BILLS DIGEST NO. 34, 2017–18              11 September 2017

Australian Border Force Amendment (Protected Information) Bill 2017

Claire Petrie
Law and Bills Digest Section 

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.

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[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).