"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.
Confidential docs reveal: govt can gag just about anyone on offshore detention
The government can determine who is classified as an "Immigration and Border Protection worker" -- and that can include the phone guy. Crikey journalist Josh Taylor and Crikey editor Marni Cordell report.