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Australian Border Force Bill 2015

Part 2 Australian Border Force Commissioner

Division 1 Simplified outline of this Part

8   Simplified outline of this Part

•      There is to be an Australian Border Force Commissioner of the Australian Border Force.

•      The Australian Border Force Commissioner has 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 is also known as the Comptroller-General of Customs.

•      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.

Division 2 Office and role of the Australian Border Force Commissioner

9   Establishment

             (1)  There is to be an Australian Border Force Commissioner of the Australian Border Force.

Note:          Many Commonwealth laws confer functions and powers on the Australian Border Force Commissioner.

             (2)  The Australian Border Force Commissioner has, under the Minister, the control of the operations of the Australian Border Force.

10   Powers of Australian Border Force Commissioner

                   The Australian Border Force Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties.

Division 3 Appointment of the Australian Border Force Commissioner

11   Appointment

             (1)  The Australian Border Force Commissioner is to be appointed by the Governor-General by written instrument.

             (2)  The Australian Border Force Commissioner is to be appointed on a full-time basis.

Comptroller-General of Customs

             (3)  While a person holds office as the Australian Border Force Commissioner the person is also the Comptroller-General of Customs.

Note:          Many Commonwealth laws confer functions and powers on the Comptroller-General of Customs.

12   Term of appointment

                   The Australian Border Force Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note:          The Australian Border Force Commissioner may be reappointed: see section 33AA of the Acts Interpretation Act 1901 .

13   Oath or affirmation by Australian Border Force Commissioner

             (1)  The Australian Border Force Commissioner must, before beginning to discharge the duties of his or her office, make and subscribe an oath or affirmation in accordance with the form prescribed by the rules for the purposes of this subsection.

             (2)  The Australian Border Force Commissioner must make and subscribe the oath or affirmation before the Minister.

Compliance

             (3)  The Australian Border Force Commissioner must not engage in conduct that is inconsistent with an oath or affirmation he or she has made and subscribed under this section.

14   Acting Australian Border Force Commissioner

             (1)  The Minister may, by written instrument, appoint a person to act as the Australian Border Force Commissioner:

                     (a)  during a vacancy in the office of the Australian Border Force Commissioner (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Australian Border Force Commissioner:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Note:          Sections 33AB and 33A of the Acts Interpretation Act 1901 have rules that apply to acting appointments.

Comptroller-General of Customs

             (2)  A person appointed to act as the Australian Border Force Commissioner is taken, while the person is so acting, to also be the Comptroller-General of Customs.

15   Application of finance law

                   For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013 ), the Australian Border Force Commissioner (including in his or her capacity as the Comptroller-General of Customs) is an official of the Department.

Division 4 Terms and conditions for the Australian Border Force Commissioner

16   Remuneration and allowances

             (1)  The Australian Border Force Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, he or she is to be paid the remuneration that is prescribed by the rules.

             (2)  The Australian Border Force Commissioner is to be paid the allowances that are prescribed by the rules.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

17   Leave of absence

             (1)  The Australian Border Force Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Australian Border Force Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

18   Outside work

                   The Australian Border Force Commissionermust not engage in paid work outside the duties of his or her office without the Minister’s approval.

19   Disclosure of interests

             (1)  The Australian Border Force Commissioner must give written notice to the Minister of any direct or indirect pecuniary interest that the Commissioner has or acquires and that conflicts or could conflict with the proper performance of the Commissioner’s functions.

             (2)  Subsection (1) applies in addition to section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests).

20   Resignation of appointment

             (1)  The Australian Border Force Commissioner may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

21   Suspension or termination of appointment

             (1)  The Governor-General may suspend or terminate the appointment of the Australian Border Force Commissioner:

                     (a)  for misbehaviour; or

                     (b)  if the Commissioner is unable to perform the duties of his or her office because of physical or mental incapacity.

             (2)  The Governor-General may suspend or terminate the appointment of the Australian Border Force Commissioner if:

                     (a)  the Commissioner:

                              (i)  becomes bankrupt; or

                             (ii)  takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with one or more of his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or

                     (b)  the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the Commissioner engages in conduct that is inconsistent with an oath or affirmation he or she made and subscribed under section 13; or

                     (d)  the Commissioner engages, except with the Minister’s approval, in paid work outside the duties of his or her office (see section 18); or

                     (e)  the Commissioner fails, without reasonable excuse, to comply with:

                              (i)  section 19; or

                             (ii)  section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made under that Act for the purposes of that section; or

                      (f)  the Commissioner fails, without reasonable excuse, to comply with a direction under section 23.

             (3)  The suspension of the appointment of the Australian Border Force Commissioner under this section does not affect any entitlement of the Commissioner to be paid remuneration, and allowances, in accordance with this Act.

Statement in Parliament

             (4)  If the Governor-General suspends or terminates the appointment of the Australian Border Force Commissioner, the Minister must cause a statement of the grounds of the suspension or termination to be laid before each House of the Parliament within 7 sitting days of that House after the suspension or termination.

22   Other terms and conditions

                   The Australian Border Force Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

Division 5 Ministerial directions

23   Minister may give directions to Australian Border Force Commissioner

             (1)  The Minister may, after obtaining and considering the advice of the Australian Border Force Commissioner and the Secretary, give written directions to the Australian Border Force Commissioner about policies that should be pursued, or priorities that should be followed, in relation to the operations of the Australian Border Force.

             (2)  If the Minister gives a direction under subsection (1), the Minister must cause a copy of the direction to be laid before each House of the Parliament within 15 sitting days of that House after giving the direction.

             (3)  The Australian Border Force Commissioner must comply with all directions under subsection (1).

             (4)  A direction under subsection (1) is not a legislative instrument.

Division 6 Oaths or affirmations by Immigration and Border Protection workers

24   Oaths or affirmations by Immigration and Border Protection workers

             (1)  The Australian Border Force Commissioner may request the following persons to make and subscribe an oath or affirmation in accordance with the form prescribed by the rules for the purposes of this subsection:

                     (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) or (d) of that definition and whose services are made available to, or who is performing services for, the Australian Border Force.

             (2)  A person must make and subscribe the oath or affirmation before the Australian Border Force Commissioner or a person authorised by the Commissioner.

Compliance

             (3)  An Immigration and Border Protection worker who has made and subscribed an oath or affirmation under this section must not engage in conduct that is inconsistent with the oath or affirmation.

Note:          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 (3) of this section.

             (4)  Subsection (3) extends to an Immigration and Border Protection worker who has made and subscribed an oath or affirmation under this section but who is no longer a person mentioned in paragraph (1)(a) or (b).

Division 7 Delegation and directions

25   Delegation

             (1)  The Australian Border Force Commissioner may, by writing, delegate any of his or her functions or powers under a law of the Commonwealth to the following:

                     (a)  the Secretary;

                     (b)  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;

                     (c)  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.

             (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).

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 Australian Border Force Commissioner.

Subdelegation by Secretary

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

             (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 Secretary.

             (6)  The Secretary 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 Australian Border Force Commissioner.

26   Directions—administration and control of the operations of the Australian Border Force

             (1)  The Australian Border Force Commissioner may, by writing, give directions to the following persons in connection with the administration and control of the operations of the Australian Border Force:

                     (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.

Essential qualifications

             (2)  Without limiting subsection (1), directions under that subsection may relate to the essential qualifications for persons mentioned in paragraph (1)(a) or (b) 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.

Reporting of serious misconduct or criminal activity

             (4)  Without limiting subsection (1), directions under that subsection may relate to the reporting by persons mentioned in paragraph (1)(a) or (b) of the following:

                     (a)  serious misconduct by such a person;

                     (b)  criminal activity involving such a person;

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

Compliance with directions

             (5)  A person mentioned in paragraph (1)(a) or (b) 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 (5) 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 (5) of this section.

Directions are not legislative instruments

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

No limit on other powers to give directions

             (7)  This section does not limit any other power of the Australian Border Force Commissioner to give directions to any person.

Self-incrimination

             (8)  If a person mentioned in paragraph (1)(a) or (b) is required by a direction of the kind mentioned in subsection (4) to give information, answer a question or produce a document, the person 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 person or expose the person to a penalty.

             (9)  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 person in any proceedings.

           (10)  Subsection (9) has effect subject to section 40.

27   Directions—performance of functions or exercise of powers under laws of the Commonwealth

             (1)  The Australian Border Force Commissioner may, by writing, give directions to the following persons in relation to the performance of functions, or the exercise of powers, by those persons under a law of the Commonwealth:

                     (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.

             (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.

Compliance with directions

             (3)  A person mentioned in paragraph (1)(a) or (b) 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 (3) 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 (3) of this section.

Directions are not legislative instruments

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

No limit on other powers to give directions

             (5)  This section does not limit any other power of the Australian Border Force Commissioner to give directions to any person.