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Two years of jail for disclosing conditions of detention

From the beginning of this July, the immigration sector had some substantial changes. Thus, the Department of Immigration and Border Protection was established. It exercised functions of the existing Department and former Australian Customs and Border Protection Service (1). Simultaneously, on the 1st July 2015 the former Migration Review Tribunal and Refugee Review Tribunal were merged with the Administrative Appeals Tribunal.

Against this background, certain provisions of the Australian Border Force Act 2015 caused a lot of criticism in the media. Opponents of the Act claim that detention center’s employees are at risk of two years in jail if they disclose information, for instance, to journalists, about the conditions in which the detainees are kept (2).
Not surprisingly, this matter caused a public discussion. Lawyers and many other professionals are concerned this the threat to human rights.

Barrister and spokesman for the Australian Lawyers Alliance Greg Barns told about the Act that “what it does is [it] will prevent professional groups, international human rights bodies, doctors, counsellors, teachers, anyone who’s working in immigration detention centres who raises concerns about the treatment of asylum seekers and conditions in those centres, if they don’t have the authorisation of the department to reveal that information to the media or any other person or organisation then they can go to jail for up to two years, so it will have a chilling effect.” (3)

Doctors are particularly concerned about this new legal provisions as doctors owe duty of care to their patients. There is an opinion that the duty not to disclose information about the patients in detention centers contradicts with the Medical Board of Australia’s Code of Conduct. “Where doctors see patients being harmed there’s an obligation to try to prevent those adverse effects from happening again,” commented Health law and patient rights expert Dr Marie Bismark. (4)

The issue is not a theoretical one. Let us mention the infamous episode when the medical staff was allegedly pressed in order ‘not to report mental health problems caused by detention’ at Australian-funded detention facility on the Pacific island Nauru. Currently the mater in under the Senate inquiry. (5)

The government explanation about the provisions of the Act is that they are for “protecting sensitive operational information from being leaked”. (6) “[The Act] will not restrict anyone’s ability to raise genuine concerns about conditions in detention should they wish to do so through appropriate channels,” Immigration Minister Peter Dutton said, referring to public interest disclosure laws”. (7)

As for the wording of the Act itself, in section 48 it provides that the penalty of two years imprisonment will not apply if information is disclosed to reduce threat to life or health. This provision may seem as the very exemption that the concerned members of the public seek.

However, the note to section 42(2) provides that the burden of proof of the ‘threat to life or health’ exemption is on the person disclosing the information. It means that, for instance, if a doctor is concerned about a health risk for detainees and reports his or her concerns to journalists, such a doctor will need to prove the actuality of this risk not to be imprisoned for two years. So, the discussed exemption does not actually protect doctors or any other employees of detention centres.

Thus, the discussed provisions of the Australian Border Force Act 2015 do not promote observance of human rights of detainees. On the contrary, they might have adverse effect on persons kept at detention centers those position may be already vulnerable.

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