On Wednesday, the Australian Border Force Act came into force. It makes it an offence for an “entrusted person” (an Australian Border Force employee) to make a record of or disclose “protected information”. This is widely defined to include any information obtained by the person in their capacity as an employee. The penalty for the offence is two years’ imprisonment. More than 40 health professionals have penned an open letter to the government in which they vowed to continue making disclosures.
They challenged the Department of Immigration and Border Protection to prosecute them so that:
… these issues may be discussed in open court and in full view of the Australian public.
Lawyers and asylum seeker advocates are concerned the act will have a “chilling effect” on whistleblowers working in detention centres. But the ALP argues existing whistleblower arrangements for public interest disclosures remain protected.
So, how might the act work in practice?
Disclosure to protect life or health
The act provides for a number of exceptions to the offence. Section 48 allows for disclosure where an:
… entrusted person reasonably believes it is necessary to prevent or lessen a serious threat to the life or health of an individual.
On its face, the provision allows for the disclosure of serious child or sexual abuse. However, other provisions place a burden on Border Force workers, which may deter disclosure.
The act provides that a whistleblower bears the evidentiary burden of proof that an exception applies if information is disclosed. Whistleblowers must make judgements about whether a threat to life or health is “serious” enough to warrant disclosure and then be willing to defend their actions in court. This alone may have a deterrent effect.
The exception sits uneasily with other provisions of the act that regulate employee conduct. Section 24 requires all workers and contractors to make an oath or affirmation before the Border Force commissioner. It is unclear exactly what that oath or affirmation is or how it impacts on an employee’s ability to disclose information.
Section 26 allows the commissioner to issue directions about how employees are to perform their duties. Failure to follow a direction or breach of an oath may give rise to grounds for termination of employment on the basis of “serious misconduct” under the act.
While the commissioner, Roman Quaedvlieg, has said it is “unlikely” that medical staff will be prosecuted, the reality is that future whistleblowers are stuck between a rock and hard place. Disclosure may not result in imprisonment, but it could lead to a loss of employment.
Disclosure and the public interest
Beyond issues of individual health and safety, there are questions about the extent to which the act allows disclosure of information in the public interest. Such disclosures may relate to breaches of domestic law, conditions in detention centres, or breaches of international law.
There is no public interest exception in the act. However, an exception exists allowing disclosure that is:
… required or authorised by or under a law of the Commonwealth, or state or territory.
This provides an opening for public interest disclosures to be made in accordance with the Public Interest Disclosure Act, which provides protection from criminal liability for public service employees, including contractors.
However, protection under the Public Interest Disclosure Act does not extend to external disclosures outside of government of information that consists of – or is likely to consist of – “sensitive law enforcement information”. This includes information which, if disclosed, is reasonably likely to prejudice Australia’s law enforcement interests, including its interest in:
… avoiding international disruption to national and international efforts relating to law enforcement … or the integrity of law enforcement agencies.
The government may argue that much of what goes on in detention centres or at sea amounts to sensitive law enforcement information, just as it has argued that on-water activities under Operation Sovereign Borders are “operational matters” that cannot be discussed.
The act also provides an exception to allow the disclosure of information to government or other bodies if authorised in writing by the immigration minister. Last week, the minister, Peter Dutton, issued a rule authorising disclosure to a large number of government agencies, but they do not include the Commonwealth Ombudsman or the Australian Human Rights Commission – bodies set up to hold the government to account. Nor does it include any media.
The Law Council of Australia argued for an amendment to the bill to include a standalone public interest exception. This would have been a much-needed amendment that, at the very least, would have provided a more balanced outcome. A standalone public interest exception is necessary to protect, for example, allegations that were reported to the media that led to the Moss review about conditions and circumstances on Nauru.
Secrecy and open government
As the Australian Law Reform Commission remarked in 2010, a key principle of open government requires an:
… indispensable check to be imposed on those entrusted with government power.
This allows the public to know whether a government’s deed matches its word. While some amount of government secrecy is necessary, such restrictions should be balanced with the need for transparency.
Rather than promoting open government, the act gives the distinct impression that Border Force employees are persons to whom the government “entrusts” its secrets. But a breach of that trust, even if done in the public interest, renders a person liable for imprisonment.
The act further entrenches the culture of secrecy around Australia’s asylum seeker policy at the cost of open and transparent government. That is something we should be worried about.