“It should be recognized that the first Rudd government did attempt to achieve a more compassionate asylum seeker policy but…both under Gillard and Rudd mark II, Federal Labor made the political decision that it was not capable of leading enough Australians to accept that boat arrivals should be processed onshore, and that for many Australians, “stopping the boats” was a vote changing issue.
Any Labor supporters who imagine that, within the foreseeable future, Federal Labor’s leadership might again try to lead the community back towards support for on shore processing, with only brief periods of detention, are harbouring a delusion…
But since when does Federal Labor cease to lead on issues concerning freedom of information? Since when does it support removal of protection from unfair dismissal? And since when does it cease to lead on the right of Australians to know about the treatment of asylum seekers in offshore detention camps, treatment which the UN has stated breach the convention against torture?”
Recent History of Labor Asylum Seeker Policy
Since John Howard rescued himself from poor polls in the wake of Tampa, Labor has struggled and vacillated on asylum seeker policy.
Labor has wrestled with at least three issues:
- A part of our membership and voter base wants a humane policy towards asylum seekers consistent with the refugee convention;
- The political need to appease negative feelings towards asylum seekers from within the electorate, who probably outnumber those with positive views by at least two to one;
- Whether Australia should create disincentives against dangerous travel by sea with people smugglers, when asylum seekers themselves have presumably decided that the risk of such travel is outweighed by the risk of staying in the country from which they flee.
Despite this vacillation, the political position of Federal Labor is now fairly clear. As one federal MP reported to a meeting of ALP members, in order for there to be a change in ALP policy concerning treatment of asylum seekers, the community would first need to be won over.
But there is no realistic likelihood of the community being won over to a more humane policy towards asylum seekers for as long as both major political parties support offshore, long term, internment of asylum seekers as the best means of reducing the risk of deaths at sea and/or appeasing voter hostility towards asylum seekers.
And it appears that the chances of the ALP federal parliamentary leadership now attempting to lead the community to a position of support for onshore processing of boat arrivals are somewhere between remote and non-existent.
This is a bitter pill for many ALP members to swallow. For example, Labor for Refugees supports:
- A right of all onshore asylum seekers to have their status as refugees assessed on Australian soil, under the Australian legal system; and
- A right for asylum seekers to be able to stay in the community after a formal application for refugee status has been lodged and security, health and identity checks, are complete, with detention not to exceed 30 days without a right to judicial review.
While Labor for Refugees policy has never been implemented by Labor in Government, it should be recognized that the first Rudd government did attempt to achieve a more compassionate asylum seeker policy.
In July 2008, it announced an end to the policy of automatic detention for asylum seekers who arrived in Australia without visas. Detention would be restricted to arrivals who posed a threat to the community, who refused to comply with visa conditions, or who needed to be detained for the period of conducting health, identity and security checks. The Rudd government also announced the cessation of the detention of children.
But asylum seeker arrivals in Australia increased from 161 people in 2008 to nearly 3000 people in 2009. Heavy criticism of the Rudd government’s approach from both the opposition and the media resulted.
In October 2009, the Oceanic Viking moved 78 Sri Lankan asylum seekers destined for Australia to an Australia-funded immigration detention centre in Indonesia for processing. These refugees were to be resettled to third countries, not into Australia.
By the first half of 2010 further signs of retreat were evident. The Rudd government suspended processing of new claims by Sri Lankan and Afghan asylum seekers, then 80 per cent of all boat arrivals, for three and six months respectively.
We then passed though:
- The Gillard Government reestablishing offshore processing;
- East Timor being named by Gillard as a preferred location for off shore processing, but with the East Timor subsequently rejecting the plan;
- The “Malaysia Solution” which planned for 800 asylum seeker boat arrivals from Australia being transferred to Malaysia in exchange for 4,000 refugees from that country;
- The High Court ruling that the agreement to transfer refugees from Australia to Malaysia was invalid;
- The Gillard Government’s inability to secure the support of the Senate to overcome the legal problems with the Malaysia Solution and instead reverting to expanding onshore processing arrangements;
- The expert panel, led by Angus Houston, recommending the resumption of processing at Nauru and Manus Island;
- Gillard endorsing the Houston panel recommendations;
- Kevin Rudd’s announcement (after his return as PM) that asylum seekers arriving in Australia by boat would be processed offshore and would never be permitted settlement in Australia.
From at least the time of Rudd’s announcement, if not from earlier, any Labor supporters who imagined that, within the foreseeable future, Federal Labor’s leadership might again try to lead the community back towards support for on shore processing, with only brief periods of detention, have been harbouring a delusion.
Both under Gillard and Rudd mark II, Federal Labor made the political decision that it was not capable of leading enough Australians to acceptance that boat arrivals should be processed onshore and that for many Australians, “stopping the boats” was a vote changing issue. Nothing has changed now that Labor is in opposition. And depressingly, it is likely that Federal Labor’s assessment of its ability to sway public opinion in favour of a more benevolent attitude towards boat arrivals is correct. Seemingly it does not even matter how the question of treatment of asylum seekers is framed.
Border Force Act Debacle
But since when does Federal Labor cease to lead on issues concerning freedom of information? Since when does it support removal of protection from unfair dismissal? And since when does it cease to lead on the right of Australians to know about the treatment of asylum seekers in offshore detention camps, treatment which the UN has stated breach the convention against torture? 
Failure to lead on these issues is precisely what Federal Labor has recently demonstrated, in its decision of May this year, to vote in favour of the Coalition’s Australian Border Security Bill.
This Bill, now passed into Australian law, attempts to curb “whistleblowing” about conditions in refugee camps.
It does so by providing that public servants, as well as consultants and contractors to the immigration department, will face a penalty of up to two years’ imprisonment for recording, or disclosing “protected information”. Protected information could not be more broadly defined. It is essentially any information received as a result of the employment or engagement as a contractor.
The new laws also allow employees and contractors to be required to take oaths or affirmations, the breach of which will be grounds for instant dismissal. The right of employees to make an application for unfair dismissal, where the secretary of the department dismisses them for serious misconduct, has been removed.
This measure was justified by Minister Dutton in his second reading speech on the absurd basis that if a dismissed employee was reinstated by Fair Work Australia (presumably because Fair Work Australia found that there was no serious misconduct), this would send “a mixed signal to the community or workforce about the tolerance of serious misconduct within the Department.”
In his second reading speech Minister Dutton justified the Bill’s secrecy provisions on the basis that they provide:
“assurance to industry and our domestic and international law enforcement and intelligence partners that sensitive information provided to the Australian Border Force and my department more broadly will be appropriately protected”.
This is complete nonsense. The denunciation of conditions and abuses in refugee camps is irrelevant to law enforcement or intelligence. The only exception to this is that some of the abuses revealed by whistle blowers to date are themselves probably unlawful abuses.
Labor might have asked which industry and which domestic and international law enforcement agencies are inhibited in their security functions by the revelation of poor conditions in refugee camps? And how they are so inhibited?
Such questions would have received no convincing answer because the truth is that these new laws have nothing to do with security and everything to do with avoiding disclosures of information that is potentially embarrassing to government.
Labor’s justification for supporting this Bill was that it had received advice that protections under Whistleblower’s legislation would be maintained.
Under Whistleblower’s legislation (The Public Disclosure Act 2013) protection is given to a public interest disclosure by a public official if a disclosure is made:
- within the government, to an authorised internal recipient or a supervisor, concerning suspected or probable illegal conduct or other wrongdoing; or
- to anybody, if an internal disclosure of the information has not been adequately dealt with, and if wider disclosure satisfies public interest requirements; or
- to anybody if there is substantial and imminent danger to health or safety; or
- to an Australian legal practitioner for purposes connected with the above matters.
If a public interest disclosure (“disclosure”) is made in accordance with these provisions the person making the disclosure has the following protections:
- The individual cannot be subject to any civil, criminal or administrative liability (including disciplinary action) for the disclosure;
- No contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the individual on the basis of the disclosure;
- The individual has absolute privilege in proceedings for defamation in respect of the disclosure; and
- The individual cannot be subject to detriment (dismissal, injury in employment, discrimination etc) because of the disclosure.
But the fact that the Border Security Bill does not remove whistleblower protections is a very poor justification for criminalizing public interest disclosures that are not covered under Whistleblower legislation and for removing unfair dismissal protections.
Protected or criminalized?
The new laws create only a very small gap between the possibility that, for the very same disclosure, a person might be protected from discrimination by the Whistleblower’s legislation or criminally charged under the Border Protection Act.
Whether a person is protected, or might be subjected to criminal charges, depends entirely on adherence to procedural requirements under the Whistleblower’s legislation. It has nothing to do with the extent of the public interest involved in the person’s disclosure.
Many instances of conduct may easily fall on either side of this small gap. This is because, as always, there will be grey areas.
- 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”? And 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? And what are they entitled to be informed of?
- When is a danger to health and safety “substantial”? And when will such danger be “imminent”? (This is a complex issue particularly because the extent of a danger, as well as whether it is imminent, may not only depend on the nature of the hazard. It may also depend upon the state of mind of the person who is subject to the hazard, especially given the well documented extent of psychological problems affecting persons in long term detention).
The existence of these grey areas is not a criticism of the Whistleblowers legislation. It is appropriate to leave the ultimate answer to these questions to the Courts as they are best placed to consider the particular circumstances of a case and the application of the legislation to those circumstances. But it is very poor public policy to create a criminal liability simply because a particular disclosure does not meet the technical procedural requirements of the Whistleblowers legislation, even though that disclosure may be in the public interest.
Of course there are instances in which it is legitimate for employers to seek that their employees maintain confidential information.
In the private sector for example, even ex- employees can be under a continuing duty not to disclose confidential information, such as information in the nature of trade secrets.
But employees, or ex- employees, who breach this duty, are normally subject to injunctive restraint or damages. They would not be subject to criminal charges unless they had committed some separate offence, such as fraud or theft.
There may be circumstances in which it is legitimate for a government to criminalize the release of some confidential information, sensitive intelligence information for example. Here of course we run into the very substantial ethical issues associated with Wikileaks and the disclosures made by Edward Snowden and others.
But as a generality, in a democratic society that values access to information, the bar to criminalization should be very high. Conduct should not be criminalized merely on the basis that it might be embarrassing to the government of the day, or because it does not fall within the technical procedural requirements offered by the whistleblowers legislation.
Indeed the Australian Law Council of Australia recommended in relation to the Border Security Bill that whistleblowing should not be criminalized where the disclosure would be in the public interest.
What were we thinking?
So what did Labor imagine might be the political effect of supporting an amendment along the lines of that proposed by the Law Council? Was it too difficult for Labor to grasp that just because a disclosure is in the public interest it will not necessarily be protected under Whistleblowers legislation? Did it somehow imagine that it might be pilloried in the media for supporting an amendment that would protect the freer flow of information about conditions in refugee camps to the same media that is so obviously interested in receiving this information?
None of the possible explanations for Labor’s decision to support this legislation are edifying.
The most generous explanation is that Federal Labor is so blinded by its (probably unachievable) desire to be seen as equally tough as the Coalition on border security issues, that it has failed to distinguish a border security issue from a freedom of information issue (not to mention the industrial rights issue associated with the Bill’s dilution of protection from unfair dismissal).
The least generous explanation is that, should Labor be returned to government, it too finds the possibility of secrecy around conditions in off shore refugee camps an appealing option. We can only hope that we have not descended that far.
In any event Labor’s failure to oppose these provisions was flawed morally, policy wise and politically. The moral and policy flaws are set out above. The political flaw is that Labor’s position may well cause a completely unnecessary leakage of votes to the Greens.
 See explanatory memorandum to the Bill- http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5408