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Border Force Act: Today Is a Baaaad Day for Law in Australia


By Mary W Maxwell

Law belongs to society. But people are usually too busy to bother making law, enforcing it, or even thinking about it. Quite naturally, we delegate our prerogatives to pollies. It is their task to provide “peace, order, and good government.”

image1901 Opening Parliament
Can they pass a law that is in itself criminal? That would be paradoxical. One of the things that prevents “peace and order” in a society is the presence of crime. Parliament should protect us by stopping crime. Any citizen who sees a crime happening should report it

What if the lawmakers said “Starting today we have a new law that prevents citizens reporting that certain crimes are occurring?” I would think that at that moment the government’s legitimacy ceases. On the face of it, they would have given up their main task of providing peace and order.

Today, July 1, 2015, a new Commonwealth law comes into force, the Border Force Act. Its section 42 forbids the recording or disclosing of “protected information.” It criminalises the reporting of certain crimes by certain people. I personally find that shocking. Also it suggests a slippery slope. If we get conditioned to this rule, mightn’t we soon be persuaded to “look the other way” at many crimes?

The crimes this legislation deals with are ones that happen in the detention centers. More on that below. I recognize that it goes against the grain to accord privileges to foreigners. But the abnormal setting of these refugees does not justify Australians being told to shut up about crime. How could it?

Canberra As Hotbed of New Crimes?

Please let me take this to its logical extreme. I think today’s MPs can be charged as accessories-after-the-fact if those Nauru crimes occur. (Rape, for example, is a common-law crime.) The MPs would be involved in cover-up, which is itself a crime, by telling people to be hush-hush about such things.

Note: covering up a crime that has been committed is usually called obstruction of justice. In the olden days it was “misprision.” I am treating it here as “accessory after the fact” in order to make a close tie between the MP who signed the bill and the person who is, say, abusing some inmates at Nauru.

Maybe the pollies are accessories-before-the-fact, too, or even accomplices, by enabling the crime. I am not joking. I said I would take the current issue to an extreme. I think it’s possible that the whole game of mistreating detainees is well-planned.

I also think a lot of other bad things are well planned. This website, Gumshoe, has frequently referred to the predictions made by Dr Richard Day in 1969. With a straight face he announced that the (American) government would encourage shoddy manufacture of cars — door handles falling off, in order to cause hassle to ordinary people!

I think a main purpose of the Guantanamo thing is to cause fear in the domestic US population, and to harm the prestige of “rule of law.” I shan’t go it that here. I am picturing only our dear representatives in Canberra knowingly letting Section 42 of the Border Force Act come into effect in order that detainees can be abused.

Who Is Restricted?

The law that begins today says that entrusted persons (e.g., doctors and other employees) at the detention centers must not, under pain of two years’ imprisonment, tell the public about bad things at the detention centers.
DEFINITIONS. “(4) … information obtained by an entrusted person in the course of performing duties, or in performing functions or exercising powers, under a law of the Commonwealth:
(a) as an officer of Customs, or an authorised officer, within the meaning of the Customs Act 1901; ….or
(d) as a delegate of someone else; or
(e) in any other capacity;
is taken to be information obtained by the person in the person’s capacity as an entrusted person.”

The only authority to which the person is allowed to report crimes is the Department of Immigration and Border Protection itself. This is known in common parlance as a fox-guards-the-henhouse situation.

Ladies and Gentlemen, we can’t have this. If a doctor sees a crime, such as, say the assault and battery of a minor, he should do something about it. To impose silence on him is not OK. Indeed any doctor who accepts that rule of silence loses my respect and, I hope, yours.

The secrecy provision of the new law should be repealed. It gives carte blanche to secret forces, forces that our eyes can’t see but which persons at the detention facilities can see. It is a ridiculous and scandalous “law.” I hesitate even to call it law. We have a great tradition of law and it never condones such chicanery as that.

How about taking care of that today, O Pollies? How interesting that would be – a law that was in force for only 24 hours!

Can a Nation Love Outsiders?

The Border Force Act has to do with enforcing our nation’s borders. I am all in favor of this. I don’t believe we should let anyone in without our permission. In a recent Gumshoe article I revealed my Reinhold Niebuhr style of selfishness: my altruism is limited to my group. I make no pretense of wanting to enforce a law worldwide. I think the love-humanity stuff is pretentious.

I happen to think Australia should not continue to participate in a treaty that obliges us to take refugees. How many boat people could we accommodate? Five thousand? Five million? Fifty million?

At present we have established a sort of Limbo for refugees, and in the detention centers there are, predictably, abuses. So here is a person, me, that opposes the refugee policy, but at the same time, given that these Limbo facilities do exist, asks Parliament to repeal the new secrecy business.

There is a section 48 that seems to offer some relief but groups of doctors and nurses have said it is not enough:

48 Disclosure to reduce threat to life or health
An entrusted person may disclose protected information if:
(a) the entrusted person reasonably believes that the disclosure is necessary to prevent or lessen a serious threat to the life or health of an individual; and
(b) the disclosure is for the purposes of preventing or lessening that threat.

To repeat: Parliament does not possess a power to legislate criminality. At the very least it cannot order the employees of detention centers to be accessories after the fact. Please correct me if I’m wrong on that.

— Mary W Maxwell was awarded the Bachelor of Laws, mirabile dictu, in 2011. Her new book, Fraud Upon the Court, will be published in August, 2015.



  1. Wouldn’t you know it, I’m already being congratulated for saying I don’t think Oz should take refugees. I didn’t say that at all. What I want is for Australia not to be bound by any outside entity (TPP, anyone?), telling her what laws to pass, or what policies to instigate.

    The 17 acres of land for the UN building, at New York’s East River, was donated by John D Rockefeller, circa 1945. Does one need to bother with any further analysis of the purpose of the UN?

    There are millions of displaced persons in Colombia, thanks to drug lords (whose name we all know, don’t we? rhymes with Push). There are refugees from man-made earthquakes, such as in Haiti. There is a complete mix-up of nationalities in the Middle East due to “war.” (How can anybody call it war when one side controls all the weapons?)

    So it’s appropriate for a “UN High Commissioner for Refugees” to deal with the consequences of all that? Oh really?

  2. I disagree with your “I think the love-humanity stuff is pretentious” comment! Maybe you prefer the current “hate-humanity stuff” we see all around us? It seems to me that this new Act is more hate-humanity than love it?

    This type of hate-humanity stuff is the primary reason the world is in such a mess!!
    Ask yourself this, if people were to love each other more would than have a negative or positive impact on humanity?

    Maybe if we all stopped “Acting” and all started “Living” we could change the world in a short period of time for the benefit of all??


    • I should have said “pretending” instead of “pretentious.”
      Mark, maybe mentally we can love the whole world but you can’t put it into practice. It is delusory. The only way we can have a nice scheme for morality is within our tribe (ususally today a nation). That is the realm where we can enforce our code.

      The human instinct for altruism has to do with making a fair exchange. How could i, today, have anything to do with the people in countries where I don’t know the language or culture?
      I can’t negotiate with them. Can you?

      But do I think we’re capable of doing the “hate humanity” thing across borders? Yeah, man. That is our human specialty — feeling ruthless toward the other groups whom we perceive (or can be persuaded by the media to perceive) as enemies armed to kill us.

      Please don’t think I am urging anyone to hate. It is a stupid habit. We ought to correct it. I just don’t like our saying we love humanity when in fact we do not and cannot. Best example: we who say we would never engage in torture do engage in it –clandestinely. When Americans were confonted with photos from Abu Ghraib, they still managed to blank it out of their minds.
      I would prefer the Americans understand what they are doing.
      They can’t correct it if they believe they ain’t doin’ it.

      I do so cheer for your reaction, Mark. Keep whacking me.

      • I suppose that is the difference between you and me at this point in time Mary.
        I know that love-humanity is possible and can make positive change no matter what the culture or language. The language of love is universal and that is a fact!
        Where as you have a belief and not a knowing at this point in time.

        • Mark, I agree with you that any individual can have a huge feeling of love, and of empathy, for any person anywhere. I experience that sentiment myself. But is there any mechanism for acting on it?

          The discussion we are having about refugees and love is only a sideline to my article. My theme was (even if I did not express it) that our Western law is wonderful. We have got it down to a science: our law criminalises (very properly) the act of cover-up of crime. So I pull that nice weapon out and threaten my MP (Chrisopher Pyne) with it, as it were.

          This is (to my mind) sensationally wonderful. It’s “my way” of stopping the rape in the detention centers. It is actually do-able. The reason the law (about cover-up, obstruction of justice, etc) is in place is because we are a coherent group able to govern ourselves. The “whole world” does not and cannot have a mechanism like that.

          By the way the federal law in US against obstruction of justice is: “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.” — 18 USC 4.


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