The following are examples of possible crimes under the Act:
- a journalist who asks a social worker on Nauru to film the camp and send them the video;
- a social worker who contacts a mentor to discuss an ethical question regarding their work on Manus Island;
- a teacher who tells a new employer that they are looking for employment because the school on Nauru has been closed; and
- a caseworker who tells a journalist that women in detention are not provided with sufficient tampons or sanitary napkins.
Cracking down on whistleblowers
Under the Crimes Act 1914 (Cth) (‘the Crimes Act’), only public disclosures by Commonwealth Officers are outlawed. This means that it is difficult to prosecute contractors and those outside the Commonwealth Public Service. However s 42 of the Act requires that any information which an ‘entrusted person’ obtains at work or as part of their work must be kept secret.
An ‘entrusted person’ is defined in the Act to include a person ‘engaged as a consultant or contractor to perform services for the Department’ or the employee or contractor of a consultancy or contractor. It also includes state and territory government employees.
If an entrusted person discloses protected information outside of their work they are committing a crime. The secrecy provisions in the Act have no temporal or geographical limit and they cover all current and former entrusted persons. If a disclosure doesn’t fall within the protections in the Public Interest Disclosure Act 2013 (Cth) (the ‘Whistleblower Law’) or the exclusions to the Act (outlined below), an entrusted person may have committed a criminal offence and be subject to up to two years imprisonment. A person who aids and abets the entrusted person to disclose or record protected information is also guilty of an offence under the Commonwealth Criminal Code.
Protected information is defined to mean any information gained by the entrusted person — in other words, any knowledge, facts, documents, images or recordings that are obtained by an entrusted person while working for the Department.
The new crime of recording information
Under the Crimes Act, keeping a record is ordinarily not a crime. The Act now specifically outlaws the recording of any information unless it is required as part of an entrusted person’s job. If an entrusted person, for example, records any information such as a video of a riot on Manus Island, has photographic evidence about an assault in detention on their iPhone, or keeps a personal diary or gives a presentation about what goes on in Customs, border control or immigration detention, then they are committing a crime. There is almost no protection in the Act or the Whistleblower Law for a person who records information. That means that a journalist or any person who procures and screens video recordings of riots such as those that have taken place on Manus Island and in Nauru could be deemed to be aiding and abetting a criminal act, namely a breach of s 42 of the Act.
The few meaningful exemptions that permit the recording of protected information include the making of a record which is:
- required for work with the Department; or
- required or authorised by or under a law of the Commonwealth, a State or a Territory; or
- required by an order or direction of a Court or Tribunal.
It is clear from the structure of the legislation that recording anything that happens in immigration detention is prohibited, virtually without exception.
State, territory and foreign government employees and officials
The Department has suggested that state and territory government employees are not covered by the Act, and that it only covers contractors. We can only assume that the Department is unaware of the implications of its own legislation and its impact on health and allied workers.
The Act clearly extends the secrecy laws to any state and territory doctors working for a health service, or even a local GP seeing asylum seekers in the community. These practitioners provide services to the department and are therefore ‘entrusted persons’.
We have spoken to a number of doctors who have confirmed that state and territory health services and local GPs invoice the Commonwealth government for their work on behalf of asylum seekers. They say that it is part of the memorandum of understanding with the states and territories. It appears to us that the doctors’ services are being made available to the Department, whether or not they are paid by the Commonwealth government.
As noted above, under s 42 of the Act it is illegal to disclose protected information that an ‘entrusted person’ obtains in their work capacity to anyone outside of their work, unless it falls within a legal exclusion, or is already in the public domain. The prohibition would extend to discussions with a spouse, family members, friends, journalists, advocates, authorities or professional colleagues about any information related to immigration detention.
Legal exclusions include where:
- the disclosure is authorised by the Secretary of the Department; or
- the disclosure is required for their work with the department; or
- the disclosure is required or authorised by or under a law of the Commonwealth, a State or a Territory; or
- the disclosure is required by an order or direction of a court or tribunal; or
- the information in the disclosure has already been lawfully made available to the public; or
- the disclosure is about a particular person and that person or body and the person or body has consented to it; or
- the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual and the disclosure is for the purposes of preventing or lessening that threat.
If a person charged under s 42 wishes to avail themselves of a disclosure defence, then the defendant bears the evidential burden to satisfy the court that the disclosure is authorised.
The Whistleblower Law
The Whistleblower Law does not protect the recording of information at all. However in some circumstances it can protect an individual from being prosecuted for making a ‘public interest disclosure’. If an individual makes a disclosure that meets that test then the disclosure will be protected from any civil, criminal or administrative liability (including disciplinary action).
So, what disclosures are protected under the Whistleblower Law?
Broadly speaking, a ‘public interest disclosure’ is a disclosure of information, by a public official, that is:
- within the government, to an authorised internal recipient or a supervisor, concerning suspected or probable illegal conduct or other wrongdoing (referred to as ‘disclosable conduct’); or
- to anybody, if an internal disclosure of the information has not been adequately dealt with, and if wider disclosure satisfies public interest requirements; or
- to anybody, if there is substantial and imminent danger to health or safety; or
- to an Australian legal practitioner, for purposes connected with the above matters.
Despite its existence since 2013, there is no report of the Whistleblower Law ever being invoked as a defence to a criminal charge. This may be because it is too complex, that no one has required it or, more likely, because the Whistleblower Law is so restrictive that it does not provide effective protection to genuine whistleblowers.
Limits to protection under the Whistleblower Law
There are limits to protection under the Whistleblower Law. It does not protect disclosures:
- about Government policy or the actions of a Minister with which an individual does not agree;
- that are, on balance, contrary to the public interest;
- about certain conduct connected with Courts, Tribunals or intelligence agencies; or
- that are knowingly false or misleading.
It should be of particular concern to whistleblowers that conduct is not disclosable if it relates only to a policy or proposed policy of the Commonwealth government, or an action that has been, is being, or is proposed to be taken by a Minister, with which a person disagrees.
Prerequisites or bureaucratic hurdles to protection
There are bureaucratic requirements that need to be met before a disclosure can be made public under the Whistleblower Law. Unless it is a ‘life or death’ disclosure, there is a need to undertake internal complaints processes before any public disclosure of information occurs. This is likely to substantially delay public disclosure and have a chilling effect.
Under the law, whistleblowers have to make complex legal assessments about whether their disclosure has been ‘adequately dealt with’ under internal review procedures and they also have to assess whether the disclosure ‘is not on balance contrary to the public interest’ before they can speak out. Once they go public, disclosure must be limited to the issue that was the subject of the original internal complaint. Too much disclosure is not protected, and there is little guidance about where the boundaries lie.
Finally, the Whistleblower Law is directed at disclosure of suspected or probable illegal acts or other wrongdoing. Unless it relates to a matter of life or death, the Whistleblower Law would not normally protect the clinical and ethical consultations about patients that take place between medical practitioners, psychologists or social workers within immigration detention centres and their colleagues or specialists outside the immigration system. Or, to look again at those recent examples, the Whistleblower Law would not protect communications of the closure of a school in detention, or a failure to make sufficient tampons or sanitary napkins available to women in detention.
GEORGE NEWHOUSE is Special Counsel at Shine Lawyers, Sydney, and GREG BARNS is a Barrister in Hobart and Melbourne.
© 2015 George Newhouse and Greg Barns