The supreme court of Victoria has made orders that give witnesses in a Christmas Island class action an exemption from the secrecy provisions of the Border Force Act. This could be seen as bringing the spirit of Christmas to the eponymous island.
The law firm Maurice Blackburn has brought a representative class action on behalf of asylum seekers on Christmas Island, alleging that for three years up to August 2014 there was a lack of medical care and support services for detainees.
The defendants are the Minister for Immigration and Border Protection and the commonwealth of Australia, with International Health and Medical Services and Serco Australia joined as third parties.
The secrecy provisions of the Border Force Act attracted great notoriety when introduced into parliament last February, providing for two years’ jail for the disclosure of “protected information” by “entrusted persons”.
These punitive sanctions extend to current and former immigration and border protection workers, and a variety of categories of people who provide services to the department, non-government consultants, contractors and sub-contractors.
Doctors and other health workers have been at the forefront of protests against the secrecy provisions of the act.
Late last month Victorian the supreme court judge Jack Forrest, in response to an application by Maurice Blackburn to interview potential witnesses without them risking penal sanctions, said it was important to see that there was a fair trial of the issues at stake in the class action. To that end, he made orders that navigate a way around the information lock-down in the Border Force Act, the Crimes Act and in the confidentiality clauses in the contracts of service workers.
All is not plain sailing, even though the Border Force Act provides an exemption for entrusted persons to disclose protected information where this is “required” by an order or direction of a court or tribunal.
Forrest had to grapple with the word “required” because in this instance witnesses approached by Maurice Blackburn may mistakenly think there is a legislative obligation on them to speak to legal representatives about conditions at the detention centre.
Eleven unnamed potential witnesses have been identified and the plaintiff originally sought orders that would allow open-ended interviews in the search for “high level” information. This was opposed by IHMS and Serco and eventually the impasse was resolved by an agreement for a two-step process.
Step one would allow the plaintiff’s lawyers to submit a confidential affidavit to the court with the names and addresses of each witness sought to be interviewed and the role they played on Christmas Island. The court would then inspect that list and, if satisfied, make stage two orders enabling the lawyers to conduct more extensive interviews, if the witnesses voluntarily consent.
Applications to the court will also have to be made on a witness-by-witness basis in relation to those affected by the secrecy provisions of the Commonwealth Crimes Act and confidentiality clauses in service contracts.
Forrest helpfully added:
If there is an impasse as to the effect of confidentiality obligations in the pre-trial process, the court may need to fashion its own process to deal with the issue. To put it less cryptically, it may well be that a confidential deposition of a relevant witness may short cut months of argument about appropriate processes and save (at least) part of one small rainforest.
IHMS and Serco argue that there is a distinction between requirements for pre-trial disclosure and disclosure at trial. However, there is authority from the high court and elsewhere that obligations of confidentiality will not be enforced where their application involves “an interference with the administration of justice”.
In any event, the stage one affidavit in relation to border force secrecy has to come back to court on 1 February next year. The trial is set down for hearing on 5 September.
In an earlier preliminary round in April, Justice Stephen Kaye ordered the commonwealth to delay the planned demolition of the alluringly named Aqua and Lilac compounds on Christmas Island.
Maurice Blackburn said it wanted access to the compounds to inspect detention conditions. The Department of Immigration and Border Protection had insisted that only departmental staff be permitted to take photos and videos of the compounds on behalf of the plaintiff’s lawyers.
The whole thrust of the border force regime is designed to keep the Australian public in ignorance of what is really going on in immigration prisons.
The lid is supposed to be tightly clamped. Occasionally isolated types from the “stop the boats” cheer squad have been allowed to report on what are effectively “black hole” offshore prisons – but this is the exception rather than the rule.
It seems scarcely conceivable it was envisaged by the minister, Peter Dutton, that the limited legislative exemptions would extend to allowing information to be used against the commonwealth in cases where the government was being sued for negligence and other wrongs.
As it happens, Guardian Australia already has ably assisted the plaintiff’s case by revelations on the difficulties experienced by IHMS in balancing its commercial imperatives with its healthcare obligations.
