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

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Gageler,Keane,Gordon JJ
• Judgment Date: 02 December 2020
• Neutral Citation: [2020] HCA 43
• Court: High Court
• Date: 02 December 2020
• Docket Number: M27/2020, M28/2020, M29/2020 & M30/2020

[2020] HCA 43

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane and Gordon JJ

M27/2020, M28/2020, M29/2020 & M30/2020

Minister for Home Affairs & Ors

Appellants

and

DMA18 as Litigation Guardian for DLZ18 & Anor

Respondents

Minister for Home Affairs & Anor

Appellants

and

Marie Theresa Arthur as Litigation Representative for BXD18

Respondent

Minister for Home Affairs & Anor

Appellants

and

FRX17 as Litigation Representative for FRM17

Respondent

Minister for Home Affairs & Anor

Appellants

and

DJA18 as Litigation Representative for DIZ18

Respondent

Representation

S P Donaghue QC, Solicitor-General of the Commonwealth, with C J Tran and A P Yuile for the appellants in all matters (instructed by Australian Government Solicitor)

G M Watson SC with D H Tang for the respondents in M27/2020 (instructed by National Justice Project)

C J Horan QC and L G De Ferrari SC with J E Hartley and S Gold for the respondents in M28/2020 and M30/2020 (instructed by Maurice Blackburn Lawyers)

G M Watson SC with J P Wheelahan for the respondent in M29/2020 (instructed by National Justice Project)

Constitution, ss 75, 77.

Migration Act 1958 (Cth), ss 198AB, 198AD, 198AH, 198AHA, 198B, 494AA, 494AB.

Immigration — Regional processing — Statutory bar on legal proceedings — Where s 494AB(1) of Migration Act 1958 (Cth) provided that certain “proceedings against the Commonwealth may not be instituted or continued in any court” — Where those proceedings, listed in s 494AB(1)(a)-(d), were all “proceedings relating to” a particular subject matter — Where proceedings in s 494AB(1)(b) further defined by reference to time period — Where s 494AB(3) provided that nothing in section intended to affect jurisdiction of High Court under s 75(v) of Constitution — Where respondents, while in regional processing country, instituted proceedings in Federal Court of Australia alleging Commonwealth breached duty of care to provide adequate medical treatment on Nauru — Where Commonwealth alleged Federal Court did not have jurisdiction by reason of s 494AB(1)(a), (ca) or (d) — Whether s 494AB(1) limited jurisdiction or barred remedy — Whether respondents' proceedings in Federal Court engaged s 494AB(1).

Words and phrases — “bars the remedy”, “duty of care”, “instituted or continued”, “jurisdiction”, “medical treatment”, “model litigant”, “model litigant obligations”, “Nauru”, “negligence”, “plead as a defence”, “proceedings against the Commonwealth”, “proceedings relating to”, “regional processing”, “removal”, “transitory person”, “under”.

ORDER

In each of Matter Nos M27/2020 and M29/2020:

• 1. Appeal allowed.

• 2. Set aside paragraph 1 of the orders made by the Full Court of the Federal Court of Australia on 28 August 2019 and, in its place, order:

  “1. The questions ordered to be separately answered be determined as follows:

  Questions:

  (a) When the proceeding was commenced in the Federal Court of Australia, was the effect of s 494AB of the Migration Act 1958 (Cth) that it could not be instituted? and

  (b) Is the effect of s 494AB of the Migration Act 1958 (Cth) that the proceeding cannot be continued in the Federal Court of Australia?

  Answers:

  (a) No, but the respondents, if so advised, could have sought, in an appropriate case, to plead that s 494AB applied to the proceeding; and

  (b) No, but the respondents, if so advised, may seek to plead that s 494AB applies to the proceeding and, if permitted to do so, may apply for an order that continuation of the proceedings as then framed be stayed. Whether amendment of pleadings should be allowed or a stay granted are matters to be determined.”

In each of Matter Nos M28/2020 and M30/2020:

• 1. Appeal allowed.

• 2. Cross-appeal dismissed.

• 3. Set aside paragraph 1 of the orders made by the Full Court of the Federal Court of Australia on 28 August 2019 and, in its place, order:

  “1. The questions ordered to be separately answered be determined as follows:

  Questions:

  (a) When the proceeding was commenced in the Federal Court of Australia, was the effect of s 494AB of the Migration Act 1958 (Cth) that it could not be instituted? and

  (b) Is the effect of s 494AB of the Migration Act 1958 (Cth) that the proceeding cannot be continued in the Federal Court of Australia?

  Answers:

  (a) No, but the respondents, if so advised, could have sought, in an appropriate case, to plead that s 494AB applied to the proceeding; and

  (b) No, but the respondents, if so advised, may seek to plead that s 494AB applies to the proceeding and, if permitted to do so, may apply for an order that continuation of the proceedings as then framed be stayed. Whether amendment of pleadings should be allowed or a stay granted are matters to be determined.”

1 Kiefel CJ, Bell, Gageler, Keane and Gordon JJ. Each respondent, while in a country designated a regional processing country 1 under s 198AB(1) of the Migration Act 1958 (Cth), instituted proceedings in the Federal Court of Australia alleging, in various ways, that the appellants, the Minister for Home Affairs and the Commonwealth of Australia (“the Commonwealth”) 2, breached a duty of care to provide them with adequate medical treatment on Nauru. At least part of the relief sought was to compel the Commonwealth to provide adequate medical treatment. After the proceedings were instituted, each respondent was transferred to Australia for the temporary purpose of receiving medical treatment.

2 These appeals are not concerned with whether the respondents were owed the pleaded duty of care or whether that duty, if owed, was breached. The issue in each appeal is the proper construction and application of s 494AB of the Migration Act, headed “Bar on certain legal proceedings relating to transitory persons”. There was no dispute that each respondent was and is a transitory person 3.

3 Section 494AB provides that:

• “(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:

  • (a) proceedings relating to the exercise of powers under section 198B;

  • (b) proceedings relating to the status of a transitory person as an unlawful non-citizen during any part of the ineligibility period;

  • (c) proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non-citizen;

  • (ca) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to a transitory person;

  • (d) proceedings relating to the removal of a transitory person from Australia under this Act.

• (2) This section has effect despite anything else in this Act or any other law.

• (3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

• (4) In this section:

  Commonwealth includes:

  (a) an officer of the Commonwealth; and

  (b) any other person acting on behalf of the Commonwealth.

  ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non-citizen.”

4 The question of construction which arises is the legal effect and reach of s 494AB. Section 494AB applies to the institution or continuation of some proceedings in federal jurisdiction conferred on federal courts under s 77(i) of the Constitution, and invested in State courts under s 77(iii), by a law of the Commonwealth. As these reasons will explain, s 494AB is not a law that takes away the jurisdiction of those courts (or that of this Court) to hear and determine proceedings of the kinds described in s 494AB(1). It does not limit the authority of those courts (or the High Court of Australia 4) to decide those specific claims but provides the Commonwealth with an available answer to those claims if they are made in a court other than the High Court. In practical terms, it creates a defence which the Commonwealth may, but need not, plead to specific claims in all courts, except the High Court 5. If no practical benefit is to be gained by raising s 494AB, the Commonwealth acting as a model litigant need not and, it may be expected, would not raise it 6. In the terms used in relation to statutes of limitations, s 494AB potentially bars the remedy, not the right 7.

5 Section 494AB applies only to proceedings against the Commonwealth where one of the issues raised in the proceedings relates to one or more of the subject matters identified in s 494AB(1). Consequently, it is not limited to proceedings in the nature of judicial review but, on the other hand, it is not so wide that it applies to all claims relating to regional processing or a regional processing country. It is a provision which the Commonwealth may plead as a defence where one of the identified subject matters in s 494AB(1) is an issue in that proceeding. Whether one or more of the identified subject matters is raised as an issue in the proceeding will depend on the pleadings viewed in light of the relief claimed or, if there are no pleadings, the application and other documents filed in the proceeding.

Migration Act – regional processing regime

6 Section 494AB must be understood and applied in light of the legislative history relating to Australia's regional processing regime. That history shows how and to what extent the legislature has sought to limit the institution and

continuation of proceedings relating to regional processing, and informs the conclusion that the scope of s 494AB is limited in the manner described

7 In September 2001, following the events concerning the MV Tampa, the Australian government introduced a regional processing regime 8. The combined effect of the Acts 9 implementing the regime was that, from late 2001, persons without a...