Director and principal lawyer of Immigration Solutions Lawyers Anne O’Donoghue was awarded a "highly commended" at the Law Society of NSW President's Medal 2019. In a candid interview with LSJ, she shares a pro bono case that changed her perspectives, and sparked a passion for legal advocacy.
Jhahanara Jabber had a very rare disease where her abdominal organs were on the outside of her body. She had surgery in Korea to put them back, but when they did, not everything worked properly, and she continued to experience complications with her oesophagus.
In 2004, she was brought to Sydney on a medical visa for life-saving surgery and, although the operation was a success, she suffered ongoing problems and was under care of paediatricians at Sydney Children’s Hospital. She had a further six major operations yet continued to be restricted to a liquid diet.
While doctors were fighting to save her life, the Department of Immigration and Citizenship notified Jabber and her family that they could not remain in Australia and must return to Bangladesh one day before her surgery.
The Jabber case was very high profile and I became involved in December 2010. It was the third ministerial application, so we had to show something new.
I couldn’t get an Australian doctor to say the condition was life threatening, for political reasons. So I sought opinions from doctors around the world on the prognosis for Jabber’s condition. I felt we couldn’t fail because her life was at stake.
By obtaining overseas opinions we were able to successfully argue that sending her back would essentially be the same as issuing a death sentence on the child, and we won the right to have [then Immigration Minister] Chris Bowen reconsider the case.
Our firm did the equivalent of $80,000 of legal work for professional time pro bono, not including disbursements. But I believe this case and this type of work is the conscience of the practice, and there is a moral imperative.
It was an incredibly complex case and, when it came to crunch time, the Department of Foreign Affairs and Trade [DFAT] made an application to suppress the foreigners’ names. There was a list of about 20 high-ranking officials and their family members; Prime ministers, deputy prime ministers and finance ministers of various countries. These were the kinds of allegations that can change governments. But the court, at DFAT’s request, made the suppression order.
Once that order became known to the media, it caused an absolute storm. People were quite surprised they could not report these important details. Effectively, we would have a story about Australians bribing foreign officials without naming those officials.
It ended up in the hands of Wikileaks, who promptly posted the order on the internet complete with the names of all the foreign officials that had been suppressed. The media in Malaysia, Vietnam and Indonesia got hold of that and started publishing. I was working for NewsCorp Australia at that time, and in this case we had NewsCorp and Fairfax side by side, our interests completely aligned.
In any story, the key questions are who, what, when, where and why, and the first question is always who. It makes a huge difference to a reader’s understanding of a story if they know who the people involved are.
Our key argument was that the order was futile and ineffective, partly because of the overseas publications, which were available on the internet and therefore available in the Australian jurisdiction.
We also argued the order should not have been made in the first place, given the high public interest. Usually there must be extraordinary circumstances in favour of suppression for an order to be necessary. This was the opposite. This was a case where those names absolutely could and should be reported.
DFAT was worried these people would be defamed by coverage of the case, but the reality is most people who are named in criminal cases do not get the benefit of DFAT intervention and a suppression order.
Thankfully, the judge sided with us and overturned the order. She found the order was futile and ineffective, and a lot of that was based on the overseas reporting. It was absurd the information was all over the world at that time and the only people who could not report it were the reporters who had their feet on the ground here.
The courts recognise that when the media is fighting these suppression orders, they do it on behalf of the Australian public. We are not doing it for our own commercial reasons. The addition of a name or a photo is not a huge commercial driver for us.
What the case did for me professionally was give me that first taste of winning on a suppression matter. There have been hundreds of these orders that we have had overturned because they are futile. Some are made on the wrong grounds, or on no grounds at all.
We got a costs order against DFAT and I have a copy of the cheque, paying our costs, framed in my office. We are pursuing costs more vigorously now because we need to use everything in our arsenal to stop these suppression orders being wrongly applied for, and costs is a good incentive for that. Even if we never enforce the costs order, as long we get them it is sending an important message.”