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AUSTRALIAN BORDER FORCE ACT 2015 - SECT 4

Definitions

             (1)  In this Act:

"alcohol blood test" means a test of a person's blood to determine the amount of alcohol (if any) in the person's blood.

"alcohol breath test" means a test of a person's breath to determine the amount of alcohol (if any) in the person's blood.

"alcohol screening test" means a test of a person's breath to determine whether alcohol is present in the person's breath.

"Australian Border Force" means that part of the Department known as the Australian Border Force.

Note:          Immigration and Border Protection workers may perform work for the Australian Border Force. The Australian Border Force Commissioner has the control of the operations of the Australian Border Force.

"Australian Border Force Commissioner" means the Australian Border Force Commissioner of the Australian Border Force.

"authorised person" means:

                     (a)  the Secretary; or

                     (b)  the Australian Border Force Commissioner; or

                     (c)  an Immigration and Border Protection worker who is authorised in an instrument under subsection (2).

"body sample" means any of the following:

                     (a)  any human biological fluid;

                     (b)  any human biological tissue (whether alive or otherwise);

                     (c)  any human breath.

"corrupt conduct" : see engages in corrupt conduct .

"duty of confidence" means any duty or obligation arising under the common law or at equity pursuant to which a person is obliged not to disclose information.

"engages in corrupt conduct" : an Immigration and Border Protection worker engages in corrupt conduct if the worker, while an Immigration and Border Protection worker, engages in:

                     (a)  conduct that:

                              (i)  involves; or

                             (ii)  is engaged in for the purpose (or for purposes including the purpose) of;

                            the worker abusing his or her position as an Immigration and Border Protection worker; or

                     (b)  conduct that:

                              (i)  perverts; or

                             (ii)  is engaged in for the purpose (or for purposes including the purpose) of perverting;

                            the course of justice; or

                     (c)  conduct that, having regard to the duties and powers of the worker as an Immigration and Border Protection worker:

                              (i)  involves; or

                             (ii)  is engaged in for the purpose (or for purposes including the purpose) of;

                            corruption of any other kind.

"entrusted person" means:

                     (a)  the Secretary; or

                     (b)  the Australian Border Force Commissioner (including in his or her capacity as the Comptroller-General of Customs); or

                     (c)  an Immigration and Border Protection worker.

"Immigration and Border Protection information" means information of any of the following kinds that was obtained by a person in the person's capacity as an entrusted person:

                     (a)  information the disclosure of which would or could reasonably be expected to prejudice the security, defence or international relations of Australia;

                     (b)  information the disclosure of which would or could reasonably be expected to prejudice the prevention, detection or investigation of, or the conduct of proceedings relating to, an offence or a contravention of a civil penalty provision;

                     (c)  information the disclosure of which would or could reasonably be expected to prejudice the protection of public health, or endanger the life or safety of an individual or group of individuals;

                     (d)  information the disclosure of which would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;

                     (e)  information the disclosure of which would or could reasonably be expected to cause competitive detriment to a person;

                      (f)  information of a kind prescribed in an instrument under subsection (7).

Note:          See also subsections (4) to (7).

"Immigration and Border Protection worker" means:

                     (a)  an APS employee in the Department; or

                     (b)  a person covered by paragraph (d), (e) or (f) of the definition of officer of Customs in subsection 4(1) of the Customs Act 1901 ; or

                     (c)  a person covered by paragraph (f) or (g) of the definition of officer in subsection 5(1) of the Migration Act 1958 ; or

                     (d)  a person who is:

                              (i)  an employee of an Agency (within the meaning of the Public Service Act 1999 ); or

                             (ii)  an officer or employee of a State or Territory; or

                            (iii)  an officer or employee of an agency or authority of the Commonwealth, a State or a Territory; or

                            (iv)  an officer or employee of the government of a foreign country, an officer or employee of an agency or authority of a foreign country or an officer or employee of a public international organisation;

                            and whose services are made available to the Department; or

                     (e)  a person who is:

                              (i)  engaged as a consultant or contractor to perform services for the Department; and

                             (ii)  specified in a determination under subsection 5(1); or

                      (f)  a person who is:

                              (i)  engaged or employed by a person to whom paragraph (e) or this paragraph applies; and

                             (ii)  performing services for the Department in connection with that engagement or employment; and

                            (iii)  specified in a determination under subsection 5(2).

"intelligence agency" means:

                     (a)  the Australian Geospatial-Intelligence Organisation; or

                     (b)  the Australian Secret Intelligence Service; or

                     (c)  the Australian Security Intelligence Organisation; or

                     (d)  the Australian Signals Directorate; or

                     (e)  the Defence Intelligence Organisation; or

                      (f)  the Office of National Intelligence; or

                     (g)  a government body or authority responsible for intelligence gathering for, or the security of, a foreign country.

"paid work" means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

"personal information" has the same meaning as in the Privacy Act 1988 .

"prohibited drug" means:

                     (a)  a narcotic substance (within the meaning of the Customs Act 1901 ); or

                     (b)  any drug prescribed in an instrument under subsection (3).

"prohibited drug test" means a test of a body sample of a person to determine the presence (if any) of a prohibited drug in the sample.

"public international organisation" has the meaning given by section 70.1 of the Criminal Code .

"rules" means the rules made under section 58.

"Secretary" means the Secretary of the Department.

"serious misconduct" , by an Immigration and Border Protection worker, means:

                     (a)  corrupt conduct engaged in, a serious abuse of power, or a serious dereliction of duty, by the worker; or

                     (b)  any other seriously reprehensible act or behaviour by the worker, whether or not acting, or purporting to act, in the course of his or her duties as an Immigration and Border Protection worker.

"unauthorised maritime arrival" has the same meaning as in the Migration Act 1958 .

Authorised person instrument

             (2)  The Secretary or the Australian Border Force Commissioner may, by writing, authorise an Immigration and Border Protection worker for the purposes of paragraph (c) of the definition of authorised person in subsection (1).

Prohibited drug instrument

             (3)  The Secretary or the Australian Border Force Commissioner may, by legislative instrument, prescribe drugs for the purposes of paragraph (b) of the definition of prohibited drug in subsection (1).

Immigration and Border Protection information

             (4)  Without limiting the definition of Immigration and Border Protection information in subsection (1), information obtained by an entrusted person in the course of performing duties, or in performing functions or exercising powers, under a law of the Commonwealth:

                     (a)  as an officer of Customs, or an authorised officer, within the meaning of the Customs Act 1901 ; or

                     (b)  as an officer, or an authorised officer, within the meaning of the Migration Act 1958 ; or

                     (c)  as a maritime officer within the meaning of the Maritime Powers Act 2013 ; or

                     (d)  as a delegate of someone else; or

                     (e)  in any other capacity;

is taken to be information obtained by the person in the person's capacity as an entrusted person.

             (5)  Without limiting the definition of Immigration and Border Protection information in subsection (1), the following kinds of information are taken to be information the disclosure of which would or could reasonably be expected to prejudice the security, defence or international relations of Australia:

                     (a)  information that has a security classification;

                     (b)  information that has originated with, or been received from, an intelligence agency.

             (6)  Without limiting the definition of Immigration and Border Protection information in subsection (1), information that was provided to the Commonwealth pursuant to a statutory obligation or otherwise by compulsion of law is taken to be information the disclosure of which would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence.

             (7)  The Minister may, by legislative instrument, prescribe a kind of information for the purposes of paragraph (f) of the definition of Immigration and Border Protection information in subsection (1) if the Minister is satisfied that disclosure of the information would or could reasonably be expected to:

                     (a)  prejudice the effective working of the Department; or

                     (b)  otherwise harm the public interest.



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