Maurice Blackburn wins the right to interview “entrusted people” with “protected information” for Christmas Island class action … Chink opens in punitive Border Force secrecy provisions … Jack Forrest to the rescue 

JUSTICE Jack Forrest in the Yarraside Supremes has opened a neat crack in one of the nasty provisions of the Australian Border Force Act – the one that says two years jail if an “entrusted person” within the meaning of the legislation blabs about what’s going on in Australia’s immigration internment camps. 

Maurice Blackburn is running a class action on behalf of asylum seekers held on Christmas island, claiming that between 2011 and 2014 there were inadequate health care services. 

The minister is defending this madly, and service providers Serco and International Health and Medical Services are third parties. 

The plaintiffs’ lawyers need to interview doctors and other health workers contracted to work on Christmas Is. and are concerned that the punitive Australian Border Force Act will land these witnesses in the clink if they confer as part of the preparation for trial. 

The litigation guardian for the lead plaintiff (“AS”) applied to J. Forrest J. for orders enabling her lawyers to do their job, i.e. interview witnesses without getting them sent to jail. 

Impediments arose under the s.42 ABFA, s.70 of the Crimes Act and other secrecy obligations under the service contracts.  

As far as the Border Force provisions are concerned the judge said such an order is possible because he understood the exemption provision (s.42(2)(d) to extend to permitting “protected information” to be disclosed to lawyers.  

Maybe Peter Dutton & Co hadn’t anticipated that the exemption could be engaged in such a way as to allow detainees to sue the government and its agents for neglect and mistreatment. 

No two years jail if the lawyers ask nicely and are given a tick. However, s.42(2)(d) says the offence does not kick-in where the information from a witness is “required” by an order or direction of a court or tribunal. 

Forrest said:  

“The witness may perceive that he or she is obliged to give a statement or discuss conditions at the detention centre.” 

This was solved by a carefully crafted two step conditional order requiring a confidential affidavit coming back to court with the names and addresses of the witness and each of them being advised to only make disclosures voluntarily. 

Any disclosures that may be in breach of the Crimes Act also will have to come back to court and looked at on an individual basis. The same with witnesses caught up in contractual secrecy provisions. 

At least these punitive provisions and the relevant loopholes are providing plenty of handy work for the lawyers. 

The plaintiffs’ legal team would be heartened by recent revelations by Guardian Australia that IHMS has been having trouble coping with the demands of its contract.  

Forrest said:

“In practical terms, the question of relief from confidentiality obligations of this sort will need to be approached on a witness-by-witness basis. Hopefully, removing the restraints of s.42 of the ABFA will enable potential witnesses to give the lawyers for AS some insight as to whether he or she can be of assistance to the prosecution of AS’s case.” 

Forrest wrapped-up with a kindly suggestion: 

“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 processes 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.”