Border Force facing claims it spied on foreign diplomat

A Senate committee is set to investigate whether the ABF illegally obtained records of a diplomat suspected of helping workers escape abusive employers.

Records belonging to Vanuatu high commissioner Samson Fare were seized by the ABF.

A Senate committee is set to investigate whether the Australian Border Force illegally obtained correspondence and phone records of a foreign diplomat it believed was helping seasonal workers escape abusive employers.

The records, belonging to Vanuatu high commissioner Samson Fare, were seized by the ABF in a raid on the Bundaberg home of Christian missionary Geoff Smith, who was suspected of having helped Pacific Islander workers abscond from their “approved employers”.

The ABF obtained a warrant in July to search the property and seize any material relating to seven named people, including Mr Smith and Mr Fare.

The Australian can reveal that ABF Commissioner Michael Outram was briefed on the raid on the day it took place, and that both his deputies were aware of who was named on the warrant.

Christian missionary Geoff Smith and Jane Smith.

Nine ABF officers raided the property, downloading the contents of Mr Smith’s phone, including his contacts with Mr Fare. Mr Smith says the phone contained “massive amounts” of texts and emails between he and Mr Fare.

Under the Vienna Convention on Diplomatic Relations, which is part of Australian law, a diplomat’s correspondence and documents enjoy inviolability.

The allegations of interference in the functions of its most senior diplomat will further strain relations with Vanuatu at a critical time, as Australia moves to bring desperately needed farm workers to key sectors of the agriculture industry facing catastrophic labour shortages.

Mr Fare has been scathing of the treatment of Ni-Vanuatu workers in Bundaberg and travelled to the region last February to investigate the claims of more than 50 workers who had left their employers.

“They have lots of issues & some very serious, eg death threats. This has to be fixed immediately,” he said on Twitter.

Many of the workers had absconded from their “approved employers” because of rampant wage theft and appalling working conditions, and gone on to work illegally for other employers offering better conditions.

Mr Smith faces up to four years in jail and fines of $40,000 if charged and convicted of “referring unlawful non-citizens for work”.

Questioned by Labor senator Tony Sheldon at a budget estimates committee in November, Commissioner Outram said he didn’t know why the ABF was interested in Mr Fare.

However, in answer to questions on notice, the ABF now says Commissioner Outram was briefed by an ABF deputy commissioner “in general terms on the warrant activity” in July when ABF officers executed the search warrant.

ABF Commissioner Michael Outram. Picture: Gary Ramage

“Individual case names are not normally provided in oral briefings of this nature,” the ABF said. However, both ABF deputy commissioners “were aware of the individuals named on the warrant”. The ABF acknowledged that Commissioner Outram had become aware of Mr Fare’s comments about helping absconding workers.

In the Senate hearing in November, Senator Sheldon pointed out that the ABF warrant sought correspondence including documents, letters, emails and telephone records, and asked Commissioner Outram if that was in conflict with the Vienna Convention. The Commissioner said he would “go back and ascertain the facts as to whether this person was acting in their capacity as a diplomat or in a private capacity.”

However, the law is very clear the protection is absolute and applies at all times, irrespective of whether the diplomat is acting in an official or private capacity.

In the event, the ABF declined to provide any further information on what capacity it believed Mr Fare had been acting. The ABF declined to say why his name was included on the warrant, only that the listing “is not an indication that the person is a subject of the investigation”.

The ABF refused to say whether it believed Mr Fare had engaged in correspondence with Ni-Vanuatu workers who had “separated” from their approved employer.

It also refused to say if it had conducted any assessment of whether seizing the high commissioner’s correspondence violated the Vienna Convention, claiming “the issuing officer (in this case, a magistrate) who signed off on the application is the ultimate decision-maker as to whether or not the conditions of the warrants are appropriate”.

It is not known whether the magistrate was aware that one of those listed on the warrant was a high-ranking diplomat, and the ABF refused to say whether it disclosed this information in its application for the warrant.