On 1 July 2015, the Australian Border Force Act 2015 (Cth) ("ABFA") came into force met by protest and debate as well as an open letter to the Prime Minister, Immigration Minister and Opposition Leader signed by over 40 current and former medical and humanitarian detention centre workers on Nauru and Manus Island.
At the centre of the controversy is Part 6 of ABFA which imposes strenuous controls on disclosure of "protected information" obtained by persons working for (or having worked for) the Department of Immigration and Border Protection including the Australian Border Force (ABF) and the imposition of criminal sanctions of up to two years imprisonment in certain cases. Opponents claim these provisions are a harsh and forceful silencing of would-be whistleblowers, preventing them from speaking out about potential instances of malpractice, abuse or human rights violations within detention centres and other ABF operations. The government and proponents of ABFA however maintain that the laws do not fetter legitimate whistleblowers citing protections that would apply to them under the Public Interest Disclosure Act 2013 (Cth) (PIDA).
This article considers the debate surrounding the new laws and what it means for those immigration and border officials who chose to speak out.
- ABFA Part 6 – in summary:
Part 6: "Secrecy and disclosure provisions", sets up a strict disclosure regime for those working for the Department of Immigration and Border Protection and the ABFA (referred to as "entrusted persons".
The core provision is Section 42 "Secrecy" which states that:
- A person commits an offence if:
- the person is, or has been, an entrusted person; and
- the person makes a record of, or discloses, information; and
- the information is protected information
Penalty: Imprisonment for 2 years.
"Protected information" is defined as information that was obtained by a person in the person's capacity as an entrusted person. This definition effectively covers anything that the entrusted person comes across in the course of their work.
Section 42: where the record or disclosure is made: in the course of employment or service, authorised under another law, or required by Court or Tribunal order.
Sections 43 – 45 where disclosure that can be made
- under other Australian laws such as the Law Enforcement and Integrity Commissioner Act 2006, Customs Act, (ASIO Act), and
- under specific agreements or
- in assistance of the proper administration of a range of domestic and foreign criminal laws, commerce, public administration and health, coronial and other enquiries,
Sections 47 and 48 with
- consent or
- under reasonable belief that the disclosure is necessary to prevent or lessen a serious threat to life or health of an individual and the disclosure is for the purpose of preventing or lessening this threat.
- Disclosure and Whistleblower Protections
We identify the exceptions as so narrow, that "entrusted persons" are, in our opinion, unlikely to speak out about malpractices and breaches of ethical or human rights norms without fear of criminal prosecution and imprisonment for up to two years.
Do the protections offered to whistleblowers under the Public Interest Disclosure Act 2013 (Cth) (PIDA) assist?
There is an argument that Section 42(2)(c) of the ABFA allows disclosure that is required or authorised by or under a law of the Commonwealth, a State or a Territory which would invoke application of the PIDA. PIDA allows for disclosure of certain internal misconduct within a Commonwealth Department or agency where certain prior conditions are met.
PIDA does indeed cover many important types of malpractice including malpractice contravening Australian laws, corruption and conduct based on improper motives, abuse of public trust and endangerment to health and safety or the environment. However, there are also a number of limitations that entrusted persons might face in seeking recourse via PIDA.
Firstly, the disclosure must first be reported internally and can only be disclosed to an external party if there are reasonable grounds that the internal investigation is or has been inadequate (or delayed) or the response is or has been inadequate. This requirement may mean that internal processes can be used to, keep all protected information internal.
Further, the disclosure must not be contrary to the public interest or disclose to the public sensitive information about law enforcement. The uncertainty as to application of the test against the backdrop of potential imprisonment could be extremely dissuasive to potential disclosers.
Finally, disclosures will not be protected where the disclosure relates to a matter in which the Minister has proposed to take action or is taking action. As such, there could be many instances where the exercise of executive power by the Minister in relation to Border Protection and Immigration can nullify the potential for PIDA disclosure.
Also it is worth clarifying that the Not-For-Profit Sector Freedom to Advocate Act 2013 (Cth (NFP FAA) which prohibits the Commonwealth from entering into agreements with not-for-profit entities (NFPs) (e.g. for grant funding) that contain clauses preventing the NFPs from commenting on or advocating support for or opposing changes to Commonwealth law, policy or practice, theoretically extends to any agreements between the ABF and NFPs. However, whilst the NFPs will not be prevented from advocating opposition to Border Force laws or policies, the information obtained by those NFP personnel who may be working with ABF under such an agreement will be subject to the ABFA secrecy provisions. so may choose not to engage in any "permitted" advocacy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.