The Department of Immigration and Border Protection has been granted access to metadata at the same time as penalties for whistleblowing for border protection staff have been greatly increased, leaving reporters and asylum seeker advocates fearful they will no longer be able to circumvent the government’s strict control of information about Australia’s immigration detention centres.

Leaks to journalists and activists were a key driver of the Senate inquiry into regional processing at Nauru, which has uncovered further allegations of abuse, neglect and despair at the detention centre. But activists Crikey spoke to are fearful of the future of whistleblowing in border protection, as both the ability of the department to identify leakers and the penalties for Immigration staff disclosing information have become more concerning.

Shane Bazzi, a journalist and activist, cultivates sources within detention centre to independently tell stories and pass on information to other journalists to bypass the government’s strict control of information. As a freelance journalist who often publishes things independently, it’s not clear whether he’d be protected by the provisions of the metadata bill that seek to prevent the metadata of journalists being easily accessed. Many others in the sector don’t do any journalism at all, and so would be even more vulnerable to having their metadata expose their sources and contacts. Bazzi told Crikey he was very concerned about the bill (now made law), as he is by the fact that it was amended so quietly, quickly and with relatively little outcry.

“I’ve always been quite concerned that I could be being watched — but the fact that this has happened now, and so soon after metadata was passed, is concerning for me and for others I’m in touch with.”

The Senate on Thursday passed the Australian Border Force Bill 2015, which was treated as uncontroversial legislation by both major parties that primarily aimed to combine the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service into a single agency. This was a recommendation of last year’s Commission of Audit, and it is expected to save the government money.

But the bill also contains several clauses of grave concern to activists. Firstly, it introduces jail terms of up to two years for Department of Immigration and Border Protection workers who disclose “protected information”. This is the penalty for disclosing confidential information in many other parts of the public service, but in its submission to the bill, the Law Council of Australia expressed its concerns. Because of the special circumstances border protection staff work in, the bill allows the department secretary or Border Protection commissioner to make a declaration that the Fair Work Act does not apply to specific staff accused of misconduct. The explanatory memorandum to the bill stated:

“It is appropriate that such measures be applicable to all employees in the integrated Department, given the expanded law enforcement role, and that the workforce is exposed to increased attempts by criminal elements to penetrate, compromise and corrupt officers.”

But in cases of legitimate whistleblowing in the public interest, the Law Council’s submission stated, such a provision gave employees no protection:

“The Law Council is concerned that the heightened secrecy provisions, as well as the broader powers to dismiss staff and contractors, may discourage legitimate whistle-blowers from speaking out publicly. To aid transparency, there should … be a public interest disclosure exception to the secrecy provisions where the disclosure would, on balance, be in the public interest.”

This recommendation was championed by Greens Senator Sarah Hanson-Young in her speech against the bill. “The bill entrenches secrecy by making it a criminal offence, punishable by two years imprisonment, for Department of Immigration employees to disclose information,” she said, noting that employees could be “summarily fired” for leaking, with no right to pursue unfair dismissal. Hanson-Young said:

“This is an issue that is going to impact on 15,000 employees of the Department of Immigration. Those people deserve proper protections by this Parliament. Those people deserve to know that if there is something being done that is wrong, and which it is in the public interest to know, that the Senate has their backs. Those staff who we ask to go out onto the high seas to carry out these dangerous operations and to work in our detention centres to deal with the human misery of this policy, deserve to know that the Australian parliament has their backs. When there is a matter that is in breach of the law or in breach of government policy, or when there is a matter that is in breach of what is considered to be morally acceptable, those people deserve the opportunity to have a proper public interest test applied before they are simply thrown out on their ears.”

As part of the same bill, the new agency was given access to the metadata scheme implemented two months ago by the government (with Labor support). By referring to the new agency as a criminal law enforcement agency, it was given automatic access to the metadata scheme. This was also slammed by the Greens and the Law Council, with the Law Council noting in its submission that it considers it “inappropriate” to give the broader department access to metadata, and questioned whether the whole department could really be classed as a criminal law enforcement agency. Before this bill, the Department of Immigration didn’t have access to metadata.

Peter Fray

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