RICHARD MARLES: … we absolutely support transparency and it is absolutely critical that doctors, nurses, lawyers, any contractor in a detention facility speak out when they see that there is something wrong. I mean, that’s fundamental. People should understand in relation to the Australian Border Force Act and, Greg, you might want to know this too, it makes it absolutely plain that the whistleblower protection, which applies across the public service, which is the basis upon which people speak out, applies in this situation as well. TONY JONES: Does that mean a whistleblower can go public without threat of prosecution? RICHARD MARLES: Well, that’s what the whistleblower legislation absolutely does. GREG SHERIDAN: No, that’s not true Richard. That’s wrong. Protected information and a designated person cannot go public in the normal course of things under whistleblower legislation. – Shadow Immigration and Border Protection Minister Richard Marles, in discussion with foreign affairs editor at The Australian, Greg Sheridan, and Q&A host Tony Jones, on Q&A, Monday July 6, 2015.

The new Border Force Act 2015, supported by both the government and the opposition, makes it an offence for employees of the Australian Border Force to disclose “protected information”, which may include information gleaned in their work as an employee.

That’s drawn sharp criticism from a number of health care and humanitarian workers, who have said that the secrecy provisions could be used to jail, for example, detention centre workers who report child abuse occurring in offshore refugee detention centres.

A number of health and humanitarian workers have penned an open letter to Prime Minister Tony Abbott saying they will defy such constraints on disclosure.

The shadow minister for immigration and border protection, Richard Marles, argued on Q&A recently that such people would be shielded by whistleblower protection laws, known officially as the Commonwealth Public Interest Disclosure Act 2013.

Is he right?

The letter of the law

The secrecy provisions of the Border Force Act 2015 in Section 42 set out the offence provisions for the disclosure of protected information.

Subparagraph 42 (2) ( c ) states that these offence provisions do not apply if the disclosure is authorised under a Commonwealth, state, or territory statute. Therefore, the Public Interest Disclosure Act 2013 does apply and a whistleblower would be protected.

The definition of disclosures covered by the Public Interest Disclosure Act 2013 is broad enough to include the sorts of issues raised in the health care and humanitarian workers’ open letter, including abuse of refugees.

However, there are qualifications. First, the Border Force Act applies only to officers, employees and contractors employed under the Border Force Act 2015.

For persons making a disclosure to be protected under the Public Interest Disclosure Act, they first have to report their concerns internally. Disclosure to outside parties must only be made after they “believe on reasonable grounds” that the investigation was inadequate (or delayed) or the response was inadequate.

Also, public disclosures under the Act must not be contrary to the public interest nor make public sensitive information about law enforcement.

Another potential impediment to a disclosure being protected is the exemption provided by paragraphs 26 (2A) and 31 (b) of the Public Interest Disclosure Act 2013. These provisions exempt a disclosure being protected if the matter relates to a matter where a Minister has taken action or proposes to take action. A person cannot disclose information only on the basis that the person disagrees with the action that has been, is being, or is proposed to be taken by a Minister. This can occur where the Minister exercises authority in individual cases, for example, dealing with a recommendation to relocate a person for medical treatment. In these circumstances, this exemption to protection could apply. Ministerial intervention in immigration and asylum seeker cases has occurred in the past.

Qualifications matter

It is possible the Commonwealth could use these qualifications to dispute the validity of the protections provided under the Public Interest Disclosure Act 2013. Previous official responses to allegations of abuse happening at offshore detention centres suggest the government might be willing to take a hard line.

However, the the new Border Force Commissioner, Roman Quaedvlieg, has reportedly said that he “sincerely doubts” that any action would be taken against medical professionals who report abuse.

Notwithstanding the existence of legal rights, research has shown that public sector whistleblowers can face retaliation.

A 2008 research project into public sector whistleblowing led by A.J. Brown of Griffith University found that 22% of public sector employees who make a public interest disclosure suffer some form of retaliation.

This retaliation can range from minor harassment through to dismissal from employment. Also, that research project indicated that the biggest risks likely to be suffered by persons making disclosures occur when the disclosure is made public. It should be noted that this finding was based on data collected before the Public Interest Disclosure Act 2013 was enacted, but a risk of retaliation remains for whistleblowers.

What a Border Force worker needs to know

If the person has concerns that need to be raised, it is advisable that these be done formally under the Public Interest Disclosure Act 2013. The disclosure should be made internally at first. The person should also keep written records of the circumstances surrounding the disclosure and subsequent developments.

Before going to the next step of making the disclosure public, the person should seek advice from a trusted senior officer within the organisation, as well as obtaining independent legal advice.

The research has shown that the persons who negotiate a public interest disclosure process most successfully are those who have good professional, social and family networks that are prepared to support them in this difficult situation.

Verdict

Marles was correct in his statement that medical professionals employed under the Border Force Act 2015 are able to make public disclosures about their concerns. They would be protected by whistleblower laws but only if they disclosed in a very specific way. The disclosure process has qualifications and persons making disclosures need to be careful that they act in a way that enables them to take advantage of the protections provided by the Public Interest Disclosure Act 2013.

Legal protections cannot guarantee absolutely that whistleblowers will be spared from retaliation. The understandable concerns of medical professionals would be eased if the government made a clear statement that the rights to act upon concerns about their clients were to be respected.

Review

This is a sound legal analysis of the extent to which the Public Interest Disclosure Act 2013 shields whistleblowers from retaliation.

As far as health professionals are concerned, Section 48 of the Border Force Act — which permits disclosure if an entrusted person “reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual” — arguably provides greater protection than the whistleblower protections under the Public Interest Disclosure Act 2013.

However, as I have previously argued, other provisions in the Border Force Act that regulate employee conduct may deter employees from relying on this exception.

The Public Interest Disclosure Act 2013 also includes “emergency disclosure” provisions that allow public disclosure on “reasonable grounds that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the environment”. But, as the author has identified, such disclosures must first be made internally (unless there are exceptional circumstances) and cannot include sensitive law enforcement information.

The internal hurdles that must be overcome may delay or deter important disclosures in the public interest. I agree that even where disclosures are made public, the extent to which Public Interest Disclosure Act 2013 provides protection will largely depend on how the qualifications of “sensitive law enforcement information” and information that is “contrary to the public interest” are interpreted.

The author is right in arguing that the Public Interest Disclosure Act 2013 cannot “guarantee absolutely” that whistleblowers will be spared from retaliation. – Khanh Hoang

UPDATE: This article was updated at 2pm on July 13 to add a paragraph on how the Public Interest Disclosure Act relates to cases of Ministerial intervention.

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