The Australian Border Force puts the final nail in transparency's coffin

On July 1, the Australian Customs and Border Protection Service merged with the Department of Immigration and Border Protection. This represents the realisation of a plan originated many years ago by a hawkish faction within the old Department of Immigration – also known as “the dark side” – which the current Coalition government enthusiastically embraced.

The Australian Border Force (ABF) is an agency within the new department. It is responsible for the operationalisation of border protection, bringing together functions that were previously split between customs and immigration.

The ABF is the culmination of the move towards militarised border security. This commenced in earnest with the introduction of Operation Sovereign Borders in September 2013.

Secrecy is a bipartisan pursuit

The ABF conforms to the national security paradigm of combining maximum power with maximum secrecy, though immigration matters are not – generally speaking – matters of national security.

The dubious blanket invocation of national security has delivered to the department and its political masters the paradise to which all bureaucrats and politicians aspire: the ability to do exactly as they please without external scrutiny and therefore without consequence.

The preference for secrecy is not entirely a function of the political colour of the government of the day. The practice of keeping immigration detainees in remote locations started with the establishment in 1991 (under the Keating Labor government) of the now-decommissioned Port Hedland Immigration Detention Centre.

The attitude of the party in government does matter, though. For example, the department was less than impressive in its response to Freedom of Information (FOI) applications under the previous Labor government. But the current Coalition government’s hostility towards the FOI process has given the department tacit permission to be more cavalier still.

However, it is the invocation of national security that has taken Australia into dangerous waters. It has provided both bureaucrats and politicians with an excuse to take secrecy to unprecedented extremes. It is true that even under Labor, the department was less than co-operative when parliament asked for information, but it now has the Coalition’s blessing to claim public interest immunity for any information that can be described as pertaining to “operational matters”.

The media is now being denied access not only to the detention centres in Nauru and Papua New Guinea – which happened under Labor as well – but also to detention centres in Australia. Visitors too are having a more difficult time gaining access to Australian detention centres. The department even tried to keep lawyers out of the Christmas Island Immigration Detention Centre in defiance of a court order.

The Australian Border Force Act

Despite the thickening cloak of secrecy, Australians have obtained enough glimpses of what goes on in immigration detention centres to know that human rights violations occur within them on a daily basis. The vilest of these happen – not coincidentally – in those furthest out of public sight.

Many of the glimpses have been provided by whistleblowers. These individuals spoke out about conditions in Nauru and Papua New Guinea despite “gag clauses” in their employment contracts which sought to prevent exactly that. As a result, the government – with Labor’s support – upped the stakes. The Australian Border Force Act, which came into effect on July 1, contains secrecy provisions designed to strike fear into the hearts of even the bravest would-be whistleblowers.

The act provides that if a person who is or has been employed by the Department of Immigration, its contractors or consultants discloses “protected information”, that person commits an offence punishable by two years in prison. “Protected information” is defined as any information learned on the job.

Admittedly, various exceptions are made for disclosure. However, the existence of these narrow exceptions is hardly an adequate answer to the question of why secrecy – rather than transparency – has been made the default position when there is good reason for insisting on the reverse.

The current iterations of the Border Force Act, the Customs Act, the Migration Act and the Maritime Powers Act vest vast and largely unfettered powers in the immigration minister, departmental officers and others authorised to carry out border protection functions. In Australia, we rely on the rule of law and democracy to prevent the excesses to which a surfeit of power can lead. However, neither the rule of law nor democracy can function properly in the absence of transparency.

Unless we can easily know what the government is doing at all times, we are in no position to hold it to account for wrongdoing. And that is a scenario in which everybody loses – except the politicians and bureaucrats.

This is part of a series looking at how the Department of Immigration has changed as it marks 70 years since its creation. Read the others here.

Savitri Taylor is a member of the Committee of Management of the Refugee and Immigration Legal Centre. The views expressed in The Conversation are her own and not attributable to any organisation with which she is associated.