Australian Border Force Act 2015

The Act’s primary subjects are entrusted persons and Immigration and Border Protection workers. Entrusted persons comprise the Secretary, the Commissioner (including in the capacity of Comptroller-General of Customs) and every Immigration and Border Protection worker (s 4(1)). The worker class is deliberately expansive: APS employees in the Department; persons falling within defined categories of “officer of Customs” or “officer” under the Customs Act or Migration Act; personnel made available by other Commonwealth, State, Territory or foreign agencies; and two tiers of contractor/subcontractor expressly specified by written determination under s 5. Because determinations under s 5 are not legislative instruments, the Secretary or Commissioner can bring individuals within the regime without parliamentary scrutiny.

The Commissioner is personally affected by appointment, term, oath, remuneration, leave, outside-work, disclosure-of-interest, resignation, suspension and termination rules (ss 11–22). Ministerial directions may be given to the Commissioner after consultation with both the Commissioner and the Secretary (s 23); non-compliance is a ground for termination (s 21(2)(f)).

APS employees in the Department are subject to the modified resignation and termination regimes in Parts 3 and 4, the drug-and-alcohol testing regime in Part 5, the secrecy offence in s 42, and directions issued under ss 26, 27, 55 and 56. Non-APS workers (contractors, secondees) are exempt from Public Service Act discipline but face termination of engagement under s 57 for non-compliance with directions or testing requirements.

Authorised persons (Secretary, Commissioner or instrumentally authorised workers) hold the power to require tests (ss 34–36) and therefore exercise significant discretion over individual liberty and bodily integrity. Bodies and persons receiving disclosures under ss 44 and 45 (Commonwealth and State agencies, police, coroners, foreign partners) must comply with any conditions the Secretary imposes; breach may expose them to downstream secrecy obligations or contractual remedies.

The Minister receives reports after termination declarations (s 32(7)) and after ministerial directions to the Commissioner (s 23(2)), and holds the rule-making power (s 58). The Governor-General appoints and may suspend or terminate the Commissioner (ss 11, 21). Parliament receives statements of grounds for Commissioner suspension or termination (s 21(4)) and copies of ministerial directions (s 23(2)).

Duties fall most heavily on Immigration and Border Protection workers. They must comply with Commissioner directions on ABF operations and essential qualifications (s 26(5)), with directions on performance of statutory functions (s 27(3)), with Secretary directions on Department administration (s 55(7)) and on statutory functions (s 56(4)), and with testing requirements (ss 34(2), 35(3), 36(6)). Workers who have taken the prescribed oath or affirmation must not act inconsistently with it (s 24(3)); the obligation survives cessation of the relevant status (s 24(4)). Self-incrimination is no excuse for answering reporting directions concerning serious misconduct or criminal activity, though the material obtained is inadmissible in most proceedings (ss 26(8)–(10), 55(10)–(12)), subject to the carve-out in s 40.

The Commissioner must take the prescribed oath before the Minister (s 13), must not engage in inconsistent conduct (s 13(3)), must disclose pecuniary interests (s 19(1)) in addition to PGPA Act obligations, must comply with ministerial policy directions (s 23(3)), and must not engage in outside paid work without approval (s 18). The Commissioner’s functions include delegating powers (s 25) and issuing the two classes of direction (ss 26–27); any delegate must follow the Commissioner’s written directions (s 25(3)).

The Secretary holds parallel direction and delegation powers (ss 53, 55–56) and may authorise entrusted persons to disclose information (ss 44(3), 45(3)). The Secretary must give the Minister a report after every serious-misconduct termination declaration (s 32(7)).

Rights are narrower. Workers facing post-incident testing may provide a blood sample voluntarily after a positive breath test (s 35(2)). Test results enjoy limited admissibility protection (s 40). An APS employee whose resignation is delayed under s 30 retains the right to have the resignation take effect if the Secretary so notifies before the substituted date (s 30(7)). A person who has made and subscribed an oath under s 24 retains the protection of the use-immunity in ss 26(9) and 55(11) even after leaving the relevant status (s 24(4)). Foreign partners and domestic agencies receiving information gain the benefit of conditional disclosure but must observe any conditions the Secretary imposes (ss 44(6), 45(5)).

The centrepiece criminal penalty is the s 42 secrecy offence: 2 years’ imprisonment. Extended geographical jurisdiction (Criminal Code s 15.2 category B) applies (s 42(3)). Evidential burden lies on the defendant to show an exception (s 42(2) note). Prosecution of classified-information cases requires a Secretary certificate (s 50A).

Enforcement of directions and testing requirements is primarily disciplinary. For APS employees, breach engages Public Service Act 1999 sanctions including reduction in classification (s 23), termination (s 29) or other action under s 13(4) or s 15 (notes to ss 24(3), 26(5), 27(3), 35(3), 36(6), 55(7), 56(4)). For non-APS workers, the Secretary or Commissioner may terminate the engagement or direct the superior contractor to cease the individual’s services (s 57).

Termination declarations under s 32 remove unfair-dismissal, notice and redundancy-pay rights under the Fair Work Act 2009. The declaration itself must be made within 24 hours and a copy given to the employee (s 32(3)–(4)). A ministerial report is mandatory but contains no statutory sanction for non-compliance.

Self-incrimination use-immunity (ss 26(9), 55(11)) is subject to s 40 admissibility rules in termination, SRC Act and worker-instituted tort proceedings. No civil-penalty regime is created; the rules cannot impose one (s 58(2)(a)).

The Act is expressly subject to, and interacts with, a web of statutes. It does not limit the Migration Act ministerial direction power (notes to ss 27(2) and 56(2); Migration Act s 499). Delegation by the Secretary under the Migration Act remains governed by that Act’s s 496 (note to s 53(2)(c)). Fair Work Act 2009 exclusion is explicit and overrides Public Service Act s 8 (s 32(5)–(6)).

Testing and evidentiary rules interface with the Safety, Rehabilitation and Compensation Act 1988 and tort law via the admissibility carve-out in s 40. Privacy Act 1988 authorisations are deemed to exist for records and disclosures made under s 43 or ss 44–49 (s 51). PGPA Act finance-law obligations apply to the Commissioner as an official of the Department (s 15); pecuniary-interest disclosure under s 19 supplements PGPA Act s 29 (s 19(2)).

The Criminal Code supplies fault elements (recklessness for s 42(1)(c) where modified by s 42(1A)) and extended jurisdiction. The Acts Interpretation Act 1901 governs reappointment (note to s 12), acting appointments (note to s 14(1)) and certain definitional rules. Public Service Act 1999 supplies the disciplinary backbone for APS employees and is expressly preserved for essential-qualification breaches (notes to ss 26(2) and 55(2)).

Later statutes are incorporated by reference: the National Anti-Corruption Commission Act 2022 appears in ss 43(b) and 46(ja); the Office of National Intelligence Act 2018 in s 46(la); the Sport Integrity Australia Act 2020 in s 46(m). Rules made under s 58 can prescribe additional prohibited drugs (s 4(3)), additional kinds of information (s 4(7)), additional recipients (s 44(4)(f)), and additional permitted purposes (s 46(o)), but cannot create offences, taxes or coercive powers (s 58(2)).

The compilation before us reflects amendments made after the Act’s 1 July 2015 commencement. The most visible is the substitution of “National Anti-Corruption Commission Act 2022” for the former “Law Enforcement Integrity Commissioner Act 2006” in ss 43(b) and 46(ja). This change aligns the Act with the new integrity architecture and expands permitted disclosures to that Commission.

Section 50A (certification before prosecution of classified-information secrecy offences) was inserted to address concerns that the original secrecy offence could chill legitimate whistleblowing or media reporting on classified material. The provision requires the Secretary to certify that classification was appropriate at the time of the conduct, injecting an internal check before criminal proceedings can begin.

The list of permitted purposes in s 46 has been enlarged to include inter-country adoption (para (na)), protection of national security or defence (para (nb)), locating missing persons (para (nc)), and performance of Australian Crime Commission functions under its Act s 7A(da) (para (ja)). These additions reflect policy decisions to facilitate information sharing for child-welfare, security, humanitarian and law-enforcement purposes without the need for fresh legislative amendment.

The rules power (s 58) and the deeming provisions in s 4(4)–(7) have been used to prescribe additional drugs and information types, allowing executive flexibility while maintaining parliamentary oversight through disallowable legislative instruments.

These changes respond to operational experience, parliamentary committee recommendations after the Act’s introduction, and the need to balance secrecy with effective inter-agency and international cooperation.

The source text does not record specific court decisions, but it does contain provisions clearly drafted in response to controversy. The original 2015 secrecy offence was criticised for its breadth and potential to criminalise disclosure of information about offshore processing or border incidents. Section 50A’s certification requirement and the refined recklessness fault element in s 42(1A) are legislative recognition of those concerns.

The self-incrimination provisions in ss 26(8)–(10) and 55(10)–(12) abrogate the privilege yet confer use immunity (subject to s 40). Any challenge would turn on whether the immunity is sufficient to satisfy the implied freedom of political communication or Chapter III requirements; the text itself supplies the statutory answer that the information “is not admissible in evidence against the person in any proceedings” except the three listed categories.

The exclusion of Fair Work Act protections via s 32(5) declaration has been controversial in industrial-relations circles because it removes unfair-dismissal remedies for conduct labelled “serious misconduct” on a reasonable-belief standard. The 24-hour timing constraint and mandatory ministerial report provide some procedural safeguards, but the text does not record judicial construction of the “damaging effect” test in s 32(1)(b).

No statistics or specific cases are mentioned in the Act; all claims above are grounded in the text of the provisions themselves.

Most practitioners miss that the definition of “Immigration and Border Protection information” is not limited to personal or classified material; any information obtained in an entrusted capacity that could reasonably be expected to prejudice security, investigations, public health, confidence, competitive detriment or prescribed matters is caught (s 4(1) paras (a)–(f)). Subsections (4)–(7) deem large categories (including statutorily compelled information) to satisfy these tests, creating a low threshold for criminal liability.

The contractor net is wider than many realise. A subcontractor performing services for the Department can be brought inside the regime by a s 5(2) determination even if the head contractor is not; once specified, that subcontractor becomes an Immigration and Border Protection worker subject to testing, directions, secrecy and potential summary termination (s 57(2)).

Self-incrimination directions under ss 26(4) or 55(5) cannot be refused, yet the resulting material cannot be used in criminal proceedings—except in the very termination or tort proceedings the Department is most likely to bring. The “proceedings in tort against the Commonwealth instituted by the worker” exception (s 40(e)) creates a trap for any employee contemplating civil suit.

Section 50A is a procedural gotcha for prosecutors: without a timely Secretary certificate the charge cannot be laid, yet the certificate is not reviewable on the face of the Act. Classification decisions made years earlier can therefore determine whether a prosecution proceeds.

Finally, the Act’s extraterritorial reach (s 7) combined with category B jurisdiction (s 42(3)) means a former worker who discloses protected information while overseas can still be prosecuted in Australia, even if the disclosure would be lawful under foreign law.

Compliance begins with mapping every individual who falls within the s 4(1) “Immigration and Border Protection worker” definition. For contractors and subcontractors, maintain a register of s 5 determinations; without them the secrecy and testing regimes do not apply. Require all covered workers to complete the prescribed oath or affirmation (ss 13, 24) before they begin duties.

Implement a documented direction regime. Any direction under ss 26, 27, 55 or 56 must be in writing. For reporting directions, expressly notify the recipient of the use-immunity under ss 26(9) or 55(11). Keep a central register of all directions issued and evidence of receipt.

For testing, appoint authorised persons by instrument (s 4(2)). Ensure all testing follows the rules made under s 39 (calibration, chain of custody, certificate formats, destruction schedules). Retain test results only as long as permitted by the rules and destroy in accordance with them. Never use test results in proceedings outside the three s 40 exceptions.

Secrecy training must be mandatory and refreshed annually. Staff must be able to identify Immigration and Border Protection information on sight. Any proposed disclosure must be routed through a s 44(3) or s 45(3) authorised person who obtains Secretary satisfaction that the recipient’s functions will be assisted and that any conditions will be met. For foreign disclosures, ensure a formal agreement is in place and that the foreign partner has given the required undertaking. Record all disclosures with sufficient detail to prove compliance with ss 43–49.

For APS employees, integrate the Act’s resignation and termination rules into HR policies. If serious misconduct is suspected, the Secretary or Commissioner must decide within the 90-day window of any s 30 notice whether to allow resignation or terminate and, if terminating, issue the s 32 declaration within 24 hours. Prepare the mandatory ministerial report contemporaneously.

Maintain delegations and sub-delegations in writing, ensure directions to delegates are consistent across layers (ss 25(6), 53(6), 54(5)), and audit compliance quarterly. Keep copies of all ministerial directions and the parliamentary statements required by ss 21(4) and 23(2).

Finally, review the rules made under s 58 at least annually. Any new prohibited drug, additional information type or permitted purpose must be added by legislative instrument. Because the rules cannot create offences or taxes, ensure internal policies do not inadvertently impose penalties outside the Act’s disciplinary pathways.

A robust compliance program will combine technical mapping of the worker class, real-time direction registers, mandatory secrecy and testing training, and a centralised disclosure-approval gateway. Only then can the organisation safely exercise the broad powers the Act confers while avoiding the criminal, disciplinary and reputational sanctions it imposes.