Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

The Australian Border Force Amendment (Protected Information) Bill 2017 revises the secrecy and disclosure provisions contained within the Australian Border Force Act 2015. The explanatory memorandum states:

This revision is necessary to clarify the policy intent and simplify the administration of the provisions.

The explanatory memorandum further states:

This Bill clarifies the policy and legislative intent, which is to protect certain information from unauthorised disclosure to prevent harm to national and public interests, while meeting the expectations of the Australian community of transparency and accountability within the Australian Government. This balance is needed to appropriately manage information disclosures and preserve public confidence in government.

While the Greens won't be opposing this bill, we believe that the explanation given by the government is complete and utter rubbish and demonstrably so.

It's worth going back through the history of these provisions. On 20 May 2015 the Australian parliament passed the Australian Border Force Act. This act came into force on 1 July 2015. Section 42 of that act provides that it's an offence for someone who is or has been an entrusted person to make a record of or disclose protected information. The maximum penalty for the offence is imprisonment for two years.

This provision—which still exists as we debate here today, with a minor amendment delivered by the government with regard to medical professionals—was designed by the government and supported by the Labor Party, for no other reason than to suppress the true horrors of what is happening on Manus Island and Nauru and inside Australia's onshore immigration detention regime. It was designed to have, and had, a chilling effect on freedom of speech in this country. It was designed to prevent people from speaking out about what they witnessed, including many people who had either a professional or a moral obligation to do so. The current section 42 is a draconian measure, designed, as I said, to keep secret the horrors of what is happening on Manus Island and Nauru and inside Australia's onshore detention regime.

When the act was introduced, many people working in detention centres and offshore processing centres raised concerns about its potential to undermine their capacity to do their jobs. They would basically be at risk of two years imprisonment for publicly expressing concerns. And, remember, those so-called freedom-of-speech warriors on the government side of this chamber—who purport to care about freedom of speech when in fact they're using that issue as another weapon in the ongoing culture wars in this country—all voted for section 42 as it currently stands.

When the act commenced in 2015, a group of doctors, nurses, teachers and other then-current and former detention centre workers on Nauru and Manus Island wrote an open letter to the then Prime Minister, Tony Abbott; to Minister Dutton; and to the Leader of the Opposition, Mr Shorten. In part, this letter stated:

We have advocated, and will continue to advocate, for the health of those for whom we have a duty of care, despite the threats of imprisonment, because standing by and watching sub-standard and harmful care, child abuse and gross violations of human rights is not ethically justifiable.

If we witness child abuse in Australia we are legally obliged to report it to child protection authorities.

…   …   …

If we witness child abuse in detention centres, we can go to prison for attempting to advocate for them effectively.

The Australian Greens couldn't have put it any better ourselves.

This was a provision—and it remains in force today as we debate this amendment—that was designed with no other end in mind than to allow the government to continue its cover-up of what is happening, particularly on Manus Island and Nauru. It was designed to drape a cloak of secrecy over the horrors of indefinite offshore detention, a regime that is supported by every single member of this Senate from the Labor, Liberal and National parties. That's what it was designed to do, and you know what? To a large degree, it worked. I've spoken personally to a number of people who've been staff members on Manus Island and Nauru. I've spoken personally to people who worked in those places and who wanted to tell the truth about what they saw there. Some of them even took legal advice about what the implications would be if they spoke the truth about what they saw there. But they couldn't, because they were facing up to two years in prison for simply talking about the horrors that they witnessed. Section 42 as it currently stands is an absolute disgrace.

The concerns articulated in the open letter written by former detention centre workers on Nauru and Manus Island culminated in the filing of a constitutional challenge to some provisions of section 42 by Doctors for Refugees on 27 July last year. As I alluded to earlier, on 30 September 2016, the secretary of the Australian government Department of Immigration and Border Protection amended the determination in order to exclude health practitioners from the application of the secrecy provisions. I note that, even though the determination exempts health professionals, Doctors for Refugees have subsequently confirmed that the High Court proceedings are ongoing.

Here's the real reason that this amendment bill is before the parliament today: the government knows that it hasn't got a constitutional leg to stand on here. The government knows that it is going to lose in the High Court, and that's why the government has brought this amendment bill into the parliament. Nothing has actually changed since the Labor and Liberal parties supported the current provisions of section 42 of the Border Force Act. If the government expects this Senate to believe that it has suddenly had an attack of conscience, well, pull the other one—because we're not buying it. The reason this amendment bill has been brought in is that the government knows it's going to lose in the High Court. There is no other reason. And that's the reason for the retrospectivity elements contained in this legislation. I mean, pull the other one, Minister; it's got bells on it.

It's worth pointing out that, even though medical professions were exempted, other workers, including teachers, counsellors and social workers, are still caught by the current provisions. Many people have described the current section 42 as having a chilling effect, and they are absolutely right—as it was designed to do. Section 42 had a chilling effect on freedom of speech in this country and a chilling effect on our democracy. People felt that they were unable to speak out about what they witnessed on Manus Island, on Nauru and in onshore detention centres. The provisions contained in section 42 prevent people from making legitimate criticisms of government policy—a clear breach of the implied freedom of political communication contained in our Constitution. The Parliamentary Joint Committee on Human Rights noted in a report that:

… in continuing to criminalise the disclosure of information, the secrecy provisions as amended by the Bill continue to engage and limit the right to freedom of expression.

It's worth pointing out here that the current existence of section 42 is yet another example of why Australia needs a charter of rights.

We are the only Western democracy in the world without either a legislated charter of rights or a constitutionally embedded bill of rights. So we're the only Western democracy that does not protect the basic rights and the basic freedoms of its people either through legislation or in the Constitution. I have no doubt that, had we had a charter of rights when this section was brought in in 2015, we would not be in this place debating section 42 of the Border Force Act today.

In the many statements that were put forward by the right-wing culture warriors of this place—the self-anointed great defenders of freedom of speech—during the debate about whether we should repeal or amend the provisions of section 18C of the Racial Discrimination Act, not one of those purported great defenders of freedom of speech mentioned section 42 of the Border Force Act. It simply was not advanced as an argument by them because, of course, to do so would not have suited their real agenda, which actually had nothing to do with freedom of speech and had everything to do with allowing their mates to use the 'N' word in public debate in this country. They didn't want the veil of secrecy over what is happening on Manus Island, on Nauru, on Christmas Island and in onshore detention centres lifted; they wanted it to stay in place.

It's worth recalling that Amnesty International reported in 2016:

The abuses on Nauru have been facilitated by the deliberate policy of secrecy, again established by the government of Australia ... This has had a chilling effect on disclosures about human rights abuses, and many service-providers and asylum seekers were too scared to speak with Amnesty International researchers.

There you go—that's why section 42 was in place: to stop people speaking out. The same report from Amnesty International said:

The conditions on Nauru—refugees' severe mental anguish, the intentional nature of the system, and the fact that the goal of offshore processing is to intimate or coerce people to achieve a specific outcome—amounts to torture.

That is, torture delivered by the Labor and Liberal parties in this place to thousands of people who've done nothing wrong. As we sit here today, the Australian government is waiting to hear whether we've been elected to the United Nations Human Rights Council—along with the Philippines, I might add, for those who are thinking that a seat on the Human Rights Council means the international community is in some way indicating that countries that have a seat there have a good human rights record. When Australia was lobbying for that seat, I wonder whether they mentioned that they were involved in torturing people who sought Australia's protection and would imprison, for up to two years, people who spoke out about it?

I was a member of the Legal and Constitutional Affairs References Committee that conducted an inquiry into serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru and Manus Island processing centres. As I said during the course of that inquiry, I was contacted by many present and former staff on Manus Island and Nauru who wanted to raise their concerns and make submissions or speak to the inquiry. Without exception, they were in a range between apprehensive and bloody terrified about speaking to the inquiry because of section 42. It was only the comfort offered by parliamentary privilege that allowed some current and former staff to come forward and make submissions to that inquiry.

Michel Forst, the United Nations Special Rapporteur on the situation of human rights defenders, referred, in his end of mission report in 2016, to the stifling Border Force Act. He further stated:

... the Act's existence and government actions aimed at censoring and intimidating advocates has had a chilling effect on the disclosure of information about violations in off-shore processing. And I have received evidence of significant consequences for [people who] blew the whistle. I met several doctors, teachers, lawyers and journalists, who either spoke out or covered conditions in offshore detention places and who have been under heavy surveillance.

In September 2015, the United Nations Special Rapporteur on the human rights of migrants, Mr Francois Crepeau, announced that he would postpone his official visit to Australia due to 'the lack of full cooperation from the government regarding protection concerns and access to detention centres'. Mr Crepeau stated that he had sought a written guarantee from the government that no-one meeting with him during his visit would be at risk of any intimidation or sanctions under the Border Force Act and that this written assurance was not provided.

I would like to take this opportunity to acknowledge the former workers on Manus Island and Nauru who have gone public about the conditions and treatment of asylum seekers and refugees in those places. At great personal risk, they have spoken out and should be applauded for doing so. Make no mistake, section 42 of the Border Force Act delivered by the Labor and Liberal parties in Australia was deliberately designed to have a chilling effect on our democracy and a chilling effect on freedom of speech in this country, and to draw a veil of secrecy over the horrors of Australia's offshore and onshore detention system. It prevented many people from speaking out about what they'd witnessed, including many who had a professional or moral obligation to do so. So to everyone who stood up for transparency, to everyone who was prepared to risk imprisonment to speak the truth, to everyone who fought Labor and Liberal draconian measures, this is a win for you today. The terrible truth of what the Labor and Liberal parties have done to people on Manus Island and Nauru in the name of all Australians will come out eventually—that terrible truth—and then, finally, some of the wounds will begin to heal. Until then, we can be heartened that there are many, many Australians who will continue to fight tenaciously for this to happen.

Doctors for Refugees stated in evidence to the committee inquiry into this legislation that, while they welcome changes that limit the way the Australian Border Force Act impacts on workers who provide care and services to refugees and asylum seekers, their position remains that imposing criminal sanctions on people who speak out against conditions in detention has no place either in Australian democracy or in the provision of health care. Refugee Legal submitted that, even with the passage of the bill, the Australian Border Force Act will continue to have a 'chilling effect' on disclosures that may in fact be in the public interest.

As I've said, we won't be opposing this legislation, because it does somewhat improve section 42 of the Border Force Act. But I want it firmly on the record that we're still not happy with section 42, even if it is amended as proposed in this legislation, and we are still not happy with a range of other sections of the Border Force Act in this country.

I move the second reading amendment circulated in the chamber:

At the end of the motion, add:

"but the Senate notes the chilling effect that section 42 of the Australian Border Force Act 2015 has had on the immigration debate in Australia and condemns the Government and the Opposition for introducing and supporting the existing section."