Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Indigenous Affairs) Share this | Hansard source

I rise to speak on the Australian Border Force Amendment (Protected Information) Bill 2017. Labor will support the bill in the House. We understand the government will make an amendment as agreed with Labor. The immigration and border force portfolio is a very complex and dynamic remit with many areas integral to the integrity, security, prosperity and safety of this country. It includes stronger borders, preventing people smugglers and stopping deaths at sea—areas of policy Labor is strongly committed to—as well as the visa system, skilled migration, customs, the administration and collection of tariffs, travel, tourism and many more.

Given these broad portfolio matters, the issue of transparency and accountability in the work undertaken by the department, staff, contractors and service providers is absolutely critical. It is especially important to the trust that Australians have in the integrity of our immigration and humanitarian programs. The Department of Immigration and the Australian Customs and Border and Protection Service merged in 2015 to become the current department with its operational arm being the Australian Border Force. Given this merger, the secrecy and disclosure provisions in part 6 of the legislation then covering Border Force were adapted from the now repealed Customs Administration Act into the new legislation. At the time, Labor supported the ABF Act, inclusive of part 6. Since 2015, there has been both confusion and criticism with part 6 of the ABF Act—about what information is protected and what information can be disclosed.

The ABF Act, as currently written, essentially protects all information, which has led to a lack of disclosure of information by concerned individuals and stakeholders. Some stakeholders refer to the 'chilling effect' the act has on the public disclosure of information. The appropriateness of this, and concerns raised by stakeholders about an inability to disclose any information, was one of the main driving forces behind Labor including an examination of part 6 of the act in the terms of reference of the recent Senate inquiry into serious allegations of abuse, self-harm and neglect of asylum seekers in the Nauru regional processing centre and similar allegations in the Manus regional processing centre.

It is important to clarify any real or perceived confusion about whether information is or is not protected. Labor agrees people should have the right to disclose non-sensitive information where appropriate and when required. Given this, we welcome the legislation before the chamber today. The practical application of this bill is to more narrowly define information that is protected from disclosure. This narrowing of the definition clarifies people's capacity to disclose non-protected information. It is also important to clarify the matter, given instances in which this information could lead to actions against an individual.

The bill adds three new permitted purposes for which personal information can be disclosed under the legislation. This includes matters of intercountry adoption, the protection of national security and defence of the country and the location of missing persons, all measures which Labor is very committed to and supports. The legislation amends the ABF Act 2015 in a number of ways. As per the current act, protected information is currently defined as 'information that was obtained by a person in the person's capacity as an entrusted person'. It is a very broad definition and covers all information obtained in the capacity of entrusted person. Under the legislation, that person could be the secretary of the department, the Australian Border Force Commissioner or an Immigration and Border Force Protection worker.

The proposed amendments narrow the scope and change the protected information to a new definition called 'Immigration and Border Protection information'. Subsection 1 of section 4 of the Immigration and Border Protection information includes disclosure that could reasonably be expected to prejudice security, defence or the international relations of Australia such as high-level data and information on human trafficking exchanged with other countries. The next subsection talks about the need to prevent detection and investigation of or conduct of proceedings relating to an offence or a contravention of a civil penalty provision, including information obtained by the interception of communications under a warrant. The next subsection talks about the protection of public health or endangering the life or safety of an individual or group of individuals such as through revealing the biographical details of individuals in witness protection programs. The next subsection deals with disclosure of information 'which would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence'. For example, details of aviation operations which are commercial-in-confidence. The next one talks about disclosure which could cause competitive detriment to a person, including commercially sensitive information about commercial entities such as names of suppliers, prices paid for goods and, finally, anything prescribed under information of a kind prescribed in instrument under subsection (7), which I will refer to later on. In this amendment, the narrowing, I think, is beneficial for public trust and integrity in the system. Of course there are some offences associated with the legislation as well, including unauthorised disclosure of information carrying imprisonment as a punishment for up to two years.

The executive memorandum of this bill argues that the amendments are made in terms of these provisions because they are ineffective and reduce operational administrative inefficiencies. Subsection (1) creates a new definition of duty of confidence, immigration and border protection information and intelligence agencies. That is subsection (1) of section 4. The amendments make a difference to public integrity and trust in the system. The new subsection 4(7) I mentioned before creates new powers for the secretary of the department to prescribe the kind of information to be defined as immigration and border protection information by way of a legislative instrument. That legislative instrument is disallowable, and we would agree with that—that is, if the secretary is satisfied that disclosure of the information could reasonably be expected to prejudice the effective work of the department or otherwise harm public interest. Given the complexities of the immigration and border protection portfolio, it is reasonable that issues may arise because of unforeseen changes in circumstances which make it necessary for information to be protected from disclosure and for that action to be taken quickly.

Labor is not convinced that this power should rest with an unelected public official, albeit someone of the standing of the Secretary of the Department of Immigration and Border Protection. This is a concern that was shared by the chair of the Senate Legal and Constitutional Affairs Committee inquiry, Ian Macdonald, who, in the public hearing into this bill said that he felt 'uncomfortable with this power resting with the secretary'. Labor is strongly of the view that the minister should be personally responsible and accountable for any decision to protect from disclosure any additional information that should be covered by this legislation, and which is certainly not covered by the definition. If they are going to add additional information, it should be the minister and not an unelected secretary of the department.

Labor anticipates that the minister will move an amendment to the legislation before the House today to transfer this responsibility from the secretary to the minister, and Labor will support that amendment. This is not a decision that should be delegated to the department. Labor supports transparency and accountability in immigration and border protection decision-making. The minister should always be accountable and willing to justify any decision to protect from disclosure additional immigration and border protection information.

Part 1 of schedule 1 of the bill will have a retrospective application backdated to 1 July 2015 which should give some comfort to stakeholders and advocates who have spoken about the Turnbull government's failure to manage the immigration and border protection portfolio. This clarifies that only information that would cause identifiable harm if disclosed is to be protected under the ABF Act. The new narrower definition of immigration and border protection information will, I think, reassure individuals who may otherwise erroneously believe that they have committed an offence. I also note that there have been no prosecutions under the current ABF Act for release of protected information. The ABF Act also makes amendments to the Customs legislation and other types of legislation.

Unlike the current government in their failures to consult or welcome scrutiny, Labor will always consult with relevant stakeholders, advocates, experts and others when developing policy and legislation, given the potential legislative impact those changes may have on people. With that in mind, we referred this particular bill to a Senate inquiry in relation to it. The Senate inquiry is due to report on 12 September, before the Senate looks at it but after the House will deal with this legislation. Whilst awaiting the final report, we note the 13 submissions that have been received by that Senate Legal and Constitutional Affairs Legislation Committee inquiry into the bill. A public hearing was held last Friday.

Submissions made to the Senate inquiry generally welcomed the proposed amendments to the ABF Act to narrow the scope of information which could be protected and to offer greater clarity about the types of information that can be publicly disclosed. The Refugee Advice and Casework Service, commonly known as RACS, confirmed in their submission their support for the bill and said that the bill:

… would bring a greater degree of transparency to the immigration detention system.

The submission also said:

By substituting 'protected information' with 'Immigration and Border Protection Information', the Bill decriminalises the disclosure of a range of information that may be crucial for avoiding harm.

The Law Council of Australia stated in its submission that it:

… welcomes any attempt at ameliorating the secrecy provisions in the Act in order to address concerns over the encroachments on freedom of speech.

The Human Rights Commission expressed a view that the proposed amendments are better than the current ABF Act, stating:

When compared to the current law, it strikes a better balance between recognising the need to protect sensitive government information and the importance of allowing legitimate public scrutiny.

Additionally, during the public hearing on Friday, 8 September, Doctors for Refugees provided testimony stating their support for the intent of the bill, despite serious reservation about the provision of health care provided to asylum seekers on Manus Island and Nauru. This includes the willingness of Australian based medical practitioners to speak out about the availability and provision of medical care.

I note concerns raised by submitters, including concerns as to the power of the secretary of the department, as I referred to before, and the processes of the Department of Immigration and Border Protection in marking information with appropriate security classifications; and questions as to why the department would have the need to protect the information. In particular, I draw the House's attention to a submission made by the Australian Information Commissioner which recommends:

… that the Department undertake a Privacy Impact Assessment … on this proposed change if one has not been undertaken.

During the public hearing on this bill, the department confirmed that, in preparing this bill, they did not undertake a privacy impact assessment. This is despite the Information Commissioner, in his submission, arguing:

Conducting a PIA would assist in identifying any privacy impacts associated with the handling of the relevant personal information due to the change in definition.

According to the commissioner, a privacy impact statement would also:

… provide an opportunity to undertake proactive steps to mitigate any potential impacts.

I urge the government to undertake such steps in the future.

Regrettably, the Australian public is all too aware of the failings of this government with respect to the operation of the Immigration and Border Force portfolio. The failures are not different. As in other areas of health and education, there has been report after report from the Auditor-General in relation to the dismal handling of this portfolio in terms of offshore processing and the mismanagement of the department by the current minister and the previous minister. There has been mismanagement of offshore processing and of welfare and garrison support contracts, the subject of two scathing ANAO reports. The government sat on its hands as to negotiating third-country arrangements, particularly for Australian-funded offshore processing centres.

We support the US refugee resettlement deal. We want all eligible refugees to have the opportunity to resettle, including refugees who are currently in Australia for ongoing medical treatment. The government seem to have put all their eggs in one basket with the US resettlement deal, and we urge them to look elsewhere for other third-country arrangements. We have consistently called on the government—in the interests of accountability and transparency, on which they seem to have had a change of heart here—to release details of the US refugee agreement and any side agreement they had in relation to the Costa Rica arrangements. The government have come to the party here. They've made changes in terms of protected information. We urge them to show the same degree of transparency and accountability on the US refugee resettlement deal and the Costa Rica arrangements that the current Prime Minister came to with then President Obama.

We want refugees off Manus and Nauru and into third countries as soon as possible, but we will hold the government to account in terms of transparency in the onshore as well as the offshore immigration system. When it comes to their handling of this, the minister and the secretary of the department should always be able to account for and should account for inaction. And that's what happened. The subject of this legislation before the chamber was looked at by the Senate inquiry which I referred to earlier. In September 2016, Labor initiated that inquiry because of the failure of the Turnbull government to act on serious allegations raised in the Nauru files aired by The Guardian. The chair's report, conclusions and recommendations from that Senate inquiry were handed down on 21 April this year. It's been 155 days and counting of complete and utter inaction on those recommendations. During those 155 days, we've seen more and more examples of failure by the Minister for Immigration and Border Protection to manage his secretary and the department

It seems to me that a 'tick and flick' approach is simply not good enough. I saw that exposed last week with reports that about 2,000 departmental staff were overpaid for leave, and this went unnoticed by the minister for immigration for two years. The minister blamed a systems error for the overpayments while forcing staff into an inflexible repayment scheme owing to his own failure to manage the department. This occurred while morale within the department is said to have collapsed and workers and their representatives, the unions, are still locked in a dispute with the Turnbull government over pay and conditions that's lasted for four years.

Labor is increasingly concerned about the Turnbull government's failure to manage offshore processing centres and to treat asylum seekers fairly and with dignity. Recently the immigration minister callously cut financial support and housing for asylum seekers transferred from Manus Island and Nauru for medical treatment. There are up to 400 people, potentially, who could be caught up in this decision. The cuts began without warning two weeks ago. In the interests of transparency and accountability and in the spirit of this particular legislation that we've got today, we ask the government not to purposely make people destitute and homeless. The government can only exacerbate health conditions of asylum seekers who were originally transferred to Australia for treatment. The immigration minister has completely failed to make a case as to why these people haven't been allowed to apply for resettlement in the United States while receiving medical treatment in Australia. The long-term issue of these people being in Australia could have been avoided entirely if these eligible refugees had been allowed to apply to be resettled as part of the US refugee resettlement arrangement whilst still living in Australia, as recommended by that Senate inquiry I've referred to.

Labor is committed to holding the government to account and to increasing transparency in onshore immigration detention and offshore immigration processing. The bill before the House today eases some of our concerns in relation to these issues, but it's simply not good enough. The government needs to do better—certainly in terms of the provision of medical care to refugees who need it on Manus and Nauru. There've been a number of medical reports of asylum seekers and refugees in regional processing centres experiencing significant delays in the medical transfer process or having their recommended procedures being unavailable on Manus and Nauru. I wrote to the immigration minister to seek an assurance that medical transfers would be available when recommended by medical professionals, including women's rights to reproductive assistance. My letter drew the attention of the minister to recommendations 1 and 2 of that Senate inquiry. I will read them for the record. Recommendation 1 is:

The committee recommends that the Department of Immigration and Border Protection, as a matter of urgency, commission an external review of its medical transfer procedures in offshore processing centres.

Recommendation 2 is:

The committee recommends that the Australian Government undertake to seek advice in relation to whether improvements are required to the medical treatment options available to asylum seekers and refugees in the Republic of Nauru and Papua New Guinea, particularly mental health services.

Today I again remind the House that the Turnbull government has yet to respond to these recommendations, and I urge the minister to respond to the Senate recommendations and to read the report and act on those recommendations.

Pending an anticipated amendment, Labor will support the bill before the House. Labor is committed to improving transparency and accountability, and we want to make sure that appropriate information is protected but that there be adequate disclosure provisions there. It's critical to the trust Australians have in the integrity of our immigration and border protection policies. Given this, we would welcome the amendments we anticipate today, including the narrowing of the definition of information that is protected from disclosure. We will continue to hold the government to account, and I urge the government to respond to the Nauru files Senate inquiry's recommendations and to my letter as soon as possible.

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