EXPLANATORY STATEMENT
Issued by authority of the Minister for Home Affairs
Australian Border Force Act 2015
Australian Border Force (Oath and Affirmation) Rule 2025
Legislative authority
The Australian Border Force Act 2015 (the Act) concerns the Australian Border Force, the Australian Border Force Commissioner and persons performing work for the Department of Home Affairs (the Department), and for related purposes.
Subsection 58(1) of the Act allows the Minister to make, by legislative instrument, rules prescribing matters required or permitted to be prescribed by rules, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 13 of the Act requires the Australian Border Force Commissioner to make and subscribe an oath or affirmation before the Minister before discharging the duties of his or her office. Subsection 13(1) of the Act provides that the form of that oath or affirmation is prescribed by rules for the purposes of that subsection.
Section 24 of the Act also enables the Australian Border Force Commissioner to request that an Immigration and Border Protection worker in the Australian Border Force make and subscribe an oath or affirmation before the Australian Border Force Commissioner or a person authorised by the Australian Border Force Commissioner. Subsection 24(1) of the Act provides that the form of that oath or affirmation is prescribed by rules for the purposes of that subsection.
Purpose
The Australian Border Force (Oath and Affirmation) Rule 2015 is scheduled to sunset on 1 October 2025, meaning it will be automatically repealed by the operation of subsection 50(1) of the Legislation Act 2003 and cease to be in force.
The purpose of the Australian Border Force (Oath and Affirmation) Rule 2025 (the Rule) is to proactively remake the Australian Border Force (Oath and Affirmation) Rule 2015 to continue to prescribe the form of the oath and affirmation for the purposes of subsection 13(1) and section 24(1) of the Act.
Background
The Act provides the legislative framework for the Australian Border Force, the single frontline operational border control and enforcement entity.
The oath or affirmation sets a clear, up-front marker about the standards of professionalism and conduct expected of the Australian Border Force. The Australian Border Force Commissioner may be asked to make an oath or affirmation for the purposes of section 12 of the Act. Immigration and Border Protection workers who are in the Australian Border Force, provide services that are made available to the Australian Border Force, or who perform services for the Australian Border Force, may be asked to make an oath or affirmation for the purposes of section 21 of the Act. By making and subscribing an oath or affirmation, the Australian Border Force Commissioner and Immigration and Border Protection workers within or providing services for the Australian Border Force subscribe to behaviour that upholds public service professionalism and ethics, and the reputation of the Australian Border Force.
The purpose of the Rule is to prescribe the form of the oath and the form of the affirmation made by the Australian Border Force Commissioner and by Immigration and Border Protection workers (at the request of the Australian Border Force Commissioner).
Consultation
This instrument is not substantively changing the form of the oath or affirmation. This instrument merely modernises the drafting of the machinery provisions of the legislative instrument that prescribes the Australian Border Force Oath and Affirmation. Therefore, additional consultation was not considered necessary or appropriate. The instrument ensures that the form of the oath or affirmation made by the Australian Border Force Commissioner and Immigration and Border Protection workers in the Australian Border Force is appropriately maintained for the purposes of sections 13 and 24 of the Act.
Commencement
The Rule commences on the day after it is registered on the Federal Register of Legislation.
Consultation
Details of the Rule are set out in Attachment A.
The Rule is a disallowable legislative instrument for the purposes of the Legislation Act 2003.
A Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is set out in Attachment B.
ATTACHMENT A
Details of the Australian Border Force (Oath and Affirmation) Rule 2025
Section 1 – Name of Rule
This section provides that the title of the Rule is the Australian Border Force (Oath and Affirmation) Rule 2025.
Section 2 – Commencement
This section provides that the Rule commences on the day after registration.
Section 3 – Authority
Section 3 provides that the authority to make the Rule is section 58 of the Australian Border Force Act 2015 (the Act).
Section 4 – Definitions
Section 4 defines Act as meaning the Australian Border Force Act 2015.
Section 4 notes that the terms ‘Australian Border Force Commissioner” and “Immigration and Border Protection worker” have the same meaning as subsection 4(1) of the Act.
Section 5 & Schedule 1 – Repeals
The combined effect of section 5 and Schedule 1 is that the whole of the Australian Border Force (Oath and Affirmation) Rule 2015 is repealed.
Section 6 – Form of oath or affirmation—Australian Border Force Commissioner
Section 6 prescribes the form of the oath or affirmation made by the Australian Border Force Commissioner for the purposes of subsection 13(1) of the Act.
Subsection 6(1) prescribes the form of the oath to be made by the Australian Border Force Commissioner by setting out the text of the oath.
Subsection 6(2) prescribes the form of the affirmation to be made by the Australian Border Force Commissioner by setting out the text of the affirmation.
Section 7 – Form of oath or affirmation—Immigration and Border Protection worker
Section 7 prescribes the form of the oath or affirmation made by an Immigration and Border Protection worker for the purposes of subsection 24(1) of the Act.
Subsection 7(1) prescribes the form of the oath to be made by an Immigration and Border Protection worker by setting out the text of the oath.
Subsection 7(2) prescribes the form of the affirmation to be made by an Immigration and Border Protection worker by setting out the text of the affirmation.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Border Force (Oath and Affirmation) Rule 2025
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
The Australian Border Force (Oath and Affirmation) Rule 2015 (the 2015 Rule) is anticipated to sunset on 1 October 2025, meaning it will be automatically repealed by the operation of subsection 50(1) of the Legislation Act 2003 and cease to be in force.
The purpose of the Australian Border Force (Oath and Affirmation) Rule 2025 (the Rule) is to proactively remake the 2015 Rule and prescribe the form of the oath or affirmation for the Australian Border Force (ABF) Commissioner and Immigration and Border Protection workers in the ABF.
Section 13 of the Australian Border Force Act 2015 (the Act) requires the ABF Commissioner to make and subscribe an oath or affirmation before the Minister before discharging the duties of his or her office.
Section 24 of the Act also enables the ABF Commissioner to request that an Immigration and Border Protection (IBP) worker in the ABF make and subscribe an oath or affirmation before the ABF Commissioner or an authorised person. Sections 13 and 24 of the Act provide that the form of the oath or affirmation is to be prescribed by rules.
The Rule commences on the day after registration.
Human rights implications
This Disallowable Legislative Instrument engages the following rights:
- the right to freedom of thought, conscience and religion under Article 18 of the International Covenant on Civil and Political Rights (ICCPR);
- the right to work and rights at work under Articles 6 and 7 of the International Covenant on Economic Social and Cultural Rights (ICESCR); and
- the right to take part in public affairs and elections under Article 25 of the ICCPR.
Freedom of thought, conscience and religion
Article 18(1) of the ICCPR states:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
Article 18(2) of the ICCPR states:
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
Article 18 of the ICCPR protects religious beliefs, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. This Disallowable Legislative Instrument promotes this right by giving the ABF Commissioner and ABF IBP workers a choice between making and subscribing an oath consistent with the person’s religion, or making and subscribing an affirmation.
Right to work and rights at work and the right to take part in public affairs and elections
Article 6(1) of the ICESCR states:
The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
Article 7(1) of the ICESCR states:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work…
Article 25(c) of the ICCPR states:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
…
(c) To have access, on general terms of equality, to public service in his country.
The oath or affirmation requires the ABF Commissioner and ABF IBP workers to subscribe to a level of professionalism and ethics. It establishes an upfront marker that the government and public expect the highest standards of professionalism and integrity for the office of the ABF Commissioner and officers of the ABF.
The ABF Commissioner leads a professional and agile team of highly trained officers tasked with protecting and managing Australia’s borders. These officers make decisions that affect the safety, rights and freedoms of individuals as well as trade and commerce in Australia. They hold a privileged place at the border and in the community, with access to secure environments and law enforcement databases. They exercise significant powers under the Customs Act 1901, Migration Act 1958, Maritime Powers Act 2013 and other Commonwealth laws, including powers of detention, arrest, boarding a vessel, entry, search, questioning, seizure, use of force, and removal from Australia.
The community and the government trust officers of the ABF to exercise their powers reasonably, lawfully, impartially and professionally. The oath or affirmation enhances government and public confidence in the ABF Commissioner and officers of the ABF, as well as the confidence of other partners including intelligence organisations and foreign governments.
The Act provides that conduct inconsistent with the oath or affirmation is considered a breach of law and the APS Code of Conduct, and may attract sanctions for breach of the Code of Conduct under section 15 of the Public Service Act 1999. As such, breaches of the oath or affirmation will be properly investigated through established Code of Conduct investigation procedures that uphold the requirements of natural justice and procedural fairness.
This Disallowable Legislative Instrument engages the right to work and rights at work, and the right to take part in public affairs and elections, as far as it regulates eligibility for employment in the public service or appointment to public office. As far as the requirement to undertake an oath or affirmation may limit eligibility for employment for some positions within the ABF, this requirement is implemented in a manner consistent with the functions of the relevant roles and with respect to the relevant enforcement powers the employee will be required to exercise. Requiring employees responsible for exercising significant enforcement powers to subscribe to behaviour that upholds public service professionalism and ethics is reasonable, necessary and proportionate to achieving a legitimate objective.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights because it promotes the protection of human rights, and to the extent it may limit human rights, those limitations are reasonable, necessary and proportionate.
The Hon Tony Burke MP
Minister for Home Affairs