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Abbott is threatening to jail the wrong people.

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?

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?

Or will the Government continue to defend the guards and operators of the detention centres, even if they allegedly commit drug and alcohol-fuelled rape?

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.

And why?

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.

11 comments

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  1. paul walter

    This comes in the wake of the horrific Shamsalipoor incident? You don’t have to be against people movements or in favour of open borders to shudder at
    the monotonous, worsening and considered cruelty of people movement politics and the base motives behind this vaudeville.

    We can’t do a lot about things global, but we sure as heck could set an example for a proper and humane processing and assimilationary system rather than setting up a consciously imposed simulacra created for the most vicariously sadistic politics of cheap political advantage through false representation and blood libel.

    This is supposed to be Australia, not Mississippi or some European black shirt dictatorship.

    The sickness of Bishop and Abbott has to be opposed.

  2. David Bruce

    The list grows longer. Add the secrecy agreements between the countries involved in sorting out the Malaysia Airlines MH-17 in Ukraine mess. Nothing shouts louder about “cover up” than secrecy agreements. Just wondering, if perhaps, Abbort is being blackmailed by mossad backers?

  3. Harquebus

    Another sign of a civilization in decay and a government in denial. History is repeating.

  4. gobbit

    Genuine asylum seekers apply for asylum in the first country they reach after leaving their country. By the time illegals reach Australia theyve passed through or over on average 8 countries – these people are not genuine refugees and should be deported upon arrival. l absolutely refuse to finance them via the taxes l am forced to pay. Those liberals who advocate for these illegals should be made to foot the bill, liberals are really good at spending other peoples money but are loathe to part with their own – complete and utter hypocritts.

  5. Bilal

    Scott Morrison who so enthusiastically supported the increase of oppression in the concentration camps is likely to be the next PM as the present Dear Leader sinks under his own stupidity. He is going to be a much more active and intelligent manipulator than the present moron and he will support this oppression to the hilt, despite the now frequent smiles and niceness on camera. This disgusting situation has to be exposed to the whole world so that they will have to improve conditions for these illegally imprisoned people. The Tea Party have very thick skins but the world human rights movement is very powerful.

  6. Ella Miller

    I am sadend by narrow minded individuals who seem to think that Australians OWN Australia.
    We DON’T own Australia or the world . It belongs to everyone including migrants and refugees.
    Some Australins should remember that refugees and migrants were gladly accepted to build dams, hydro schemes and do work that some Australians felt were below them.
    Regardless of howmany countries refugees travel through , we contributed to their plight by joining the US in destabising many of the countries that refugees come from.
    I am ashamed to be Australian when I read such inhumane comments as the one left by Gobbit.
    Please imagine the shoe is on the other foot , how would you feel?
    Shame.

  7. mars08

    I am disgusted by the lack of compassion I see around me. Very few of the people I know are interested… or concerned about the suffering inflicted in their name. Even when some sort of horrible cruelty makes it into the msm, almost everyone I know just shrugs it off.

    Successive governments (and opposition) have frightened our fellow citizens to the point that most are unable to see asylum seekers as innocent, vulnerable, powerless, isolated HUMAN BEINGS.

  8. eli nes

    dear gobbit
    refuge is a right for every human.being. The asylum seeker is not a refugee until processed. Our process system is deliberately slow and exacerbated by those asylum seekers with no ID.
    Those leaving Muslim countries are usually Shia. Malaysia and Indonesia are mainly Sunni, so not that welcoming for shia
    The Rohingyas are sunni but don’t seem to be welcome anywhere.
    As an idiot atheist, I am thoroughly confused by the willingness of the sects of islam to kill each other? Is it like the troubles in Ireland, which was, arguably, economic disadvantage based on religion, and women had a major part in the resolution of most of the differences? Maybe all we have to is wait till muslim women find a voice.
    ps the tamils make me uncomfortable in this debate because they are economic refugees and I cannot blame them one iota but I would return them to sri lanka or india

  9. Itsazoosue

    Gobbit,

    “Asylum seekers who arrive by boat are subject to the same assessment criteria as all other asylum applicants. Past figures show that between 70 and 97 per cent of asylum seekers arriving by boat at different times have been found to be refugees and granted protection either in Australia or in another country.”

    Source: http://www.aph.gov.au/binaries/library/pubs/bn/sp/asylumfacts.pdf#page9

    You would be paying far less of your taxes towards asylum seekers if they were processed in Australia and homed in the community rather than in detention. I abhor the fact that my taxes fund this governments disgusting border protection policies when more economical and more humane options are available.

    As a bleeding-heart liberal, I was a bit perplexed by your charge of hypocrisy. I donate a monthly stipend to the UNHCR. I donate cash and goods to the ASRC. I am a member of an organisation that helps refugees assimilate into the community. If such a program were to be reintroduced, I would sponsor and host an asylum seeker family in my own home.

    May I give you a tip? To avoid looking like a complete and utter moron, spell-check your insults.

  10. paul walter

    Gobbitt, have you actually read the read the newspaper stories about Shamshalipoor, her story and circumstance?

    Please, do some research before shooting off at the lip.

  11. Adrianne Haddow

    Gobbitt, you absolutely refuse to finance the asylum seekers through your taxes, but I gather you don’t mind if your taxes pay for overseas trips for the likes of Bronwyn, Tony and family, trips to Sydney for the New Year fireworks for Christopher and family, Burke and his family holiday, the WA politician who went to Cairns for government business and some private investment business, Hockey and his accommodation allowance paid to his wife for her Canberra residence, and the other hands in the public purse who haven’t been outed yet.

    It’s Ok to spend your taxes on the private companies that run these concentration camps, when the processing of these unfortunates could be done so much more cheaply in Australia. Not to mention the cost of the secret border control operations involving the Navy and coast guard.

    So Gobbitt, this inhumane situation will continue to be administered at a huge cost to the Australian taxpayer, with absolutely no transparency, because you and others of your ilk don’t believe these people are genuine asylum seekers and condone the government’s actions.

    Guess you won’t be paying tax this year.

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