• Home
  • Vol 25 No 11
  • Could Immigration 'secrecy' act trump mandatory reporting of abuse?

Could Immigration 'secrecy' act trump mandatory reporting of abuse?


Zippered mouthThe Australian Border Force Act 2015 (Cth) (ABFA) was quietly passed into law recently with the support of both major parties. It makes an interesting contrast with the citizenship laws which the Government is proposing.

Prime Minister Tony Abbott said last week he would like all citizens to both be able to recite, and obey in practice, the words of the oath of allegiance by which 'I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I will respect and whose laws I will uphold and obey.'

Those who are not able to both recite and obey will apparently face withdrawal of their citizenship under laws yet to be finalised.

Under the ABFA, by contrast, an oath is also to be taken by members of the Border Force. Its contents are not disclosed in the Act but breaches are to be punished with administrative sanctions under the Public Service Act.

In addition, the Act provides for a two-year prison term for anyone who discloses 'protected information' (information which they discover as a result of doing work for the Border Force, whether as an employee, contractor or otherwise).

Such information would include the conditions in the onshore or offshore detention centres which the Force and its contractors administer as well as mistreatment of asylum seekers or others.

It is no wonder that the Australian Medical Association, asylum seeker advocates and others are seriously concerned about what may be afoot. Secrecy is not generally conducive to good governance — one of the most effective ways to stop abuse is to make it public.

Witness the pressure brought to bear in the US in the last week to restrict the most obnoxious aspects of America's surveillance of its population — pressure which would never have built up had it not been for the disclosure of the program by the exiled whistle-blower Edward Snowden.

The way we treat people in detention, who are at any rate among the most vulnerable in our care, is not a matter of state security which might justify secrecy. As refugees, their identity might need to be kept confidential but not the way they are treated. This assumes, of course, that they are treated in accordance with Australian and international law.

The ABFA however seems based on the assumption that revelation will damage the Government — presumably by exposing illegal activities.

We certainly know that there is at least good reason to suspect criminal conduct in Australian-run detention facilities — including the abuse or neglect of children. The reports of the Department's own Moss Review, the UN Special Rapporteur on Torture and the Australian Human Rights Commission all highlight serious issues in this regard.

This is where the oath of allegiance mentioned earlier comes in. The secret oaths and the prohibitions on revealing wrongdoing sit uneasily with its declared values. Breaches of the law should be revealed and punished: after all, we have no lesser authority than the Prime Minister for the proposition that upholding the law and the democratic values which underpin it is the core of good citizenship.

Aside from the hypocrisy, there are some pressing practical issues. The ABFA sets up a real dilemma for those whose professional work for Immigration involves children. 

All Australian states and territories have mandatory reporting legislation requiring compulsory disclosure of suspected child abuse by relevant professionals. What is a doctor or nurse to do if she comes across abuse? The ABFA requires the permission of the Secretary before any disclosure of criminal conduct is made to the relevant authorities. Should a professional fulfil their mandatory reporting obligations if this permission is not granted (and face two years in prison) or not?

Earlier this year, the Assistant Police Commissioner Tim Morris, told us in relation to the laws allowing the Government enhanced access to metadata, 'those with nothing to hide, have nothing to fear'. Such a view applied to individuals leaves very little play for a concept of personal privacy, and is therefore a hardy perennial excuse for Government access to personal information.

It should surely be applicable to the operations of Government in areas where there is no pressing consideration of national security. Governments are, after all, nominally accountable to the people who elect them — there should be very few grounds to keep information from them. Hiding abuse most certainly does not count as a good reason.

Justin GlynJustin Glyn SJ is studying for the priesthood, having previously practised law in South Africa and New Zealand, with a PhD in administrative and international law.

Topic tags: Justin Glyn, asylum seekers, refugees, torture, human rights, Border Force Act, mandatory reporting



submit a comment

Existing comments

I'm a citizen of Australia. My rights and liberties are being attacked by the legislative arm of my elected government. I demand that we revoke the citizenship of those who are doing this! (The PM said I could).
Joan Seymour | 06 June 2015

I agree with Joan Seymour!
Patricia | 09 June 2015

I am reminded, as I read this, of the current situation regarding Anders Kompass at the UN. Only after an international outcry does it appears that reporting of abuse is not regarded as a criminal act. If it can happen there, it can happen here.
Anne Hamilton | 09 June 2015

I agree fully with Joan. And regarding the oath of allegiance, why would Aboriginal people recite such patriotic rubbish. They fought for this land and lost. They were enslaved, dispossessed and so many killed by white man. What hypocrites.
Kate | 09 June 2015

Imagine if the aboriginal owners demanded A. Phillip and passengers to swear oath of allegiance to the owners when they disembarked in 1788
Lynn Davidson | 16 June 2015

How could we possibly allow people who abuse children in our country under any circumstance not be held accountable. This law gives freedom to those undertaking such horrible crimes to commit despicable acts against children. Please for the sake of human decency may our government revoke this awful law. :(
sue-ellen shepherdson | 03 July 2015


Subscribe for more stories like this.

Free sign-up