Doctors challenge Border Force gag laws
Controversial Federal Government laws to suppress information regarding the operation of immigration detention centres are being challenged by a group doctors who claim they are being used to intimidate health workers.
The group Doctors for Refugees and the Fitzroy Legal Service have jointly launched action in the High Court challenging the constitutionality of secrecy provisions in the Australian Border Force Act which threaten up to two years imprisonment for workers who disclose conditions in detention centres.
In a Statement of Claim filed with the High Court on 27 July, Doctors for Refugees said it was bringing the action to “advocate for the public’s right to know what their Government is doing in their name, and to support the public health imperative of transparency to mitigate harm occurring in detention centres on and offshore”.
The action asks for the High Court to rule on whether the public disclosure of information regarding the operation of detention centres, including conditions, health care, mandatory detention and offshore detention, are protected by the freedom of political communication implied in the Constitution, and whether the ABF Act invalidly prohibits such communications.
The Act, which was introduced last year, includes provisions which make it a criminal offence for those contracted to provide services to the Department of Immigration and Border Protection to record or disclose information obtained in the course of their work. The penalty is up to two years’ imprisonment. The legislation was passed with support from Labor.
The Act was introduced amid widespread concern regarding conditions in detention centres, including reports of widespread sexual abuse and significant physical illness and mental health problems, particularly among children.
The Moss review substantiated allegations of sexual abuse at the Nauru Detention Centre, and operator Transfield Services reported 67 claims of child abuse, 33 allegations of sexual assault or rape, and five alleged instances of sexual favours traded for contraband.
Soon after being elected, the Coalition Government abolished an independent panel of medical experts that was overseeing health care in detention centres, and has so far ignored AMA calls to replace it with a group of health experts empowered to investigate and report on detention centre conditions directly to Parliament.
Doctors have protested that the secrecy provisions in the ABF Act conflict with their ethical duties and their obligations under the Medical Board of Australia’s Code of Conduct, most particularly their paramount obligation to the health of their patients.
These concerns have been magnified by a number of cases in which, it is claimed, authorities have sought to intervene in or override clinical advice on the transfer of detainees in need of medical attention, including the death of Omid Masoumali, who was medically evacuated to Australia from Nauru more than 24 hours after setting himself alight.
Suspicion that the Government has sought to interfere in the clinical decisions of doctors has been heightened by documents obtained by The Australian under Freedom of Information laws showing Immigration officials devised a strategy to prevent detainees from being evacuated to Australia for medical treatment because of a “propensity of those transferred to Australia to join legal action which prevents their subsequent return to PNG or Nauru”.
The Government has denied that the intention of the law is to prevent doctors from speaking up on behalf of their patients, and Immigration Minister Peter Dutton has indicated he thinks it unlikely that health practitioners would be prosecuted under the Act.
But it has since been revealed that Dr Peter Young, who oversaw the mental health care of detainees for three years, was the subject of Australian Federal Police investigation, including access to his electronic communications.
At its most recent Naiotnal Conference, the AMA passed an urgency motion asking the Federal Council to “look into the matter” of AFP surveillance of doctors.
In its Statement of Claim, Doctors for Refugees said the Government’s assurances had “not altered the perception that the ostensible intent of the ABF Act is to silence doctors, teachers, social workers and others working in detention centres”.
“Regardless of whether prosecutors exercise a discretion to charge health practitioners working with refugees and asylum [seekers], the law remains in place,” the Statement said. “Practitioners speaking out are subject to a Sword of Damocles, unsure when or if they might be investigated or charged for adhering to their ethical (and moral) obligations.”
Doctors for Refugees said that even if the High Court found that the ABF Act’s secrecy provisions served a legitimate purpose, it would also have to decide whether the constraint they imposed on political communication was “proportionate”.
“The ultimate question is whether the secrecy provisions…undermine the proper functioning of our democracy and the right of electors to be informed accurately, openly and truthfully about matters of national political importance,” the group said.