Monday, 16 October 2017
Australian Border Force Amendment (Protected Information) Bill 2017; In Committee
by leave—I move the amendments standing in my name on sheet 8251:
(1) Schedule 1, item 1, page 3 (lines 9 to 31), omit the definition of Immigration and Border Protection information, substitute:
Immigration and Border Protection information means information of any of the following kinds that was obtained by a person in the person's capacity as an entrusted person:
(a) information the disclosure of which would or is reasonably likely to damage the security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979), defence or international relations (within the meaning of section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004) of Australia;
(b) information the disclosure of which would or is reasonably likely to prejudice the prevention, detection or investigation of, or conduct of proceedings relating to, an offence or contravention of a civil penalty provision;
(c) information the disclosure of which would or is reasonably likely to prejudice the protection of public health, or endanger the life or safety of an individual or group of individuals;
(d) information the disclosure of which would or is reasonably likely to found an action by a person (other than the Commonwealth) for breach of a duty of confidence and is damaging to the regulatory function of the Department;
(e) information the disclosure of which would or is reasonably likely to cause competitive detriment to a person;
(f) information of a kind prescribed in an instrument under subsection (7).
Note: See also subsections (4) to (7).
(2) Schedule 1, item 5, page 4 (line 16) to page 5 (line 7), omit the item, substitute:
5 At the end of section 4
(5) Without limiting the definition of Immigration and Border Protection information in subsection (1), information that has originated with, or been received from an intelligence agency is taken to be information the disclosure of which would or is reasonably likely to prejudice the security, defence or international relations of Australia.
(6) Without limiting the definition of Immigration and Border Protection information in subsection (1), information that was provided to the Commonwealth pursuant to a statutory obligation or otherwise by compulsion in law is taken to be information the disclosure of which would or is reasonably likely to found an action by a person (other than the Commonwealth) for breach of duty of confidence.
The amendments proposed reflect the recommendations made by the Australian Human Rights Commission and the Law Council of Australia in their submissions to the inquiry into this bill. The recommendations from the Australian Human Rights Commission aim to advance the bill's stated objective and enhance the bill's compatibility with human rights. The unauthorised disclosure of information under section 42 of the Australian Border Force Act carries a penalty of up to two years imprisonment. The Australian Human Rights Commission submitted that, given the adverse consequences associated with a criminal conviction, criminal penalties should only attach to the unauthorised disclosure when it harms essential public interests.
The term 'would or could reasonably be expected to' potentially criminalises the disclosure of information where there is a reasonable possibility but not the reasonable likelihood of prejudice. Using prejudice broadens the application to include disclosures that disadvantage rather than harm or damage. Prejudice could be about protecting the reputation of the department rather than causing any actual damage to the department. There are multiple definitions of 'security' in federal legislation, and security is not confined to the Australian Border Force Act. For clarity and consistency, the definition of security in the ASIO Act describes security in specific terms. The term 'international relations' is also undefined. Using the definition in the National Security Information (Criminal and Civil Proceedings) Act 2004 would lessen the chance that unauthorised disclosures that simply embarrass the government without causing any real damage would fall outside the scope of the offence.
In relation to the duty of confidence: the Australian Human Rights Commission submitted that there must be compelling justification to support secrecy provisions that criminalise the unauthorised disclosure of information that is not reasonably likely to harm essential public interests. While it's accepted that people and companies will provide sensitive information that they expect the department to keep confidential, the provision as currently drafted is too broad. The Australian Law Reform Commission stated:
The category of information protected should be narrowly defined, so that the secrecy provision is not so wide as to cover information that would not harm the regulatory functions of the agency.
Competitive detriment is, once again, an extremely broad provision. Civil law remedies such as contractual, common law and equitable remedies are available to address the problem of improper disclosure of commercial information. Extending criminal liability to the unauthorised disclosure of information that would or could cause competitive detriment is inappropriate.
The Australian Human Rights Commission considers that the deeming of information with a security classification as information requiring protection—without any consideration of the context of the information or whether it has been correctly classified—is a blanket provision that unduly restricts freedom of expression, political communication and legitimate public scrutiny.
So there you have it. The Greens are attempting to improve this legislation, to narrow the scope of what can be determined to be protected information. We are doing so in order to lessen the effect on freedom of communication that the Australian Border Force Act will have, even should the amendments currently before the Senate be passed.
The government will not be supporting the Australian Greens amendment. The government considers that its proposed definition of immigration and border protection information strikes the correct balance between transparent, open and accountable government and protecting information from disclosure that would lead to identifiable harm. The explanatory memorandum provides a clear outline of what is covered by security, defence and international relations in the context of the bill. Therefore, there is no need to refer to other legislation to define these terms.
I do note that the government has given effect to the recommendation of the Senate Legal and Constitutional Affairs Legislation Committee. Mr Temporary Chair Leyonhjelm, you'd be aware that the committee made one recommendation, and that the government accepted that recommendation, such that the minister will now have the power to prescribe additional kinds of immigration and border protection information instead of the secretary, as had been originally drafted.
With those comments, I reiterate that we will not be supporting the Australian Greens amendment.
The opposition will not be supporting these amendments. The amendments that have been moved by the Greens do not come with the support of the Senate Legal and Constitutional Affairs Committee's inquiry into the bill. As I understand it, the essential difference that is being proposed here is that the Human Rights Commission suggested the bill be amended to delete the words:
… would or could reasonably be expected to prejudice the security, defence or international relations of Australia
and to replace those words with, 'reasonably likely to damage the security defence or international relations'. We have a difference from 'prejudice' to 'damage', so there is a fine difference. Upon legal advice, the opposition has taken the view that the proposition in the bill stands, and we support that notion.
Consistent with a number of submissions that were made to the Senate inquiry, we welcome the legislation for what it does in narrowing the scope of information that would be protected and offering greater clarity about the types of information that could be publicly disclosed. That included support from the Refugee Advice and Casework Service and the Royal Australian College of General Practitioners. Dr Joyce Chia from the Refugee Council of Australia provided testimony to the public hearing of the Senate inquiry, stating:
Like others who have made submissions, we believe this is a welcome and long-overdue bill …
Labor support the bill before the Senate as it stands because we support the additional transparency and accountability that will be provided. It is important to clarify any real or perceived confusion about whether or not the information is actually protected. Labor agrees that people should have the right to disclose non-sensitive information where appropriate and where required. This is crucial to the trust and integrity that Australians have in our immigration and humanitarian programs. We'll continue to hold the government to account on these matters, particularly in regard to its failure in the management of Australia's offshore processing arrangements. The amendments the Greens are proposing do not change people's capacity to disclose non-protected information, so Labor will be opposing this amendment.