Judge agrees to streaming for Manus class action against the Commonwealth ... Open justice ... Members of the group are widely dispersed ... Benthamites delighted ... Peach Melba with her latest Yarraside report
THE Manus Island class action commences on Monday, May 15 and is scheduled to run for six months. There are 1,905 plaintiffs, all current or former detainees of the Manus "processing" centre, who are suing the Commonwealth, and security providers G4S and Broadspectrum (f.k.a. Transfield) and International Health and Medical Services.
They are claiming negligence and false imprisonment, on the grounds that the Commonwealth was aware or knew of the risk that detention of asylum seekers was contrary to Papua New Guinea law.
Justice Michael McDonald of the Victorian Supreme Court ruled on April 7 that the class action should be live-streamed so that the proceedings would be seen by as many of the parties as possible.
HH said many of the group members lived outside Victoria and could not physically come to court.
Group members are currently located at the Manus processing centre, elsewhere in PNG, Nauru, in immigration detention in Australia, community detention, on bridging visas in the Australian community and back in their country of origin.
The decision is that the live-streaming will be open to the public at large. There are no orders to excise from the stream the evidence of any witness, although parties can make application during the trial to quarantine evidence from public viewing.
Initially the Commonwealth's position was outright opposition to any form of live streaming, although later it said it would be acceptible if it was available only to group members via a secure channel.
G4S Australia and International Health and Medical Services did not oppose the orders sought by the plaintiff.
Broadspectrum wanted live streaming to be available only to group members, the parties and their legal representatives. The company said the evidence of all its lay witnesses should be excluded from the live-stream or from its witnesses who continue to work at Manus or Nauru.
Broadspectrum executives deposed that there would be potential for hostile behaviour on the part of some detainees towards staff who gave evidence against the interests of group members.
HH was not persuaded:
"... it is highly likely that the trial will receive extensive media coverage, including media coverage accessible via the internet."
He said that the risk of hostility by detainees arising from witnesses would just as likely arise in response to media coverage of the trial.
"I am satisfied that it is appropriate in order to ensure that justice is done in the proceeding that the proceeding be live streamed to the public at large. Considerations of open justice favour this course."
Journalists will welcome the access, after years of having their attempts to report on offshore detention blocked by governments here in PNG and Nauru.
The Australian government's strategy has been to keep the conditions of offshore detention as far as possible from the mind of the electorate. This allows Minister Dutton to attempt to mislead the community about events such as the circumstances of the Good Friday incident when shots were fired into the Manus detention centre.
Usually the Commonwealth settles these sorts of actions so that unpleasant evidence does not emerge into the public domain.
The Australian Border Force Act 2015 makes it an offence for anyone working in a detention centre to disclose "protected information", i.e. anything they learn while doing their job.
Eva Orner's 2016 documentary Chasing Asylum is probably the closest Australians have come to seeing the conditions of Australia's offshore detention. It had to be filmed clandestinely and showed the Manus centre to be a tropical purgatory.
In emphasising the importance of public scrutiny and open justice, Justice McDonald is granting the asylum seekers what they have been denied for many years: the opportunity to speak publicly about the physical and mental harms they have suffered in detention.
Slater & Gordon, for the the plaintiff, believes this is the first time Australian court proceedings will be streamed internationally.
A UNHCR report noted that medical experts have found that offshore processing is devastating for physical and mental health.
It's heartening to see Jeremy Bentham coming back to life:
"Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against impropriety. It keeps the judge himself whilst judging under trial."
Elif Sekercioglu reporting