The Australian government moved on Tuesday to address what they believe are “factually incorrect and highly misleading” statements about the draconian secrecy provisions of the new Border Force Act.

The joint statement issued by the Department of Immigration and Border Protection and the Australian Border Force reflects the growing sensitivity to vocal protests from medical professionals, as well as questions asked about the act on the ABC’s Q&A program last Monday night.

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Both the department and border force claim the new laws will not prevent concerned professionals from reporting cases of child abuse, or speaking about other matters of public interest relating to immigration detention centres.

It is surprising that government officials do not understand the practical implications of the new secrecy laws. They make it difficult, if not impossible, for doctors and other care workers to publicly raise their concerns without fear of two years imprisonment.

The minister has said that doctors, teachers or other care workers are protected from prosecution under the secrecy provisions of the Border Force Act by the operation of the Public Interest Disclosure Act, often called the “whistleblower law”. But outside of Australia the effectiveness of that safeguard is limited, because of a mismatch in the coverage of the two laws.

The Border Force Act contains strict secrecy provisions that cover all government contractors, including doctors, even outside of Australia. By contrast, the protection of the Australian whistleblower law does not extend to disclosures made about the conduct of a PNG or Nauran Government official or worker, or of any person who is not an Australian government contractor or officer. That includes detainees, or even a local priest in an offshore immigration detention centre.



In addition, the whistleblower law offers no protection to those who make a public disclosure about the actions of an Australian government minister or policy, even if it harms people.

For example, if the minister implemented a policy of refusing any refugee on Nauru or PNG medical treatment in Australia – even if it were recommended by a doctor – any disclosure of that action or government policy would not be protected by the whistleblower law.



If the problems outlined above aren’t enough to deter doctors and care workers from making public disclosures, the long list of hurdles within whistleblower law are likely to put them off.

These extensive bureaucratic requirements include the need to exhaust all internal complaints processes before any public disclosure of information occurs, which is likely to substantially delay disclosure and have a chilling effect.

Under the law, whistleblowers have to make complex legal assessments about whether their disclosure has been “adequately dealt with” under internal review procedures before they can speak out.

Once they go public, disclosure must be limited to the issue which was the subject of the original internal complaint. Too much disclosure is not protected, and there is little guidance about where the boundaries lie.

Finally, the whistleblower law is directed at disclosure of suspected or probable illegal or other wrongdoing. It would not normally protect the clinical and ethical consultations about patients that take place between medical practitioners within immigration detention centres, and their colleagues or specialists outside the immigration system.

It is true that there is an exemption to the secrecy provisions in the Border Force Act which would allow a medical or allied practitioner or a teacher to report suspected child abuse or neglect inside an Australian immigration detention centre. However this exemption only applies to workers in Australia because they are covered by State and Territory mandatory reporting laws.

Unfortunately and relevantly, this exemption is of no use to a doctor, teacher or care worker where Australian mandatory reporting laws do not apply, such as in Nauru or Papua New Guinea.

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As a consequence, there is significant doubt about the effectiveness of the whistleblower law to protect health and care workers on Nauru and in PNG. The punitive secrecy provisions of Border Force Act operate so broadly there without any meaningful exemptions, contrary to the department and border force’s rhetoric.

Given the confusion, the government may do well to heed the advice provided by journalist Greg Sheridan, who isn’t known as one of their “enemies”, when he said “if it’s not meant to affect journalists, if it’s not meant to affect doctors and nurses and health workers – except them from the legislation”.

