Article:

Immigration and Border Protection – operational enforcement

24 January 2017

Maria Jockel , Legal Principal and National Leader, Migration Services |

Following the merger of the Department of Immigration and Border Protection (the Department) with the Australian Customs and Border Protection Service, and the establishment of the Australian Border Force as its operational enforcement arm, the Department is now an enforcement agency (and a criminal enforcement agency).

The Australian Border Force has responsibility for Compliance and Regulation including:

  1. Sponsorship monitoring and compliance with sponsorship obligations
  2. Border protection command operations
  3. Character consideration
  4. Compliance assessment
  5. Case management
  6. Identity
  7. Investigation
  8. Removals
  9. Status resolution
  10. Surveillance operations
  11. Targeted enforcement operations

In this new regulatory environment, the authority and reach of the Department has been significantly expanded as the Department has continued its robust regulatory reforms to ensure regulatory compliance with a range of penalties and sanctions for breach.

The Department together with the Australian Border Force employs sophisticated risk assessments through visa programs, and works with other government agencies and international partners to ensure compliance and deliver enforcement outcomes.

The Australian Border Force Commissioner has significant powers held concurrently with the Secretary of the Department and the same standing as other heads of key national security related agencies, such as the Commissioner of the Australian Federal Police.  The Department has extensive powers to conduct its work in enforcing Australia’s sovereignty at the border through the application of Australia’s immigration and criminal laws.

Apart from the raft of regulatory initiatives and reviews which the Department continues to undertake, and which individuals and business must navigate, the level of regulatory scrutiny and enforcement activity has increased substantially.

This is evident from the number of actions brought by regulatory and enforcement bodies including the Department and Fair Work Ombudsman and the scale of penalties and fines imposed in respect of breaches of the law.

Ensuring regulatory compliance

With the Department’s and the Australian Border Force’s focus on protecting the integrity of the migration system, the era of robust regulatory compliance has significantly expanded the authority and reach of the Department and its operations.

With the shift of responsibility for foreign workers from government to the employer and clear obligations on employers in respect of foreign workers, there is a greater need to manage immigration risk and understand that the range of penalties in the event of a breach may include administrative, civil and criminal penalties.

With an increasing reliance on personal liability of directors and executive officers, strict interpretation and enforcement of current rules and regulations, and an increase in the use of audits and work site visits/inspections, companies need to review how they operate in regard to their business operations and ensure regulatory compliance across the whole of business.

The sharing of data across government agencies and the systems to support this data sharing is reflected in the Department’s protocols with the Australian Taxation Office (ATO) to share information of more than one million temporary visa holders’ records held by the Department so that these are matched with the ATO’s taxation and registration systems annually.

The ATO has established a number of protocols which aim to enable the enforcement and recovery of taxation revenue by the ATO and to assist in the maintenance of the integrity of the temporary visa programmes by the Department.

The ATO has established Data Matching Programme Protocols with banking and financial institutions, a range of corporations, the Foreign Investment Review Board, insurers and other private and public sector organisations.  This information is used by taxation administration for compliance purposes.