Labor has very badly misread the politics on the Border Force Act (BFA).
The BFA gags workers in detention centres from speaking out about conditions there. It provides that public servants, as well as consultants and contractors to the immigration department, face a penalty of up to two years imprisonment for recording or disclosing “protected information”.
Protected information is essentially any information received as a result of the employment or engagement as a contractor in the detention centres.
Labor supported the BFA arguing that persons making disclosures would still be protected from discrimination by Whistle Blower’s legislation- the Public Interest Disclosure Act (PIDA).
But according to George Newhouse the provisions of the PIDA offer no protections about the conduct of a PNG or Nauruan official or an Australian Government Minister.
Further, even where the PIDA does apply, its technical procedural requirements must be met.
Under the PIDA a disclosure is protected if it relates to a “wrongdoing” and the disclosure is made internally, such as to a supervisor.
Public disclosure is only permitted later and then only if the internal disclosure has not been adequately dealt with, provided also that the wider disclosure is in the public interest.
An exception is made in relation to health and safety. A disclosure can be made public immediately, without going through the internal process, if the disclosure relates to a “substantial and imminent danger to health and safety”.
Whether a person is protected by the PIDA, or might be subjected to criminal charges under the BFA, depends entirely on adherence to procedural requirements under the PIDA. It has nothing to do with the extent of the public interest involved in the person’s disclosure.
Many disclosures may easily fall on either side of the small gap between the secrecy provisions in the BFA and the protective provisions in the PIDA. This is because, as with many areas of law, there are often grey areas.
For example, what are the exact parameters of “wrongdoing”? Is wrongdoing to be determined with regard to intention of the wrongdoer or the consequences of their act? How will a person making a disclosure know whether the disclosure has been “adequately dealt with”? How long is the person supposed to wait for a matter to be dealt with? What if the matter has been adequately dealt with but the person making the disclosure has not been informed? When is a danger to health and safety “substantial”? When will such danger be “imminent”? How does the mental state of persons in detention affect whether or not a danger is substantial or imminent? What if a danger was hushed up, without any remedial steps being put in place to prevent it occurring again but for the moment the danger has now passed?
Such grey areas are not unusual. Courts are there to sort them out by applying the law to the facts in a particular case. But it is very poor public policy to protect or criminalize the same public interest disclosure depending on whether the quite complex procedural requirements of the PIDA have been met.
For this reason the Australian Law Council of Australia recommended in relation to the BFA that all public interest disclosures should be exempt from the criminal penalties. If a disclosure was in the public interest the person would be protected from criminal charges whether or not the procedural requirements of the PIDA had been met. Labor rejected this amendment.
Labor was so blinded by its (probably unachievable) desire to be seen as equally tough as the Coalition on border security issues, that it mistook a freedom of information issue for a border security one. Labor overlooked what should have been an obvious political consideration: of course the media would support exempting public interest disclosures from criminalization because the media is always interested in receiving such disclosures. Politics 101.
This predictable response from the media was demonstrated in the Q and A program on 6 July when ‘The Australian’s’ normally conservative Greg Sheridan criticized the Abbott Government for “overreach” on the BFA.
The Coalition’s boycott of the Q and A program meant that Labor’s Immigration Spokesman Richard Marles was left as the only member on the panel defending the Abbott Government’s BFA. This he did, adding his complaint that, since the passage of the BFA, the Abbott Government had failed to point out to the public that the protections offered under the PIDA remained in place.
Marles was essentially saying that the Abbott Government has been a whole lot softer in its efforts to gag detention workers than it has been prepared to let on. He said that the doctors protesting against the new law had got it wrong. But most rank and file Labor members will be wondering about how Labor managed to put itself to the right of Greg Sheridan on the gagging of detention centre workers and the protesting doctors.
Marles wants to argue to Labor’s National Conference, and later to the public at large, that Labor is just as tough as the Coalition in stopping the dangerous journey from Java to Christmas Island. But he also wants to argue that Labor will be better at seeking a long term regional solution for asylum seekers and that it will be a whole lot more compassionate when it comes to improving conditions in detention centres in the meantime.
But the botching of the politics around the BFA means that Marles has made the task he has set for himself much harder. He now has to make an argument that Labor really cares about conditions in detention centres when the legislation it has supported threatens criminal penalties against detention centre workers who speak out about conditions in detention centres even though their disclosures may be in the public interest and have nothing whatsoever to do with border security.
So is there a way back for Labor from this problem? It is not easy for Labor to run on repeal of the secrecy provisions in the BFA having voted so recently in favour of it. However its draft platform does state that:
“Labor will ensure that all Australian Government involvement in detention facilities it operates or funds is subject to transparent, independent oversight. Provisions for this oversight will be reflected in all contracts with service providers.”
Consideration might be given to strengthening this part of the platform by providing that the body charged with independent oversight should have coercive evidence gathering powers and that any statements made to such a person are exempt from criminal penalties under the BFA.