Secrecy provisions of the Australian Border Force Act

Joint media statement between the Department of Immigration and Border Protection and the Australian Border Force

Claims that the Australian Border Force Act 2015 (ABF Act) will prevent individuals from speaking out about matters of public interest relating to immigration detention centres, or from reporting cases of child abuse, are factually incorrect and highly misleading

Medical professionals, teachers and other professionals employed by and on behalf of the Department of Immigration and Border Protection are not inhibited from reporting matters in line with their professional obligations and in fact remain legally obligated to do so.

Department of Immigration and Border Protection Secretary, Michael Pezzullo, and Australian Border Force Commissioner, Roman Quaedvlieg, said claims that the provisions of the ABF Act would prevent reporting or scrutiny of conditions in immigration detention were misleading.

“The Commissioner and I will continue to engage with stakeholders, service providers, contractors and the public to ensure wilful misrepresentation or inadvertent misunderstanding about the application of the relevant provisions in the ABF Act are addressed,” Mr Pezzullo said.

“The ABF Commissioner has reinforced that these provisions are in line with those applying to partner agencies. The provisions are also reflected in obligations placed on service providers under existing contracts or under secrecy provisions existing in the Crimes Act 1914 (Cth).

“It has never been permissible for contracted service providers to make public operational detail which poses a risk to the safety and security of individuals, or which affects the operation of the Department or the former Australian Customs and Border Protection Service,” Mr Pezzullo said.

Mr Quaedvlieg said the secrecy and disclosure provisions in Part 6 of the ABF Act ensured that operational security, the protection of life and property, and officer safety were not comprised by unauthorised disclosure of information.

Crucially, these provisions do not prevent medical professionals from seeking the best clinical outcomes for their patients.

“The Department and its service providers have robust internal policies, procedures and review mechanisms in place through which any concerns, including those relating to medical treatment, can be raised and addressed. For doctors, this includes the soon to be appointed Surgeon-General of the ABF and Chief Medical Officer of the Department. This role has oversight of all health matters within the Department and ABF and allows doctors to elevate concerns through appropriate clinical channels and advocate on behalf of their patients,” Mr Quaedvlieg said.

He said claims by some groups that the ABF Act would prevent mandatory reporting of child abuse as required under some state and territory laws, or that the provisions of the Act were in conflict with professional ethical obligations to report such matters, were also false.

The Senate Legal and Constitutional Affairs Committee examined such claims. Its unanimous report into the ABF Bill found the provisions do not prevent the disclosure of information where it is made with the purpose of reducing a threat to the life or health of an individual.

“All contracted workers – including doctors, teachers and other professionals – have an unambiguous obligation to report such incidents and concerns, under relevant mandatory reporting regimes unaffected by the application of the ABF Act, and through their own employer and the Department’s internal processes,” Mr Quaedvlieg said.

“The Department and ABF require individuals to report instances of serious misconduct, corrupt conduct and criminal activity. A failure to report such incidents may be considered a breach of the employment contract or terms under which that individual is providing services or labour to the Department. This failure would result in action being taken including referring the matter directly to appropriate authorities and disciplinary action.”

The Minister for Immigration and Border Protection, Peter Dutton, also made a clear statement on the issue of disclosures. In particular, the Minister stated the provisions do not restrict the ability of individuals to raise genuine concerns through appropriate channels.

In addition, claims the ABF Act would criminalise ‘whistleblowing’ were considered by the Senate Legal and Constitutional Affairs Committee and rejected.

The Public Interest Disclosure Act provides protections for officials, including contractors, who wish to make a disclosure in the public interest. Disclosures defined within the PID Act would not be subject to a criminal prosecution under the ABF Act.

The Senate Committee’s report also reaffirmed that the ABF Act provides sufficient exceptions for disclosures to be made under a law of the Commonwealth, State or a Territory, including the PID Act.

The PID Act protects disclosure of conduct that:

(a)   unreasonably results in a danger to the health or safety of one or more persons; or

(b)   unreasonably results in, or increases, a risk of danger to the health or safety of one or more persons.

“Contracted service providers, including health and educational professionals, deliver vital services to those in immigration detention. The Department will continue to work co-operatively and closely with such professionals to deliver those services,” Mr Pezzullo said.

Sources:

  • Australian Border Force Act 2015

https://www.comlaw.gov.au/Details/C2015A00040/Html/Text#_Toc419973057

  • ABF Bill 2015 [Provisions]; Customs and Other Legislation Amendment (ABF) Bill 20015 [Provisions]. Senate Legal and Constitutional Affairs Committee, May 2015.

http://www.aph.gov.au/~/media/committees/legcon_ctte/Australian_Border_Force/report

  • Media Release: Inaccurate media statements on ABF Act – Minister for Immigration and Border Protection, 1 July 2015.

http://www.minister.border.gov.au/peterdutton/2015/Pages/Inaccurate-media-statements-on-abf-act.aspx

  • Transcript: Doorstop interview with ABF Commissioner, Roman Quaedvlieg, 1 July 2015

http://newsroom.border.gov.au/releases/d0e3ab05-52b6-47ce-addd-762791fddbfc

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