Save this webpage as PDF
Court: High Court of Australia
Legislation considered: Australian Border Force Act 2015 (Cth)
Links:  Briefing paper
Download:  Casenote 'Doctors for Refugee' case (PDF)

 

 
 
 
 
This case note provides an overview of the High Court challenge to The Australian Border Force Act 2015 (Cth) (“the Act”) commenced by Doctors for Refugees in July 2016. The case sought to test whether secrecy provisions in the Act create an impermissible burden on the implied freedom of political communication in the Australian Constitution. 

Background

The Australian Border Force Act 2015 (Cth) was enacted in July 2015. The Act contains provisions restricting the disclosure of protected information. The relevant provisions are set out below.

Medical practitioners and allied health practitioners strongly opposed the secrecy provisions claiming a conflict between their obligations under the Act and their ethical duties as medical practitioners.1 They provisions were said to impact the quality and integrity of the heath care provided to patients under Australia’s control and management, as well as undermine the accountability system in the delivery of services.2 Despite statements by the Minister for Immigration and Border Protection3 and the Border Force Commissioner4 that it was ‘unlikely’ that health practitioners would be prosecuted under the Act, there was a perception that the secrecy provisions were intended to ‘silence doctors, teachers, social workers and others working in detention centres in making disclosures and engaging in debate regarding matter of public policy and health’. 5 

A statement of claim was filed in the High Court of Australia on 27 July 2016 by Fitzroy Legal Service on behalf of Doctors for Refugees.

Key issue

  • Whether the secrecy provisions contained in Part 6 of the Act impose a burden on the constitutional freedom of political communication.  
  • If they do burden the constitutional freedom, whether the provisions serve a legitimate purpose and whether the burden is proportionate to that purpose.

Summary of the relevant provisions in the Act

The following provisions were in force at the time the statement of claim was filed:

  • Section 42 made it a criminal offence, carrying a penalty of 2 years imprisonment, for an ‘entrusted person’ to make a record of, or disclose, ‘protected information’.  
    - ‘Protected information’ was defined broadly in s 4 as ‘information that was obtained by a person in the person’s capacity as an entrusted person’. Section 4(4) provided that this included information obtained by an entrusted person in the course of performing duties, or in performing functions or exercising powers, under a law of the Commonwealth.
    - The definition of an ‘entrusted person’ in s 4 included all ‘Immigration and Border Protection workers’.  This included Department of Immigration and Border Protection employees, customs officers and other public sector officers and employees (including officers and employees of foreign governments and public international organisations), whose services are made available to the Department. Section 5 conferred a power on the Secretary or Australian Border Force Commissioner to define the consultants or contractors (or subcontractors) captured by this provision.
  • The Act prescribed circumstances in which disclosure of protected information may be permissible. These included:
    - Section 48 - where the entrusted person reasonably believed the disclosure was necessary to prevent or lessen a serious threat to the life or health of an individual,
    - Section 47 - where the information related to the affairs of a person or body who had consented to the disclosure, and
    - Section 45 and 46 - where the Secretary had authorised the disclosure to certain bodies or persons, or in accordance with an agreement with a foreign country or other body.

There was no exemption in the Act to allow for recording or disclosure that is in the public interest.

The plaintiff’s argument

The plaintiff claimed that the secrecy provisions in the Act created an impermissible burden on the implied freedom of political communication.6 The constitutional protection limits the legislative power to restrict ‘political communication’. The freedom protects communications between electors, and between electors and their representatives, so that electors can properly participate in the electoral process and make choices about who to elect.7 

However, the constitutional freedom to communicate on political matters is not absolute. Legislation that imposes a burden on political communication will not infringe the freedom if it is: 

  • for a legitimate purpose (a purpose that is compatible with the maintenance of the constitutionally prescribed system of representative government), and
  • pursues this purpose in a proportionate manner (i.e. it is ‘suitable, necessary and adequate in its balance’).8 

The plaintiff sought to argue that as Australia’s policies of mandatory detention and offshore processing of asylum seekers are of interest to the voting public, laws restricting communications about matters relevant to these policies impose a burden on the constitutional freedom of political communication. The plaintiff further sought to argue that the secrecy provisions were not for a legitimate purpose, as their intention was to silence doctors and others from engaging in the political debate on these policies, and that if a legitimate purpose was found to exist, the legislation did not pursue this purpose in a proportionate manner. 

Changes to the Border Force Act

In September 2016, the Department issued a determination expressly exempting health practitioners performing services for the Department from the definition of ‘Immigration and Border Protection worker’.9  The case by Doctors for Refugees was withdrawn.

In October 2017, the Australian Border Force Amendment (Protected Information) Bill 2017 was enacted.  The amendment limited the scope of the offence by replacing the broad definition of ‘protected information’ with specific categories of prohibited information.10  

Further reading 

Author: Kelly Newell

The Kaldor Centre plays a vital role in developing legal, sustainable and humane solutions for displaced people around the world.