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[2015] VSC 642
Supreme Court of Victoria
2015-11-24
J Forrest J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Group proceedings - Christmas Island Detention Centre - Application to interview potential witnesses without risk of penal or civil sanctions -
Australian Border Force Act 2015 (Cth) s 42 - Crimes Act 1914 (Cth) s 70.
For the Commonwealth and the Minister for Immigration and Border Protection
1 AS is the representative plaintiff in a class action brought (through her litigation guardian Marie Theresa Arthur) on behalf of asylum seekers detained on Christmas Island between August 2011 and August 2014. The defendants are the Minister for Immigration and Border Protection (the Minister), and the Commonwealth of Australia (the Commonwealth) (collectively, the defendants). International Health and Medical Service Pty Ltd (IHMS) and Serco Australia Pty Ltd (Serco) are third parties.
2 IHMS and Serco provided services at the Christmas Island Detention Centre (the detention centre) pursuant to contracts entered into with the Commonwealth.
3 The gist of the claim against the defendants is that there was a lack of medical care and support services for asylum seekers in the detention centre during the relevant period. The third parties are joined on the basis that they provided services at the detention centre.[1]
4 The trial is set down for hearing on 5 September 2016.[2]
5 Discovery by all parties is now well advanced and should be completed by the end of the year.
6 This ruling concerns an application by Ms Arthur (in her capacity as AS's litigation guardian) for orders enabling her lawyers to interview potential witnesses for trial without risk of penal sanctions under the Australian Border Force Act 2015 (Cth) (ABFA) or the Crimes Act 1914 (Cth); or civil sanctions in relation to their obligations under contract or common law.
7 The lawyers for AS believe that the provisions of the ABFA, the Crimes Act, and other confidentiality obligations will prevent prospective witnesses from conferring with them as part of trial preparation.
8 The intention to seek these orders was foreshadowed (but not explored in detail) at a directions hearing on 25 September 2015. The parties then filed written submissions in early October. Following receipt of the submissions, the lawyers for AS then sought, and were granted, an opportunity to make further oral submissions (on 13 November 2015).[3]
9 AS seeks to interview persons who have worked on Christmas Island for the Commonwealth or its contractors (or in Australia in connection with the detention centre) during the period that AS was detained on the island.
10 Eleven unnamed, potential witnesses have been identified. Several of these are medical practitioners or allied health practitioners who provided medical care at the detention centre. It appears that each identified witness is an 'entrusted person' within the meaning of the ABFA, and/or are 'Commonwealth Officers' for the purposes of s 70 of the Crimes Act.[4]
11 It is not in issue that the legislation (ABFA and Crimes Act) as well as confidentiality obligations would materially impede the ability of the lawyers for AS to interview potential witnesses in preparing for trial.
12 I doubt whether there is any dispute that to ensure a fair trial in a civil proceeding, it is vital that a party is able to present its evidence as freely as practicabe. This, I suggest, necessarily includes the ability to interview witnesses (who are willing to confer) prior to trial.[5]
1. What power (if any) does the court have to make orders enabling AS's lawyers to interview potential witnesses prior to trial without the fear of a penal or civil sanction?
2. Assuming the court has such a power, how is it to be exercised?
14 A secondary, and somewhat related question, is whether the ABFA applies in respect of material discovered by various parties to the proceeding.
15 Finally, late in the process of exchanging submissions, IHMS sought additional orders to enable it to make disclosures to current or former employees or agents for the purpose of preparing for trial.
16 AS initially sought the following open-ended orders enabling it to interview witnesses without any limitation on the category of witnesses or topics to be addressed:
(e) by 31 March 2016 each person (Subject Person) who wishes to disclose any confidential information relating to the subject matter of the proceeding (Subject Information) to the legal representatives of the plaintiff (whether a solicitor, barrister, paralegal, or employee of such a legal representative) (Plaintiff's Representatives) shall notify the plaintiff's solicitors (Maurice Blackburn) that the person (or officer, servant or agent) wishes to make disclosure of Subject Information;
(f) within 2 business days of being notified by a Subject Person that the Subject Person wishes to make a disclosure of Subject Information, and before any such Subject Information is disclosed to it, Maurice Blackburn will provide to that Subject Person a copy of this order and a copy of the Notice which is Annexure A to it;
(g) any Subject Person make, to the Plaintiff's Representatives, such disclosures of Subject Information as the Subject Person wishes to make, subject to paragraph 6 below.
3. Subject to further order of the Court and paragraph 5 below:
(a) any notification given pursuant to paragraph 2 above; and
(b) any record of a disclosure made pursuant to paragraph 2 above;
be confidential to the plaintiff and the Plaintiff's Representatives.
the Plaintiff's Representatives to disclose the Subject Information where any Plaintiff's Representatives consider it necessary or appropriate for the preparation of the plaintiff's claims in this proceeding:
(i) to other Plaintiff's Representatives;
(ii) to any person engaged by the Plaintiff (or by the legal representatives of the Plaintiff) as a consulting expert or testifying expert in this proceeding;
(iii) to the Defendants or Third Parties in this proceeding, including in an outline of evidence; or
(iv) to the Court, including in an outline of evidence.
17 The form of these orders was considerably refined in oral submissions at the hearing on 13 November 2015. AS now seeks orders that would enable her lawyers to obtain 'high-level' information which would assist in reducing the pool of potential witnesses for the trial: for example, by identifying the role each played at Christmas Island, whether he or she had any interaction with AS, and other similarly broad, preliminary questions (stage one).
18 It is proposed that, at the conclusion of stage one, AS would return to court to seek orders enabling her lawyers to conduct a more extensive interview of those witnesses (stage two).
19 I should say something about this approach (as opposed to that initially proposed). The defendants, IHMS and Serco opposed AS's initial open-ended orders. I need not express a view on such a course, but my immediate reaction was that there was real force in their opposition. It would be most unusual for a court to make wide-ranging orders in a vacuum, ignorant of who might ultimately benefit from them, what confidentiality obligations they might affect and without a sense of the information likely to be obtained pursuant to them
20 The two-stage approach now proposed by AS has the advantage of avoiding blanket orders while still enabling her lawyers to make progress in identifying and conferring with potential witnesses. As I understand their position, the defendants and the third parties do not, at least in a general sense, oppose this refined course of action.
First issue: what order, if any, should be made under the ABFA?
21 Any information obtained by the potential witnesses in relation to activities in the detention centre is 'protected information' obtained by 'entrusted persons' as defined under the ABFA.
22 Section 42(1) of the ABFA makes it a criminal offence for an 'entrusted person' to record or disclose 'protected information'. The penalty is two years' imprisonment.
23 'Entrusted persons' include current and former 'Immigration and Border Protection Workers'.[6] This term encompasses all APS employees in the Department of Immigration and Border Protection (Department) and a variety of categories of persons who provide services to the Department.[7] It extends to non-government consultants, contractors and sub-contractors.[8]
24 'Protected information' is information that 'entrusted persons' have obtained in their capacity as an entrusted person.[9]
...
(b) the making of the record or disclosure is in the course of the person's employment or service as an entrusted person; or
(c) the making of the record or disclosure is required or authorised by or under a law of the Commonwealth, a State or a Territory; or
(d) the making of the record or disclosure is required by an order or direction of a court or tribunal.
26 AS relies upon s 42(2)(c) or (d) to facilitate the making of the orders.
27 In my opinion, and for the reasons that follow, there is power within s 42(2)(d) of the ABFA for orders to be made permitting the disclosure of 'protected information' to AS's lawyers.
29 It can thus be assumed that in drafting the exemptions such as s 42(2)(d), the legislature sought, in appropriate circumstances, to empower a court to relieve an 'entrusted person' from his or her obligations under s 42(1).
30 Second, sub-section (d) is cast in general terms without any criteria or restriction as to its use. It enables a court, where it considers it necessary, to require disclosure of what would otherwise be protected information under s 42(1). There is nothing in Part 6 or the ABFA as a whole to suggest that it is to be read restrictively (for instance, only in relation to a court hearing or in relation to a requirement by the Minister).
31 In particular, I do not accept that it is intended to operate as a complementary power, engaged only as an incident to the making of orders pursuant to other powers. Provisions such as sub-section (d) are regularly found in legislation enabling a court to exercise a broad discretion in which to relieve a person of a legal obligation. I see no reason why sub-section (d) should be treated differently.
32 Moreover, the contrast between the generality of s 42(2)(d) and the specificity of other aspects of the ABFA (and some other exceptions in Part 6) gives force to this interpretation.
33 Third, the word 'requires' should not be read as being solely mandatory (i.e. compelling a person to make disclosure). On any sensible reading, the sub-section provides for both compulsive and permissive orders. Whilst there is the distinction between the words 'required' or 'authorised' in sub-section (c) and 'required' in sub-section (d), nothing, in my opinion, relevantly turns on this. Each sub-section has different work to do. Section 42(2)(d) is intentionally cast in broad terms and is plainly intended to enable a court to give directions as to disclosures that would otherwise be prohibited by s 42(1). To read the word 'require' in an overly strict manner would deprive it of the flexibility clearly intended by the legislature.
34 I am satisfied that s 42(2)(d) enables a court to order that a witness be able, if he or she so wishes, to disclose information which would otherwise be in breach of s 42(1).
35 Given this conclusion, the problem, as I see it, is a practical one. A witness is not obliged to speak with lawyers concerning a particular piece of litigation. If, in the course of the orders, the word 'requires' appears unaccompanied or unexplained by other expressions, then the witness may perceive that he or she is obliged to give a statement or discuss conditions at the detention centre. I think this can be solved by the appropriate wording of a conditional order, which I have set out at paragraph [57].
36 It is not necessary for me to express an opinion about any of the other bases upon which AS sought orders in relation to the ABFA restrictions.[11]
Second issue: what order, if any, should be made exempting disclosure under s 70 of the Crimes Act?
37 Section 70 of the Crimes Act reads as follows:[12]
70 Disclosure of information by Commonwealth officers
(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.
(2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him or her), any fact or document which came to his or her knowledge, or into his or her possession, by virtue of having been a Commonwealth officer, and which, at the time when he or she ceased to be a Commonwealth officer, it was his or her duty not to disclose, shall be guilty of an offence.
38 At the outset, it is to be noted that s 70 does not, of itself, create an obligation of confidentiality. Rather, it creates an offence if a Commonwealth officer publishes or communicates facts which he or she has a duty not to disclose. Its effect is to apply criminal sanctions to the breach of secrecy obligations by Commonwealth officers.
39 So, for the provision to be engaged, the duty of non-disclosure will emanate from a source outside s 70 of the Crimes Act. There are many examples of prosecutions being brought under s 70 for breaches of statutory obligations imposed by other pieces of legislation[13] or implied by the nature of the relationship between the officer and the Commonwealth. For instance, in Kessing v R,[14] an officer of the Australian Customs Service was convicted under s 70 for providing reports to journalists about security at Sydney Airport.
40 Unlike the ABFA, in which it is clear what information is and is not 'protected information', it is unclear (on the material provided by the lawyers for AS):
1. what specific information may have been acquired by a potential witness; and
2. what relevant duty of non-disclosure exists that would result in a breach of a confidentiality obligation or other piece of legislation.
41 It would be quite unproductive now to speculate upon the particular pieces of legislation which may impose statutory obligations upon a potential witness or, for that matter, the nature of an obligation arising out of the contract of employment.
42 Of course, if a potential witness is identified and there is a genuine concern that that he or she (rather than an amorphous class of persons) may be in breach of s 70 if he or she divulges information germane to the prosecution of AS's case, then that can be dealt with on an appropriate application. I leave until that time whether a court has the power to 'authorise' or provide 'lawful authority' for the disclosure.
43 I propose to give liberty to apply to AS's lawyers on short notice if such a situation arises.
Third issue: what order, if any, should be made in respect of witnesses' confidentiality obligations other than under the ABFA?
44 It is near certain that the potential witnesses will be subject to confidentiality obligations (other than those imposed by the ABFA) emanating from a number of sources, such as:
2. implied or express contractual obligations arising out of the contract of employment; and
3. equitable or fiduciary obligations arising out of contracts of employment.
45 Consistent with what I have just said concerning the provisions of the Crimes Act, until a particular witness is identified and the nature of his or her obligation specified, it is premature to consider whether an order can (or perhaps should) be made authorising disclosure.
46 The following observations, however, may be of assistance to the parties.
47 Whilst the court has power to ensure that a witness at trial is relieved from confidentiality obligations when giving evidence (absent some statutory provision), the position in regard to pre-trial disclosure is not entirely clear.
48 The defendants, Serco and IHMS submit that there is a clear distinction between the position at trial under subpoena and the general position pre-trial. That may or may not be so.
50 It is not necessary to analyse these authorities at this stage, save to say that the High Court has noted that obligations of confidentiality will not be enforced where their application might involve 'an interference with the administration of justice.'[19]
51 What is abundantly clear is that the court should not intervene until the nature of the obligation of a particular witness is identified with some precision. Then the question of the public interest in the administration of justice (and the competing considerations) can be examined.
52 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.
Fourth issue: should a notice be given to prospective witnesses?
53 AS's lawyers propose to give a notice to each person who is a potential witness. This notice explains in relatively plain English the effect of the orders sought by AS. The orders originally sought by AS required the court's endorsement of the proposed notice by ordering that the lawyers for AS must provide it, in a specified form, to all potential witnesses.
54 I am not inclined to make such an order. It is unusual for a court to specify how a party's lawyers are to carry out their business, or to fulfil their obligations under the Civil Procedure Act 2010 (Vic) (or other ethical standard). It is not the court's role to support or comfort a party by lending its imprimatur to lawyers' correspondence. The lawyers for AS may give the witness any information (including an appropriate notice) they deem suitable. It is somewhat puzzling why the lawyers for AS press for court 'approval' of a document for which approval is not required. It would not enable the parties or potential witnesses to do anything they could not otherwise.
55 If there is a valid role for court scrutiny of such a document, it has not been identified. The parties are to be commended for taking their obligations to the witnesses so seriously. However, there is no reason to doubt that the lawyers for AS will comply with their obligations when dealing with any potential witnesses, and
I am not persuaded that I should make orders on the basis that they might do otherwise. I should add that I do not see any need for the orders of the court to be provided to potential witnesses.
56 I have been greatly assisted by the orders made by McDonald J in Kamasaee v the Commonwealth.[20] However, given the submissions made by the parties on this application, the regime I have set out is somewhat different to that adopted by his Honour.
1. By 1 February 2016, the solicitors for AS provide a confidential affidavit setting out the name and address (specifying suburb and state or territory of residence) of each witness they wish to interview (potential witness) in relation to any matter reasonably connected with the issues in this proceeding, and a broad description of that potential witness' presumed relationship to the subject matter of this proceeding (Confidential Affidavit).
2. Upon the Court inspecting the contents of the Confidential Affidavit and advising the solicitors for AS that it is satisfied with the material in the Confidential Affidavit in respect of a potential witness:
(a) pursuant to s 42(2)(d) of ABFA, that potential witness may disclose to the solicitors for AS protected information within the meaning of the ABFA reasonably relating to the subject matter of this proceeding; but
(b) he or she is only required to make a disclosure under sub-paragraph (a) if he or she voluntarily elects to do so.
3. Liberty to apply given to all parties on three days' notice.
58 The form of order that I have drafted will (hopefully) enable the solicitors for AS, at the very least, to complete stage one.[21] As it will be necessary for the lawyers to return to court and endeavour to deal with the other confidentiality issues it is not necessary, at the present time, for me to make any further orders concerning disclosure of protected information other than under the ABFA.
59 I will make similar orders in relation to any other party seeking to interview witnesses. As I understand the position, IHMS also seeks such an order.
60 Consistent with my conclusion as to the operation of s 42(2)(d) of the ABFA in relation to witnesses in this proceeding I am prepared to make similar orders facilitating discovery.
61 There is one other point of which the parties should not lose sight. As I mentioned at the outset, the ability of AS's lawyers to pursue legitimate lines of enquiry so as to best present the case at trial is an integral part of due process. The court should, consistent with the common law and the provisions of the Civil Procedure Act, do everything appropriate to facilitate a fair trial.
62 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.
[1] The relevant parts of the Amended Statement of Claim are set out in the ruling of Kaye J [2014] VSC 593, [7].
[2] Subject to completion of the trial in Kamasaee v Commonwealth S CI 2014 6770.
[3] The defendants and third parties did not oppose this course.
[4] Discussed in more detail at [37] - [43].
[5] See the discussion at [46] - [52].
[6] Australian Border Force Act 2015 (Cth) s 4(1) (definition of 'entrusted person').
[7] This includes officers and employees of the government or agencies, whether of the Commonwealth, States, Territories, foreign countries or public international organisations, or within the meaning of the Public Service Act 1999 (Cth).
[8] Australian Border Force Act 2015 (Cth) s 4(1) (definition of 'Immigration and Border Protection worker').
[9] Australian Border Force Act 2015 (Cth) s 4(1) (definition of 'protected information'). See also s 4(4).
[11] Section 42(2)(c) of the ABFA; s 33ZF of the Supreme Court Act 1986 (Vic); ss 7, 8 and 49 of the Civil Procedure Act 2010 (Vic).
[13] Eg R v Tjanara Goreng-Goreng [2008] ACTSC 74.
[15] See the Public Service Act 1999 (Cth) - as generally noted at n 7 - and Public Service Regulations 1999 (Cth).
[16] A v Hayden [No 2] [1984] HCA 67; (1984) 156 CLR 532.
[17] Richards v Kadian [2005] NSWCA 328; (2005) 64 NSWLR 204.
[18] British American Tobacco Australia Ltd v Gordon (No 3) [2009] VSC 619, [130]-[135].
[19] A v Hayden [No 2] [1984] HCA 67; (1984) 156 CLR 532, 557.
A S
Minister for Immigration and Border Protection
(1984) 156 CLR 532
(2005) 64 NSWLR 204