Monday, 16 October 2017
Australian Border Force Amendment (Protected Information) Bill 2017; Second Reading
Labor supports the Australian Border Force Amendment (Protected Information) Bill 2017 because, in principle, we support transparency in the operations of the Department of Immigration and Border Protection and the Australian Border Force, and of course that should also extend to the contractors who provide services to them. In particular, we have long called for greater transparency in the conduct of Australia's onshore detention centres and the offshore immigration processing centres. The bill does not directly concern those centres, of course, but it is important in the context of the operation of the department. This bill provides a clearer and narrower definition of information that is protected and what is protected from disclosure. It also clarifies people's capacity to disclose non-protected information, and it adds three new permitted purposes for which personal information can be disclosed under the Australian Border Force Act, to include intercountry adoptions, the protections of national security and the locations of missing persons.
Existing secrecy and disclosure provisions in the act were adapted from the now repealed Customs Administration Act. Labor supported those provisions at the time but, since the act was passed, there has been some confusion about what information is protected and what information can be disclosed. Labor referred this bill to a Senate inquiry to allow stakeholders to have their say about its consequences. Submissions to that inquiry generally supported the narrowing of the kinds of information that should be protected. But submitters raised concerns about the provision in the bill, as it was originally drafted, which allowed the Secretary of the Department of Immigration and Border Protection to prescribe by legislative instrument additional information that could be protected from disclosure. Labor shared these concerns, and we are pleased that the bill was amended in the House of Representatives.
The amended bill now before the Senate gives the minister, not the secretary, the power to prescribe additional protected information by legislative instrument. The instrument is subject to disallowance, as it was in the original form of the bill. The amended bill is a great improvement on the original because the power to prescribe protected information should not rest with an unelected public servant; it is properly exercised by the minister, who can be held accountable by parliament. This was not the only concern for Labor in the original form of the bill.
During the Senate inquiry into the bill, the chair, Senator Macdonald, said—and I don't often quote Senator Macdonald:
I'm uncomfortable with the fact that public servants, albeit the highest public servant in the area, is making these legally binding rulings. I accept that if the minister did it he would do it on the advice of the secretary.
The power to add to protected information by legislative instrument exists to deal with unforeseen changes in circumstances. In response to the Scrutiny of Bills Committee report, the minister cited these examples of the information that might come under new powers: the internal tools for visa decisions that, if disclosed, could increase a person's prospect of being granted a visa for which they might not otherwise be eligible; or the internal procedures for assessing applications for Australia's trusted trader status under the Customs Act that, if disclosed, could lead to an entity receiving this status that otherwise might not have been given. The minister should always be willing to be held accountable and to justify any decisions to protect information from disclosure. The bill in its present form now makes that clear.
I have had to say too many times in this chamber: there must be greater transparency in the administration of Australia's detention centres and Australian-funded offshore processing centres. The government's mismanagement of these offshore processing centres, particularly in regard to issues of welfare and garrison support have been subject to two scathing Australian National Audit Office reports. In September 2016, Labor initiated a Senate inquiry into allegations of serious abuse and neglect and instances of self-harm as outlined in the Nauru files, because the government had failed to act. Labor deplores the government's complete failure to act in the 3½ months since the inquiry's report and its recommendations.
Manus Island and Nauru were set up as regional transit processing facilities but have become places of indefinite detention because the government has not found third-country resettlement options. It has in many ways, I think, placed great emphasis on a single agreement with a former US administration about which the present administration has been far from enthusiastic. Refugees should be removed from the offshore centres and resettled to third countries as soon as possible. Malcolm Turnbull and Peter Dutton need to get on with the job of making that happen, and Labor would support them in genuine attempts to do that, as we support this bill.
While I'm on my feet, may I also draw attention to the commencement today of the full bench of the Fair Work Commission for its hearing into the pay dispute between the Department of Immigration and Border Protection and their staff. They're critical to the implementation of many of these measures before the chamber at the moment. The dispute has now been underway for four years, and during that time thousands of Immigration and Border Protection staff have had to fight tooth and nail, both in the Abbott and the Turnbull governments, over pay and conditions, while suffering real wage cuts. These are the people we look to to protect Australia's borders at sea, in airports and at ports. These are the people we look to maintain our visa system, to process citizenship applications and to protect Australians from the importation of dangerous and prohibited goods. They have a critical role to play. They've got a focal point on providing the security on which this country so depends. Yet they are subject to constant antiworker agendas by this government. We have had four years of that assault.
The government has sought to provide minimum pay rises for its own employees. It offered 3.4 per cent, which was rejected by 81 per cent of the department's workforce. In the various ballots that have been held the government clearly has not been able to maintain the support of its workforce. This is in the context where the most senior executives, who are on pay rates of well over $600,000 a year, are receiving pay rises well in excess of that that's being offered to the rest of the department. So four per cent is being offered to the most senior executives, but only 3.4 per cent to the other ranks. There seems to be a fundamental injustice in that disparity. Little wonder that this dispute has gone on for so long. It is important that the full bench of the Fair Work Commission are able to hear this matter, and I trust that they're able to do so in a speedy manner.
You would have thought that the government ought to be championing the rights of its employees instead of, in fact, doing exactly the opposite—maintaining this confrontational cost-cutting antiworker ideology. We rely heavily upon the public servants in the Department of Immigration and Border Protection to protect Australians, to provide us with safety and security. You would have thought that the least we could do was provide a proper basis for ensuring that they get at least the same remuneration and are treated on the same basis as the senior executives within the government department. If it's good enough to offer four per cent to the senior executive service and the secretary, surely it's good enough to offer the rest of the department the same rate.
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."
I welcome the Australian Border Force Amendment (Protected Information) Bill 2017 and the small step that it takes towards increasing transparency within Australia's offshore detention centres. I have, though, been very much appalled by the Turnbull government's lack of transparency and by its attempts to suppress whistleblowers and staff from highlighting significant concerns, instances of abuse, and the mistreatment of asylum seekers on Manus Island and in Nauru.
This bill will have the practical effect of narrowing the definition of information that is protected from disclosure. It removes the broad definition of 'protected information' and gives greater clarity as to what private information is actually protected. Labor, of course, supports this move for increasing transparency—which we have been calling on for such a long period of time—into Australia's onshore detention centres and offshore immigration processing or detention centres. This bill means that individuals who have been involved in Australia's offshore detention system as contractors or employees of the Department of Immigration and Border Protection, such as Save the Children workers, social workers, psychologists, doctors and lawyers, will be able to speak more freely about their experiences without fear of prosecution and without fear of up to two years imprisonment.
The Turnbull government's mismanagement of offshore processing centres and welfare and support contracts has been already the subject of two scathing reports by the Australian National Audit Office. Both reports have clearly shown that greater transparency was needed. I have been contacted over and over by people who are angry and upset—and rightly so—at the release of the Nauru files, where 26 former Save the Children workers on Manus Island and Nauru detailed what they saw and described as allegations of sexual assault and self-harm in the Nauru detention centre. This was towards women; it was towards children. It was an absolute and utter disgrace. One of the workers stated, 'You feel you can't talk about it, even though you know you should talk about it'. If it is not in the public interest to hear the experience from these workers of what is happening in our name, in Australia's name, in these offshore detention facilities, then I don't know what is. The files, which the government shrouded in secrecy, included reports of genital mutilation against young women, people sewing their lips shut, self-immolation, sexual violence, and gross mishandling of incidents by private contractors. That is what the government wanted to keep secret. That is what the government did not want the Australian public to know was happening.
In September 2016, off the back of the information and experiences detailed by these workers, Labor initiated a Senate inquiry to investigate these allegations of abuse, self-harm and neglect. The Turnbull government had failed to act. The government's total inaction for the past four months on the chair's conclusions and the recommendations from that Senate inquiry is extremely appalling. It is extremely disappointing. Part of our democracy is to inquire and investigate—through the parliament and through the Senate committee process—these government failings and issues. The government needs to respond to the recommendations in that report. It has failed so far to do so.
Let's remember that the Australian Border Force Act has previously been used by the Abbott government to attempt to prosecute Save the Children workers after they revealed serious allegations of abuse of women and children. Here are workers on the ground, contracted by government to do a job. When they experience and see firsthand what is going on in these government-funded, government-run immigration detention facilities, what does our government do? When the workers report these serious allegations of abuse of women and children, what does our government do? It attempts to prosecute them. These workers were removed from the island and referred to the Australian Federal Police—by Minister Morrison, the minister for immigration at that time—for allegedly breaching section 70 of the Crimes Act. I hope this amendment will mean that this can never happen again—that a non-government organisation, contracted by a government to do a job, that saw, in the course of their work, abuse being carried out, and that, instead of being able to report and be transparent and open about their work and their job and what they saw, were suppressed—and, in fact, threatened—by a government, which said, 'Well, you go ahead and do that and we will prosecute you.' That is an absolute disgrace. That is shameful. That is why Labor very much supports this amendment to ensure that this can never happen again.
Beyond this bill there are other things that this issue raises. This is a government that has systematically maligned asylum seekers and refugees and mismanaged offshore processing on Manus Island and Nauru. Indeed, there has not been any processing for the last four years. No-one in this chamber, I am sure, can possibly believe that people who sought our asylum should still be on Manus Island and Nauru in these detention facilities some four years on. The Prime Minister and the Minister for Immigration and Border Protection have sat on their hands for too long in failing to explore every possible alternative to asylum seekers being stuck and locked up on Manus Island and Nauru. So this bill is a good step in increasing transparency in our offshore detention system.
I was very pleased to hear earlier this year when the government finally agreed that it would ratify the optional protocol against torture, which also requires more monitoring and investigation of what goes on in Australia's prisons and detention facilities. But I think what has been very clear to me is that, whilst we have argued for this government to lift its game in this appalling policy area of immigration detention, we are not alone here. We stand here with the voice of our own communities. Indeed, my community in Tasmania has always been an extremely outspoken one when it comes to the issues of refugees and asylum seekers. I've received hundreds and hundreds of letters, protesting not only the conditions of Australia's offshore detention centres but also the secrecy that Australia's offshore detention regime has been shrouded in. That is why this government has been basically dragged kicking and screaming to bring this amendment forward today, to backflip on its original position—because of lobbying by civil society, by the Labor Party and by people in our community who have said that this cannot go on.
The issue of transparency and accountability in the work undertaken by these staff is critical to the trust and integrity that Australians have in our immigration and humanitarian programs. That is why this bill is so important, in that it tangibly means that individuals who've been involved in Australia's offshore detention system in any way—contractors, social workers, psychologists, departmental staff, doctors; you name it—will be able to speak more freely about their experiences and what they've seen with less fear of prosecution.
In winding back the government's total suppression of so-called whistleblowers and staff speaking out on Australia's offshore detention regime, this bill is a good thing. It does highlight why independent monitoring is so important. The chairperson of the UN Subcommittee on Prevention of Torture, Sir Malcolm Evans, said:
This is why we think independent monitoring is so important—transparency is one of the greatest protections here. Where there's a lack of transparency, naturally there will be concerns things are not as they ought.
It pretty much is common sense. Hiding or shrouding a practice in secrecy means there must be something that the government wants to hide in the first place.
There have been a number of parts of civil society that have led to the government having to back down in its policy of secrecy, and I would like to acknowledge them. I would like to acknowledge the work of Save the Children in particular for originally speaking out; the work of Guardian Australia in the release of the Nauru files; the ongoing important work of the UNHCR; and, indeed, other parts of community and society, like Doctors for Refugees, the Refugee Council of Australia and so many other NGOs working every day to help rebuild the lives of refugees—people who have already suffered enough.
Finally, I would like to recognise that there is critical work going on not just in those particular facilities but also here in Australia for those who have been deemed refugees, have refugee status and have been able to settle. They are members of our community who work each day, who volunteer, to make sure that we as a country put humanity first and act humanely to ensure that people can rebuild their lives after fleeing persecution and after the suffering that they've endured.
I want Australia to be recognised as a welcoming, humane country for those people right now and also into the future. The only way that can happen is if this sad and sorry chapter of the last four years comes to an end for those who have been trapped on Manus Island and Nauru without any hope or any future in sight for settlement. It is a failure of this government that they have not settled these asylum seekers and refugees—shame on them. It's time that this ends. Let's hope this bill is only the beginning of that becoming a reality.
I thank all senators for their contribution to the debate on the Australian Border Force Amendment (Protected Information) Bill 2017. Part 6 of the Australian Border Force Act 2015 regulates the protection and disclosure of information held by the Department of Immigration and Border Protection. The Australian Border Force Amendment (Protected Information) Bill amends part 6 and related provisions to clarify the original intent of the legislation, which is to prevent the unauthorised disclosure of information that could cause harm to the national or public interest.
The aim of the measures in this bill is to ensure that immigration and border protection information is not only provided with the necessary level of protection in a targeted manner but is also able to be disclosed when it is appropriate to do so. The bill provides assurances for the Australian public, business, government and foreign partners that sensitive information provided to the department will be appropriately protected.
The bill acknowledges the balancing of the competing interests of transparent, open and accountable government with the necessary interest of protecting information from disclosure which would lead to identifiable harm. The retrospective application of the bill, backdated to the enactment of the Australian Border Force Act 2015, will provide the necessary certainty that only information which could harm the national or public interest if disclosed is to be protected and will be regarded as ever having been protected under the Australian Border Force Act. With those comments, I commend the bill to the Senate.