Extract from
comment by George Newhouse on Border Force Act
The Australian government moved on Tuesday to address what they believe are
“factually incorrect and highly misleading” statements about the draconian
secrecy provisions of the new Border Force Act.
Both the department and border force claim the new laws will not prevent
concerned professionals from reporting cases of child abuse, or speaking about
other matters of public interest relating to immigration detention centres.
It is surprising that government officials do not understand the practical
implications of the new secrecy laws. They make it difficult, if not
impossible, for doctors and other care workers to publicly raise their concerns
without fear of two years imprisonment.
The minister has said that doctors, teachers or other care workers are
protected from prosecution under the secrecy provisions of the Border Force Act
by the operation of the Public Interest Disclosure Act, often called the
“whistleblower law”. But outside of Australia the effectiveness of that
safeguard is limited, because of a mismatch in the coverage of the two laws.
The Border Force Act contains strict secrecy provisions that cover all
government contractors, including doctors, even outside of Australia. By
contrast, the protection of the Australian whistleblower law does not extend to
disclosures made about the conduct of a PNG or Nauran Government official or
worker, or of any person who is not an Australian government contractor or
officer. That includes detainees, or even a local priest in an offshore
immigration detention centre.
In addition, the whistleblower law offers no protection to those who make a
public disclosure about the actions of an Australian government minister or
policy, even if it harms people.
For example, if the minister implemented a policy of refusing any refugee
on Nauru or PNG medical
treatment in Australia – even if it were recommended by a doctor – any disclosure
of that action or government policy would not be protected by the whistleblower
law.
If the problems outlined above aren’t enough to deter doctors and care
workers from making public disclosures, the long list of hurdles within
whistleblower law are likely to put them off.
These extensive bureaucratic requirements include the need to exhaust all
internal complaints processes before any public disclosure of information
occurs, which is likely to substantially delay disclosure and have a chilling
effect.
Under the law, whistleblowers have to make complex legal assessments about
whether their disclosure has been “adequately dealt with” under internal review
procedures before they can speak out.
Once they go public, disclosure must be limited to the issue which was the
subject of the original internal complaint. Too much disclosure is not
protected, and there is little guidance about where the boundaries lie.
Finally, the whistleblower law is directed at disclosure of suspected or
probable illegal or other wrongdoing. It would not normally protect the
clinical and ethical consultations about patients that take place between
medical practitioners within immigration detention centres, and their
colleagues or specialists outside the immigration system.
It is true that there is an exemption to the secrecy provisions in the
Border Force Act which would allow a medical or allied practitioner or a
teacher to report suspected child abuse or neglect inside an Australian
immigration detention centre. However this exemption only applies to workers in
Australia because they are covered by State and Territory mandatory reporting
laws.
Unfortunately and relevantly, this exemption is of no use to a doctor,
teacher or care worker where Australian mandatory reporting laws do not apply,
such as in Nauru or Papua New Guinea.
