Confidential legal advice seen by Crikey reveals the Department of Immigration and Border Protection wanted to ensure that all contractors and subcontractors would be covered by a new law targeting whistleblowers working in offshore detention centres.

The Australian Border Force Act was passed in May, designed to replace the existing Customs Administration Act to allow the former Customs Department to merge with the Immigration Department to form the Australian Border Force, which sits in the Immigration Department.

The new act creates a new definition of an “Immigration and Border Protection worker”, who is subject to the act. These include the usual public service employees and department employees, but also consultants and contractors engaged to perform services for the department, or those employed or engaged by those contractors or consultants. The legislation also empowers the secretary of the department or the ABF Commissioner to make a written determination at any time, classifying someone as an “Immigration and Border Protection worker”.

Once a person is classified as an IBP worker, that person would then face a range of restrictions and obligations, even if that person is not directly employed by the government.

The biggest concern with the act was the secrecy provisions, under which refugee advocates have said doctors and whistleblowers could face two years in jail for leaking information on the state of offshore detention centres.

Before the legislation passed, the government wasn’t sure how it could ensure all contractors and subcontractors working for the department would be covered by it, and the document seen by Crikey contains legal advice on how to ensure everyone was covered.

The department asked what the scope of the legislation would be for who could be classified as an IBP worker, and the legal advice said there “is no limitation on how far down the chain of subcontractors a person may be in order that a determination … could be made about them. In practice, however, it would likely be rare that it is further than a sub-subcontractor.”

The department asked whether there would be legal risks in making a “single blanket determination … that all consultants, contractors, and contractor personnel” were IBP workers. The legal advice said there would be “low legal risk” in such a determination, and stated it was assuming the department would make a single blanket determination to cover all workers. The legal advice document states:

“It would be difficult to have other parties agree to the imposition of contractual obligations that apply to all relevant consultants, contractors, and contractor personnel at all times. However, directions issued under the ABF Act to IBP workers can cover them at all times. Therefore, there are clear benefits for the department in using the direction powers under the ABF Act to impose obligations on IBP workers.”

The legal advice said workers who didn’t have access to sensitive information or systems, like accounting firms, or a Telstra technician who only serviced departmental premises once or twice a year, might not need to be covered, but the department could decide the risk of these workers having access to premises, information or departmental systems was enough to warrant them being declared IBP workers and being subject to the ABF Act.

If the department decides not to cover every single contractor working in the department at once, it can build that determination into contract clauses, but that brings its own complexity, and the document noted that for existing contracts, there could be a requirement to vary the contracts, or just make a determination to ensure the contracts were covered by the ABF Act.

The advice was provided in June this year, weeks after the Australian Border Force Act passed into law, but before the law came into effect on July 1. Crikey asked the Department of Immigration and Border Protection if any determinations had been made since the law came into effect, and a spokesperson for the department provided a broad determination that had been made by department secretary Michael Pezzullo but had not yet been published online.

The determination made on June 29 extends the definition of an IBP worker to those who are “performing services in-house in the department” or “performing services for the department and require non-public access to departmental assets”, along with those working for the consultants or contractors.

“Any person meeting the criteria of the determination is considered an Immigration and Border Protection worker,” the spokesperson said.

Although reports have surfaced over the past few weeks of police raids on Save the Children over leaks to media outlets on the conditions in the Nauru detention centre, the Australian government has yet to rely on the secrecy provisions in the Australian Border Force Act. A spokesperson for the Department of Immigration and Border Protection told Crikey that no referrals to the Australian Federal Police have been made using the Australian Border Force Act, although the government has made several referrals to the AFP under Section 70 of the Crimes Act.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey