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Australian Border Force Bill 2015

Part 1 Preliminary

   

1   Short title

                   This Act may be cited as the Australian Border Force Act 2015 .

2   Commencement

                   This Act commences on 1 July 2015.

3   Simplified outline of this Act

•      There is an Australian Border Force within the Department.

•      There is to be an Australian Border Force Commissioner of the Australian Border Force, who is to have the control of the operations of the Australian Border Force.

•      The Australian Border Force Commissioner and APS employees in the Australian Border Force are able to exercise powers under the Customs Act 1901 , the Migration Act 1958 , the Maritime Powers Act 2013 and other Commonwealth laws.

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

•      There are resignation and termination provisions that apply to all APS employees in the Department in circumstances involving serious misconduct.

•      All Immigration and Border Protection workers may be required to undergo an alcohol screening test, an alcohol breath test, an alcohol blood test or a prohibited drug test.

•      There are secrecy and disclosure provisions covering information obtained by the Secretary, the Australian Border Force Commissioner and Immigration and Border Protection workers.

•      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.

4   Definitions

             (1)  In this Act:

alcohol blood test means a test of a person’s blood to determine the amount of alcohol (if any) in the person’s blood.

alcohol breath test means a test of a person’s breath to determine the amount of alcohol (if any) in the person’s blood.

alcohol screening test means a test of a person’s breath to determine whether alcohol is present in the person’s breath.

Australian Border Force means that part of the Department known as the Australian Border Force.

Note:          Immigration and Border Protection workers may perform work for the Australian Border Force. The Australian Border Force Commissioner has the control of the operations of the Australian Border Force.

Australian Border Force Commissioner means the Australian Border Force Commissioner of the Australian Border Force.

authorised person means:

                     (a)  the Secretary; or

                     (b)  the Australian Border Force Commissioner; or

                     (c)  an Immigration and Border Protection worker who is authorised in an instrument under subsection (2).

body sample means any of the following:

                     (a)  any human biological fluid;

                     (b)  any human biological tissue (whether alive or otherwise);

                     (c)  any human breath.

corrupt conduct : see engages in corrupt conduct .

engages in corrupt conduct : an Immigration and Border Protection worker engages in corrupt conduct if the worker, while an Immigration and Border Protection worker, engages in:

                     (a)  conduct that:

                              (i)  involves; or

                             (ii)  is engaged in for the purpose (or for purposes including the purpose) of;

                            the worker abusing his or her position as an Immigration and Border Protection worker; or

                     (b)  conduct that:

                              (i)  perverts; or

                             (ii)  is engaged in for the purpose (or for purposes including the purpose) of perverting;

                            the course of justice; or

                     (c)  conduct that, having regard to the duties and powers of the worker as an Immigration and Border Protection worker:

                              (i)  involves; or

                             (ii)  is engaged in for the purpose (or for purposes including the purpose) of;

                            corruption of any other kind.

entrusted person means:

                     (a)  the Secretary; or

                     (b)  the Australian Border Force Commissioner (including in his or her capacity as the Comptroller-General of Customs); or

                     (c)  an Immigration and Border Protection worker.

Immigration and Border Protection worker means:

                     (a)  an APS employee in the Department; or

                     (b)  a person covered by paragraph (d), (e) or (f) of the definition of officer of Customs in subsection 4(1) of the Customs Act 1901 ; or

                     (c)  a person covered by paragraph (f) or (g) of the definition of officer in subsection 5(1) of the Migration Act 1958 ; or

                     (d)  a person who is:

                              (i)  an employee of an Agency (within the meaning of the Public Service Act 1999 ); or

                             (ii)  an officer or employee of a State or Territory; or

                            (iii)  an officer or employee of an agency or authority of the Commonwealth, a State or a Territory; or

                            (iv)  an officer or employee of the government of a foreign country, an officer or employee of an agency or authority of a foreign country or an officer or employee of a public international organisation;

                            and whose services are made available to the Department; or

                     (e)  a person who is:

                              (i)  engaged as a consultant or contractor to perform services for the Department; and

                             (ii)  specified in a determination under subsection 5(1); or

                      (f)  a person who is:

                              (i)  engaged or employed by a person to whom paragraph (e) or this paragraph applies; and

                             (ii)  performing services for the Department in connection with that engagement or employment; and

                            (iii)  specified in a determination under subsection 5(2).

paid work means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

personal information has the same meaning as in the Privacy Act 1988 .

prohibited drug means:

                     (a)  a narcotic substance (within the meaning of the Customs Act 1901 ); or

                     (b)  any drug prescribed in an instrument under subsection (3).

prohibited drug test means a test of a body sample of a person to determine the presence (if any) of a prohibited drug in the sample.

protected information means information that was obtained by a person in the person’s capacity as an entrusted person.

Note:          See also subsection (4).

public international organisation has the meaning given by section 70.1 of the Criminal Code .

rules means the rules made under section 58.

Secretary means the Secretary of the Department.

serious misconduct , by an Immigration and Border Protection worker, means:

                     (a)  corrupt conduct engaged in, a serious abuse of power, or a serious dereliction of duty, by the worker; or

                     (b)  any other seriously reprehensible act or behaviour by the worker, whether or not acting, or purporting to act, in the course of his or her duties as an Immigration and Border Protection worker.

unauthorised maritime arrival has the same meaning as in the Migration Act 1958 .

Authorised person instrument

             (2)  The Secretary or the Australian Border Force Commissioner may, by writing, authorise an Immigration and Border Protection worker for the purposes of paragraph (c) of the definition of authorised person in subsection (1).

Prohibited drug instrument

             (3)  The Secretary or the Australian Border Force Commissioner may, by legislative instrument, prescribe drugs for the purposes of paragraph (b) of the definition of prohibited drug in subsection (1).

Protected information

             (4)  Without limiting the definition of protected information in subsection (1), information obtained by an entrusted person in the course of performing duties, or in performing functions or exercising powers, under a law of the Commonwealth:

                     (a)  as an officer of Customs, or an authorised officer, within the meaning of the Customs Act 1901 ; or

                     (b)  as an officer, or an authorised officer, within the meaning of the Migration Act 1958 ; or

                     (c)  as a maritime officer within the meaning of the Maritime Powers Act 2013 ; or

                     (d)  as a delegate of someone else; or

                     (e)  in any other capacity;

is taken to be information obtained by the person in the person’s capacity as an entrusted person.

5   Consultants and contractors etc.

Consultants and contractors

             (1)  The Secretary or the Australian Border Force Commissioner may, by written determination, specify a person for the purposes of subparagraph (e)(ii) of the definition of Immigration and Border Protection worker in subsection 4(1).

Other persons

             (2)  The Secretary or the Australian Border Force Commissioner may, by written determination, specify a person for the purposes of subparagraph (f)(iii) of the definition of Immigration and Border Protection worker in subsection 4(1).

Determinations are not legislative instruments

             (3)  A determination under this section is not a legislative instrument.

6   Act binds the Crown

                   This Act binds the Crown in each of its capacities.

7   Extraterritorial application

                   This Act extends to acts, omissions, matters and things outside Australia.