Was the UN Special Rapporteur right to cancel his visit?

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The following opinion piece, by Dr Catherine Renshaw, from the School of Law, was first published in The Drum.

There is confusion about what can or can't be said under the secrecy provisions of Australia's new Border Force Act.

On Friday the UN's Special Rapporteur on the human rights of migrants, Francois Crepeau, announced that he was cancelling his visit to Australia because the Act would discourage workers in Nauru and Papua New Guinea from disclosing information.

Crepeau sought a written guarantee from the Australian Government that anyone he interviewed would not be intimidated or punished. The Australian Government refused the request.

The Government's view seems to be that a guarantee is unnecessary. Based on its earlier statements in defence of the secrecy provisions of the Act, there are two primary reasons for this. First, the Border Force Act permits disclosures that are necessary to prevent or lessen a serious threat to the life or health of an individual. Second, a separate piece of federal legislation, the Public Interest Disclosure Act (the "Whistleblower's Act") protects officials from prosecution for disclosures.

Let's consider these reasons in turn.

First, when the Border Force Act was passed earlier this year, medical professionals and teachers protested that the terms of the Act would inhibit them from speaking out about conditions in detention centres.

Section 42 of the Act seems clear. "Entrusted people" (which includes any Immigration and Border Protection worker or contractor) commit an offence (punishable by imprisonment for two years) if they disclose protected information (which is defined as any information obtained by a person in the course of their work).

But the Secretary of the Department of Immigration and Border Security and the Australian Border Force Commissioner reassured the public in a joint press statement that there were "robust internal policies, procedures and review mechanisms in place through which any concerns ... can be raised and addressed".

Additionally, provisions relating to a "serious threat to the life or health of an individual" are an exception to the secrecy provisions of the Act and make it likely (though it is not entirely clear) that entrusted people may take action outside Departmental channels.

But the bottom line is that Border Force workers have to use the appropriate government channels to report concerns. Workers also have to "uphold the good reputation of the Australian Border Force" because when they join the ABF, they are required to do precisely this.

Given all this, the Special Rapporteur was correct in judging that there were inadequate protections for general disclosures about conditions of detention.

What about the Public Interest Disclosure Act, which protects whistleblowers from reprisals?

This is only relevant when whistleblowers are reporting "disclosable conduct". In short, disclosable conduct is behaviour that is illegal, corrupt, improper or dangerous. The Public Interest Disclosure Act offers no protection at all for disclosures that are perfectly legal under Australian law but which expose conduct that is immoral, cruel or which breaches internationally recognised human rights.

Yet these are precisely the sorts of disclosures that would concern the Special Rapporteur. So it is disingenuous for the Government to offer up the Public Interest Disclosure Act as protection.

It is not uncommon for governments to make the work of Special Rapporteurs difficult or impossible.

In August this year, Yanghee Lee, the UN special rapporteur on human rights in Myanmar, was permitted to enter the country but was refused access to Rakhine State to investigate the plight of thousands of Rohingya. Myanmar is a country ruled by a former general under a parliament that allots 25 per cent of seats to unelected military officials.

A month before this, Iran's government refused entry to Ahmed Shaheed, the UN Special Rapporteur for human rights in Iran. Iran is an Islamic theocracy.

So Australia is not alone in being obdurate in its willingness to cooperate with the UN's international human rights representatives. It is unusual conduct, however, for a liberal democracy.

1 October 2016
Media Contact: Tanya Patterson

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