Word Count: Draft Article uSSTi47d IMPLICATIONS OF THE AUSTRALIAN BORDER FORCE ACT: DO SECRECY PROVISIONS AND OATHS RESTRICT THE ABILITY OF HEALTH PROFESSIONALS TO DISCHARGE THEIR ETHICAL DUTIES TO PATIENTS? ‘The Australian Border Force Act [2015] (Cth)' is designed to provide for the operation of the Australian Border Force, "a professional and disciplined workforce that exerises ts powers and functions wth the highest standards of integrity’. To achieve these highest standards of integrity, extremely restrictive and punitive secrecy provisions are set to apply to Border Force workers, which include health professionals This column explores certain provisions of particular concer under the ABF Act. It speculates that these provisions will impede discosure, and have a chiling effect against medical whistleblowers. ‘The operation of the ABF Act is made unpredictable both because of the lack of executive policy statements and the lack of case law interpreting the related Public Interest Disclosure Act [2013] (Cth). INTRODUCTION The Commonvalth Parliament recently passed the Ausiralian Border Force Act, with royal assent granted on the 20" of May 2015. The Border Force established by the ABF Act contains several secrecy provisions to “inrease resistance to criminal infiation and coruption and enhance government and public confidence in Immigration Border Protection workers™. Of particular concer to the medical profession are provisions relating to oaths', ministerial directions’, imprisonment for disclosure of protected information” byhealth professionai, and abroad definition of "coreupt cond”. The scope ofthese provisions is unclear a fs the extent to which medical professionals” ethical duties, including iselosure, would be inhibited and the protection that other legislation might provide to whistleblowers Until these ambiguities are resolved, medical professionals will be subject to the chilling effects of uneertaity, ereaing a greater barrier othe discharge of ethical duties to patients than may actualy xi under the AB ct. ETHICAL DUTIES, PUBLIC INTEREST DISCLOSURE, AND ADVOCACY Medical professionals are required by ethical and legal standards to engage with patents and the health system in a manner that is conscientious* and maintains public health and safety’. The trust that patients place in the medial profession gives rise to ethical dls to advocate for patients in accordance with onscience even if Hose duties are not expressly provided for by the Taw". In eases where the law prohibits health professionals from acting inthe interests of pubic health and safe. conscientious Uisobedience is permissible and ies at the heart of medical ethics". Whistleblowers. are health professionals who disclose documents because of an ethical duty to advocate against fuilurs to maintain Dube protetion and sat. " Henceforth referred to as the ABF Act ? Henceforth referred to as the PID Act 3 Explanatory Memorandum, Australian Border Force Act (2015] (Cth) “ Australian Border Force Act [2015] (Cth)s24. 5 Australian Border Force Act {2015} (Cth) 26. © Australian Border Force Act [2015] (Cth)s41. 7 Australian Border Force Aet {2015} (Cth) s42. * Thomas A Faunce, “Normative Coherence’, in Ruth Chadwick (eds) Encyclopedia of Applied Ethies(Academic, Press, 2012)225-230, 226-7. ° Health Professionals Act (2004] (ACT) sI8 provides the example of one such legal standard "Ryan E Lawrenceand Farr A Curlin, “Physicians beliefs about conscience in medicine: A national survey” (2009) 84 Acadeny of Medicine 9, 1276-1300. " See, for example, Opinion 1.02 of the American Medical Association's Code of Ethies, which notes “Ethical values and legal principles are usually closely related, but ethical obligations typically exceed legal duties. In some cases, the law mandates unethical conduc. In general, when physicians believe a law is unjust, they should work to change the la. In exceptional circumstances of unjust laws, ethical responsibilities should supercede legal obligations”.Word Count: The provisions in the Ausiralign Border Force Act, to varying desrees, evince a conflict with medical ethical obligations to advocate”, While the scope of oaths and directives attaching to health profess are largely at the discretion of the minister and represent only a potential risk of lowering the standard of ihe same cannot be said for other areas ofthe ABF Act. The broad definition and civil consequences corrupt conduct” and “serious misconduct” under the ABF ct place actual legal barriers against the discharge of medical professional duties to blow the whistle on systemic failures which impact on the health of clients. Similarly, the criminal secrecy provisions under Part 6 of the ABF Act impose jail sentences for health professionals who publicly disclose any information relating to their experiences, or ‘who disclose information to pre-approved bodies without the consent of the Secretary. These criminal secrecy provisions most clearly supplant the ethical duty to maintain public health and safety for the concerns of law enforcement and information security. In addition to the actual tensions between the Act and ethical duties of health professionals, uncertainties in the interpretation of the Act may chill patient advocacy, PART 1: EXAMINATION OF KEY LEGISLATIVE PROVISIONS ‘SECRECY PROVISIONS UNDER PART 6 OF THE ABF ACT Part 6 of the ABF Act contains several provisions in relation to disclosure that in totality impose criminal penalties including imprisonment for up to 2 years if “an entrusted person... makes a record of, or discloses, protected information”, subject to limited exceptions! It is important to note that health professionals are permitted to take records if it isin the course of employment or service'®, so there is no tension between the secrecy provisions and medical note-taking, Broad definition of an “entrusted person” ‘An “entrusted person” is defined as including an Immigration and Border Protection worker’, which is itself defined extremely broadly to include employees and contracted workers", It is clear that any health professional finding themselves under an ethical duty to a patient in detention will fall under the broad Bams, Greg and Newhouse, George, ‘Border Force Act: detention secrecy just got worse’ ABC, 25 May 2015 de Boer, Rebecca, ‘Health care for Asylum Seekers on Nauru and Manus Island” (Parliamentary Library, 2013) Faunce, Thomas A and Stephen N C Bolin, “Three Australian whistleblowing sagas: lessons for internal and. external regulation’ (2004) 181 MIA 1 Faunce, Thomas A, "Developing and teaching the virtue-thies foundations of healthcare whistle blowing’, (2004) 23 Monash Bioethics Review 4 Lawrence, Ryan E and Curlin, Farr A, “Physicians beliefs about conscience in medicine: A national survey” (2009) Academy of Medicine9, 1276-1300 ' Thomas A Faunce, ‘Normative Coherence’, in Ruth Chadwick (eds) Encyelopedia of Applied Ethies(Acadie Press, 2012) 226-7 Snow, Deborah, “Asylum Seekers: Nothing to lose, desperate on Nauru’ Sydney Morning Herald 1S March 2014