16 December 2020
On 2 December 2020, the High Court of Australia handed down its ruling in the landmark test case of Minister for Home Affairs & Ors v DMA18 as litigation guardian for DLZ18  HCA 43 and associated appeals. In a group of proceedings alleging that the Commonwealth has breached its duty of care to refugees in off-shore detention, the High Court determined that the Federal Court of Australia has jurisdiction to hear these claims by “transitory persons” against the Commonwealth government.
Over the course of a number of months in 2018 and 2019, approximately 50 refugees and their families brought claims in the Federal Court seeking evacuation from Nauru to receive urgent medical treatment. All of these claims were successful with court orders made requiring that the refugees be evacuated to Australia. The court proceedings filed against the Commonwealth also sought damages for injury suffered as a consequence of alleged inadequate medical treatment. Accordingly, the claims remain ongoing.
In defence of these claims, the Commonwealth raised the argument that the Federal Court does not have the jurisdiction to hear the matters. This is despite the Federal Court’s orders requiring evacuation to Australia in all cases brought before it. However, in a ruling that has been welcomed by the many refugees that have ongoing damages claims for compensation against the Commonwealth, the High Court held that these proceedings are able to continue in the Federal Court.
Hearing in the High Court
The appeal regarding the Federal Court’s jurisdiction arose from the government’s argument that the Federal Court had no jurisdiction to hear or determine the duty of care proceedings brought by “transitory persons” by reason of the operation of section 494B of the Migration Act 1958 (Cth) (Act). This section provides that certain “proceedings against the Commonwealth may not be instituted or continued in any court”, including amongst others, proceedings relating to the removal of a transitory person from Australia under the Act. Relevantly to the decision of the Court, section 494B also states that nothing in the section affects the original jurisdiction of the High Court to hear such claims.
The Commonwealth argued that this section should be understood as limiting the jurisdiction of all courts below the High Court, including the Federal Court. As a result, according to the argument of the Commonwealth, the current proceedings were not valid when commenced and could not be continued in the Federal Court.
The High Court preferred a different interpretation of the section and unanimously held that section 494B of the Act does not take away the jurisdiction of courts to hear and determine proceedings of the kinds set out in section 494B of the Act. Rather, section 494B makes available to the Commonwealth a defence to such claims made in courts other than the High Court, analogous to a time limitations defence.
Importantly, the High Court added that the Commonwealth should act in a way that is consistent with its obligations under the Model Litigant Guidelines, and only plead a defence under section 494B where it would be consistent with those obligations. The Court stated that “if no practical benefit is to be gained by raising a defence under section 494AB, the Commonwealth acting as a model litigant need not and, it may be expected, would not raise it.”
Implications of the decision
The immediate impact of the decision is that orders already made in the relevant proceeding “were and remain validly made. The Federal Court had jurisdiction to make those orders.” However, as noted by the High Court, whether the Commonwealth will seek to rely on section 494AB in answer to the further prosecution of these claims for compensatory damages is yet to be seen.
The decision of the High Court suggests that if the only effect of raising a defence under section 494AB is that the current proceedings are defeated in the Federal Court, but re-issued in the High Court under its original jurisdiction, then raising the defence may not be in compliance with the Commonwealth’s model litigant obligations. In such circumstances, the High Court would be able to refer the matter back to the Federal Court and be used as a “post box for the commencement of proceedings destined to be remitted to another court.” This is a situation that the High Court sought to avoid in its decision.
Accordingly, the current duty of care claims in the Federal Court against the Commonwealth can proceed and the decision appears to prevent the refugees and asylum seekers from suffering further delay and additional cost in having their proceedings discontinued and routed through the High Court. In addition, this decision enforces the accessibility to courts below the High Court for future claims by refugees and asylum seekers concerning the standards of medical treatment in Nauru and other places of offshore detention.
Authors: Guy Donovan & Divya Chaddha
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