Senate Select Committee – Australian Parliament House
20 July 2015
Michael Pezzullo
Secretary, Department of Immigration and Border Protection
Opening statement
E&OE
Chair, as you have just said, my Department has made a supplementary submission to this committee to address a number of matters which have been raised since our last appearance.
I do not propose to canvass those matters; they may well come up during the questioning process. However Since we last appeared before the committee, my Department and the former Australian Customs and Border Protection Service were amalgamated on 1st July 2015.
On that date, the Australian Border Force (‘ABF’) was established within the Department as its operational enforcement arm. This process of integration included the creation of the office of Commissioner of the ABF, under the Australian Border Force Act. The former CEO of ACBPS, Mr Roman Quaedvlieg, who joins me at the table, has been sworn into that office by the Minister of Immigration and Border Protection, the Honourable Peter Dutton MP. Mr Quaedvlieg took up his duties as commissioner on 1 July 2015.
I would like to briefly address erroneous claims that have been made regarding the operation of Part VI of the ABF Act, regarding secrecy and disclosure provisions. It is wrong to claim that the ABF Act is intended, or will be used, as an instrument to ‘gag’ lawful disclosures in the public interest regarding the operation of either offshore regional processing, or in relation to the Australian immigration detention network.
Such claims, if believed, might lead some of our employees and/or contractors to mistakenly believe that they are not able to report instances of alleged criminal activity or misconduct to appropriate authorities, when in fact not to do so would be an extremely serious matter leading to potentially serious consequences for any individual failing to report such matters.
The relevant provisions do not under any circumstances prevent the disclosure of information where it is made as required, or authorised, by law – including if made in line with the Public Interest Disclosure Act 2013. In accordance with applicable pre– existing mandatory reporting regimes, contracted workers now caught by the ABF Act – including doctors, teachers and other professionals – have an unambiguous obligation to report certain incidents and concerns regarding alleged criminality and/or misconduct to appropriate authorities.
Claims that the ABF Act will somehow prevent doctors and other health professionals, in particular, from meeting their own ethical obligations, or from reporting instances or allegations of for instance child abuse under State and Territory mandatory reporting regimes, are simply untrue.
It is also wrong in law, and in fact, to assert that contractors have an unqualified right of disclosure to the media. Commonwealth law does not recognise such a purported ‘right’, either by way of attachment to employment within a Commonwealth department or agency, or through employment through a contractual relationship of some kind with the Commonwealth.
Under the Crimes Act, for instance, it has never been permissible for Commonwealth employees or contractors to make ‘personal records’ of protected or sensitive information for an individual’s ‘own purposes’ in derogation of their contractual duties, and certainly not for the purposes of making unauthorised disclosures, including to the media. In all cases where a Commonwealth employee or contractor believes that alleged misconduct, corruption or criminal activity is not being adequately addressed or dealt with, the Public Interest Disclosure Act 2013 provides protections for those who might wish to make a disclosure outside of their management or command chain in the public interest.
Such a disclosure would receive the protections of the Public Interest Disclosure Act 2013 subject to certain conditions, including that the discloser has exhausted relevant internal disclosure processes and that, on balance, the disclosure is not contrary to the public interest. No more information than is reasonably necessary to identify the wrong doing may be disclosed.
My officers have met with senior representatives of contracted service providers who work in support of the Department, as well as the Governments of Nauru and Papua New Guinea, in delivering support services to explain the relevant application of the ABF Act in these terms.
