Our Refugees and The Border Force Act 2015
Photo source: A drawing by an asylum seeker child held in detention on Manus Island. © Flickr / Greens MPs
In 2015 a Bill was introduced into the Australian Federal Parliament to establish the Australian Border Force (“the ABF”). The ABF has been designed as a front-line border control and enforcement entity, tasked with enforcing customs and immigration laws in order to protect Australia’s borders. This bill, which has since been passed into Law as the Border Force Act 2015 (Cth) (“the Act”), has proved to be a source of controversy because of its implications for asylum seekers detained by the Australian government. Certain provisions of the Act, including the Secrecy and Disclosure Provisions, are preventing Australia from fulfilling its obligation to protect the human rights of refugees.
The Secrecy and Disclosure Provisions, as set out in Part 6 of the Act, provide that:
“An entrusted person must not make a record of or disclose protected information unless the making of the record or disclosure is authorised by a provision of this Part, is in the course of the person’s employment or service as an entrusted person or is required or authorised by law or by an order or direction of a court or tribunal.”
The penalty for an ‘entrusted person’ committing an offence under this Part 6 is imprisonment for two years. This is a broad classification of persons and includes doctors, nurses, psychologists, teachers, and humanitarian workers working within the immigration detention context or, indeed, any person that has contact with an asylum seeker even outside of an immigration detention centre . Although the Act provides for a number of exceptional circumstances under which an entrusted person is able to record or disclose protected information, the burden of proof to prove such an exception applies falls on the said entrusted person once they are charged with an offence under Section 42 of the Act .
Eminent barrister and human rights advocate Julian Burnside argues that, based on the the structure of the Act, recording anything that happens in immigration detention is prohibited, virtually without exception. Consequently, procuring and screening video recordings like those shown of the Manus Island and Nauru riots could amount to aiding and abetting a criminal act.
If a worker at a detention centre breaches part 6 of The Act, they could not only face criminal sanctions, but they can also be fired without any right of review for unfair dismissal .
These provisions are particularly concerning because of the human rights abuses that have been found to occur in detention centres. Australia has been found to be in breach of its obligations under the Refuge Convention and the Convention Against Torture, Inhumane, and Degrading Treatment by the United Nations Special Rapporteur on torture . The Australian Human Rights Commission recently concluded a National Inquiry into Children in Detention which found substandard and harmful care, child abuse, sexual abuse, and abuse of the disabled . The disclosure restrictions placed on ‘entrusted persons’, as defined by Section 4 of the Act, gives rise to the risk that such human rights abuses will continue unreported.
The provisions of Part 6 potentially have very serious implications for health care workers because of the conflict of interest they create between national asylum seeker policy and the provision of acceptable medical care . The preamble of the Australian Medical Association’s Position Statement, entitled “Health Care of Asylum Seekers and Refugees - 2011. Revised 2015.” States that:
“The Australian Medical Association affirms that those who are seeking, or who have been granted, asylum within Australia have the right to receive appropriate medical care without discrimination, regardless of citizenship, visa status, or ability to pay. Like all people seeking health care, asylum seekers and refugees in Australia, or under the protection of the Australian Government, should be treated with compassion, respect, and dignity.”
Part 10 of the same document goes on to provide:
“Medical practitioners should:
• act in the best interests of the patient;
• not authorise or approve any physical punishment, nor participate in any form of inhumane treatment, nor be called upon to do so by authorities; and
• provide medical treatment in a culturally and linguistically appropriate manner.”
Medical practitioners who have worked in offshore detention centres have warned that the new laws place doctors working in detention centres in an increasingly difficult position . General Practitioner Dr Ai-Lene Chan has stated that the Act directly challenges professional codes of ethical conduct, including the safeguard of clinical independence and professional integrity from demands of third parties and governments . The relevant provisions of the Act have been described to be unacceptable by medical practitioners as they attempt by the government to “gag physicians” who wish to advocate for the improved health care of asylum seekers .
The level of concern amongst the community has been so high that an open letter from health professionals, humanitarian workers and teachers challenging the government on these new laws . This letter, signed by 41 professionals, states:
“We have advocated, and will continue to advocate, for the health of those for whom we have a duty of care, despite the threats of imprisonment, because standing by and watching sub-standard and harmful care, child abuse and gross violations of human rights is not ethically justifiable.”
The letter points out the strong conflict between the Act and the duty of care to those the writers work with in detention, as well as challenges the Department of Immigration and Border protection on its failure to address human rights abuses .
Whistle blowing plays an important role in exposing human rights abuses perpetrated against asylum seekers . There is some discussion as to whether whistle blowing laws would offer protection to those who disclose information that may breach Part 6 of the Act. The Senate committee that reviewed the Australian Border Force Bill 2015 revealed that several submissions criticised the secrecy and disclosure provisions of the Bill, arguing that Part 6 essentially criminalises any whistleblowing . The response of the Senate committee was that Section 42(2)c of the Bill (and now the Act) provides an exception that means the Public Interest Disclosure Act 2013 (Cth) does protect individuals. The Minister for Immigration and Border Protection has echoed this sentiment.
Khanh Hoang, an associate lecturer with the Australian National University's Migration Law program, expresses some concern that it is far from certain that whistleblowers will be protected, despite the Public Interest Disclosure Act applying . Although whistleblower laws apply to workers in offshore detention centres who come across wrongdoing, the question still remains as to how well these laws protect workers in offshore detention centres if they choose to speak to the media .
By enacting legal sanctions against workers in detention centres who speak up about the conditions they observe and encounter, Part 6 of The Act has further eroded personal security for people confined in detention centres. Laws like the Border Force Act allow human rights abuses to continue in secrecy. In light of the international scrutiny Australia faces in relation to human rights violations in offshore detention centres, best practice would be to use the law to improve transparency, so that human rights violations can be seen and rectified, instead of hidden.
References
[1] Commonwealth, Parliamentary Debates, House of Representatives, 25 February 2015, 1204 (Peter Dutton).
[2] John-Paul Sanggaran, Bridget Haire & Deborah Zion (2016) ‘The Health Care Consequences Of Australian Immigration Policies’ (2016) 13(2) PLOS Medicine <http://dx.doi.org/10.1371/journel. pmed.1001960>.
[3] Border Force Act 2015 Cth s 41.
[4] Ibid, s 42.
[5] Sanggaran, Haire & Zion, above n 2.
[6] Border Force Act 2015 Cth s 24(2).
[7] Julian Burnside, Criminalising whistleblowing under the ABF Act, (12 June 2015) <http://www.julianburnside.com.au/whatsinside/uploads/2015/07/Criminalising-whistleblowing-under-the-ABF-Act.pdf> 1.
[8] Commonwealth, Parliamentary Debates, Senate, 14 May 2015, 3170 (Sarah Hansen Young).
[9] Sanggaran, Haire & Zion, above n 2.
[10] Ibid.
[11] Ibid.
[12] Australian Medical Association, Health Care of Asylum Seekers and Refugees - 2011. Revised 2015 (23 December 2015) < https://ama.com.au/position-statement/health-care-asylum-seekers-and-refugees-2011-revised-2015>.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Sanggaran, Haire & Zion, above n 2.
[18] ‘Open letter on the Border Force Act: We challenge the department to prosecute’, The Guardian Australia (online) 1 July 2015 <http://www.theguardian.com/australia-news/2015/jul/01/open-letter-on-the-border-force-act-we-challenge-the-department-to-prosecute>.
[19] Ibid.
[20] Sanggaran, Haire & Zion, above n 2.
[21] ‘Fact check: Are staff working in detention centres protected by whistleblower laws if they speak out?’, ABC News (online), 2 March 2016 <http://www.abc.net.au/news/2015-08-03/whistleblowers-offshore-detention-fact-check/6633168>.
[22] Australian Medical Association, World medical leaders join condemnation of detention centre gag laws, (3 July 2015) <https://ama.com.au/ausmed/world-medical-leaders-join-condemnation-detention-centre-gag-laws>.
[23] ‘Fact Check: Are staff working in detention centers protected by whistleblower laws if they speak out?,’ above n 21.
[24] Ibid.
[25] Sanggaran, Haire & Zion, above n 2.
