Doctors High Court Challenge to Border Force Secrecy

Australian doctors have launched a High Court challenge to the secrecy provisions in the federal government’s Border Force Act that gag them from speaking out publicly about the welfare of refugees and asylum seekers in detention.

Doctors for Refugees convenor Dr Barri Phatarfod said the current legislation potentially criminalised the actions of clinicians who are simply seeking to advance their patients’ interests.

“Doctors are obliged to put their patient’s interests above all other interests, and to advocate for public health,” Phatarfod said.

“No-one should expect any less from their doctor, or from the medical profession as a whole.”

Under the act, doctors, nurses and other “entrusted persons” working in Australia’s detention camps (on and offshore) are faced with the threat of two years imprisonment if they speak out about treatment and conditions.

Phatarfod said doctors felt as though they were being forced into silence about serious issues they witness.

“In Australia, it is against the law to fail to report children at risk of physical or psychological harm. In our offshore detention camps, doctors risk criminal charges for doing the same,” she said.

“If doctors stand by and allow people to walk through raw sewerage, just to get to the meal area, they’re failing their patients and their profession. If doctors and nurses remain silent about women and young children having showers in view of male guards, they’re not fulfilling their professional responsibilities.

“Many of the deplorable conditions in detention centres have long-term health consequences, including serious psychological damage, infectious disease, and developmental delay in children.”

Phatarfod said the Medical Board of Australia’s guidelines made doctors’ obligations clear, and the government should not override this to hide the truth from the public.

“A doctor’s obligations are clear. There should not be one rule for people who seek safety in Australia, and another for those who live here,” she said.

“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.”

Lawyers from Fitzroy Legal Service filed the case on Wednesday on behalf of the doctors.

Meghan Fitzgerald, a lawyer with the Fitzroy Legal Service, said the case would question whether the act’s secrecy provisions breached a health professional’s constitutional freedom to engage in political communication, in this case to shine a light on, and engage in debate about, the effects of asylum seeker policy on patients.

“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,” Fitzgerald said.

“People need to be able to have their doctors represent their interest if they are going to survive conditions in offshore detention.”

The Australian Association of Social Workers (AASW) has welcomed the High Court challenge.

National president Professor Karen Healy AM said the legal challenge by Doctors for Refugees highlighted how deeply unethical the secrecy provisions in the act are to health professionals.

“These provisions threaten jail for professionals who disclose information about the conditions and

treatment of asylum seekers in immigration detention,” Healy said.

“Social workers are professionally, ethically and morally committed to advocating for the human rights of the people for whom they work. This legislation not only undermines this but is also in direct breach of our duty of care.”

Since 2015, the AASW has demanded that the government change the act to ensure that social workers and other professionals are able to speak out about the conditions in detention and their effect on the health of children and adults.

“We have been consistently warning about the harm done to children in mandatory detention, including the risk of abuse,” Healy said.

“The situation has deteriorated in the last year and AASW members have been intimidated for speaking out about this abuse and the poor conditions in which children are being held.”

Healy said social workers are ethically, and in some states legally, required to report child abuse and neglect.

“Given the recent shocking revelations about the treatment of children in youth detention, how can the government call for a royal commission to stop this kind of abuse in Australia, and on the other hand have legislation that would prosecute professionals who raise similar concerns in offshore detention,” Healy said.

The AASW represents 10,000 professional social work members, many of them work directly with refugees and asylum seekers.