Australia’s anti-whistleblower laws for the immigration sector: concerns for investors and financiers of immigration detention contractors
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Australia’s anti-whistleblower laws for the immigration sector: concerns for investors and financiers of immigrati...
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Australia’s antiwhistleblower laws for the immigration sector: concerns for investors and financiers of immigration detention contractors Brynn O’Brien, Business & Human Rights Technical Adviser No Business in Abuse Paper for the UN Forum on Business and Human Rights, Geneva, 18 November 2015 Context I am going to shift the context slightly from what we have heard from previous panelists. We’re going from national security and corruption to immigration, specifically immigration detention. And I encourage you, while I am delivering this presentation, to reflect upon whether the purpose of antidisclosure laws in immigration detention may be distinguishable from their purpose in other contexts. I’ll return to this idea at the end of my talk. By way of background: The Australian Government has a policy of mandatory, indefinite detention of asylum seekers arriving by boat. Australia stands alone in the world in this policy. It is a policy which has been condemned by the UN Human Rights Committee on at least 8 separate occasions. 1 The Australian government runs immigration detention centres in Australia and in the Pacific2 and the implementation of the policy is outsourced in two ways. First, by situating two of the centres in other nations, Nauru and Papua New Guinea – countries with significant rule of law issues to say the least – and both of which rely on Australian aid and development funding. Second, by contracting with corporations – including ASX listed company Broadspectrum Limited – which operationally implement its policies. My organisation, No Business in Abuse, released a 115page report in October 2015 detailing violations of 47 principles of international law in an offshore detention context 3, and corporate complicity in those abuses. The abuses are of a serious nature, occur a massive scale and have a systematic dimension. They include arbitrary, indefinite detention, and cruel, inhuman and degrading treatment. This is a textbook case under the Guiding Principles. A company, contracted by a state, is contributing to adverse human rights impacts which amount to gross violations of international law. State sanctioned abuses should be condemned wherever they occur, even if the states in question are otherwise our friends and trading partners. To be frank, the international community has not done enough in this situation.
See UN HRC decisions A v Australia (560/93), C v Australia (900/99), Baban v Australia (1014/01), Shafiq v Australia (1324/04), Shams et al v Australia (1255, 1256, 1259, 1260, 1266, 1268, 1270 and 1288/04), Bakhtiyari v Australia (1069/02) and D and E v Australia (1050/02) 2 https://www.border.gov.au/Busi/Comp/Immigrationdetention/facilities 3 http://bit.ly/NBIAreport 1
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Antiwhistleblower laws
The Australian Border Force Act , a law which came into force on the first of July this year, makes it a criminal offence, punishable by two years imprisonment, for anyone who does work (directly or indirectly) for the Australian Department of Immigration and Border Protection to disclose any information obtained by them while doing that work.4 The Act does not specify any exemptions in relation to the mandatory reporting of physical or mental harm, child abuse or any other such purpose in the public interest. It is clear that its provisions apply to Broadspectrum and any other parties providing services to the Manus and Nauru RPCs. Up until the commencement of this law, the same disclosures may have amounted to a breach of an individual’s contractual obligations with an employer, but were not classified as an offence. The government and company line is that there are internal channels through which concerned individuals can make authorised disclosures, but the fact of criminalisation of unauthorised disclosure remains. I also contextualise this environment as one in which there has been almost total impunity for human rights abuses of this nature, over an extended period of time. That is to put a question mark over whether there is a sufficient level of trust in the government and in companies in this context to make an “official” complaints system an inappropriate or sufficient channel for disclosures of human rights violations for many whistleblowers. They simply may not have the confidence that the serious concerns they raise will be addressed. In September 2015, the UN Special Rapporteur on the human rights of migrants cancelled a planned visit to Australia. This was his reasoning: In preparing for my visit, it came to my attention that the 2015 Border Force Act, which sanctions detention centre serviceproviders who disclose ‘protected information’ with a twoyear court sentence, would have an impact on my visit as it serves to discourage people from fully disclosing information relevant to my mandate… This threat of reprisals with persons who would want to cooperate with me on the occasion of this official visit is unacceptable… The Act prevents me from fully and freely carrying out my duties during the visit, as required by the UN guidelines for independent experts… As the Australian Government was not prepared to give the written assurances [that people would not face reprisals for speaking with me] for
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(Cth), Australian Border Force Act 2015, Act No. 40 of 2015, 2015, pt. 6. section 4 : entrusted person means: (a) the Secretary; or (b) the Australian Border Force Commissioner (including in his or her capacity as the Comptroller‑ General of Customs); or (c) an Immigration and Border Protection worker. Immigration and Border Protection worker means: (a) an APS employee in the Department; or (b) a person covered by paragraph (d), (e) or (f) of the definition of officer of Customs in subsection 4(1) of the Customs Act 1901 ; or (c) a person covered by paragraph (f) or (g) of the definition of officer in subsection 5(1) of the Migration Act 1958; or (d) a person who is: (i) an employee of an Agency (within the meaning of the Public Service Act 1999) ; or (ii) an officer or employee of a State or Territory; or (iii) an officer or employee of an agency or authority of the Commonwealth, a State or a Territory; or (iv) an officer or employee of the government of a foreign country, an officer or employee of an agency or authority of a foreign country or an officer or employee of a public international organisation; and whose services are made available to the Department; or (e) a person who is: (i) engaged as a consultant or contractor to perform services for the Department; and (ii) specified in a determination under subsection 5(1); or (f) a person who is: (i) engaged or employed by a person to whom paragraph (e) or this paragraph applies; and (ii) performing services for the Department in connection with that engagement or employment; and (iii) specified in a determination under subsection 5(2)
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factfinding missions by Special Rapporteurs, it was not possible for me to carry out the visit in my capacity as a UN independent expert.”5
Our work with the private sector This is not a story of civil society against the private sector. In fact, it’s quite different; it’s a story of civil society and a large part of the private sector working together to attempt to end a system of horrific abuse. Over the last 12 months, my organisation has met with a broad crosssection of the Australian private sector, including with companies with business relationships (primarily investment and finance relationships) with Broadspectrum. We have provided information about the abuses of immigration detention and a period of engagement has followed, where a number of companies have engaged directly with Broadspectrum to seek information, and to seek an end to the human rights violations. Some companies continue to engage, some have chosen divestment. And some of those who have taken the latter path have explicitly cited their inability to access an appropriate level of information as a reason for their decisions.6 In short: antiwhistleblower laws should be a red flag to the stakeholders of private sector actors subject to them. They should be added to finance, investment and procurement screening processes. A final remark on the immigration detention context – the purpose of these laws is not comparable to the ‘national security’ context. The purpose of these laws is simply control of information, including information about serious human rights abuses. Association with these types of abuses through business relationships should be of significant concern to any company for which reputation is a long term value proposition.
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See more at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16503&LangID=E#sthash.uNDcS0pw.dpuf see for example http://www.afr.com/news/hestadiveststransfieldcitingdetentioncentreabuses20150818gj1krb
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