The effect of the Border Force Act is to throw a veil of secrecy over what is happening in Australia’s immigration detention system, says Greg Barns.

Australian criminal law over the past decade has been heading inexorably in the direction of a major increase in the power for the state at the expense of human rights. The Australian Border Force Act, a federal law which came into force on July 1 this year, is a particularly troubling example.  

This legislation makes it a criminal offence for individuals working in Australia’s immigration detention centres, located onshore, in Papua New Guinea and on the tiny Pacific island of Nauru, to disclose wrongdoing or physical or mental health abuse to the media. 

The Australian Border Force Act was introduced by the Conservative government of prime minister Tony Abbott, but was supported by the opposition Australian Labor Party and opposed only by the Greens. The act militarises the Australian Customs Service and the Department of Immigration and Border Control. 
Section 42 of the act, the provision that criminalises disclosure, is disturbing in its heading alone. It is entitled ‘Secrecy.’

It provides that a person who is an ‘entrusted person’ commits an offence if he or she makes a record of, or discloses what is termed ‘protected information’.

An ‘entrusted person’ is defined in the act to mean not only government employees, but also a consultant or contractor. And ‘protected information’ simply means any information that a person comes across while working for, or in, detention centres. A breach of section 42 is a criminal offence, punishable by imprisonment of up to two years.

In other words any person working directly or indirectly for the Department of Immigration and Border Protection who reveals to the media or any other person or organisation (the only exceptions being the Immigration Department and other Commonwealth agencies, police, coroners) anything that happens in detention centres such as Nauru and Manus Island is liable to prosecution. 

It is clear that this extraordinary provision has been inserted by the Abbott government because of the fact that over a number of years revelations in the media, by NGOs and medical groups of sexual and other forms of physical and mental abuse of asylum seekers in the care of the Australian government have brought international condemnation on Australia. Only two months ago a group of doctors, counsellors and teachers who had worked at Nauru wrote an open letter outlining sexual and other forms of abuse endured by asylum seekers.

The World Medical Association and Australian medical bodies have expressed concern about this provision. These concerns have been dismissed by the minister for immigration, Peter Dutton. Mr Dutton points to a provision in the legislation which provides that doctors and other health professionals are exempt from the ban on disclosure if the purpose is to save a life or to prevent endangerment to a person’s health.

But this provision will not cover a situation where, for example, a doctor writes an article for a medical journal about systemic mental health problems among asylum seekers.

Other provisions of the new act can also be characterised as designed to prevent dissent and criticism. Section 26 of the act allows the Australian Border Force Commissioner to direct people who work for the department including contractors, and people who work for foreign governments or for public international organisations such as Save the Children or the Red Cross.

These directions must be followed. This will inhibit contractors from abiding by their professional obligations or from following the generally accepted ethical standards required to fulfil their roles. The commissioner could, for example, direct that Red Cross workers show him or her any report they have written for their organisation about conditions in immigration detention centres.

Further workers may need to undergo ‘organisational suitability assessments’ as part of their essential qualifications. The explanatory memorandum that accompanied the legislation contemplates that this will be to ‘screen’ individuals who may be less likely to comply with secrecy and non-disclosure requirements.

The effect of these provisions will be to deter individuals such as doctors, counsellors, and others who have voiced publicly their concerns about the appalling conditions endured by asylum seekers in Australian government-run detention centres from collecting information about those conditions raising their concerns in the community via the media and other fora.

The effect of the Border Force Act is to throw a veil of secrecy over what is happening, and has happened in Australia’s immigration detention system. This act goes much further than any other Australian federal or state legislation in seeking to reduce scrutiny of government actions in a detention setting.

This legislation is antithetical to a society that professes to be a liberal democracy where independent scrutiny of, and protection for those who lift the veil on human rights abuses ought to be the norm.

Greg Barns is a member of the Tasmanian, Victorian and Western Australian bars. He is a former national president of, and now a spokesman for the Australian Lawyers Alliance. He is an adviser to WikiLeaks founder Julian Assange