Section 42 carries a two-year jail term for anyone who makes an ‘unauthorised disclosure’ about conditions in the camps

This article is more than 4 years old

This article is more than 4 years old

Doctors working in immigration detention are challenging the government’s contentious Border Force Act in the high court for their right to speak out publicly on behalf of the refugees and asylum seekers they treat.

Lawyers from the Fitzroy Legal Service, working on behalf of Doctors 4 Refugees, will file a case in the high court Wednesday morning, challenging section 42 – the secrecy provision – of the Border Force Act.

Section 42 carries a two-year jail term for any “entrusted person” – anybody who works within the immigration detention system – who makes an “unauthorised disclosure” about conditions in the camps.

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The controversial legislation has compromised, and potentially criminalised, the actions of doctors who were only seeking to advance their patients’ interests, the convenor of Doctors 4 Refugees, Dr Barri Phatarfod, told the Guardian.

“Doctors are obliged to put their patient’s interests above all other interests and to advocate for public health,” she said. “No one should expect any less from their doctor, or from the medical profession as a whole.”

The Medical Board of Australia’s code of conduct contains a health advocacy clause, which requires doctors to “protect and advance the health and wellbeing of individual patients, communities and populations”.

Phatarfod said doctors felt unable to reconcile their professional obligations with the constrictions of the Border Force Act and argued the government should not override doctors’ responsibility in order to keep the reality of detention hidden from the Australian public.

“There should be no gagging of freedom of speech in a democracy,” she said.

“The government has locked up vulnerable patients on remote islands, prevented journalists from reporting on conditions that have been implicated in at least three deaths and removed workers from the charity group Save the Children in the context of reports of rampant and shocking sexual abuse. Australians have a right to know the damage that is being inflicted in their name on innocent people, including children.”

Phatarfod said the Border Force Act even affected doctors ostensibly uninvolved in the immigration detention system. Asylum seekers in detention on mainland Australia were often taken to public hospitals for treatment and doctors who saw them became entrusted persons under the act.

Phatarfod said one doctor, working in a major teaching hospital in an Australian capital, had approached Doctors 4 Refugees after a patient he referred for further treatment and tests had not attended appointments.

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The doctor, who hadn’t known the patient was an asylum seeker, subsequently discovered the patient had been suddenly been moved to Christmas Island, and treatment discontinued, against the doctor’s clinical advice.



There is no explicit protection for the freedom of expression – akin to the American first amendment – in the Australian constitution.

However, the high court has, in several cases, held that an implied freedom of political communication exists as an integral part of the system of representative democracy created by the constitution.

The court has said the freedom of political communication acts as a freedom from government restraint, rather than as a right conferred directly on individuals.



The high court challenge will be led by Ron Merkel QC. Meghan Fitzgerald from Fitzroy Legal Service said the case would ask the court to consider “whether this piece of legislation inappropriately curtails people’s freedom to participate in political communication around conditions and care in detention”.

“The case could not be more important,” she said. “We are seeking a ruling from the highest court in Australia to determine whether doctors and nurses are allowed to advocate in the interests of their patients.”

Medical professionals have consistently been at the forefront of public condemnation of Australia’s onshore and offshore immigration detention regime.



Last month the traumatologist and psychologist Paul Stevenson told the Guardian that, in 40 years in working with the victims of terrorist attacks and natural disasters, the conditions in Nauru and Manus detention camps were the worst “atrocity” he had ever seen.



Previously, the chief psychiatrist responsible for the care of asylum seekers in detention on Manus and Nauru, Dr Peter Young, said the camps were “inherently toxic” and that the immigration department deliberately harmed vulnerable detainees in a process akin to torture.

When an 12-month-old baby girl – given the pseudonym Asha – was transferred from the Nauru detention centre to Brisbane for an acute medical condition, doctors in Australia refused to discharge her from hospital once she had been treated because, they argued, the island was not safe for her.

The doctors’ stance led to a standoff and a week-long vigil at the hospital, before the government relented and allowed Asha to live in the community in Australia.

Both the Australian Medical Association and the World Medical Association have lobbied the government to wind back the Border Force Act secrecy provision.

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But the government has consistently argued that the secrecy clause in the Border Force Act would not see doctors charged for speaking out public about conditions in detention.



No one has yet been prosecuted under the Border Force Act, though some medical professionals have been investigated by the Australian federal police at the government’s insistence, including having their phone records accessed. Others have been summarily sacked for voicing concerns publicly.

Anecdotally, the law has had a chilling effect on people being prepared to speak out.



The immigration minister, Peter Dutton, said when the act was introduced last year: “The airing of general claims about conditions in immigration facilities will not breach the ABF Act … the public can be assured that it will not prevent people from speaking out about conditions in immigration detention facilities.”

And the border force commissioner, Roman Quaedvlieg, on being sworn in last year, said the secrecy provisions had been “over-interpreted”.

“This is about the leaking of classified information that can compromise operational security or our sovereignty, it’s not about people having a right to be outspoken in the community about a range of things,” he said.

