Australian Doctors Refuse to Be Silenced

As previously reported, Australian doctors have protested against laws embodied in section 42 of the Border Force Act 2015 (‘the Act’) which prevent “entrusted persons” from disclosing “protected information” about detention centres.

The section prescribes a maximum penalty of two years’ imprisonment for those brave enough to ‘do the right thing’ by reporting atrocious conditions and human rights abuses within the Australian-run centres – which have been criticised internationally for breaching Australia’s obligations under the UN Refugee Convention.

Now, the group ‘Doctors for Refugees’ is launching a challenge in the High Court of Australia against the laws.

What does the law say?

Section 42 says that “entrusted persons” (which covers a wide range of workers and contractors, including health care professionals) who release “protected information” (which relates to information received in the course of employment) are committing a criminal offence.

An exception to this rule is contained in section 48 of the Act, which allows a person to disclose protected information if:

• They reasonably believe the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and
• The disclosure is for the purpose of preventing or lessening of the threat.

However, the exception fails to cover a range of situations – including conditions within the centres and serious abuses which have already occurred.

Silencing detention centre workers

The Convenor of Doctors for Refugees, Dr Barri Phatarfod, is concerned the laws are causing medical professionals to remain silent about conditions in offshore detention centres, for fear of being criminally prosecuted.

“Many doctors have approached us to say they have concerns but they are unable to do anything about it”, Dr Phatarfod said.

Last year, UN Special Rapporteur Francois Crepeau boycotted a trip to Australia in protest against the laws. Among other things, he was tasked with investigating conditions within the centres, but expressed concerns that workers would not be open with him.

“This threat of reprisals with persons who would want to cooperate with me on the occasion of this official visit is unacceptable”, Mr Crepeau said.

International coverage of the laws – and Australia’s deteriorating human rights record generally – has led to the rejection of our application for membership on the UN Human Rights Council.

Legal Profession

The Law Council of Australia has argued that the Act should be amended to provide protection for whistle blowers who are acting in the public interest.

The Council has made lengthy written submissions to the effect that disclosures should not be criminalised unless secrecy is essential to the administration of government – rather than because they may cause public embarrassment or condemnation of the government of the day.

The Australian Law Reform Commission has also called for greater transparency in the operation of State bodies, calling this an “… indispensable check to be imposed on those entrusted with government power.” The Commission points out that the public can only make informed decisions about government and policy if it is provided with the necessary information.

Australian Constitution

The Australian Constitution explicitly guarantees just five rights:

• The right to vote (Section 41),
• Protection against acquisition of property on unjust terms (Section 51 (xxxi)),
• The right to a trial by jury for criminal cases in the higher courts (Section 80),
• Freedom of religion (Section 116), and
• Prohibition of discrimination on the basis of State of residency (Section 117).

In addition to these, the High Court has found an implied freedom of political communication, which is essential for the operation of our system of representative government as created by sections 7, 24, 64 and 128.

The test of whether a law which may affect this freedom is nevertheless permissible is crystallised in the case of Lange v ABC (1997):

1. Does the law actually burden freedom of political communication? and
2. If this is found, is the law “reasonably appropriate and adapted to serve a legitimate end” which supports a system with representative government?

Meghan Fitzgerald from Fitzroy Legal Service believes the Constitution gives detention centre workers – including doctors – the freedom to disclose information about conditions and incidents they witness in detention centres, and that section 42 impinges on this freedom.

By essentially gagging detention centre workers, the section also denies the rest of the community information which may be important for the making of informed decisions about government policy.