The mistreatment of people detained on Nauru and Manus Island is notorious. The following facts are plain, even if they are not widely understood. Asylum seekers who tried to reach Australia by boat:
- have committed no offence;
- are removed to Manus or Nauru;
- are held in detention centres operated on behalf of, and paid for by, the Commonwealth government;
- are held in such degrading conditions that many fall into hopelessness and despair. This results in many incidents of self-harm and it causes others to abandon their claims for refugee protection. This appears to be the intended result.
The Commonwealth government, which has engaged in an extended orgy of self-congratulation for having “stopped the boats” is increasingly concerned to prevent ordinary Australians from learning about the way we treat asylum seekers in detention.
Successive Australian governments have actively prevented journalists from getting access to detention centres, here or offshore. These days, if a journalist wants a visa for Nauru, they will have to pay a $7,000 application fee, and the fee is not refunded if the application is refused.
It is a fair inference that the Australian immigration department tells Nauru who should be allowed to travel there. For a journalist to access the detention centre on Manus is virtually impossible. Even a lawyer, who went there in order to speak to a client, was bustled out of the detention centre, and out of the country.
In short: the federal government is anxious to ensure that we know as little as possible about offshore detention.
With support from a meek Labor party (which has forfeited any claim to decency on this issue) the government introduced the Australian Border Force Act. It came into operation on 1 July this year. Among other things, it makes it a criminal offence, punishable by two years’ jail, for a person who works in the detention system to disclose any fact they learn while working in the system.
In broad outline, it defines as an “entrusted person” anyone who works for the immigration department or a contractor to it; it is a criminal offence if an entrusted person “makes a record of, or discloses” protected information. “Protected information” is defined as “information that was obtained by a person in the person’s capacity as an entrusted person”. Strictly, that means that if a Transfield employee on Nauru wants to establish a relationship with a Wilson Security employee on Nauru and she writes down his mobile number, that would be a criminal offence.
More seriously, if a health worker employed by IHMS on Nauru becomes aware that a refugee child has been sexually assaulted by a Nauru local, it would be a criminal offence to report the fact of that sexual assault.
There is a defence provided by section 48 of the Act. It provides that an entrusted person may disclose protected information if:
(a) the entrusted person reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and
(b) the disclosure is for the purposes of preventing or lessening that threat.
So, disclosing casual details for the purpose of being a nuisance is still a criminal offence. But disclosing the fact of sexual assaults, self-harm, cruel treatment etc would not be an offence if it was done for the genuine purpose of lessening a perceived serious threat to the life or health of other detainees.
It is fairly clear that all this is intended to discourage people in the detention system from speaking out. Fortunately, some have spoken out.
And, just in case the legislation has the chilling effect which is apparently intended, I will repeat the open offer I have previously made: if any worker in the detention system is prosecuted under the Australian Border Force Act, and if their conduct appears to be protected by section 48, I will make sure they get the best pro bono defence ever seen in this country.
I expect there will be a lot of lawyers eager to be part of the team. And the prosecution would be a public platform to expose the facts of the detention system, and its toxic effects. Because disclosing those facts will be central to the defence under section 48.
Earlier this month, the federal government called in the Australian federal police to investigate leaks of information from the Nauru detention centre. Significantly, the federal police have not been asked to investigate the rapes and beatings suffered by a number of detainees. The government says these are matters for the Nauru police who, so far, have shown no inclination to take any action at all.
From these facts, the following conclusions may be drawn:
- The Australian government is aware that the public in Australia would be shocked to learn of our intentional mistreatment of innocent people in the detention system;
- It is doing what it can to prevent information about the harshness of our detention system becoming generally known to the public;
- It is investigating whistleblowers in the hope that workers in the detention system will be afraid to disclose what is going on.
All Australians, whatever their views on asylum seekers, need to ask themselves whether the government should ever make it a criminal offence to report a criminal offence. And they should ask themselves why the government is hiding the facts from us. Why are they afraid of the public knowing what is being done to innocent people at vast expense to the taxpayer?
And why investigate whistleblowers instead of investigating the rape and assault of asylum seekers who have been put in harm’s way by our government?