Operation Secret Borders

By Laura Dreyfus, Lexi Lachal, Jordina Rust and Tal Shmerling

Karen Wells, a former guard at Manus Island Detention Centre, didn’t walk into the job expecting she would one day become a whistleblower. Ms Wells worked for 11 years, at Woomera and Curtin Detention Centres, without feeling the need to speak out.

After the riots at Manus Island in which Reza Berati died, Ms Wells, and many others, could no longer stay silent.

It was the same for Dr Robert Adler, who visited Nauru Detention Centre on behalf of the International Health and Medical Service (IHMS). After his visit, he wrote a letter to the then Prime Minister Tony Abbott relaying the appalling conditions on Nauru. He hadn’t previously seen himself as a political person, and didn’t suspect that the response to his letter, which he was careful to ensure contained no confidential patient information, would see him barred from returning to Nauru by the IHMS and Commonwealth Government

There is now a growing group of individuals who have spoken out about risks to the safety, health and dignity of refugees in Australian detention centres. People like Ms Wells, Dr Adler, Steve Kilburn, Nicole Judge, and Chris Iacono have all shared stories about the abuses taking place in our immigration system with the media, and in their testimony or submissions to the Senate Inquiry into the incidents at the Manus Island Detention Centre on 16-18 February 2014. Their stories have helped Australia understand what is happening in our name and at our expense.

Aggressive policies and laws against whistleblowers

Yet this vital information gateway is being jarred shut. The Commonwealth Government is implementing increasingly aggressive policies and laws that attack rather than protect whistleblowers.

Detention Centre and Department of Immigration and Border Protection (DIBP) employees may be asked to sign several documents before their employment begins, including strict confidentiality deeds or employment contracts mandating confidentiality of information surrounding their work. Employees cannot talk about their work to family or friends, or about what they see in the centres. Many risk losing their job for disclosing confidential information.

Steve Kilburn, a former security officer at Manus Island, said when he chose to approach the media about the riots on Manus Island many of his colleagues contacted him saying “I really wish I could speak out, but I can’t.” The threat of losing an income, and not being able to find work in the industry again is a heavy burden. Whistleblowers may also face legal action for breach of contract if they seek to publish confidential information.

Employees are also under threat of criminal prosecution and face up to two years imprisonment under s 70 of the Crimes Act 1914 (Cth) or the more recently introduced Australian Border Force Act 2015 (Cth) (ABF Act) for disclosing protected information.

There is nothing new about these examples or policies. The Commonwealth Government has, over a number of years, systematically restricted the way we receive information about our immigration system. They have moved the detention centres offshore where lawyers and journalists must pay application fees of up to $8000 to get access; they have persistently refused to release information about “on water” or “operational” matters; they have intimidated immigration system workers; and they have employed language of war and weaponry to make national security seem like a reasonable justification for their decisions.

We need whistleblowers to shine a light on what is happening in our name.

The lurch towards secrecy at the expense of transparency is stark. Attacks on whistleblowers, and bolstering unreasonable secrecy laws are part of a broader erosion of democratic principles. The government’s “confidentiality” regime over asylum seeker matters prevents proper scrutiny.

We need whistleblowers to shine a light on what is happening in our name, especially when these policies involve government action beyond our borders and beyond normal accountability measures. The culture of secrecy not only harms those intimidated into remaining silent, by making them feel powerless to speak out about the injustice they have witnessed, but it harms people seeking asylum as they continue to languish in offshore detention centres, hidden from public view.

Reversing the culture of secrecy

The secrecy provisions in the ABF Act should be removed, as they do not add anything to already existing law. They give the Government yet another means to “shoot the messenger” instead of addressing the real issues. The Commonwealth Government already has broad powers under the Crimes Act and under common law to prosecute department employees and contractors for disclosing unauthorised information. So why not repeal Part Six of the ABF Act?

Another simple mechanism would be to standardise confidentiality clauses in immigration-related employment contracts. This way all employees across different industries would know more clearly what information can or cannot be disclosed and could safely rely on their colleagues’ disclosures as examples that they can do the same thing.

Or, to tackle the uncertainty surrounding protection of whistleblowers under the Public Interest Disclosure Act 2013 (Cth) (“PIDA”), an independent oversight mechanism, separate to the Commonwealth Ombudsman, could be established to clarify key terms and their application, as well as to provide confidential advice to would-be whistleblowers about whether they will face prosecution or dismissal for their disclosure. This independent oversight mechanism would have a broader ambit than the Ombudsman, providing guidance notes on sections of the PIDA and making determinations on whether something is “disclosable conduct”.

This would allow many complaints that are currently referred back to the agency by the Ombudsman for internal investigation, to be subject to external scrutiny.

These reforms are just some of the ways in which the Australian Government can begin to peel back the layers of secrecy surrounding our immigration system and protect those who seek to draw attention to serious and significant harm that may be occurring within it.

This culture of secrecy harms those intimidated into remaining silent, forcing them to live with the anguish of having witnessed injustice but feeling powerless to speak out about it. It also harms people seeking asylum – they continue to languish in offshore centres which are completely hidden from public view and which lack the transparency and accountability required to expose human rights abuses and provide the impetus for change. More broadly this excessive secrecy harms our democracy.

We need whistleblowers to shine a light on what is happening in our name beyond our borders, beyond normal accountability measures and often beyond reach of the courts.