Commonwealth.

•      The Secretary or the Australian Border Force Commissioner may terminate the engagement of a person as a consultant or contractor if the person fails to comply with a direction under this Act.

•      The Minister may make rules for the purposes of this Act.

53   Delegation by Secretary

             (1)  The Secretary may, by writing, delegate any of his or her functions or powers under a law of the Commonwealth to:

                     (a)  the Australian Border Force Commissioner; or

                     (b)  an Immigration and Border Protection worker.

             (2)  However, subsection (1) does not apply in relation to:

                     (a)  section 30 (resignation in anticipation of termination of employment); or

                     (b)  section 32 (termination of employment for serious misconduct); or

                     (c)  the Migration Act 1958 or an instrument under that Act.

Note:          Section 496 of the Migration Act 1958 deals with delegation by the Secretary of his or her powers under that Act.

Directions to delegates

             (3)  An Immigration and Border Protection worker must, in performing functions or exercising powers under a delegation under subsection (1), comply with any written directions of the Secretary.

Subdelegation by Australian Border Force Commissioner

             (4)  If the Australian Border Force Commissioner is delegated functions or powers under subsection (1), the Commissioner may, by writing, delegate any of those functions or powers to the following:

                     (a)  a person who is covered by paragraph (a) of the definition of Immigration and Border Protection worker in subsection 4(1) and who is in the Australian Border Force;

                     (b)  a person who is covered by paragraph (b), (c), (d), (e) or (f) of that definition and whose services are made available to, or who is performing services for, the Australian Border Force.

             (5)  An Immigration and Border Protection worker must, in performing functions or exercising powers under a delegation under subsection (4), comply with any written directions of the Australian Border Force Commissioner.

             (6)  The Australian Border Force Commissioner must not give directions under subsection (5) in relation to particular functions or powers that are inconsistent with any directions given under subsection (3) in relation to those functions or powers.

             (7)  A function that is performed or a power that is exercised by an Immigration and Border Protection worker under a delegation under subsection (4) is taken, for the purposes of the law referred to in subsection (1), to have been performed or exercised by the Secretary.

54   Delegation by Comptroller-General of Customs

             (1)  The Comptroller-General of Customs may, by writing, delegate any of his or her functions or powers under a law of the Commonwealth to:

                     (a)  the Secretary; or

                     (b)  an Immigration and Border Protection worker.

Directions to delegates

             (2)  An Immigration and Border Protection worker must, in performing functions or exercising powers under a delegation under subsection (1), comply with any written directions of the Comptroller-General of Customs.

Subdelegation by Secretary

             (3)  If the Secretary is delegated functions or powers under subsection (1), the Secretary may, by writing, delegate any of those functions or powers to an Immigration and Border Protection worker.

             (4)  An Immigration and Border Protection worker must, in performing functions or exercising powers under a delegation under subsection (3), comply with any written directions of the Secretary.

             (5)  The Secretary must not give directions under subsection (4) in relation to particular functions or powers that are inconsistent with any directions given under subsection (2) in relation to those functions or powers.

             (6)  A function that is performed or a power that is exercised by an Immigration and Border Protection worker under a delegation under subsection (3) is taken, for the purposes of the law referred to in subsection (1), to have been performed or exercised by the Comptroller-General of Customs.

55   Directions by Secretary—administration and control of the Department

             (1)  The Secretary may, by writing, give directions to Immigration and Border Protection workers in connection with the administration and control of the Department.

Essential qualifications

             (2)  Without limiting subsection (1), directions under that subsection may relate to the essential qualifications for Immigration and Border Protection workers for performing their duties.

Note 1:       See section 23 of the Public Service Act 1999 for the reduction in the classification of an APS employee in the Department if the employee lacks, or has lost, an essential qualification for performing his or her duties.

Note 2:       See section 29 of the Public Service Act 1999 for the termination of the employment of an APS employee in the Department if the employee lacks, or has lost, an essential qualification for performing his or her duties.

             (3)  Without limiting subsection (2), essential qualifications may have one or more of the following components:

                     (a)  physical or psychological health or fitness;

                     (b)  professional or technical qualifications;

                     (c)  learning and development requirements;

                     (d)  security clearances.

Organisational suitability assessments

             (4)  Without limiting subsection (1), directions under that subsection may relate to organisational suitability assessments.

Reporting of serious misconduct or criminal activity

             (5)  Without limiting subsection (1), directions under that subsection may relate to the reporting by Immigration and Border Protection workers of the following:

                     (a)  serious misconduct by such a worker;

                     (b)  criminal activity involving such a worker;

where the serious misconduct or criminal activity affects, or is likely to affect, the operations, responsibilities or reputation of the Department.

Relationship with directions under section 26

             (6)  A direction under this section prevails over a direction under section 26 to the extent of any inconsistency.

Compliance with directions

             (7)  An Immigration and Border Protection worker must comply with a direction under this section.

Note 1:       See subsection 13(4) and sections 15, 28 and 29 of the Public Service Act 1999 for the consequences of an APS employee in the Department not complying with subsection (7) of this section.

Note 2:       See section 57 of this Act for the termination of a person’s engagement as a consultant or contractor, or for the arranging of a person to cease to perform services for the Department, if the person does not comply with subsection (7) of this section.

Directions are not legislative instruments

             (8)  A direction under this section is not a legislative instrument.

No limit on other powers to give directions

             (9)  This section does not limit any other power of the Secretary to give directions to any person.

Self-incrimination

           (10)  If an Immigration and Border Protection worker is required by a direction of the kind mentioned in subsection (5) to give information, answer a question or produce a document, the worker is not excused from:

                     (a)  giving the information; or

                     (b)  answering the question; or

                     (c)  producing the document;

on the ground that the information, the answer to the question or the production of the document might tend to incriminate the worker or expose the worker to a penalty.

           (11)  However:

                     (a)  the information given, the answer given or the document produced; or

                     (b)  giving the information, answering the question or producing the document;

is not admissible in evidence against the worker in any proceedings.

           (12)  Subsection (11) has effect subject to section 40.

56   Directions by Secretary—performance of functions or exercise of powers under laws of the Commonwealth

             (1)  The Secretary may, by writing, give directions to Immigration and Border Protection workers in relation to the performance of functions, or the exercise of powers, by those workers under a law of the Commonwealth.

             (2)  However, subsection (1) does not apply in relation to the Migration Act 1958 .

Note:          Section 499 of the Migration Act 1958 allows the Minister to give directions to a person or body about the performance of functions or the exercise of powers under that Act.

Relationship with directions under section 27

             (3)  A direction under this section prevails over a direction under section 27 to the extent of any inconsistency.

Compliance with directions

             (4)  An Immigration and Border Protection worker must comply with a direction under this section.

Note 1:       See subsection 13(4) and sections 15, 28 and 29 of the Public Service Act 1999 for the consequences of an APS employee in the Department not complying with subsection (4) of this section.

Note 2:       See section 57 of this Act for the termination of a person’s engagement as a consultant or contractor, or for the arranging of a person to cease to perform services for the Department, if the person does not comply with subsection (4) of this section.

Directions are not legislative instruments

             (5)  A direction under this section is not a legislative instrument.

No limit on other powers to give directions

             (6)  This section does not limit any other power of the Secretary to give directions to any person.

57   Termination of engagement of consultant or contractor

             (1)  If:

                     (a)  a person is covered by paragraph (e) of the definition of Immigration and Border Protection worker in subsection 4(1); and

                     (b)  the person fails to comply with a direction under section 26, 27, 35, 36, 55 or 56 or subsection (2) of this section or with a requirement under subsection 34(1);

the Secretary or the Australian Border Force Commissioner may terminate the person’s engagement as a consultant or contractor.

             (2)  If:

                     (a)  a person (the affected person ) is covered by paragraph (f) of the definition of Immigration and Border Protection worker in subsection 4(1); and

                     (b)  in connection with that person, paragraph (e) of that definition covers a person (the consultant/contractor ); and

                     (c)  the affected person fails to comply with a direction under section 26, 27, 35, 36, 55 or 56 or with a requirement under subsection 34(1);

the Secretary or the Australian Border Force Commissioner may, by writing, direct the consultant/contractor to arrange for the affected person to cease to perform services for the Department.

             (3)  Subsection (1) does not limit the circumstances in which a person’s engagement as a consultant or contractor may be terminated.

58   Rules

             (1)  The Minister may, by legislative instrument, make rules prescribing matters:

                     (a)  required or permitted by this Act to be prescribed by the rules; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  To avoid doubt, the rules may not do the following:

                     (a)  create an offence or civil penalty;

                     (b)  provide powers of:

                              (i)  arrest or detention; or

                             (ii)  entry, search or seizure;

                     (c)  impose a tax;

                     (d)  set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

                     (e)  amend this Act.

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