This rule puts Border Force workers above the law – and it was just quietly extended

Australian Border Force workers won’t have to take care of asylum seekers’ health and safety during boat interceptions under a fresh exemption to workplace laws, which has been granted by the government despite concerns from parliament’s Labor-led human rights committee.

The Albanese government has renewed a rule that exempts Operation Sovereign Borders staff from taking “reasonable care” not to harm the health and safety of others while at sea, meaning workers cannot be prosecuted under workplace laws.

Asylum seeker arrivals by boat have significantly reduced under Operation Sovereign Borders.Credit: Reuters

Workplace Relations Minister Murray Watt justified the decision to the parliament’s human rights committee, saying it was “necessary to ensure that individuals can act confidently and quickly in the diverse and unpredictable circumstances that might arise in the operational environment”.

But the Labor-led committee said the measure did not seem necessary or proportionate as it issued its response this week. Chair Josh Burns said the exemption applied to no other similar workplaces and that Watt had not provided evidence it was achieving its stated purpose.

Operation Sovereign Borders, which involves turning back asylum seeker boats at sea, became a central pillar of Australia’s immigration regime in 2013 under the Abbott government.

It has stemmed the flow of people smuggling, which successive governments have said is core to preventing deaths and maintaining public confidence in the migration system, but often created unease about migrants’ rights. Twenty boats, carrying about 450 people, have attempted to arrive in Australia since June 2022.

Workplace Relations Minister Murray Watt.Credit: Alex Ellinghausen

Watt told the committee that Operation Sovereign Borders workers were involved in inherently dangerous activities that required them to act quickly.

Those circumstances could involve boarding wooden boats at night in rough seas, dealing with violence, or needing to destroy vessels and retrieve people from the water if passengers or crew set their boats on fire.

“The exemptions set out … are necessary to ensure that individuals can act confidently and quickly in the diverse and unpredictable circumstances that might arise,” Watt said.

“Australia’s security and prosperity depend on robust border policies, including activities under OSB [the operation] to combat people smuggling and irregular migration.”

Watt said the measure had been in place in its previous form since 2013 – when it was quietly introduced – and that workers were still required to comply with reasonable instructions, while any deaths or dangerous incidents had to be reported to Comcare, the country’s authority on work health and safety.

He said other safety frameworks also applied, including maritime laws that say officers cannot keep people in places unless they are satisfied it is safe, as well as defence laws that carry punishment for negligence.

But the human rights committee questioned whether the exemption was necessary. Burns wrote in response that if those other measures were working to ensure safety without compromising national security, then it was “unclear” what purpose the exemption served.

He said that no other defence workplaces, including workplaces on boats, had the same exemptions.

Labor’s Josh Burns heads parliament’s humans right committee.Credit: AAP

Burns also said Watt had provided no evidence for how the exemption had influenced safety or changed workers’ behaviours over the past 10 years, and whether it was therefore achieving its objective.

As such, he said there was a risk that it was not a permissible infringement on people’s rights. The Greens pushed to disallow the rule in the Senate, accompanied by independent senators David Pocock, Fatima Payman and Tammy Tyrrell, but it has Coalition and government support.

Greens justice spokesman David Shoebridge said the decision meant people seeking asylum who were stopped by Border Force could have their lives put at risk.

“Labor is giving Border Force the green light to treat people without empathy or humanity,” Shoebridge said.

“This is a government-mandated licence to mistreat people. The parliamentary joint committee on human rights rightfully raised serious questions about this change. Questions the Albanese government has ignored.

“All of the obligations that exist for police if they’re engaged in running down a criminal, or for rangers and inspectors if they’re arresting someone or engaging in coercive force – all of those obligations – have a reasonableness requirement ... But this government has removed any of those limitations.”

Opposition senators disagreed with the rest of the human rights committee’s stance and backed Watt. “[This is] appropriate means of protecting Australians who must overcome challenging conditions to effectively deal with illegal maritime arrivals in a safe and secure manner,” they wrote.

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