Stepping back from the legal abyss of the Border Force Act, there is a screamingly obvious question: why are there new laws that could even possibly send someone to jail for speaking out about abuses in detention centres? Michael Bradley writes.

I've been avoiding examining the Border Force Act and its introduction of yet another means of putting people in prison for doing their job, for two reasons.

One is that I'm struggling to come to emotional terms with the Border Force uniforms that are so reminiscent of something Italian circa 1941. The other is a creeping ennui that's been gripping me as the net slowly encloses our willingness to speak up.

I guess that's how it works, in the end we all just give up and get used to the new normal.

But to the task - is this latest law as bad as Australia's doctors are saying, or are they hysterically over-reacting as Peter Dutton has implied? Specifically, will a health worker on Nauru who witnesses something bad now be able to make that news public without committing a crime?

The technical legal answer is "it depends".

The Australian Border Force Act makes it a crime, punishable by two years imprisonment, for anyone who does work for the Department of Immigration to disclose any information obtained by them while doing that work.

This includes contractors such as doctors and aid workers, and covers everything they see, hear or learn while on the job. Although the Government insists that this provision is no wider than existing offences covering Commonwealth workers under the Crimes Act, that isn't true. This captures a significantly wider range of information.

There are exceptions where disclosure is not an offence. You can disclose information if you reasonably believe it is necessary to prevent or lessen a serious threat to the life or health of an individual. The onus is on you to prove that it was reasonable. More on that later.

The other exception is where the disclosure is authorised by law. Which takes us to the whistleblower law, which both major parties have been promoting as a complete answer to everyone's concerns. This is the Public Interest Disclosure Act, introduced in 2013. Its design is to allow Commonwealth public servants and contractors to publicly disclose something bad (like a crime), provided they've previously tried to raise it internally and it isn't against the public interest for them to blow the whistle. Again, the onus is on them to prove this double negative.

Importantly, whistleblowing is not protected if the subject matter is government policy, or something being done by a minister, that an individual disagrees with. For example, say the Immigration Minister ordered that an infant be sent to Nauru (as if they'd ever do that!), and a health worker on Nauru reasonably believed that this would place the infant in physical danger because of inadequate medical facilities or the risk of abuse. A disclosure of the infant's transfer would not be protected under the whistleblower law.

Which takes us back to the Border Force Act. Said health worker will, if they go public about the infant's plight, commit a crime. They can try to invoke the "serious threat to life or health" defence, and bear the onus of proving that they reasonably believed their disclosure was necessary to prevent it. If they can't convince the court of that, they may be going to prison.

Well, that's the law. Whether by design or accident, it's a minefield that lawyers will navigate at their peril, let alone individuals who witness things that they believe, by their own professional code or as a moral obligation, that they must bring to the light. And the onus of proof that they had the right to do so is on them.

Stepping back from the legal abyss, this all just begs a screamingly obvious question. The Border Force Commissioner, Roman Quaedvlieg, feels compelled to echo what the Government has said each time it passes another law that criminalises speaking out: that this law is not targeted at health workers, journalists or other honest people just doing their jobs; that he "sincerely doubts" any of them will be prosecuted.

Well, as with section 35P of the ASIO Act criminalising the disclosure of special intelligence operations; as with accessing the metadata of journalists and lawyers; if that's not the plan, why is it the law? Why must a doctor on Nauru or a nurse on Manus Island have to spend a single second wondering whether, if they see a child suffering the marks of abuse, they have any obligation other than to scream it from the rooftops?

Really, why are we having to talk about this at all? This is not national security. The Border Force has been formed with the intention of quasi-militarising the functions of customs and immigration. That's unfortunate enough, but we're stuck with it now.

However, we don't have to blithely accept that asylum seekers are a threat to national security and that therefore every single thing that our government does to them is something we are not entitled to know. Nothing that happens on Nauru or Manus or in any immigration detention centre should be a national secret; the only harm that its disclosure can bring is the embarrassment, or prosecution, of those who commit crimes or allow them to happen under their watch.

I think we're all a little punch-drunk by now from all this "national security" law-making. Tempting as it is to stop caring, as it appears the Labor Party has done, we had better not.

Michael Bradley is the managing partner of Marque Lawyers, a Sydney law firm, and writes a weekly column for The Drum. He tweets at @marquelawyers.