Business Insider Image: Australian Border Force
On 27 February 2017 the Australian National Audit Office released its report into the Australian Border Force Farce use of statutory powers and it appears the uniform is still making personnel giddy with power.
This is the third critical ANAO report and The Sydney Morning Herald carried this same day response from a department obviously unhappy with this report:
Immigration boss Michael Pezzullo conceded to "a number of administrative deficiencies" within his department but shot back at the National Audit Office over "loose terminology" and findings he called "unworldly".
Excerpt from report, with full report available here:
Audit objective and criteria
3. The objective of the audit was to assess the establishment and administration of the Australian Border Force's framework to ensure the lawful exercise of powers in accordance with applicable legislation.
4. To form a conclusion against the audit objective, the ANAO adopted the following high-level audit criteria:
Is there an effective accountability and reporting framework for the lawful exercise of powers?
Do Border Force officers have adequate knowledge of their powers and how to use them?
Conclusion
5. As part of the integration of Immigration and Customs, the department has made progress towards establishing a framework to ensure Border Force officers exercise coercive powers lawfully and appropriately. However, significantly more work needs to be done to gain assurance that controls are effective.
6. The department's enterprise risk management framework does not adequately address the risk of officers exercising coercive powers unlawfully or inappropriately. Several internal assurance reviews have uncovered problems relating to the exercise of statutory powers. The Border Force has established an integrated operational quality assurance team, which has not yet finalised any reports. Delegations and authorisations for coercive powers are complete and in place but not all instruments are accessible to officers.
7. The ANAO found instances of potentially unlawful searches and failure to comply with instructions under both the Customs Act and Migration Act, which indicate current internal controls for mitigating the risk of unlawful or inappropriate use of coercive powers are inadequate.
8. The department has not provided adequate instructions and guidance for officers exercising coercive powers. There is currently no single source of instructions and guidance material for Border Force officers, and much of the guidance material available is out of date and inaccurate. While positive foundational work has commenced on integrating the former Customs and Immigration training regimes, officers have been exercising significant coercive powers without having undertaken pre-requisite training.
Supporting findings
9. The department's approach to risk management at the enterprise level has been developing over the past two years. It has established an enterprise risk framework and is finalising profiles for each of its enterprise risks. The current profile relating to unlawful or inappropriate use of coercive powers conflates this risk with integrity and corruption risks, which require different internal controls. This has the potential to divert attention from controls relating to the risk of unlawful or inappropriate use of coercive powers.
10. The department has undertaken several internal assurance reviews that have uncovered problems relating to the exercise of statutory powers. The Border Force has recently established an integrated team responsible for operational quality assurance testing. The team has not yet completed any reviews. Prior to this, the department did not have satisfactory mechanisms for gaining assurance that officers understand their powers and are exercising them lawfully.
11. Instruments of authorisation and delegation for coercive Migration and Customs Act powers are complete and up-to-date. While Migration Act instruments of authorisation and delegation are available on the intranet, instruments relating to the Customs Act (and other Acts) are not accessible to officers.
12. Some personal searches of passengers at international airports examined by the ANAO were unlawful or inappropriate, indicating weaknesses in the control framework. A number of searches of premises under the Migration Act potentially exceeded the authority of the warrant which authorised them, and officers routinely questioned people without documenting their legal authority to do so. Officers also frequently failed to comply with departmental policy instructions, including compliance with certification and recordkeeping requirements.
13. The department has commenced a project to identify the statutory powers of officers of the integrated department, with a longer term view to possibly amending some powers. As part of the project, in July 2016, the department completed a consolidated inventory of all powers available to departmental officers under Commonwealth legislation. Such an inventory will enable the department to identify overlap, duplication, redundancy and inconsistency within and between Acts. It will also assist with identifying any gaps or deficiencies in powers in order to be able to submit a proposal for potential legislative change for government consideration.
14. The Border Force is developing a coordinated systematic framework for reporting on its use of coercive powers. It presently does not have such a framework.
15. Many of the instructions that are provided to Border Force officers on the department's intranet are out of date, incomplete, inaccurate and are not accessible to all officers. A project to remedy this situation was endorsed by the department's executive in December 2015 and has to date delivered only a very small number of operational instructions for Border Force officers.
16. The department has made progress in integrating the former Customs and Immigration training regimes and addressing deficiencies identified through pre-integration training audits conducted in 2014. The establishment of an integrated Learning and Development Branch and the Border Force College has been managed as a priority project, under the Reform and Integration Taskforce. While this project has delivered solid foundations for enhancing the learning maturity of the department, at the time of examination the results of these foundational efforts had yet to be realised.
17. Not all officers exercising coercive powers under the Migration Act and Customs Act have received pre-requisite training. The department has established an integrated Learning Management System but issues remain in relation to the completeness of training records.
18. The department has been undertaking a project to transition to a new workforce model, which has involved establishing 'vocations', profiling job roles under each vocation, mapping required competencies, and developing high level curricula. Training needs analysis for the Border Force vocational stream commenced in October 2016………
Compliance with legislative and policy requirements
3.5 The ANAO examined internal records relating to 69 personal searches undertaken at Australian airports during 2015–16.25 The test results in Table 3.2 demonstrate the detention officer was unauthorised for five (12 per cent) of the 42 external, internal medical or body scan searches in the sample, which means these searches were unlawful.26 With regard to certification, 20 (29 per cent) of the 69 searches sampled involved at least one uncertified officer, meaning these were inappropriate searches.27 All body scan operators in the sample were authorised. [my highlighting]
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