Immigration department breaches the privacy rights of asylum seekers

Picture of facilities at Nauru Detention Centre, available from: https://www.humanrights.gov.au/publications/forgotten-children-national-inquiry-children-immigration-detention-2014/12-children
Picture of facilities at Nauru Detention Centre, available from: https://www.humanrights.gov.au/publications/forgotten-children-national-inquiry-children-immigration-detention-2014/12-children

An article in The Guardian today claims that the Department of Immigration has sought access to confidential medical records of asylum seekers for ‘political purposes.’

The article reports on a briefing document written by a senior clinician at International Health and Medical Services (which delivers health services at mainland and offshore detention centres), which appears to show that the IHMS has disclosed asylum seekers’ health records to the immigration department for reasons not related to the health and welfare of individuals in detention.

As the article points out, this practice potentially breaches the Commonwealth Privacy Act, which prohibits the disclosure of health information to third parties (without the consent of the individual concerned), unless the disclosure is directly related to treatment of the individual (or in certain permitted circumstances, such as preventing a threat to public health or safety).

Further, the disclosure breaches clinicians’ duty of confidence towards their patients, and may also violate professional guidelines and codes of practice, such as the Medical Board of Australia’s Good Medical Practice code of conduct for doctors. Under the code, good medical practice includes protecting patients’ privacy and confidentiality, and ‘appropriately sharing information about patients for their health care.’

Disclosure of asylum seekers’ health records may seem like a relatively minor issue considering the many documented abuses perpetrated against individuals in detention.   But, privacy is an important underpinning to personal autonomy, and the right to control information about one’s self is key to self-determination. The unauthorised disclosure of asylum seekers’ medical records represents a significant infringement of asylum seekers’ rights, and forms part of a broader trend towards dehumanising people in detention centres.

In part, the Privacy Act was enacted to give effect to Australia’s obligations under article 17 of the International Covenant on Civil and Political Rights, which states that ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation’ [sic]. The unauthorised disclosure of asylum seeker’s health records puts Australia at odds with its international human rights commitments, as well as breaching domestic privacy laws.

The disclosure of medical records for ‘political purposes’ (whatever that may mean) illustrates the Catch-22 situation faced by clinicians working in detention centres. Health professionals working in these centres must deal with the tension between their ethical and legal duties to patients, and pressure from government and private employers to act in ways that compromise the health and wellbeing of asylum seekers. This issue also raises serious questions about the immigration department’s approach to privacy and its management of highly personal, and potentially very sensitive, health information.

It’s time for the government to stop shooting the messenger

The constant attacks on Professor Gillian Triggs represent attacks on the human rights and civil liberties that Australians value. Since 1986, the Human Rights Commission has been the watchdog for human rights for Australia.  The President and her Commissioners are necessarily independent of government and have a duty to fearlessly advocate for human rights protections and to criticise laws and policies that undermine the rights and freedoms Australians enjoy.

The current barrage of orchestrated attacks on Triggs is supposedly on the basis that her comments are politically motivated. Of course they are. Human rights lie at the core of our political system: they require government to protect their population and provide a political environment in which they can flourish. If human rights weren’t political they would make no sense at all.  The problem for the government is that it wants to ignore human rights yet remain immune from criticism.

The real criticism of Triggs is that she has been biased and is playing party politics. This is an absolute furphy. Party politics is about contested concepts but no one can contest the evidence of abuse of human rights that were raised in the Commission’s report. The timing of the report is irrelevant. What we need is a response from government that explains what has been happening and what will be done to protect the vulnerable children and adults that we are detaining. Instead the government’s response have been to shoot the messenger, call for her resignation and criminalise the release of further information about the detention of asylum seekers.

The government’s treatment of children in detention deserves particular censure, and in time may appropriately become the subject of a Royal Commission.  Children in detention are vulnerable and voiceless.  As fathers we are appalled by the failure of the government to provide minimum conditions for their safety and welfare.  Yet because the abuse is happening behind barricades, under secrecy, and in the name of national security, accountability is lacking.  If our politicians lack the parental instincts and moral convictions to take steps to protect children from harm, then we call on parents everywhere to hold them to account.  This goes beyond political differences.

The true strength of conservatism is its adherence and protection of our basic political institutions, particularly civil liberties, ministerial responsible government and the rule of law. Another important principle is that the Attorney General, as first law officer, should protect the officers that make that legal system work (like the President of the Human Rights Commission). A further traditional convention is for the Speaker of the House to stay out of political debate.

The government has turned its back on all of these bedrock principles of Australian politics. Minister Dutton’s refusal to engage with the report in any meaningful sense mocks the principle of ministerial responsibility. The Attorney General’s treatment of Triggs in and outside of parliament shows a complete dereliction of his duty. Speaker Bronwyn Bishop‘s criticism of Triggs as being biased on Q&A was bitterly ironic given her record breaking performance in Parliament. Given its complete abandonment of traditional values, this government no longer can call itself conservative.

The only reasonable criticism of Gillian Triggs that can be made is that she is doing her job too well. Moreover, she is the only one actually doing her job. Rather than question her position, we need to ask how much of the traditional architecture of responsible democracy this government is prepared to trash to get its own way. It is time for the government to return to the traditional values of Australian government before the damage done to the polity becomes irreversible.

 

Cameron is Professor of Health, Law and Ethics at Sydney Law School

Roger is Professor of Health Law and Governance at Sydney Law School

Ian Kerridge is an Associate Professor at the Centre for Values, Ethics and the Law in Medicine