Immigration and Border Protection workers are being prevented from giving evidence in court about conditions in offshore detention centres and, conveniently, the Immigration department now has the ability to determine who is an “IBP worker” — including doctors and welfare officers who work for the private companies that run detention centres.

It was widely thought the draconian Australian Border Force Act would be used to gag immigration whistleblowers, but the new law is also being used by the Commonwealth to protect itself — and control how information is disclosed — in cases where the government is being sued by asylum seekers over conditions in offshore detention centres.

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It appears the act was also drafted to deliberately expand the scope of who could be prosecuted under section 70 of the existing Crimes Act — which has long made it an offence for Commonwealth officers to reveal confidential information. Thanks to the ABF Act, the definition of a Commonwealth officer now includes virtually anyone who has ever done work inside Australia’s secretive offshore immigration network.

The Australian Federal Police revealed last month that between July last year and May this year they had received eight referrals for alleged breaches of section 70 relating to the Department of Immigration and Border Protection, and seven of those referrals related to the Nauru detention centre.

The government is currently seeking to gag IBP workers in the case of a six-year-old asylum seeker who is suing the Minister for Immigration, the Commonwealth, and detention centre contractors for injuries she sustained as a detainee on Christmas Island. Lawyers for the girl say she developed post-traumatic stress disorder, anxiety, a serious dental infection and a stammer while she was held in immigration detention on the island, and that the Australian government has failed to provide proper health care to detainees.

According to court documents seen by Crikey, lawyers for the girl are seeking a blanket immunity for people covered by section 70 of the Crimes Act to be able to give information to the girl’s lawyers about the conditions faced by the girl in immigration detention.

The girl’s lawyers refer the court to a news article outlining that the department is increasingly using section 70 to pursue anyone who speaks out about what is going on within the offshore detention network.

But the Commonwealth strongly rejects the request. While the government concedes the court has the power to waive the secrecy provisions of the ABF Act if a worker is required to give evidence by a court or tribunal, its lawyers argue the Crimes Act is a different case altogether, and says the court should reject the plaintiff’s proposal to provide immunity to Commonwealth officers.

The Christmas Island case is one of two class actions against the Commonwealth by asylum seekers over conditions inside detention centres, which will rely heavily on information from workers and former workers and asylum seekers within detention centres, as well as current and former departmental staff — that is, if they are allowed to speak freely.

In the other case, an Iranian asylum seeker is suing the government and detention centre contractors for breaching duty of care by failing to provide Australian standards of medical care, security and food to detainees on Manus Island. In that case, the court has allowed potential witnesses to confidentially disclose information protected under the ABF Act to lawyers involved in legal proceedings but does not address liability for breaching confidentiality obligations “otherwise than under the ABF Act”.

The department confirmed to Crikey that although there have been several referrals to the AFP for breaches of the Crimes Act, there have been none for breaches of the secrecy provisions in the ABF Act to date.

In fact, the most troubling part of the new law might not be the secrecy provisions at all, but the fact that the ABF Act has vastly expanded the scope of who constitutes an “Immigration and Border Protection worker”. In doing so, the ABF Act has allowed for a range of workers who previously might not have been able to be prosecuted under the Crimes Act – because they were contractors or sub-contractors within the immigration detention network, rather than Commonwealth employees — to be pursued under section 70.

As well as expanding the definition of an IBP worker, the ABF Act also allows the secretary of the department or the ABF Commissioner to make independent determinations — with no parliamentary oversight — about who constitutes an IBP worker. The secretary has already made one wide-ranging determination, as we report today.

A spokesperson for the Immigration Department confirmed that once someone is classified as an IBP worker under the ABF Act, that person can then be prosecuted under section 70 of the Crimes Act:

“‘Immigration and Border Protection workers’ under the ABF Act who are APS employees, contractors or consultants within the Secretary’s Determination are also ‘Commonwealth officers’ under the Crimes Act 1914.”

Just like under the ABF Act, Commonwealth officers face two years in prison under section 70 of the Crimes Act for disclosing confidential information.

The wide-ranging provisions in the ABF Act were ostensibly to protect the integrity of the government’s offshore detention system, but instead they are being used to protect the government from paying damages in cases of alleged abuse. IBP workers considering giving evidence in any of the numerous court cases currently being brought by asylum seekers and refugees against the government will be weighing up the risk of a long jail term for doing so.

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Peter Fray
Peter Fray
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