Defying the Border Force Act – Newcastle Town Hall 17 September 2015

Thank you for the invitation to join this panel discussion tonight.

I think the late Albert Camus was right when he said that one cannot put themself in the service of those who make history but must remain at the service of those who suffer it. That is why we must thank Professor Isaacs, Alanna and others like them for speaking out on this important issue.  I hope their skilful, disciplined, persistent use of political defiance may result in other people asking to what extent they bear responsibility for the savage assault on the human rights of asylum seekers and refugees.

It’s also a sad day when you discover that your country is not unique in its malefaction.   The UK is the only country in the EU which has no limit on the length of time that asylum-seekers can be detained in conditions tantamount to high-security prison settings. Canada is accused of human rights violations in relation to its mandatory detention of migrants and those who enter through “irregular” means,  and this year a United States federal court ruled against the Obama administration’s indefinite detention of migrant families because locking up families harms children.

Instead  of accepting our special responsibility for the consequences of disastrous foreign military interventions courtesy of our involvement in the coalition of the willing, we have gone to great lengths to shirk them, including militarising Immigration and enacting gagging laws.

Much has been said and reported about the Australian Border Force Act which took effect in July this year. Its coverage is very wide and includes various officials in the Border Force, employees of detention centre service providers, doctors, teachers, social workers, nurses, humanitarian workers. Indeed, any person working directly or indirectly for the Department of Immigration and Border Protection is captured by this Act

As entrusted persons the people I’ve described risk imprisonment of up to two years if they reveal information obtained in their work as an employee, whether that be to the media or any other person or organisation. (section42)

Disclosures under the Act are permitted where there is a serious threat to the life and health of an individual, such as sexual assault or child abuse, but whistleblowers bear the onus of proof and must make judgements about whether a threat to life or health is serious enough to warrant disclosure and then be willing to defend their action in court.

Assurances have been given that the Act will not cancel out existing safeguards for whistleblowers in the Public Interest Disclosure Act.   But for persons making a disclosure to be protected under that 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, which will depend on how “sensitive law enforcement information” and information that is “contrary to the public interest” are interpreted. It is also worth bearing in mind that disclosures are not protected if the matter relates to a matter where a Minister has taken action or proposes to take action.

Indeed, a 2008 report into whistleblowing in the public sector, by Professor AJ Brown, found that “the bulk of whistleblowing begins and ends as an internal process”.  It found less than 1 per cent of all whistleblowers went outside official channels to the media.

Legal protections cannot guarantee that whistleblowers will be spared from retaliation.   They also need to be considered in the context of  other provisions in the Border Force Act: there are provisions that regulate employee conduct including requiring them to subscribe to an oath, and to undergo Organisational Suitability Assessment to screen individuals;  that define “corrupt conduct” as conduct judged to be abusing his or her position; that permit the termination of employment for serious misconduct without recourse to the Fair Work Commission; and that give the Australian Border Force Commissioner the power to give directions which must be followed to people including contractors, consultants and people who work for foreign governments or for public international organisations.  Do such provisions fail to recognise the historical truism that sympathisers with the oppressed exist under every authoritarian regime? Or, perhaps more likely, do they anticipate and deal in advance with such sympathisers?

The Border Force Act unquestionably attempts to intimidate people who see something wrong into staying quiet about it.  Would-be whistleblowers face retaliation by harassment, performance management, dismissal and now imprisonment.  Whether the government will mount a prosecution for a disclosure is impossible to predict. What is a certainty is that there would be no shortage of pro bono lawyers willing to participate in the defence team.

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