Tony Abbott has made many terrible decisions during his tenure as Prime Minister. Broken promises, backflips, outright lies, and a fierce defence of travel rorters shows a typical pattern of behaviour. However the decision to threaten doctors with jail for speaking out about asylum seeker matters is perhaps the worst of all. The public anger over the Government’s enactment of the Border Force Act 2015 continues unabated and will certainly play a part in Abbott’s ultimate demise.
The campaign against the Act started with an open letter signed by more than 40 doctors on 1 July 2015, the day the Act came into force. The national unease, led by people intimately entrusted with the health, education and care of vulnerable people, has not been quelled by Abbott and Dutton’s attempts to clarify the scope of the Act.
Section 42 provides for up to 2 years jail for ‘entrusted people’ who record or disclose ‘protected information’. Both major parties are keen to reassure that the whistleblower legislation protects those wishing to make a public disclosure. This was conditionally confirmed by an ABC Fact Check. However the complex interrelation and application of the Border Force Act and whistleblower laws indicates that professionals are far from protected. It demonstrates why there should be serious concerns about section 42.
When all is taken into consideration, there is absolutely no certainty that professionals who speak out about the health and welfare of asylum seekers will be protected under any Australian law.
But there is certainty that if professionals speak out, they risk 2 years imprisonment for unlawful disclosure. No amount of clarification of the legislation or explanation of the provisions removes this fact.
The Public Interest Disclosure Act 2013 protects conduct that contravenes a commonwealth, state or territory law, is corrupt, unreasonably endangers health and safety or involves the abuse of a person’s position. Internal disclosure must be made first. Public disclosure may only be made if the ‘whistleblower believes on reasonable grounds that the internal response to their disclosure has been inadequate’.
There is a considerable burden on the whistleblower to prove that the conduct comes within the protections of the legislation, and to demonstrate the reasonableness of their belief in the inadequacy of the Government’s response. Additionally, the person must also comply with requirements that on balance the external disclosure is not ‘contrary to the public interest’. They must only disclose information that is ‘reasonably necessary to identify one or more instances of disclosable conduct’.
The effect is that even if disclosure is ultimately defensible, professionals may be seriously deterred from publicly disclosing information due to the threat of jail.
Disclosure comes at a high risk to doctors, nurses, counsellors and other professionals who wish to speak out about conditions in asylum seeker detention centres. The combined legislative provisions are so complex that it would be difficult for a person to know if they were breaching section 42 by speaking with the media.
The practical considerations of when to make a public disclosure are immense. At what point does an untreated, yet treatable medical condition, become an unreasonable danger to health or safety? How long should those who make internal reports to the Government wait before deciding that the response is ‘inadequate’? At what point should the information be made public?
Is two weeks after making an internal report a reasonable amount of time to wait?
Two weeks was too late for a man identified as Mohammad Nasim Najafi, who died from a suspected heart attack after allegedly being refused access to a doctor.
Three weeks was too late for Hamid Kehazaei who died from a treatable foot infection.
How many months should a health worker wait before publicly disclosing the length of time it takes for medical tests or medicine to arrive?
A child on Nauru suffering from a deadly bacterial infection was reportedly forced to wait three months before medical tests were ordered – and a further three weeks for medication to arrive. At what point in time would a health worker defensibly alert the public to this failure?
How many asylum seekers need to be murdered before the Government acts on the reports of inhumane conditions on Manus Island?
The Government has known about the awful conditions of the detention centres for at least several years. It is fully aware of concerns about the welfare and safety of asylum seekers. And it has done almost nothing about it.
The Government has been provided independent reports of rape, sexual assault and child abuse in off-shore detention, yet it still thinks Nauru is a suitable place to detain young children – including baby Asha, transferred at just five months old.
Rather than act on the Human Rights Commission ‘Forgotten Children’ report, Abbott and his Ministers launched a personal attack on Professor Gillian Triggs.
Given the Government’s track record on stalling the implementation of recommendations from independent reports, there should be no legislative impediment to workers speaking out. The Government has demonstrated, irrefutably, that the health and welfare of asylum seekers is so low on its list of priorities as to be non-existent.
Abbott has not satisfactorily explained the need for such draconian provisions. Australia is not at war. The arguments for operational secrecy are absurd given there are no such restrictions on information in Indonesia, where many of the people smuggling boats depart. If anything, the Government might encourage the public disclosure of the abhorrent and unforgiveable treatment of vulnerable people if it truly believed that harsh treatment actually deterred.
There is clearly one purpose for section 42 of the Border Force Act.
It is an attempt to prevent the public having access to information about the Government’s repugnant treatment of people in its care.
Abbott knows there is significant public interest in Australia’s handling of asylum seekers. He knows great power lies with information becoming publicly available via the media. And there are those within Government who would be well aware of how Abbott’s actions are impacting on Australia’s international reputation.
Does Abbott fear that the popularity of his boat turn back policy will be overshadowed by the electorates’ disgust at the Government’s full endorsement and support of cruel and inhumane treatment and abuse of those people arbitrarily detained simply for seeking asylum and safety in Australia?
Fortunately the doctors, nurses and other professionals will not be silenced. And prominent human rights lawyers, including Julian Burnside, have promised to defend any health workers charged.
The Abbott Government clearly cannot be trusted to adequately deal with the objectionable conditions in detention centres. It cannot be trusted to adequately address the health and safety needs of the people in its care. It has deliberately and wilfully refused to act on reports of sexual assault and abuse. The lack of action is unconscionable and cruel. The United Nations has stated that Australia’s asylum seeker policies amount to torture.
And yet it is doctors, nurses, counsellors and other professionals who are being threatened with jail.