As noted in King & Wood Mallesons’ The Review: Class Actions in Australia 2014/2015, class actions are increasingly being used in an expanding range of claims. This has included class actions action in area of public interest litigation and human rights.

Public interest and human rights proceedings are raising new and untested issues, particularly in respect of evidentiary matters. The most significant of these issues relates to claimants being able to obtain evidence from Commonwealth employees or officers, who are prohibited by statute from giving evidence or disclosing any facts or documents.

The Victorian Supreme Court’s decision in AS v Minister for Immigration and Border Protection [2015] VSC 642 (AS) on 24 November 2015 represents a turning point for claimants in relation to these issues, with the Court making orders facilitating the giving of evidence prior to trial by potential witnesses who would otherwise have been prevented from doing so.

The potential reach of this decision is not limited to claims brought by asylum seekers, with orders of this kind potentially available to claimants in any proceedings against the Government.


The AS class action was commenced in August 2014 on behalf of all injured or pregnant detainees on Christmas Island or mainland Australia between August 2011 and August 2014, who suffered injury (or an exacerbation of an injury) from an alleged failure by the Commonwealth to provide medical care and support services. The proceedings are listed for hearing in September 2016.

The lawyers for AS (as lead plaintiff) sought orders that would enable them to interview 11 potential and unnamed witnesses who had worked on Christmas Island (either for the Commonwealth or its contractors) during the period of AS’s detention, including medical practitioners or allied health practitioners who provided medical care on Christmas Island.

Each witness identified by the plaintiff’s lawyers is an “entrusted person” under the Australian Border Force Act 2015 (Cth) and/or a “Commonwealth officer” under the Crimes Act 1914(Cth). Under both pieces of legislation, any such person who discloses information that came to their knowledge by virtue of their position, and in respect of which they have a duty not to disclose, is guilty of a criminal offence and liable to imprisonment for 2 years.[1]

Under the Australian Border Force Act, a person is an “entrusted person” if they are a current or former immigration or border protection worker, or a public servant who provides services to the Immigration Department.[2] That Act provides an exception to the prohibition on disclosure if such disclosure is required by a court order (for example, pursuant to a subpoena).[3]

Relevantly, a person will be a “Commonwealth officer” if they are employed by, hold office under, of perform services for or on behalf of the Commonwealth.[4] The reach of this definition extends to non-government contractors, sub-contractors and consultants, and is not confined to the Immigration Department. The Crimes Act, however, does not of itself create an obligation of confidentiality. Rather, it imposes criminal sanctions for breaches of secrecy obligations by Commonwealth officers, with such duties derived from other legislation or the nature of the relationship between the person and the Commonwealth.

Decision of the Victorian Supreme Court

At the outset the Court noted it is essential for parties to be able to present their evidence as freely as practicable, which “necessarily includes the ability to interview witnesses” (who are willing to confer) prior to trial.[5] This is consistent with the Court’s obligation to do everything appropriate to facilitate a fair trial.[6]

After interpreting the relevant provisions of the Australian Border Force Act, the Court ordered the following two-stage approach in relation to “entrusted persons”:

  1. the plaintiff’s lawyers are to file a confidential affidavit setting out the details of each witness they wish to interview and that potential witness’s presumed relationship to the subject matter of the proceedings; and
  2. following the Court’s review of the confidential affidavit, and advising the plaintiff’s lawyers that it is satisfied with the material in the confidential affidavit, each potential witness (if he or she voluntarily elects to do so) may disclose relevant information to the plaintiff’s lawyers.

The Court noted that it was prepared to make similar orders to facilitate discovery.[7]

Such orders were not, however, made in relation to potential witnesses who are “Commonwealth officers”. After paying particular attention to the fact that the Crimes Act does not identify those officers’ relevant confidentiality obligations, the Court observed the subsequent difficulty in wording and making any orders. As a result, the Court declined to make orders permitting disclosure by “Commonwealth officers”, as it would be “unproductive” to speculate on the particular sources of obligation.[8] Instead, the plaintiff’s lawyers will need to make a separate application in respect of each relevant witness (rather than as a broad class of witnesses), once the nature of each witness’s obligation is identified with “some precision”.[9]

Implications of the decision

The Victorian Supreme Court’s decision to permit and facilitate immigration and border protection workers giving evidence (particularly in proceedings relating to alleged injuries sustained by detainees) prior to trial is of great significance. Not only does it provide a framework for parties in similar class actions when preparing evidence, but it may also assist parties when developing their case strategy (and, if necessary, making any subsequent amendments to their pleadings).

There are at least two other similar class actions currently on foot, which were commenced by:

  • persons affected by the sinking of SIEV 221 off the coast of Christmas Island in December 2010, including passengers, witnesses and relatives of the deceased; and
  • detainees in the Manus Island Detention Centre who allegedly suffered personal injury.

Although no judgments in relation to evidence from “entrusted persons” or “Commonwealth officers” appear to have been published in the SIEV 221 class action, the judgment in ASalluded to potentially similar evidentiary orders being made in the Manus Island proceedings.[10]

As noted earlier, the Victorian Supreme Court’s decision also alludes to the fact that orders permitting disclosure could potentially be made in respect of “Commonwealth officers” if appropriate circumstances exist. Accordingly, the decision has the scope to impact other class actions already on foot against the Government (of which there are at least three, including in relation to the live cattle export ban), or may influence claimants in deciding whether they have reasonable prospects of success to also pursue a claim against the Government.