High Court permits lower courts to hear negligence claims brought by asylum seekers against the Commonwealth
Minister for Home Affairs v DMA18 as litigation guardian for DLZ18; Minister for Home Affairs v Marie Theresa Arthur as litigation representative for BXD18, Minister for Home Affairs v FRX17 as litigation representative for FRM17; Minister for Home Affairs v DJA18 as litigation representative for DIZ18 [2020] HCA 43
2 December 2020
Summary
The High Court of Australia found that:
section 494AB(1) of the Migration Act 1958 (Cth) (Act), a provision which seeks to prevent legal proceedings being taken against the Commonwealth in relation to asylum seekers under the regional processing regime, does not limit the jurisdiction of any court;
the Commonwealth may plead this section as a defence to particular claims brought in a court, other than the High Court, analogous to a limitations defence;
the Commonwealth may plead the defence where consistent with its obligations as a model litigant. If the only consequence of pleading the defence were that it would result in fresh proceedings instituted at the High Court only to be remitted down, this would likely be inconsistent with the Commonwealth’s model litigant obligations;
the defence may be pleaded where the claim raises any of the subject matters identified in section 494AB(1) of the Act; and
this section is not limited to identified kinds of claims or causes of action, or to claims for particular forms of relief.
If the proceedings raise issues which are captured by section 494AB(1), it is irrelevant that other claims are made which are not captured by that section (e.g. common law negligence).
Facts
Overview
Each of the four respondents issued negligence proceedings in the Federal Court against the appellants, the Minister for Home Affairs and the Commonwealth of Australia (Commonwealth), alleging breaches of a duty of care to provide medical treatment. Part of the relief sought was to compel the Commonwealth to provide or continue to provide medical treatment.
The High Court did not consider whether the Commonwealth owed the four respondents a duty of care or whether a duty of care, if owed, was breached. Instead, the Court considered whether the lower courts had jurisdiction to hear the proceedings and the operation and reach of section 494AB(1) of the Act in respect of the respondents’ claims.
It is relevant to outline the following facts in respect of each of the four respondents’ claims:
FRM17 - FRM17 sought damages and an injunction that the Commonwealth “cease to fail to discharge the responsibility that [it has] assumed to procure specialist child psychiatric health treatment.” FRM17 was transferred to Australia following an order by the Federal Court that she be placed in a tertiary level health facility.
BXD18 - BXD18 commenced damages proceedings and made an injunction application in April 2018. The Commonwealth subsequently agreed to transfer BXD18 to Australia under section 198B of the Act and no interlocutory orders were made. After BXD18 was transferred, she filed an amended claim alleging the Commonwealth had breached its duty of care by failing to remove her from Nauru and sought orders that she and her family be resettled in a signatory country to the Refugee Convention and to not remove her from Australia until that occurs.
DLZ18 – The Federal Court made an order for the immediate transfer of DLZ18 to a location to obtain “urgent paediatric physical and psychiatric care” under section 198B of the Act.
DIZ18 – The Federal Court made orders requiring that DIZ18 be brought to Australia to receive an MRI head scan and “multi-disciplinary specialist paediatric” care. Once in Australia, she filed an amended claim seeking orders that the Commonwealth continue to take steps to ensure she continues to receive treatment in a location with the requisite facilities (in effect, in Australia).
It was not disputed that each respondent is a ‘transitory person’, which includes a person taken to offshore detention, or the child of such a person if the child was born in offshore detention and the child was not an Australian citizen at the time of birth.
The Commonwealth argued that the Federal Court and the Full Federal Court on appeal did not have jurisdiction to hear the proceedings because they concerned matters captured by subsections 494AB(1)(a), (ca) and (d) of the Act.
Legislation
Section 494AB(1) of the Act relevantly provides that the following proceedings against the Commonwealth may not be instituted or continued in any court:
proceedings relating to the exercise of powers under section 198B of the Act (which confers powers on the Commonwealth to bring a transitory person to Australia for a temporary purpose (e.g. for medical treatment));[1]
proceedings relating to the removal of a transitory person from Australia under the Act.[2]
Though, pursuant to section 494AB(2), nothing in section 494AB is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
Key Findings
Jurisdiction
Chief Justice Kiefel and Justices Bell, Gageler, Keane and Gordon, in their joint judgment, held that section 494AB of the Act does not, in its terms, or by necessary implication, restrict the jurisdiction of any court. Analogous to statutory limitation periods, the provision creates a statutory bar to relief but does not extinguish the right to bring a cause of action.[3]
Operation of section 494AB(1)
In allowing the appeal, the High Court unanimously held that section 494AB of the Act is directed to proceedings which relate to certain identified subject-matters. Its operation is not, however, “restricted to identified kinds of claims or causes of action, or to claims for particular forms of relief. Thus, the section does not exclude all common law negligence cases against the Commonwealth.”[4]
To determine whether any of the subject maters in section 494AB(1) of the Act is raised as an issue for determination by a court, regard must be had to the pleadings in light of the relief claimed or, in the absence of pleadings, the application and other documents filed in the proceedings.[5]
With respect to each of the respondents’ claims, the High Court determined:
For FRM17, the relief sought was the prevention of her removal from Australia to Nauru (in effect, because Nauru does not have any specialist child psychiatric health treatment facilities). Accordingly, the relief sought concerned the subject matter of section 494AB(1)(d) of the Act.
For BXD18, because orders were sought to prevent her removal from Australia, the subject matter of section 494AB(1)(d) applied.
For DLZ18, the question of whether the Commonwealth ought to have transferred DLZ18 under section 198B of the Act was in issue, and therefore fell within the subject matter of section 494AB(1)(a).
For DIZ18, because orders were sought to effectively prevent her removal from Australia, section 494AB(1)(d) of the Act was engaged.
Commentary
Section 494AB of the Act therefore does not limit the jurisdiction of any court, but instead creates a defence which the Commonwealth would need to prove applies in each relevant case. Though, “[w]hether the Commonwealth will seek to rely on s 494AB in answer to the further prosecution of these claims … is yet to be seen”.[6]
Further, as the defence does not exclude all common law negligence claims against the Commonwealth, there may be avenues for the respondents to be able to seek some relief which are not barred by section 494AB(1) of the Act.
The full case can be read here.
Sam Moulton is a Law Graduate at King & Wood Mallesons.
[1] Migration Act 1958 (Cth), s 494AB(1)(a).
[2] Migration Act 1958 (Cth), s 494AB(1)(d).
[3] Minister for Home Affairs v MDA18 [2020] HCA 43, [26], [28] and [31].
[4] Ibid, [44].
[5] Ibid, [5] and [48].
[6] Ibid, [65], [71], [77] and [83].