Australian Border Force Act 2015

Overview

The Australian Border Force Act 2015 was enacted to establish the Australian Border Force (ABF) within the Department of Home Affairs and to define the roles, powers, and responsibilities of the ABF, including those of the Australian Border Force Commissioner. This Act addresses the need for a consolidated and streamlined approach to border protection, integrating various functions previously managed by different agencies under a unified command. The Australian Border Force Act 2015 was passed by the Australian Parliament, aiming to enhance the efficiency and effectiveness of border-related operations and to provide a clear legal framework for the ABF's operations. The Act outlines the establishment of the ABF, the appointment and powers of the Australian Border Force Commissioner, and the conditions under which ABF personnel can exercise powers under various Commonwealth laws. It also sets forth provisions for the administration, control, and operation of the ABF, including the delegation of powers and the giving of directions to ABF personnel. Furthermore, the Act includes measures for the handling of serious misconduct and the administration of alcohol and drug tests for ABF personnel. It also provides for the secrecy and disclosure of information obtained by ABF personnel, aiming to balance the need for operational secrecy with the requirements of transparency and accountability.

Scope and Application

The Australian Border Force Act 2015 establishes the Australian Border Force (ABF) within the Department of Home Affairs and defines the role of the Australian Border Force Commissioner. The Act applies to all Immigration and Border Protection workers, including Australian Public Service employees, contractors, consultants, and individuals performing services for the Department, such as officers or employees of state or territory governments, Commonwealth agencies, foreign governments, or international organisations. It also extends to acts, omissions, matters, and things outside Australia, thereby having an extraterritorial application. The Act regulates the appointment, powers, and conduct of the Australian Border Force Commissioner, who is also the Comptroller-General of Customs, and governs the administration and control of the ABF operations. It includes provisions for resignation, termination of employment for serious misconduct, alcohol and drug testing, and secrecy and disclosure of information. The Act allows for the Minister to give directions to the Australian Border Force Commissioner and the Secretary, and it mandates compliance with these directions by Immigration and Border Protection workers. Additionally, the Minister has the authority to make rules for the purposes of this Act. The Act extends its reach through subordinate instruments, although these do not amend the text of the compiled law. The legislation is designed to ensure that the ABF operates within the bounds of Commonwealth power and includes mechanisms for the termination of engagement for consultants or contractors who fail to comply with directions under the Act.

Key Provisions

• The Australian Border Force Act 2015 (the Act) is a comprehensive piece of legislation that governs the Australian Border Force, the Australian Border Force Commissioner, and the various personnel involved in border protection activities. The Act establishes the Australian Border Force as a distinct entity within the Department, with the Australian Border Force Commissioner at its helm. This Commissioner is vested with the authority to oversee the operations of the Australian Border Force and to direct the activities of Immigration and Border Protection workers. These workers are defined broadly to include Australian Public Service employees, contractors, and consultants involved in border protection activities. The Act also delineates the powers of the Commissioner, which include the ability to exercise powers under various Commonwealth laws such as the Customs Act 1901, the Migration Act 1958, and the Maritime Powers Act 2013.
• In terms of obligations, the Australian Border Force Commissioner must adhere to a strict code of conduct, including making an oath or affirmation before assuming office and refraining from engaging in conduct inconsistent with that oath or affirmation. The Commissioner's term of office is limited to five years, and the Commissioner can be removed from office for reasons such as misbehaviour, incapacity, bankruptcy, or failure to adhere to the Act's provisions. The Act further provides for the Commissioner's remuneration, leave entitlements, and the prohibition of outside paid work without the Minister's approval.
• Regarding secrecy and disclosure provisions, the Act imposes strict confidentiality requirements on Immigration and Border Protection information, which includes information that could prejudice national security, international relations, or the prevention and investigation of offences. The Act permits the disclosure of such information only under specific circumstances, such as when authorised by the Secretary, for the purposes of integrity bodies, in accordance with agreements, with consent, to reduce threats to life or health, or if the information is already publicly available. The unauthorised disclosure of Immigration and Border Protection information is a criminal offence, punishable by imprisonment for up to two years.
• The Act also mandates alcohol and drug testing for Immigration and Border Protection workers, particularly in cases where there is suspicion of alcohol influence or following certain serious incidents. Workers are required to comply with these tests, and the results are not admissible in legal proceedings against the worker except in specific circumstances such as proceedings related to termination of employment or certain legal actions by the worker.
• In terms of penalties, the Act stipulates that the unauthorised making of a record of or disclosing Immigration and Border Protection information is a criminal offence, with the potential for imprisonment for up to two years. Additionally, the Act allows for the termination of engagement of consultants or contractors who fail to comply with directions under the Act, and it provides for the making of rules to give effect to the provisions of the Act. The Act also includes provisions to ensure that its application does not exceed the legislative power of the Commonwealth.

Legal classification tags

Area of Law

Administrative Law

Immigration & Refugee Law

Instrument

Act

Concepts

Definitions & Interpretation

Commencement Provisions

Repeal & Amendment

Transitional Provisions

Delegated & Subordinate Legislation

Enforcement Powers

Compliance Obligations

Prohibited Conduct