Australian Border Force Amendment (Protected Information) Bill 2017

1 Introduction

1. The Australian Human Rights Commission (the Commission) makes this submission to the Senate Legal and Constitutional Affairs Legislation Committee in its Inquiry into the Australian Border Force Amendment (Protected Information) Bill 2017 (Cth) (the Bill) introduced by the Australian Government.

2. The Commission welcomes the opportunity to provide a submission to this inquiry. The Commission also welcomes the introduction of the Bill, which proposes to narrow the category of information subject to the secrecy provisions and consequent criminal sanctions in s 42 of the Australian Border Force Act 2015 (Cth) (ABF Act).

2 Background and summary

3. The ABF Act commenced on 1 July 2015 and established the Australian Border Force as a single frontline operational border control and enforcement entity, integrating functions previously performed by the Department of Immigration and Border Protection (Department) and the Australian Customs and Border Protection Service.

4. The current secrecy and disclosure provisions in the ABF Act were adapted from the framework within the now repealed Customs Administration Act 1985 (Cth) which had governed secrecy and disclosure in the Australian Customs and Border Protection Service.

5. The Commission is concerned that the current blanket secrecy provision in s 42 of the ABF Act unduly restricts freedom of expression, freedom of political communication and the right to take part in public affairs. This is because, subject to limited exceptions, it criminalises the unauthorised disclosure of any information obtained by an officer, contractor or consultant of the Department obtained in the course of their duties. That information may include information that could harm essential public interests such as national security, defence, law enforcement and investigation and public safety. However, the prohibition also extends to disclosing information that would not have an adverse effect on any of these interests and which may in fact be in the public interest to disclose.

6. On 9 September 2016, the Commission wrote to the Attorney-General informing him that the Commission had decided to seek leave to appear as amicus curiae in a proceeding brought in the High Court of Australia by Doctors for Refugees Incorporated (Doctors for Refugees). Doctors for Refugees sought to challenge the validity of s 42 of the ABF Act as contrary to the implied freedom of political communication in the Australian Constitution.

7. On 30 September 2016, following the commencement of these proceedings, the Secretary of the Department amended a relevant determination to exclude ‘Health Practitioners’ from the scope of the secrecy provisions. ‘Health Practitioners’ is defined broadly to include general practitioners, nurses, mental health nurses, psychologists, psychiatrists and counsellors among other specialists. 

8. 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.

9. On 9 August 2017, the Australian Government introduced the present Bill.

10. Transparency and accountability in government are central pillars of a healthy democracy. In order to be accountable, the conduct of government must be able to be regularly scrutinised. There are also circumstances where it is critical to keep sensitive government information confidential; for example, in matters relating to intelligence and security information.

11. The effective functioning of government depends on the correct handling of sensitive information by its officers. As part of the spectrum of information handling in the public sector, secrecy laws may serve a legitimate role in generating personal responsibility for the handling of certain kinds of Commonwealth information. 

12. If passed, this Bill would ameliorate many of the Commission’s concerns about the restrictions on freedom of expression in the ABF Act. When compared to the current law, it strikes a better balance between recognising the need to protect sensitive government information and the importance of allowing legitimate public scrutiny.

13. However, in this submission, the Commission also makes a number of recommendations that advance the Bill’s stated objective and enhance the Bill’s compatibility with human rights.

3 Recommendations

The Australian Human Rights Commission makes the following recommendations:

Recommendation 1: The Commission recommends that the Bill be passed with the amendments set out in Recommendations 2 to 8.

Recommendation 2: The Commission recommends that the proposed definition of ‘Immigration and Border Protection information’ in item 1 of the Bill be amended by deleting the words ‘could reasonably be expected to’ in paragraphs (a) to (e), and replacing them with ‘is reasonably likely to’ in each of those paragraphs.

Recommendation 3: The Commission recommends that the proposed definition of ‘Immigration and Border Protection information’ in item 1, paragraph (a), of the Bill be amended by deleting the words ‘would or could reasonably be expected to prejudice the security, defence or international relations of Australia’, and replacing them with ‘would or is reasonably likely to damage the security, defence or international relations of Australia’. 

Recommendation 4: The Commission recommends that the Bill be amended to define the term ‘security’ by adopting the definition of ‘security’ in the Australian Security Intelligence Organisation Act 1979 (Cth).

Recommendation 5: The Commission recommends that the Bill be amended to define the term ‘international relations’ by adopting the definition of ‘international relations’ in the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).

Recommendation 6: The Commission recommends that the proposed definition of ‘Immigration and Border Protection information’ in item 1, paragraph (d), of the Bill be amended by inserting ‘and damage the regulatory function of the Department’ after ‘breach of a duty of confidence’.

Recommendation 7: The Commission recommends that paragraph (e) of the proposed definition of ‘Immigration and Border Protection information’ in item 1 of the Bill, pertaining to the inclusion of ‘information the disclosure of which would or could reasonably be expected to cause competitive detriment to a person’, be deleted.

Recommendation 8: The Commission recommends that the proposed s 4(5)(a) in item 5 of the Bill, which would deem ‘information that has a security classification’ as being ‘information the disclosure of which would or could reasonably be expected to prejudice the security, defence or international relations of Australia’, be deleted.