Doctors for Refugees: Constitutional Challenge to Border Force Laws Filed in the High Court
Tuesday 2 August 2016 @ 1.07 p.m. | Immigration
According to a media release from the Fitzroy Legal Centre, a constitutional challenge was filed in the High Court of Australia on 27 July 2016 on behalf of Doctors for Refugees. The upcoming case will test whether secrecy laws in the Australian Border Force Act 2015 (Cth) (The Act) create an impermissible burden on the implied freedom of political communication.
Background to the Laws Being Challenged
The Act was enacted with bi-partisan support in July 2015. According to Fitzroy Legal Service’s case submissions, Doctors for Refugees Inc. has instructed Fitzroy Legal Service to bring a constitutional challenge to the secrecy provisions contained in Part 6 of the Act.
In particular, the challenge revolves around Section 42 of Part 6, which carries a two-year jail term for any “entrusted person” – anybody who works within the immigration detention system – who makes an “unauthorised disclosure” about conditions in the immigration detention system. Entrusted persons include persons who are contracted to provide services to the Department of Immigration and Border Protection (DIBP), and sub-contractors working for such contractors. The secrecy provisions apply to protected information received in the past, and operate beyond the borders of Australia.
In their Statement of Claim filed with the High Court, 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”.
Freedom of Political Communication and the Constitution
Meghan Fitzgerald from Fitzroy Legal Service, whose legal team is bringing the case to the High Court, said doctors should have the freedom to engage in political discussions if that means disclosing information they witness in offshore or onshore detention.
She plans to argue the laws break the implied constitutional right to freedom of political communication. The right is less broad than the United States' right to freedom of speech but basically is an implied political and civil freedom that necessarily underlie the actual words of the constitution but are not themselves expressly stated directly in the constitution.
Two cases decided in 1992 established the implied right to freedom of communication on political matters:
- Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, concerned a Federal provision criminalising the "bringing into disrepute" of members of an industrial relations tribunal, and a prosecution under that provision of a person who had published a newspaper article repeatedly describing such members as "corrupt" and "compliant"; and
- Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, concerned a Federal attempt to ban political advertising on radio and television during election periods and to strictly control it at other times, via a system of "free time" entitlements.
In both cases, the majority of the High Court reasoned that freedom of communication about political matters and public affairs is necessary to maintain representative government. That being so, freedom of public discussion of political and economic matters is essential to allow the people to make their political judgments so as to exercise their right to vote effectively. Furthermore, since "public affairs and political discussion are indivisible", it is impossible to limit this necessary freedom to purely Federal issues: it applies also to issues which might be the preserve of the State or local levels of government. Therefore, there is implied in the Constitution a guarantee of freedom of communication on all political matters. The Court stressed that this freedom is not absolute, but the result in both cases was that the relevant Federal legislation was struck down.
Comments and Reactions to the Challenge
Doctors 4 Refugees convenor, Dr Barri Phatarfod, told the Guardian:
“There should be no gagging of freedom of speech in a democracy...The government has locked up vulnerable patients on remote islands, prevented journalists from reporting on conditions that have been implicated in at least three deaths and removed workers from the charity group Save the Children in the context of reports of rampant and shocking sexual abuse. Australians have a right to know the damage that is being inflicted in their name on innocent people, including children.”
In addition to the laws, according to the Sydney Morning Herald, the Nauru government prevents journalists seen as unsympathetic to the offshore detention regime from visiting the island and its detention centre – effectively creating an information blackout.
The High Court challenge will be led by Ron Merkel QC and Ms Fitzgerald from Fitzroy Legal Service stated in The Guardian:
"The case could not be more important...We are seeking a ruling from the highest court in Australia to determine whether doctors and nurses are allowed to advocate in the interests of their patients.”
According to the Guardian, both the Australian Medical Association and the World Medical Association have lobbied the government to wind back the Border Force Act secrecy provision. But the government has consistently argued that the secrecy clause in the Border Force Act would not see doctors charged for speaking out public about conditions in detention.
The immigration minister, Peter Dutton, said in his second reading speech when the Act was introduced in 2015:
“This provision provides assurance to industry and our domestic and international law enforcement and intelligence partners that sensitive information provided to the Australian Border Force and my Department more broadly will be appropriately protected. The provision also enables authorised disclosure where this is appropriate.”
The Border Force Commissioner, Roman Quaedvlieg, on being sworn in, said the secrecy provisions had been “over-interpreted”:
“This is about the leaking of classified information that can compromise operational security or our sovereignty, it’s not about people having a right to be outspoken in the community about a range of things.”
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