The Australian Border Force Act will face its first major test next week, when the Supreme Court of Victoria might bypass gag orders placed on Immigration workers in order for them to give evidence about the treatment of asylum seekers on Christmas Island.

Under the Australian Border Force Act — passed by the government with Labor support last year — it is a criminal offence, punishable by up to two years’ jail, for any person working directly or indirectly for the Department of Immigration to disclose information about what happens in detention centres. That would include doctors, security guards, not-for-profit charity workers, and anyone else involved in the operation of detention centres both in Australia and overseas on Nauru and Manus Island.

This makes it complicated for legal teams to gather evidence by speaking to people who have knowledge of the conditions inside the detention centres without those people facing the risk of investigation by the Australian Federal Police.

Last year, Crikey reported that the Department of Immigration and Border Protection was seeking to gag workers and contractors defined under the act as “IBP Workers” to prevent them giving evidence in a case brought by representatives of a six-year-old girl, known only as AS, who suffered injuries when she was detained on Christmas Island. Her lawyers allege she developed post-traumatic stress disorder, anxiety, a serious dental infection, and a stammer while she was held in immigration detention, and that the Australian government has failed to provide adequate healthcare to detainees.

It is part of a wider class action against the department for people detained on Christmas Island between August 2011 and August 2014.

Some of the allegations include a failure to ensure medication was available, and that medical records and medication were destroyed when asylum seekers first arrived in Australia.

The lawyers were seeking a blanket immunity for the criminal penalties imposed under the Crimes Act that contractors for Serco or International Health and Medical Services (IHMS) would face if they divulged details of conditions in the immigration detention centre. Witnesses were required to back up the girl’s claims, but this would not be possible unless they were granted immunity.

The Commonwealth strongly opposed the request, and blanket immunity was not granted, but the court has opted to grant immunity to a specific set of people. Next week, law firm Maurice Blackburn will provide a list of names, addresses, and their role on Christmas Island to the Supreme Court of Victoria of witnesses who have come forward to the firm as being willing to be interviewed by the firm for the case. Once the court has assessed the list, it will grant orders to enable the lawyers to interview those approved without the witnesses potentially facing criminal charges under the Border Force Act.

Crikey revealed last year that although the Australian Border Force Act has severe penalties for unauthorised information disclosure, the Department of Immigration and Border Protection has yet to refer any incidents to the AFP using the new legislation, but instead has continued to rely on the Crimes Act. Under the Border Force Act, a number of subcontractors the government would not have been able to prosecute under the Crimes Act would now be classed as a Commonwealth officers.

Representatives for Maurice Blackburn were unavailable for comment on the case.

The Secretary of the Department of Immigration has already made one determination to classify a number of subcontractors who may not have fallen afoul of the Crimes Act as Commonwealth officers.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey