Bills Digest No. 34, 2017–18
PDF version [658KB]
Claire Petrie
Law and Bills Digest Section
11
September 2017
Contents
Purpose of the Bill
Background
Secrecy offence
Criticisms of secrecy provisions
Mandatory reporting Bill
High Court challenge
Australian Law Reform Commission’s
proposed general secrecy offence
Committee consideration
Legal and Constitutional Affairs
Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Secrecy offence
‘Immigration and Border Protection
information’
Prejudice to security, defence or
international relations
Breach of duty of confidence
Competitive detriment
Secretary’s power to prescribe
additional types of information
Retrospective commencement
Authorised disclosures
Purposes for which disclosure may be
authorised
Disclosure of classes of information
Amendments to other Acts
Concluding comments
Date introduced: 9
August 2017
House: House of
Representatives
Portfolio: Immigration
and Border Protection
Commencement: Sections
1 to 3 commence on Royal Assent. Parts 1, 2 and 3 of Schedule 1 commence at
various dates, as set out in the Digest.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at September 2017.
Purpose of
the Bill
The purpose of the Australian Border Force Amendment
(Protected Information) Bill 2017 (the Bill) is to amend the Australian
Border Force Act 2015 (ABF Act) to:
- amend
the secrecy provisions under Part 6 to more specifically define the types of
information prohibited from recording or disclosure by an entrusted person,
with retrospective commencement from the date of commencement of the ABF Act
- insert
into the ABF Act three new permitted purposes for which otherwise
protected information which contains personal information can lawfully be
disclosed
- remove
requirements for the prescribing of bodies and persons to which the disclosure
of certain classes of information can be authorised, in the Australian Border
Force (Secrecy and Disclosure) Rule 2015 (ABF Rule) and
- make
consequential and other technical amendments.
The Bill also makes consequential amendments to the Customs
and Other Legislation Amendment (Australian Border Force) Act 2015 and the Petroleum
and Other Fuels Reporting Act 2017.
Background
Secrecy offence
The secrecy provisions in Part 6 of the ABF Act
have been criticised by lawyers, medical practitioners and refugee advocates,
and the subject of legal challenge, since the Act commenced on 1 July 2015. Of
particular concern has been the broad scope of the provisions, both in regards
to the types of information and classes of people captured.
Under section 42, it is a criminal offence for an entrusted
person to make a record of, or disclose protected information, subject to a
number of exceptions. The maximum penalty is two years’ imprisonment.
Protected information is defined broadly as
‘information that was obtained by a person in the person’s capacity as an
entrusted person’.[1]
Subsection 4(4) provides that this includes information obtained by an
entrusted person in the course of performing duties, or in performing functions
or exercising powers, under a law of the Commonwealth.
An entrusted person is defined to include
the Secretary, Australian Border Force Commissioner (ABF Commissioner) or an
‘Immigration and Border Protection worker’—this includes APS employees of the
Department of Immigration and Border Protection (Department), customs officers
and other public sector officers and employees (including officers and
employees of foreign governments and public international organisations), whose
services are made available to the Department.[2]
A person engaged as a consultant or contractor (or subcontractor) to perform
services for the Department may also be captured by this provision, if
specified in a determination by the Secretary or ABF Commissioner.[3]
Part 6 also sets out circumstances in which disclosure of
protected information may be permissible. These include where the entrusted
person reasonably believes the disclosure is necessary to prevent or lessen a
serious threat to the life or health of an individual[4],
where the information relates to the affairs of a person or body who has
consented to the disclosure[5],
or where the Secretary has authorised the disclosure to certain bodies or
persons, or in accordance with an agreement with a foreign country or other
body.[6]
The present Bill does not amend the definition of ‘entrusted
person’, and therefore does not affect the people who will be subject to the
secrecy provisions of the ABF Act. The main change it makes is to limit
the scope of the offence, to disclosures which fall into one of a number of
specified categories. In introducing the Bill, Minister for Immigration and
Border Protection Peter Dutton stated:
The secrecy and disclosure provisions in Part 6 of the ABF
Act were adapted from the model in place for the former Australian Customs
and Border Protection Service. However, this model has not kept pace with the
developments in the modern border environment. This environment is complex and
dynamic, and updated legislative settings are required to facilitate the
evolving work of my department.
The aim of the measures in this Bill, therefore, is to ensure
that Immigration and Border Protection information is provided with the
necessary level of protection, in a targeted manner, but is also able to be
disclosed when it is appropriate to do so.[7]
Criticisms of
secrecy provisions
When the ABF Act commenced in July 2015, a group of
forty doctors, nurses, teachers and other staff who had worked in detention
centres wrote an open letter to the Government criticising the Act’s secrecy
provisions as ‘strengthen[ing] the wall of secrecy which prevents proper public
scrutiny’, and arguing:
... if we witness child abuse in Australia we are legally
obliged to report it to child protection authorities. If we witness child abuse
in detention centres, we can go to prison for attempting to advocate for them
effectively.[8]
The Australian Medical Association was also a strong
critic of the laws, arguing that they ‘fuelled concerns about a lack of
scrutiny and accountability in the operation of immigration detention centres’.[9]
A rally was held in Sydney in which doctors protested against the secrecy
provisions.[10]
In September 2015, the United Nations Special Rapporteur
on the human rights of migrants, Francois Crepeau, announced that he would
postpone his visit to Australia due to the lack of cooperation from the
Government regarding access to detention centres. He claimed:
In preparing for my visit, it came to my attention that the
2015 Border Force Act, which sanctions detention centre service-providers who
disclose ‘protected information’ with a two-year court sentence, would have an
impact on my visit as it serves to discourage people from fully disclosing
information relevant to my mandate.
... The Act prevents me from fully and freely carrying out my
duties during the visit, as required by the UN guidelines for independent
experts carrying out their country visits.[11]
Lawyers and academics have raised concerns about the
absence of a public interest disclosure exception within the ABF Act.[12]
They have argued that although whistleblower protections exist in the Public Interest
Disclosure Act 2013 (Cth) (PIDA), which protect against
criminal, civil and administrative liability for ‘public interest disclosures’
in particular circumstances, these are limited in nature. Australian National
University lecturer, Khanh Hoang has stated:
Under the PIDA, unless there is an imminent danger to
health or safety, whistleblowers must first disclose matters internally. If
they wish to go public, they must be confident that the matter has not been
‘adequately dealt with’ under internal review procedures, and that the
disclosure ‘is not, on balance, contrary to the public interest’. However,
there is little guidance in the PIDA as to what is, or is not, in the
public interest.
... There are further qualifications for anyone wanting to go
public with information under the PIDA. Subsection 26(2A) provides that
a response to an internal disclosure is taken not to be inadequate to the ‘extent
that the response involves action that has been, is being, or is to be taken by
a Minister’. In addition, a person cannot make a public disclosure only on the
basis that they disagree with the course of action that has, is being, or is
proposed to be undertaken, by the Minister ...
Secondly, the PIDA prohibits public disclosure of ‘intelligence
information’, the definition of which includes ‘sensitive law enforcement
information’ (s 41). This is widely defined to include information that is ‘reasonably
likely to prejudice Australia’s law enforcement interests’. The government
could use these qualifications to argue that much of what happens in detention
centres amounts to ‘sensitive law enforcement’ information that cannot be
disclosed.[13]
Mandatory
reporting Bill
The ALP supported the passage of the ABF Act.[14]
In October 2015 it introduced a private member’s Bill, the Migration Amendment
(Mandatory Reporting) Bill 2015, which proposed amending the Migration Act
1958 to impose mandatory reporting obligations on Immigration and Border
Protection workers in relation to assaults on minors at places of detention.[15]
In his speech introducing the Bill, then-Shadow Minister for Immigration,
Richard Marles stated:
The Bill requires persons working in Australian-funded
facilities to report any form of child abuse to the Australian Border Force
commissioner, who must in turn report it to the relevant police authority and
child protection agency. This Bill ensures there is absolutely no doubt that
staff in these facilities have not only the freedom to report abuse but also a
legal obligation to do so.[16]
The Bill lapsed at the prorogation of Parliament in April
2016.
High Court
challenge
In July 2016, Doctors for Refugees, a group of Australian
doctors and health practitioners advocating for better health outcomes for asylum
seekers and refugees, announced that it was bringing a challenge to the
validity of Part 6 of the ABF Act before the High Court of Australia.[17]
The group argued that the secrecy provisions breached the implied
constitutional right to freedom of political communication.[18]
In September 2016, the Department issued a determination
expressly exempting health practitioners performing services for the Department
from the definition of ‘Immigration and Border Protection worker’.[19]
In its submission to the inquiry into the present Bill by
the Senate Legal and Constitutional Affairs Committee, the Australian Human
Rights Commission (AHRC) states that despite this change:
Doctors for Refugees remained concerned that the blanket
secrecy provisions in s 42 of the ABF Act continued to apply too broadly
to non-health professionals, including teachers and social workers, and sought
to continue its proceeding.[20]
In a public hearing of the Senate Legal and Constitutional
Affairs Committee on 8 September 2017, Doctors for Refugees confirmed that the
High Court proceedings are ongoing.[21]
Australian
Law Reform Commission’s proposed general secrecy offence
In a 2009 report on Secrecy laws and open government in
Australia, the Australian Law Reform Commission (ALRC) recommended the
repeal of existing offences under the Crimes Act 1914, and that a
‘general secrecy offence’ be included in the Criminal Code Act 1995 (Cth).[22]
It recommended that this should require that the disclosure of Commonwealth
information did, or was reasonably likely to, or intended to:
(a) damage the security, defence or international relations
of the Commonwealth;
(b) prejudice the prevention, detection, investigation,
prosecution or punishment of criminal offences;
(c) endanger the life or physical safety of any person; or
(d) prejudice the protection of public safety.[23]
The ALRC recommended the inclusion of express exceptions
where the disclosure is:
(a) in the course of a Commonwealth officer’s functions or
duties;
(b) in
accordance with an authorisation given by an agency head or minister that the
disclosure would, on balance, be in the public interest; or
(c) of information that is already in the public domain as
the result of a lawful disclosure.[24]
The amendments proposed by the current Bill incorporate
some, but not all aspects of this proposed secrecy offence. In particular, the
Bill criminalises a broader range of disclosures than those proposed by the
ALRC, and does not incorporate a public interest exception. A number of
submissions to the Senate Inquiry on the Bill have used the ALRC’s
recommendations as a reference point in assessing the proposed amendments.[25]
Committee
consideration
Legal and
Constitutional Affairs Committee
The Bill has been referred to the Senate Standing Committee
on Legal and Constitutional Affairs for inquiry and report by 12 September 2017.
Details are available at the inquiry
homepage.
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
reported on the Bill on 16 August 2017.[26]
It raised concerns with the broad scope of the offence of disclosing protected
information, as amended by the Bill, as well as with the provision for
significant matters to be included in delegated legislation. The Minister
responded to the Committee on 29 August 2017.[27]
The Committee’s concerns, and the Minister’s response, are
discussed in further detail in the Key issues and provisions section
below.
Policy
position of non-government parties/independents
The Australian Greens have described the existing secrecy
provisions as a ‘draconian measure designed to keep secret the horrors of
offshore detention’.[28]
The opposition and other non-government parties and
independents have not commented on the Bill at the time of writing.
Position of
major interest groups
Most submissions to the Senate inquiry expressed support
for the overall changes proposed by the Bill, while raising concerns about the
scope of particular provisions, and about the secrecy and disclosure regime
within the ABF Act more generally. For example, Save the Children, who
was previously contracted by the Department to provide a range of support
services to asylum seekers and refugees on Nauru, stated:
... the Bill is a step in the right direction in decriminalising
certain public interest disclosures pertaining to immigration-related
operations. However, it introduces some new powers and provisions that could be
used in a way that negates its stated purpose of distinguishing between
information that does and does not need to be kept secret for legitimate
governmental reasons ... Furthermore, the amendments anticipated by the Bill are
not themselves a panacea to many of our long-standing concerns about overly
broad secrecy legislation in Australia and the flaws of our whistleblower
legislation.[29]
The Kaldor Centre for International Refugee Law similarly
commended the Bill’s objective, but submitted that its drafting ‘leaves much to
be desired’.[30]
In particular, it argued that certain types of information contained in the
proposed definition of Immigration and Border Protection information
have no clear connection to protecting national security or the public
interest, and that the proposed categories of information are ‘generally overbroad’,
with the result that the scope and content of the secrecy offence under the ABF
Act ‘is not readily discernible on the face of the Bill’.[31]
The Refugee Advice & Casework Service (RACS) stated
that it supported the proposed amendments and that although it may be
preferable to abolish the secrecy offence under section 42, the Bill would
‘bring a greater degree of transparency to the immigration detention system’.[32]
The Refugee Council of Australia (RCA) broadly welcomed the Bill and its retrospective
application to disclosures made since the commencement of the ABF Act,
though noted that this ‘will also likely immunise the Department from pending
litigation in the High Court challenging the validity of the Act’.[33]
The Law Council of Australia questioned the practical
impact of the amendments, suggesting that the limitation placed on the existing
secrecy offence ‘is likely to be very modest in practice’.[34]
The Australian Lawyers Alliance stated that it welcomed the intention of the
Bill to reduce secrecy in Border Force operations generally, but argued that
the remaining secrecy provisions should be repealed, and that the amendments
proposed by the Bill:
... would not remedy infringements of international law that
are currently posed by Part 6, although they are likely to reduce the incidence
of such infringements.[35]
Specific concerns were raised about the Bill conferring
broad discretion on the Secretary to prescribe kinds of information for which
disclosure is an offence, as well as provisions in relation to security
classifications. These are discussed in the Key issues and provisions
section below.
Financial
implications
The Explanatory Memorandum states that the Bill will have
no financial impact.[36]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[37]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights reported
on the Bill on 5 September 2017.[38]
It noted:
By narrowing the type of information the disclosure of which
would constitute an offence, the proposed measures and framework in the Bill
appear to provide a greater scope to freedom of expression than is currently
the case under section 42 of the Border Force Act. This is a positive step.
That the new scheme will apply retrospectively so that persons who may
otherwise have committed a criminal offence will not have done so, is also
positive from this perspective.[39]
However, the Committee reported that in continuing to
criminalise the disclosure of information, the secrecy provisions as amended by
the Bill continue to engage and limit the right to freedom of expression. It found
that the range of information subject to the prohibition on disclosure remained
broad, and in particular raised concerns about the inclusion of information
that has a security classification.[40]
The Committee sought advice from the Minister about the measures, including
whether it is possible to narrow the range of information to which the
disclosure offence applies, or provide greater safeguards including in relation
to whether a document has been given an inappropriate security classification.[41]
Additionally, the Committee found that the Statement of
Compatibility did not address the Bill’s compatibility with the right to an
effective remedy, noting:
The prohibition on disclosing information may also affect
human rights violations coming to light and being addressed as required by the
right to an effective remedy. That is, the prohibition on disclosing
information may adversely affect the ability of individual members of the
public to know about possible violations of rights and seek redress. This may
be particularly the case in the immigration detention context where there may
be limited other mechanisms for such issues to be addressed.[42]
Key issues
and provisions
Secrecy
offence
Item 7 amends subsection 42(1), which sets out the
elements of the secrecy offence, by replacing the reference to protected
information with Immigration and Border Protection information.
The effect of the change is that a person will commit an offence if:
- they
are, or have been, an entrusted person and
- make
a record of or disclose information and
- the
information falls within the meaning of Immigration and Border Protection
information.
The Bill does not change the meaning of ‘entrusted person’.
To satisfy the third arm of this offence, it is sufficient
that a person be reckless as to whether the relevant information is Immigration
and Border Protection information—in other words, that they are aware
of a substantial risk that this is the case, and having regard to the
circumstances known to the person, it is unjustifiable to take the risk (in
recording or disclosing the information).[43]
‘Immigration
and Border Protection information’
Item 1 inserts a definition of Immigration and
Border Protection information into subsection 4(1). This is defined as
information of any of the following kinds, obtained by a person in their
capacity as a trusted person, the disclosure of which would or could reasonably
be expected to:
- prejudice
the security, defence or international relations of Australia
- prejudice
the prevention, detection or investigation of, or the conduct of proceedings
relating to, an offence or contravention of a civil penalty provision
- prejudice
the protection of public health, or endanger the life or safety of an
individual or group of individuals
- found
an action by a person (other than the Commonwealth) for a breach of a duty of
confidence or
- cause
competitive detriment to a person.
The definition also includes information of a kind
prescribed by the Secretary in a legislative instrument under proposed
subsection 4(7), where the Secretary is satisfied the disclosure of
the information would or could reasonably be expected to prejudice the
effective working of the Department or otherwise harm the public interest.[44]
The combined effect of these amendments is to narrow the
scope of the secrecy offence under section 42, so that it covers only
disclosures which would or could reasonably have a detrimental effect of a
specified kind. This is identified by the Explanatory Memorandum, which notes
that ensuring information obtained and generated by the Department is only used
and disclosed for legitimate purposes:
... involves balancing of the competing interests of
transparent, open and accountable government with the necessary interest of
protecting information from disclosure which would lead to identifiable harm.
... As not all information obtained by the Department requires protection,
the definition of the information to be protected has been refined to include
only certain types of information.[45]
The scope and content of some of these ‘categories’ of
information is affected by additional provisions proposed by the Bill. These
are explained in further detail below.
Prejudice
to security, defence or international relations
Proposed subsection 4(5) of the ABF Act provides
that circumstances in which a disclosure of information would or could
reasonably be expected to prejudice the security, defence or international
relations of Australia include (but are not limited to) where:
- the
information has a security classification (proposed paragraph 4(5)(a)) or
- the
information originated with, or has been received from, an intelligence agency
(proposed paragraph 4(5)(b)).[46]
Security classification
‘Security classification’ is not defined in the Bill. The
Explanatory Memorandum notes that this requirement picks up the Australian
Government’s Protective
Security Policy Framework,[47]
and identifies information with a security classification as including:
-
new policy proposals and associated costing information marked as
Protected or Cabinet-in-Confidence;
- other Cabinet documents, including Cabinet decisions;
- budget related material, including budget related material from other
Government departments;
- adverse security assessments and qualified adverse security assessments
of individuals from other agencies ...[48]
Where an offence under section 42 relates to information
which has a security classification, proposed section 50A (inserted
by item 21) provides that proceedings for the offence must not be
initiated unless the Secretary certifies that it is appropriate that the
information had a security classification at the time of the disclosure.
The Scrutiny of Bills Committee has raised concerns about
the scope of the section 42 offence so far as it relates to information which
has a security classification.[49]
In regards to proposed section 50A, the Committee notes:
If the Secretary does certify that the information was
appropriately classified, there does not appear to be any defence on the basis
that the information was inappropriately classified. As such, it does not
appear that an inappropriate security classification would be a matter that a
court could consider in determining whether a person had committed an offence
under section 42. It also does not appear that any merits review would be
available in relation to the Secretary’s decision to issue a certification that
the information was appropriately classified.[50]
Some stakeholders raised similar concerns in submissions
to the Senate Inquiry. The Law Council noted that the Secretary may be making a
certification based on an initial protective marking by a contractor or
consultant working for the Australian Government, and recommended that the Bill
be amended to include an appropriate definition of what constitutes information
that has a security classification.[51]
In response to questions from the Scrutiny of Bills
Committee, the Minister stated that ‘the concept of security classification is
not easily reduced to a neat all-encompassing definition within an Act of
Parliament’.[52]
He further argued that ‘it is not necessary, or appropriate, for a defence
concerning the appropriateness of the security classification to be available’,
noting that in addition to the certification requirement under proposed section
50A:
... due diligence also requires that the information in
question was classified at the correct level before a decision is taken to
prosecute the entrusted person.[53]
Intelligence information
In relation to proposed paragraph 4(5)(b), the Law
Council queried how, as a question of fact, information will be determined to
have originated with or been received from an intelligence agency, noting that
intelligence may be known to persons through a variety of sources other than
the intelligence agency.[54]
Breach of
duty of confidence
The Bill inserts a definition of duty of confidence
into subsection 4(1), as meaning ‘any duty or obligation arising under the
common law or at equity pursuant to which a person is obliged not to disclose
information’.[55]
Proposed subsection 4(6) states that information provided to the
Commonwealth pursuant to a statutory obligation or otherwise by compulsion of
law is taken to be information the disclosure of which would or could
reasonably be expected to found an action by a person for breach of a duty of
confidence.
The Explanatory Memorandum states that the inclusion of
this kind of information as information to which the section 42 secrecy offence
would apply recognises that the Department’s ability to function effectively
depends on it being able to receive information from individuals on the
understanding that it will be kept confidential.[56]
It provides examples of the kinds of information which may be covered by proposed
subsection 4(6), including information or documents about the identity of
an unlawful non-citizen provided pursuant to a notice under section 18 of the Migration
Act 1958; information contained in records provided to an authorised
officer in response to requirements under the Customs Act 1901; or
information provided in response to a subpoena.[57]
The AHRC noted that there are alternative contractual,
common law and equitable remedies available where information is disclosed in
breach of a duty of confidence. The AHRC accepted that some functions of the
Department require individuals and companies to provide sensitive information
in circumstances in which they expect the Department to keep it confidential.[58]
However, it stressed the recommendation of the ALRC that categories of protected
information be narrowly defined, and recommended that this part of the proposed
definition of Immigration and Border Protection information be
amended to read:
Information the disclosure of which would, or is reasonably
likely to, found an action by a person (other than the Commonwealth) for a
breach of a duty of confidence and damage the regulatory function of the
Department.[59]
(Emphasis added)
Competitive
detriment
The Bill does not contain a definition of ‘competitive
detriment’. The Explanatory Memorandum states that the inclusion of this kind
of information recognises that disclosing such information:
... could cause significant damage to an entity’s business
interests where the information provides commercial advantage to a competitor
or potential competitor.[60]
The Kaldor Centre queried the inclusion of this type of
information, arguing that while it is legitimate to protect against competitive
detriment which may flow from the disclosure of confidential information:
... this is typically achieved through a combination of the
application of the general law, contractual obligations relating to
confidentiality and requirements for persons entrusted with confidential
information to sign a confidentiality undertaking. No clear case has been made
for why the protection of national security and the public interest require
that Immigration and Border Protection workers be held to a different, and far
more onerous, standard than that which applies to other government workers.[61]
It raised particular concern about criminal penalties
being imposed for disclosure of such information, in contrast to the typical
civil and contractual consequences.[62]
The Refugee Council and Law Council both recommended that consideration
be given to removing the provision from the Bill.[63]
The Law Council suggested that it may be aimed at criminalising criticism of
detention centre providers, and constitute an unjustifiable encroachment on
freedom of speech.[64]
Secretary’s
power to prescribe additional types of information
Proposed subsection 4(7) provides the Secretary with
the power to prescribe, by legislative instrument, additional kinds of
information for the purposes of the definition of Immigration and Border
Protection information, where satisfied that disclosure would or could
reasonably be expected to prejudice the effective working of the Department or
otherwise harm the public interest.[65]
The Explanatory Memorandum notes that such an instrument
will be subject to Parliamentary disallowance under the Legislation Act 2003.[66]
It explains that this provision may capture new kinds of information that ‘may
require protection more quickly than an amendment to the ABF Act would
permit’.[67]
The Bill does not define ‘public interest’ or circumstances in which disclosure
of information could ‘prejudice the effective working of the Department’, and
the Explanatory Memorandum gives no further guidance on these points.
The Scrutiny of Bills Committee expressed concern that this
proposed amendment enables the inclusion of a significant matter—that is, what
constitutes the type of information of which disclosure could result in the
commission of an offence—in delegated legislation.[68]
It suggested that matters which go to whether a person has committed an offence
should be included in primary legislation unless there is a sound justification
for the use of delegated legislation. In response to the justification provided
in the Explanatory Memorandum, the Committee noted that ‘in urgent situations
Parliament has passed legislation in as little as two sitting days’.[69]
In response to the Scrutiny of Bills Committee’s comments,
the Minister advised that examples of the kinds of information which may be
captured by this provision include:
- internal
tools for making visa decisions, which if disclosed could increase a person’s
prospects of being granted a visa for which they may not be otherwise eligible
and
- internal
procedures for assessing applications for Australian Trusted Trader status
under the Customs Act 1901, which if disclosed could lead to an entity
receiving Australian Trusted Trader status which may not otherwise be given
that status.[70]
The provision was a key point of concern in submissions to
the Senate Inquiry. The Refugee Council recommended that it be removed, arguing
that it was inappropriate for a member of the executive to be given power to
define the reach of a criminal offence.[71]
Refugee Legal similarly stated the delegation was ‘inappropriate and profoundly
concerning’ in light of the criminal penalties attached to an offence under
section 42.[72]
It expressed disappointment with the inclusion of this delegated power in the
Bill, which it argued:
... is otherwise proposing a principled framework for the types
of information requiring protection through the secrecy offence, on the basis
of the identification of “essential public interests” ... The criteria that the
Secretary be satisfied that the disclosure would or could reasonably be
expected to prejudice the effective working of the Department, or otherwise
harm the public interest, are broad and ill-defined.[73]
Refugee Legal also noted that the inclusion of proposed
subsection 4(7) would mean that the definition of Immigration and
Border Protection information could be changed instantly, creating
significant difficulties for an ‘entrusted person’ to be sure they were not
committing an offence by recording or disclosing information.[74]
Save the Children suggested that the breadth of the
discretion could enable it to be used to prevent the lawful disclosure of a
wide range of information, and noted ‘it is foreseeable that any
disclosure relating to events or operations in these settings could prejudice
the effective working of the Department’.[75]
Retrospective
commencement
The amendments in Part 1 commence retrospectively
on 1 July 2015, the date of the commencement of the ABF Act. The
Explanatory Memorandum provides that this ‘reflects the policy intention that
Part 6 of the ABF Act, as amended by this Act, is what the law was
always intended to be’.[76]
The effect of this retrospective commencement is that a
recording or disclosure of information which has already taken place, and which
may constitute an offence under the existing secrecy provisions, will not be
subject to prosecution if the information does not fall within the meaning of Immigration
and Border Protection information.
Despite the retrospective commencement, item 24
provides that nothing in the present Bill will make a person liable to a
penalty for an act or omission which occurred prior to commencement of this
Act, if they would not have been liable under Part 6 of the ABF Act at
the time the act or omission took place.
In its submission to the Senate Inquiry, the Royal
Australian & New Zealand College of Psychiatrists expressed support for the
retrospective commencement, stating:
This will give current and previous offshore detention centre
staff clarity about their ability to disclose matters in the public interest
and will provide certainty going forward.[77]
Authorised disclosures
Part 2 of Schedule 1 makes amendments to provisions
in the ABF Act relating to the Secretary’s power to authorise disclosure
of information in particular circumstances. These commence on the day after Royal
Assent.
Subsection 42(2) of the ABF Act sets out a number
of exceptions to the secrecy offence—this includes where the making of the
record or disclosure is authorised by another provision of the ABF Act.[78]
In certain circumstances the Secretary may authorise the disclosure of
information, including where
- the
disclosure is in accordance with an agreement between the Commonwealth and a
foreign country, agency or public international organisation, and that body has
undertaken not to use or further disclose the information except in accordance
with the agreement or as required by law[79]or
- where
the disclosure is to a certain body or person (such as a government agency, the
AFP or state/territory police or a coroner) to assist with the performance or
exercise of their functions, duties or powers, and the relevant body or person
complies with any conditions imposed.[80]
As noted above, Part 1 of Schedule 1 of the Bill
makes consequential amendments to these provisions to replace references to protected
information with Immigration and Border Protection information.[81]
Purposes
for which disclosure may be authorised
Where Immigration and Border Protection information
contains personal information[82],
the Secretary can only authorise disclosure if satisfied that it is necessary
for one of the purposes set out in section 46.[83]
These purposes include: the administration of a criminal law (either under
Australian law or the law of a foreign country); the prevention of crime; the
assisting of a coronial inquiry, investigation or inquest; the protection of
public health; the collection and verification of statistics; and a purpose
relating to immigration, quarantine or border control between Australia and a
foreign country.[84]
Item 31 amends section 46 to insert three new
purposes for which the Secretary may authorise disclosure of Immigration
and Border Protection information which contains personal information.
These are:
- a
purpose relating to the inter-country adoption of a child (proposed
paragraph 46(na))
- a
purpose relating to the protection of national security or the defence of
Australia (proposed paragraph 46(nb)) or
- a
purpose relating to locating a missing person (proposed paragraph 46(nc)).[85]
Disclosure
of classes of information
In addition to the above requirements, paragraph 44(2)(d) of
the ABF Act currently provides that a ‘class of protected information’ which
contains personal information can only be disclosed to a body or person
mentioned in subsection 44(2) if:
- the
body or person is prescribed in the rules and
- that
class of information is prescribed in the rules as a class of information that
may be disclosed to that body or person.
Paragraph 45(2)(d) similarly requires that a class of
protected information which contains personal information can only be disclosed
to a foreign country, agency or authority of a foreign country or a public
international organisation if:
- that
foreign country, agency, authority or organisation is prescribed in the rules
and
- that
class of information is prescribed in the rules as a class of information that
may be disclosed to that foreign country, agency, authority or organisation.
The ABF Rule specifies bodies and persons to whom certain
classes of information may disclosed for the purposes of these two provisions.[86]
Items 28 and 30 repeal paragraphs 44(2)(d) and
45(2)(d) respectively. The Explanatory Memorandum notes, in relation to both
provisions: ‘the experience of the Department is that these requirements add a
burdensome level of bureaucratic overlay’.[87]
In each case, disclosure will still need to meet the requirements of section 44
or 45, as applicable, including receiving written authorisation from the
Secretary.
The Office of the Australian Information Commissioner (OAIC)
expressed concern about the repeal of these provisions. In regards to paragraph
44(2)(d), it noted the proposed repeal would:
... mean that a disclosure of Immigration and Border Protection
information would not be controlled by the framework in the ABF Rule that
prescribes the classes of information that may be disclosed, and the
(Australian and overseas) bodies and persons to whom it may be disclosed. Some
bodies and persons are listed in the Rule as being able to receive many (or
all) classes of information, while others are restricted to one or only a few
classes of information. Without s 44(2)(d), personal information of any class
could be disclosed to any body or person, provided the requirements of s
44(2)(a)–(c) are met, some of which are discretionary.[88]
The OAIC recommended that, should the provisions be
repealed, the Government implement a framework which provides a similar level
of assurance about the appropriate disclosure of personal information. For
example, it suggested this could take the form of additional information in the
Explanatory Memorandum or binding guidelines to require the decision maker to
consider the impact on privacy.[89]
Amendments
to other Acts
The Bill makes consequential amendments to two other Acts.
Item 26 repeals subitem 5(3) of Schedule 9 of the Customs and Other
Legislation Amendment (Australian Border Force) Act 2015 (Cth). This
was a transitional provision which stated that ‘protected information’ for the
purposes of the (repealed) Customs Administration Act 1985 was taken to
be protected information for the purposes of the ABF Act. As
with the other amendments in Part 1 of Schedule 1 of the Bill,
this commences retrospectively, on 1 July 2015.
The Explanatory Memorandum to the Bill explains that this provision
is being repealed as:
... it is no longer feasible to transition all pre-1 July 2015
protected information to the new definition of Immigration and Border
Protection information as that information will no longer align with the
new definition. While this means that Part 6 of the ABF Act may not be
used in some circumstances to prosecute the disclosure of information obtained
when section 16 of the Customs Administration Act was in force,
alternative prosecution options are still available.[90]
Item 32 amends section 31 of the Petroleum and Other
Fuels Reporting Act 2017 (Cth), which provides for the disclosure of
fuel information which is also protected information within the
meaning of the ABF Act, to replace the term protected information with
Immigration and Border Protection information. This amendment
will commence the day after Royal Assent.[91]
Concluding comments
Legal, medical and aid organisations as well as refugee
advocacy groups have largely welcomed the Bill as a step in the right
direction, due to the limits it places on the types of disclosures which will
constitute an offence under the ABF Act. The retrospective commencement
of these measures will mean that disclosures occurring before commencement of
this Act, which would constitute an offence under the ABF Act in its
existing form, will not be subject to prosecution if the relevant information
does not fall within the proposed definition of Immigration and Border
Protection information.
Stakeholders have nonetheless raised concerns with
specific provisions of the Bill, in particular the Secretary’s power to
determine further types of information as falling within the scope of the
secrecy offence under section 42, and the inclusion of all information which
has a security classification, without the capacity to challenge the
appropriateness of this classification in court. These provisions in particular
make it difficult to identify with certainty the extent to which the Bill’s amendments
will narrow the scope of the secrecy offence.
[1]. Australian Border
Force Act 2015 (Cth) (ABF Act), subsection 4(1).
[2]. Ibid.,
subsection 4(1).
[3]. Ibid.,
subsection 4(1) and section 5. Also see: Determination
of Immigration and Border Protection Workers, signed 29 June 2015,
DIBP website, amended by: Determination
of Immigration and Border Protection Workers—Amendment No. 1, signed 30
September 2016, DIBP website.
[4]. Ibid.,
section 48.
[5]. Ibid.,
section 47.
[6]. Ibid.,
sections 44 and 45.
[7]. P
Dutton, ‘Second
reading speech: Australian Border Force Amendment (Protected Information) Bill
2017’, House of Representatives, Debates, (proof), 9 August 2017, p.
7.
[8]. ‘Open
letter on the Border Force Act: “we challenge the department to prosecute”’,
The Guardian, (online edition), 1 July 2015.
[9]. M
Safi and P Farrell, ‘AMA
joins protest against asylum law that can jail detention centre staff’, The
Guardian, (online edition), 1 July 2015; also see: G Thompson, ‘Bad
blood’, Four Corners, Australian Broadcasting Corporation (ABC), 25
April 2016.
[10]. M
Kembrey, ‘Medics
protest new law silencing their evidence’, The Sun-Herald, 12 July
2015.
[11]. Office
of the High Commissioner on Human Rights, Official
visit to Australia postponed due to protection concerns, media release,
25 September 2015.
[12]. For
example, see: Law Council of Australia, Submission
to the Senate Legal and Constitutional Affairs References Committee, Inquiry
into Serious allegations of abuse, self-harm and neglect of asylum seekers in
relation to the Nauru Regional Processing Centre, and any like allegations in
relation to the Manus Regional Processing Centre, 10 November 2016, pp.
20–22; K Hoang, ‘Of
secrecy and enforcement: Australian Border Force Act’, Law Society
Journal, 1 August 2015, pp. 78–79; T Shmerling, L Dreyfus, L Lachal and J
Rust, ‘Operation
secret borders: what we don’t know, can hurt us’, Law Institute Journal,
1 June 2017, pp. 24–27; P Roberts, ‘FactCheck:
could a whistleblower go public without fear of prosecution under the Border
Force Act?’, The Conversation website, 13 July 2015.
[13]. K
Hoang, ‘Of
secrecy and enforcement: Australian Border Force Act’, op. cit., p. 79.
[14]. M
Thistlethwaite, ‘Second
reading speech: Australian Border Force Bill 2015, Customs and Other
Legislation Amendment (Australian Border Force) Bill 2015’, House of
Representatives, Debates, 24 March 2015, p. 3227.
[15]. Parliament
of Australia, ‘Migration
Amendment (Mandatory Reporting) Bill 2015 homepage’, Parliament of
Australia website.
[16]. R
Marles, ‘Second
reading speech: Migration Amendment (Mandatory Reporting) Bill 2015’, House
of Representatives, Debates, 12 October 2015, p. 10699; for
further discussion see E Karlsen, ‘Whistle-blowing
under the Border Force Act: three months on’, FlagPost, Parliamentary
Library blog, 21 October 2015.
[17]. Doctors
for Refugees and Fitzroy Legal Service, Landmark
High Court case to challenge Border Force Act, media release, 27 July
2016; Doctors for Refugees and Fitzroy Legal Service, Briefing
paper: Doctors for Refugees Inc. v Commonwealth of Australia: High Court of
Australia, 29 July 2016.
[18]. TimeBase,
‘Doctors for
Refugees: constitutional challenge to Border Force laws filed in the High Court’,
TimeBase website, 2 August 2016.
[19]. Determination
of Immigration and Border Protection Workers—Amendment No. 1, op. cit.; A
Booth, ‘Health
workers exempt from immigration detention secrecy provisions’, SBS online,
20 October 2016.
[20]. Australian
Human Rights Commission (AHRC), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Border Force Amendment (Protected Information) Bill 2017
[Provisions], 1 September 2017, p. 4.
[21]. Senate
Legal and Constitutional Affairs Legislation Committee, Official
committee Hansard, (proof), 8 September 2017, p. 7.
[22]. Australian
Law Reform Commission (ALRC), Secrecy
laws and open government in Australia: report, 112, ALRC, Sydney, 2009,
recommendations 4–7.
[23]. Ibid.,
p. 9, recommendation 5-1.
[24]. Ibid.,
p. 11, recommendation 7-1.
[25]. For
example: AHRC, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.;
Law Council of Australia (LCA), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Border Force Amendment (Protected Information) Bill 2017
[Provisions], August 2017; Kaldor Centre for International Refugee Law, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Border Force Amendment (Protected Information) Bill 2017
[Provisions], 1 September 2017.
[26]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 9, 2017, The Senate, 16 August 2017, pp. 1–4.
[27]. Minister
for Immigration and Border Protection, ‘Response to Scrutiny Digest No. 9 of
2017 from the Senate Scrutiny of Bills Committee: Australian Border Force
Amendment (Protected Information) Bill 2017’, 29 August 2017 in Scrutiny
digest, 10, 2017, The Senate, 6 September 2017, p. 29.
[28]. N
McKim, Dutton
backs down on secrecy provisions, media release, 14 August 2017.
[29]. Save
the Children, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Border Force Amendment (Protected Information) Bill 2017
[Provisions], 28 August 2017, p. 1.
[30]. Kaldor
Centre for International Refugee Law, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 1.
[31]. Ibid.,
pp. 2–5.
[32]. Refugee
Advice & Casework Service (RACS), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Border Force Amendment (Protected Information) Bill 2017
[Provisions], 28 August 2017, p. 1.
[33]. Refugee
Council of Australia (RCA), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Border Force Amendment (Protected Information) Bill 2017
[Provisions], August 2017, p. 1.
[34]. Law
Council of Australia (LCA), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 5.
[35]. Australian
Lawyers Alliance (ALA), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Border Force Amendment (Protected Information) Bill 2017
[Provisions], 28 August 2017, pp. 6–7.
[36]. Explanatory
Memorandum, Australian Border Force Amendment (Protected Information) Bill
2017, p. 3.
[37]. The
Statement of Compatibility with Human Rights can be found at pages 4–7 of the Explanatory
Memorandum to the Bill.
[38]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 9, 2017, 5 September 2017, pp. 6–12.
[39]. Ibid.,
pp. 8, 11.
[40]. Ibid.,
pp. 9–11.
[41]. Ibid.,
p. 11.
[42]. Ibid.,
pp. 11–12.
[43]. This
is due to the operation of subsection 5.6(2) of the Criminal Code Act
1995 (Cth), which states that where a law creating an offence does not
specify a fault element for a physical element that consists of a circumstance
or a result, the fault element that applies is recklessness. Recklessness is
defined under section 5.4.
[44]. See
proposed paragraph (f) of the proposed definition of Immigration
and Border Protection information, and proposed subsection 4(7)
(inserted into the ABF Act by item 5).
[45]. Explanatory
Memorandum, Australian Border Force Amendment (Protected Information) Bill
2017, op. cit., pp. 2–3.
[46]. Proposed
subsection 4(5) is inserted by item 5. Item 1 inserts a definition
of intelligence agency into subsection 4(1), which states that
the term means: the Australian Geospatial-Intelligence Organisation; Australian
Secret Intelligence Service; Australian Security Intelligence Organisation;
Australian Signals Directorate; Defence Intelligence Organisation; Office of
National Assessments; or a government body or authority responsible for
intelligence gathering for, or the security of, a foreign country.
[47]. Australian
Government, ‘Protective
security policy framework’, Attorney-General’s Department website, 5 June
2017.
[48]. Explanatory
Memorandum, Australian Border Force Amendment (Protected Information) Bill
2017, op. cit., p. 15.
[49]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, op. cit., pp. 1–3.
[50]. Ibid.,
p. 3.
[51]. LCA,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 12.
[52]. Minister
for Immigration and Border Protection, ‘Response to Scrutiny Digest No. 9 of
2017’, op. cit., p. 1 in Scrutiny
digest, 10, 2017, op. cit., p. 32.
[53]. Ibid.,
p. 32.
[54]. LCA,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 13.
[55]. Inserted
by item 1.
[56]. Explanatory
Memorandum, Australian Border Force Amendment (Protected Information) Bill
2017, op. cit., p. 12.
[57]. Ibid.,
p. 16.
[58]. AHRC,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
pp. 20–23.
[59]. Ibid.,
pp. 22–23.
[60]. Explanatory
Memorandum, Australian Border Force Amendment (Protected Information) Bill
2017, op. cit., p. 13.
[61]. Kaldor
Centre, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 4.
[62]. Ibid.,
p. 4.
[63]. LCA,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 6; RCA, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 2.
[64]. LCA,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 6.
[65]. Inserted
by item 5.
[66]. Explanatory
Memorandum, Australian Border Force Amendment (Protected Information) Bill
2017, op. cit., p. 16.
[67]. Ibid.
[68]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, op. cit., pp. 3–4.
[69]. Ibid.,
p. 4.
[70]. Minister
for Immigration and Border Protection, ‘Response to Scrutiny Digest No. 9 of
2017’, op. cit., p. 2 in Scrutiny
digest, 10, 2017, op. cit., p. 35.
[71]. RCA,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 2.
[72]. Refugee
Legal, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Border Force Amendment (Protected Information) Bill 2017 [Provisions],
August 2017, p. 4.
[73]. Ibid.,
p. 5.
[74]. Ibid.
[75]. Save
the Children, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 2.
[76]. Explanatory
Memorandum, Australian Border Force Amendment (Protected Information) Bill
2017, op. cit., p. 8.
[77]. Royal
Australian & New Zealand College of Psychiatrists, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Border Force Amendment (Protected Information) Bill 2017
[Provisions], August 2017, p. 1.
[78]. ABF
Act, paragraph 42(2)(a).
[79]. Ibid.,
subsection 45(1).
[80]. Ibid.,
subsection 44(1).
[81]. Items
10–19.
[82]. Personal
information has the same meaning as in the Privacy Act 1988,
where it is defined as: information or an opinion about an identified
individual, or an individual who is reasonably identifiable:
(a) whether the
information or opinion is true or not; and
(b) whether the
information or opinion is recorded in a material form or not. (section 6).
[83]. ABF
Act, paragraphs 44(2)(b) and 45(2)(b).
[84]. Ibid.,
section 46.
[85]. Part
2 of Schedule 1 of the Bill.
[86]. Australian Border
Force (Secrecy and Disclosure) Rule 2015, clause 6, Schedules 2 and 3.
[87]. Explanatory
Memorandum, Australian Border Force Amendment (Protected Information) Bill
2017, op. cit., pp. 19–20.
[88]. Office
of the Australian Information Commissioner (OAIC), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Border Force Amendment (Protected Information) Bill 2017
[Provisions], 31 August 2017, p. 3.
[89]. Ibid.,
pp. 3–4.
[90]. Explanatory
Memorandum, Australian Border Force Amendment (Protected Information) Bill
2017, op. cit., p. 19.
[91]. Clause
2 of the Bill provides that Part 3 of Schedule 1 will commence on the
later of the day after Royal Assent of this Act or the commencement date of the
Petroleum and
Other Fuels Reporting Act 2017. The Petroleum and Other Fuels
Reporting Act commenced on 24 August 2017 (see section 2 of that Act).
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