When Confidentiality Silences the Truth: The Risk No Australian Expects
Home › Case Studies › Case Law Library › Commercial & Business › Civil Procedure & Evidence › AS v Minister for Immigration and Border Protection (2016) 53 VR 631
Published: 11 November 2025 | Reviewed: 5 December 2025
(3-minute read)
Why fairness in justice depends on visibility, not secrecy.
A court had to decide whether a company’s confidentiality clause could force a child asylum seeker’s lawyers to walk into a trial blind.
What Happened
AS was eight years old when she was held on Christmas Island. Years later, she brought a negligence case about the conditions she lived in. Her lawyers needed to prepare properly. They needed to speak with a former Serco officer, someone who saw the daily reality inside the centre.
But Serco pointed to a confidentiality clause.
Their position was simple:
he may speak in the witness box, but he must stay silent until then.
If that silence held, AS’s lawyers would have to question him at trial without knowing a single word of what he might say. No preparation. No clarity. No way to ensure the court received complete evidence.
Justice Forrest refused to allow that to happen.
He ruled that fairness in justice outweighs a private contract when secrecy threatens the court’s ability to see the truth.
When preparation is blind, justice becomes guesswork.
The Legal Principle
The Court reaffirmed a long-standing rule:
confidentiality does not survive where it obstructs the administration of justice.
Drawing from authorities like A v Hayden and applying Victoria’s Civil Procedure Act 2010, the Court held that litigation must be conducted “justly, efficiently, timely and cost-effectively”. Preventing a key witness from speaking until the first moment of the trial created unacceptable risks:
disorganised evidence
disrupted hearings
surprise testimony
wasted time and cost for all parties
In other words:
Courts cannot run safely when crucial information is hidden behind a private contract.
The Structural Problem This Judgment Reveals
This case exposes a structural danger that reaches far beyond detention centres:
when one side controls the flow of information, the other side cannot prepare, cannot see the risks, and cannot steer the matter safely.
It is the same trap Australians face whenever:
one role holds both the information and the timing
visibility disappears behind closed doors
the “truth” surfaces only at the very moment the battle begins
The harm is not caused by bad people.
It arises when structure creates blind spots.
Fairness collapses the moment one side enters the courtroom sighted and the other enters blindfolded.
The problem in AS’s case was not about legal complexity. It was about visibility and preparation: one party held the information; the other had to guess.
This is exactly the kind of structural risk that Clean Law’s Two-lawyer separation of roles was built to prevent. When roles merge or one actor controls too much of the information, clients cannot tell what is happening, why, or at what cost.
Under a two-lane structure:
one role handles settlement, visibility and oversight
the other handles contested advocacy
neither role dominates the flow of information
This separation keeps preparation clear, timing visible and structural fairness intact.
Learn how independent roles prevent hidden steps.
Why This Matters to Australians Today
Most Australians believe injustice happens only in extreme cases.
But the structural pattern here is universal:
Whenever one side’s information is locked away,
and the other must proceed without clarity,
the system bends under the weight of secrecy.
This can happen in workplace disputes, business litigation, family matters, insurance claims, or community conflicts.
Fairness does not depend on who is right.
It depends on whether each side is allowed to prepare properly.
See how hidden steps and lost visibility cause harm before anyone notices:
Hidden Risks in the Traditional Model
The Structural Fix
The judgment demonstrates a simple truth:
justice cannot function when one side is blind.
Clean Law’s structure reflects the same principle:
two independent roles prevent merged responsibilities
timing, scope and information stay visible
no step occurs without clear authority
each lane stays accountable for its own work
This protects people from the exact harm that threatened fairness in AS’s case:
silence becoming strategy.
See how Clean Law keeps roles separate and visibility intact:
Two-Lawyer Model
Reflection
AS’s case was about far more than confidentiality.
It was about whether a child’s lawyers could walk into court with their eyes open.
Justice Forrest chose fairness.
He chose visibility.
He chose the integrity of the justice system over private convenience.
That principle protects every Australian.
If you want clarity about how legal steps, timing and visibility work in your own matter, you can request a request a Confidential Call.
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Read: AS v Minister for Immigration and Border Protection (2016) 53 VR 631
By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.
Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.
