In 2015, on the 31st of October, the Australian Border Force Act came in to force. It was a sweeping piece of legislation that covered the powers and abilities of the Australian Border Force (ABF), ABF Commissioner and all those working for the ABF or Immigration and Border Protection agency.
One of the more insidious sections of this piece of legislation comes from the menacingly titled “Part 6: Secrecy”. This particular part of the Act outlines matters around what can and cannot be recorded and under what circumstances information can be made public.
This introduction to this part, Section 41, states:
“An entrusted person must not make a record of or disclose Immigration and Border Protection information unless the making of the record or disclosure is authorised by a provision of this Part, is in the course of the person’s employment or service as an entrusted person or is required or authorised by law or by an order or direction of a court or tribunal.”
Despite being the “simplified outline” of the section, some more simplification is required to get an idea of the core meaning of what this part is trying to accomplish.
Firstly, an “entrusted person” according to the act could be the ABF Commissioner, the Secretary, or any Immigration and Border Protection worker.
Secondly, we have “Immigration and Border Protection Information”, which is where things become a fair bit more convoluted.
The act reads directly as follows:
“Immigration and Border Protection information means information of any of the following kinds that was obtained by a person in the person’s capacity as an entrusted person:
- (a) information the disclosure of which would or could reasonably be expected to prejudice the security, defence or international relations of Australia;
- (b) information the disclosure of which would or could reasonably be expected to prejudice the prevention, detection or investigation of, or the conduct of proceedings relating to, an offence or a contravention of a civil penalty provision;
- (c) information the disclosure of which would or could reasonably be expected to prejudice the protection of public health, or endanger the life or safety of an individual or group of individuals;
- (d) information the disclosure of which would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;
- (e) information the disclosure of which would or could reasonably be expected to cause competitive detriment to a person;
- (f) information of a kind prescribed in an instrument under subsection (7).
Note: See also subsections (4) to (7). “
Essentially, (a) through to (d) is fairly innocuous mainly acting as standard legal safeguards you would expect to see in any piece of legislation with a mention of security. Where it becomes interesting is subsection (e), (f) and the little note hiding in the fine print.
What (e) is stating is that any information, which if leaked, had the potential to hurt cause detriment to someone in a financial or non-financial way should be treated in a sensitive manner. So for instance, if a business that ran a detention centre was not operating to code, releasing that information would potentially cause competitive detriment to the directors and owners of that business.
(f) and the little note corresponds in some fashion, so I’ll address the listed subsections in the order that was stated.
Subsection (4) expands what the definition of Immigration and Border Protection Information is.
“Without limiting the definition of Immigration and Border Protection information in subsection (1), information obtained by an entrusted person in the course of performing duties, or in performing functions or exercising powers, under a law of the Commonwealth:
- (a) as an officer of Customs, or an authorised officer, within the meaning of the Customs Act 1901; or
- (b) as an officer, or an authorised officer, within the meaning of the Migration Act 1958; or
- (c) as a maritime officer within the meaning of the Maritime Powers Act 2013; or
- (d) as a delegate of someone else; or
- (e) in any other capacity;
is taken to be information obtained by the person in the person’s capacity as an entrusted person.”
It may not be completely obvious here, but now the definition of information and who is, in fact, an entrusted person has been expanded massively!
Firstly, our original definition of Information allows room for the definition to be any information that is obtained by an entrusted person, but what this subsection does is expand the definition of an entrusted person to any officer under three different major acts of parliament, any person representing someone else, is “in any other capacity” meaning that anyone who collects information about the ABF and their operations is now an entrusted person.
Now that just about anyone is an entrusted person we get to see why you never hear anything.
Section (42), “Secrecy”.
In just six lines, with only three criteria you begin to understand why there are hardly any whistleblowers regarding Nauru.
(1) A person commits an offence if:
- (a) the person is, or has been, an entrusted person; and
- (b) the person makes a record of, or discloses, information; and
- (c) the information is Immigration and Border Protection information.
Penalty: Imprisonment for 2 years. “
And there you see it, everyone who knows any information is an entrusted person, meeting criteria (a). Anyone who shares that information has disclosed it meeting criteria (b) and all information that relates to the ABF is Immigration and Border Protection Information, meeting criteria (c).
Finally, on the sixth line, you find that you risk 2 years imprisonment for sharing what’s happening in Nauru. What is it that we can take away from all this?
You can start by letting others know about this. Australia is a nation with a strong media that works tirelessly to hold its government to account, yet here it is being disquieted with six lines of legislation.
Write to your MP, ask them to amend Section 42 of the Australian Border Force Act to allow for greater media scrutiny of government actions.
Because, the sooner our media is able to report on what is truly happening, the sooner action will begin.
This article has also been posted to Helping Our Neighbours, an organisation concerned with the rights of Asylum Seekers and Refugees.