17 March 2018

Speech, Reporting and Refugees

'Freedom of Speech under the Southern Cross—It Arrived and Departed by Sea?' by Wendy E. Bonython and Bruce Baer Arnold in (2018) The Round Table comments
Australian offshore processing of asylum seekers and others seeking to enter the country without authorisation has attracted substantive criticism for abuses of their human rights, particularly their mandatory detention in Australian-funded facilities located in Nauru and Papua New Guinea. Official and corporate disregard of the rights of Australians in dealing with those people—contrary to the official accountability that underlies the liberal democratic state—has attracted less attention. This article explores the offshore processing regime through an examination of how legislation that criminalises disclosure of information about mandatory detention is conceptually inconsistent with the freedom of political communication implied under Australia’s Constitution, and expected by Australian citizens. That legislation treats asylum seeking as a matter of national security rather than humanitarian law. It conflicts with the ethical obligations of health practitioners and others, and with Australian expectations about effective mandatory reporting intended to prevent abuse of children and other vulnerable people. It affects Australian and other officials, contractors, care providers, advocates, and journalists who deal with asylum seekers inside and outside Australia. Accountability and minimisation of harms to non-citizens can—and should—be achieved through an independent oversight mechanism reporting directly to parliament. 
Law is often a matter of conflicting values, interests, and rules. Freedom of speech and accountability (distinguishing features of the liberal democratic state), maintenance of sovereign borders (with the ability to exclude non-citizens), the protection of vulnerable people from harm, and respect for contract that restricts disclosure of information by employees are all governed by discrete bodies of law. Where those laws intersect in regard to Australian asylum seeker policy, tensions reflecting underlying values, interests, and rules become evident. This article explores those tensions by considering Australia’s offshore processing of refugees, particularly detention occurring in a privately operated facility on Nauru, a state that is formally independent but in practice heavily dependent on its Australian partner. Claims of sexual abuse, other violence, and self-harm at detention facilities are credible and concerning. Public discussion and investigation of those claims has been restricted through official disregard of access principles articulated in the national freedom of information statute, and more recently through ‘border protection’ law that criminalises unauthorised disclosure of information that is potentially relevant to both the exercise of human rights and the accountability of Australia’s executive. That border protection law co-exists uneasily with legal and ethical obligations binding professionals, including health and social workers and educators, to mandated reporting of child abuse. It also collides with the freedom of political communication that is discerned by Australia’s High Court in interpretation of the national constitution. 
The article begins by considering Australia’s recent history regarding exclusion of asylum seekers, an exclusion marked by public policy rhetoric about national security and existential threats to the state requiring both militarisation of border policing and restrictions on reporting about that policing. The rhetoric has culminated in establishment of the Australian Border Force within a national Department of Immigration and Border Protection, along with passage of the Australian Border Force Act 2015 (the ‘border protection law’) and associated Secrecy and Disclosure Rule. 
The article then considers Australia’s weak constitutional protection for dignity, official accountability, and public participation, in particular regarding an implied freedom of political communication rather than broader freedom of expression and the absence of a recognised ‘right to know’. It notes that the secrecy regime is inconsistent with the freedom of political communication that Australian citizens working as contractors or Australian government employees at Nauru or Papua New Guinea should enjoy in informing the Australian and international communities on matters of public interest. It identifies ethical and statutory obligations of health professionals and other individuals to support asylum seekers, in particular by reporting specific and systemic abuse, but identifies inconsistencies in the effectiveness of that reporting, likely to be further entrenched by the Border Force secrecy provisions. Secrecy provisions criminalising the dissemination of information about the mistreatment of vulnerable people impermissibly reduce the accountability of the Australian government and its agents, irrespective of whether that mistreatment occurs within Australia or in a client state. 
The article concludes by suggesting an alternative model of reporting that would be consistent with international obligations and assuage political concerns regarding national security whilst fostering public confidence in the transparency and lawfulness of government action regarding Australia’s asylum seeker policy.