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Legal justice for asylum seekers one step closer following offshore detention disclosure reforms

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Lawyers representing Manus Island detainees in a landmark class action have welcomed this week’s changes to the operation of the Australian Border Force Act 2015, which will allow health professionals to speak out about their experiences in offshore detention centres.

Prior to these changes, the non-disclosure legislation not only restricted public debate and the reporting abilities of health professionals, but also restricted their ability to provide witness evidence.

Slater and Gordon Class Action Practice Group Leader Rory Walsh said they fought these draconian laws last year in court.

“In October last year, Slater and Gordon successfully sought orders from the Supreme Court of Victoria, to obtain a limited exemption to the legislation,” Mr Walsh said.

“Doctors and other former detention centre staff who had worked on Manus Island were willing to give evidence in the class action, but were being gagged by these laws.

“This was the first time an Australian Court had been asked to override these controversial laws and our successful application set a precedent for future exemptions.

“Without the ability to speak with those witnesses our ability to prosecute this case would have been significantly restricted, as would access to justice for offshore detainees.”

The class action alleges Manus Island detainees were both falsely imprisoned and deliberately held in appalling conditions as a deterrent to other asylum seekers, in contravention of Australian law.

Since obtaining court orders, Slater and Gordon has been able to confer extensively with a number of key witnesses who worked on Manus Island and are expected to give evidence in the trial which is due to commence next year.

Mr Walsh said this week’s changes to the Australian Border Force Act are another step forward for offshore detainees seeking a fair go, but there’s still significant room for improvement.

“This move lessens the restrictions on health professionals but it is lamentable the exemption hasn’t been extended to non-health professionals who worked in the offshore system,” Mr Walsh said.

“Non-health professionals still face the risk of criminal sanctions, including imprisonment, if they speak out about their experiences.

“No-one should be forced to choose between going to jail and speaking up about injustice, which is essentially what non-health professionals are still faced with.”

The legal fight for transparency

Mr Walsh said the ongoing class action is the first time the experiences of offshore detainees have been considered in a court of law.

“The process of getting the case to trial has been arduous,” Mr Walsh said.

“The trial for the class action was previously scheduled to start in August 2016, but was postponed largely because the Commonwealth had raised public interest immunity claims over many hundreds of documents.

“The Commonwealth claims their release would not be in the national interest and also could harm bilateral relations with Papua New Guinea.

“Slater and Gordon fought for transparency and slowly, as the case went on, large numbers of the Commonwealth’s public interest immunity claims were ultimately withdrawn.”

Mr Walsh said the trial is now due to start next year.

“We are now in a position to proceed to trial, which we anticipate will run for some months and involve extensive evidence, expert analysis and witness testimony from those who worked or were detained at the Manus Island Detention Centre,” Mr Walsh said.

“The case will allow the merits of the asylum seekers’ claims to be examined outside the political sphere.

“Slater and Gordon has a long history of running public interest litigation to protect the rights of vulnerable groups, and we have acted on behalf of current and former immigration detainees for many years now.

“This case is a continuation of that work and we are confident of its success.”

Slater and Gordon is running the class action on a “No-win, No–fee” basis. If successful, the firm will seek to recover costs from the defendants.