On 20 August 2018, there were 119 children on Nauru1 under Australia’s offshore processing regime. By February 2019, the last remaining children had left the island.2 Ultimately, it was the common law of tort that provided the legal mechanism by which a large number of these children were evacuated to receive urgent, life-saving medical treatment. However, approximately 800 refugees and asylum seekers continue to languish on Nauru and Manus Island in Papua New Guinea (PNG).3 Further, the common law remains the only legal mechanism that exists – with some degree of certainty – to provide these refugees and asylum seekers with potential access to medical care in Australia.
Background – Offshore processing
On 26 August 2001, 433 asylum seekers were rescued at sea in international waters about 140 kilometres north of Christmas Island and taken on board the MV Tampa. The Australian Government decided that the MV Tampa would not be permitted to dock at Christmas Island and SAS troops were sent aboard the vessel after it entered Australian territorial waters.4 Legal proceedings in the Federal Court of Australia ensued in which it was unsuccessfully argued that the asylum seekers should be brought to Australia.5 Instead, the asylum seekers were transported to Nauru and New Zealand following inter-governmental negotiations during the course of the legal proceedings.6
In response to these events, the Australian Government passed amendments to the Migration Act 1958 (Cth) (Migration Act) and negotiated to open offshore processing centres on Nauru and Manus Island for asylum seekers attempting to reach Australia by boat.7
In 2008, the Labor government dismantled the offshore processing regime. However, after an increase in asylum seekers arriving by boat, offshore processing was reintroduced for ‘unauthorised maritime arrivals’ (UMAs). Further, subsequent changes to the Migration Act provided that any asylum seekers attempting to reach Australia by boat would never be resettled in Australia.8 UMAs who attempted to reach Australia were to have their refugee status determined in accordance with the laws of Nauru or PNG.9
In the cases of Plaintiff S156/2013 v Minister for Immigration and Border Protection & Anor10 and Plaintiff M68/2015 v Minister for Immigration and Border Protection (Plaintiff M68)11 the High Court of Australia upheld the constitutional validity of Australia’s offshore processing regime in both PNG and Nauru. Accordingly, this regime has created significant legal and geographical barriers to asylum seekers – requiring their protection claims to be processed offshore and impeding them from accessing legal assistance in Australia – by reason only that they have attempted to reach Australia by boat.
Conditions on Nauru
Despite a reduced flow of asylum seekers attempting to reach Australia by boat and the re-introduction of a boat turn-back policy, in August 2018 well over 1,000 refugees and asylum seekers were still being held on Nauru and Manus Island under Australia’s offshore processing regime.12 At this time, through the work of refugee advocates, the conditions facing refugees and asylum seekers on Nauru, in particular children, were drawn to the public’s attention. It was reported in the media, and revealed through evidence in court cases,13 that the conditions on Nauru were causing adults and children to experience significant mental and physical health issues. This included pre-teen children attempting to end their own lives.14
The mental health crisis was directly linked to the offshore processing regime. Medecins Sans Frontieres’ Australian executive director, Paul McPhun, stated ‘it’s people’s inability to cope, their absolute abject despair, their loss of will, their loss of control over their own lives that’s a direct result of more than five years of detention, that’s creating these really acute symptoms of self-harm and suicide’.15 In addition to mental health issues, many people on Nauru were experiencing ‘protracted and chronic poor physical health’.16
Without any intervention, the health crisis on Nauru was destined to worsen. However, over the previous years the common law had slowly developed to offer some hope. In S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and Another17 the Federal Court held that the Commonwealth Government owed a duty of care to detainees in immigration detention.18
This case concerned asylum seekers held in onshore detention and drew upon the decision in Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs,19 where the High Court held that the conditions of immigration detention do not affect the legality of that detention, but also held that:
‘Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort.’20
Further, although in Plaintiff M68 the offshore detention regime was held to be lawful, the High Court acknowledged ‘the Commonwealth’s indisputable participation’ in the detention of UMAs on Nauru.21
Accordingly, these cases established the following: the Commonwealth owed a duty of care to detainees in immigration detention; those who manage detention centres may be liable in tort if they fail to comply with their duty of care; and the Commonwealth participated in the detention of asylum seekers on Nauru. Following these cases, in Plaintiff S99/2016 v Minister for Immigration and Border Protection (Plaintiff S99)22 the argument was made that the duty of care owed by the Commonwealth Government extended to a UMA transferred to Nauru who had been granted refugee status and was no longer in detention.
The facts of this case were particularly troubling. They involved a Somali woman who was living in the community on Nauru after being granted refugee status and was awaiting resettlement. She became pregnant after she was raped while, or shortly after, suffering a seizure.23 The Australian Government transferred the applicant to PNG after she had requested to undergo an abortion procedure. However, it was argued on behalf of the applicant that the procedure was neither safe nor legal in PNG and that she should be evacuated to Australia for medical treatment.
Justice Bromberg found that Australian law was applicable for the purposes of the claim. Despite the fact that the abortion was to take place in PNG, the duty of care was held to arise in Australia, being the place where the decision was made in relation to the procurement of the abortion.24
The Federal Court found that the Commonwealth Government owed the applicant a duty of care and that in order to meet its duty the applicant should be evacuated to Australia for medical treatment. Justice Bromberg noted that the applicant’s submissions did not point to any authority finding that there was a directly comparable precedent to establish the duty of care.25 However, his Honour then considered the ‘salient features’ to establish a novel duty of care and ultimately found that a duty of care did arise in the circumstances.26 The respondent’s assumption of responsibility for the procurement of the abortion was a ‘potent consideration’ in finding the existence of a duty of care.27 Further, the vulnerability of the applicant, control, reliance, and the foreseeability and seriousness of the potential harm were also important considerations.28
Accordingly, the decision of the Court confirmed an extension of the Commonwealth’s duty of care to UMAs on Nauru or Manus Island. The precedent set in Plaintiff S99 was subsequently relied upon in December 2017 in FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection (FRX17),29 where the Federal Court held that a young girl who had attempted to end her own life on Nauru should be evacuated to Australia for medical treatment.
Following these decisions, a campaign was launched in August 2018 by refugee advocates to have all children evacuated from Nauru, and it was the common law of tort that provided the legal mechanism for many of these evacuations. Organisations such as the Human Rights Law Centre and the Asylum Seeker Resource Centre facilitated the engagement of dozens of lawyers from across Australia to act on the behalf of refugees on Nauru on a pro bono basis. This campaign facilitated access to justice for the detainees in a context where it otherwise would have been denied.
Without the coercion of legal proceedings, it was at the Australian Government’s discretion whether to order a transfer off Nauru for medical reasons.30 This involved an Overseas Medical Review process on Nauru which, according to court evidence, was often inadequate.31
Accordingly, in late 2018 and early 2019, a number of cases were filed in the Federal Court seeking the immediate evacuation of refugees, including a large number of children, for urgent, life-saving medical treatment. As was the case in FRX17, in determining these applications, the Federal Court made orders for the evacuation of ill persons off the island for medical treatment in Australia through interlocutory orders.32
In order to be successful in obtaining interlocutory relief, the applicants in these cases were required to first establish the legal or equitable right to be determined. In this regard, the previous cases had established that a duty of care was owed due to the contribution made by the Commonwealth to the functioning of the offshore processing regime.33
To invoke the Court’s power to grant injunctive relief, the applicants then needed to establish that:
- there was a serious question to be tried; and
- the balance of convenience favoured the granting of the injunction.
Importantly, the latter question requires determining whether the inconvenience or injury which the applicant is likely to suffer if the injunction is refused outweighs the injury the respondent would suffer if the injunction were granted. In answer to this question in FRX17, it was held that ‘the injury or damage the applicant may suffer if an injunction is refused – death or a further serious deterioration in her health – carries far more weight in the balance than the wasted expenditure the Commonwealth may suffer if an injunction is granted’.34
In all of the cases that proceeded to judgment in the Federal Court during this period of time, the applicant was successful in having an urgent injunction ordered. A number of other cases were resolved by consent with the Court ordering an urgent evacuation or the Commonwealth providing an undertaking that an urgent evacuation would take place.35
The terms of the orders made, or undertakings given, usually required that the applicant be flown to Australia as soon as reasonably practicable to receive treatment in accordance with medical reports before the Court. Further, the respondents would be restrained from taking steps to remove the applicant from Australia without providing a period of notice (for example, 48 hours) and/or pending the outcome of the Court proceeding.36
Jurisdiction of the Federal Court
Since the case of FRX17 was determined in December 2017, in excess of 50 separate legal proceedings have been commenced in the Federal Court to facilitate medical evacuations to Australia for urgent medical care. The majority of these cases sought urgent injunctive relief and remain before the Federal Court involving claims for damages in accordance with the claimed breaches of the Commonwealth’s duty of care.
However, in May this year legal argument was presented in a group of test cases in relation to the jurisdiction of the Federal Court to hear these matters.37 The Commonwealth challenged the Federal Court’s power to order medical evacuations from Nauru and PNG on the basis of restrictions placed on instituting or continuing proceedings against the Commonwealth relying on s494AB of the Migration Act.38
Judgment has been reserved in relation to these matters. If it is found that the Federal Court does not have jurisdiction to hear these claims, then the future of the claims currently before the Court and any future claims will be uncertain. However, it may be the case that claims of this nature will need to be commenced in the High Court with the potential to be remitted to the Federal Court.39
Despite the removal of all children from Nauru, the crisis is not over. A large number of refugees and asylum seekers remain on Nauru with serious physical and mental health difficulties. Further, although the ‘duty of care’ argument remains available, the mechanism is a laborious one and, given the amount of legal work involved, a potentially dangerous one for individuals at imminent risk of death.
On 1 March 2019, the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Medevac Legislation), which amended the Migration Act, became law. The Medevac Legislation allows for the temporary transfer of refugees and asylum seekers on Nauru and Manus Island to Australia for medical assessment and treatment. The process for the Minister of Home Affairs to consider a medical transfer is triggered by the recommendation of two independent treating doctors who, in their clinical opinions, believe the patient is not able to receive appropriate medical care or assessment on Manus Island or Nauru.40
Upon a transfer being recommended, the matter is referred to the Minister for Home Affairs. If the Minister refuses the transfer on the basis of a belief that the medical treatment or assessment is not necessary, the medical transfer application is then reviewed by the Independent Health Advisory Panel (the Panel).41 The Panel must then assess the application within 72 hours and either recommend that the transfer be approved or refused.42
If the Panel recommends the transfer, the Minister can still refuse the transfer if she or he believes the transfer of the applicant would be prejudicial to Australia’s security or would expose the Australian community to a serious risk of criminal conduct.43
As at 23 June 2019, it was reported that there had been 31 medical transfers under the Medevac Legislation, with two applications having been rejected by the Panel.44 However, the law remains politically contentious. In this regard, steps have been taken to attempt to repeal the Medevac Legislation and a legal challenge to the operation of the law has been heard in the Federal Court.
In CCA19 v Secretary, Department of Home Affairs45 the Federal Court held that a remote medical assessment undertaken by reviewing a patient’s medical file was a sufficient assessment by a doctor for the purposes of providing a recommendation that the patient be transferred to Australia for treatment or assessment. At about the same time, the Federal Government introduced a bill to repeal the Medevac Legislation into the House of Representatives.46 The bill will now proceed to an inquiry by the Senate’s Standing Committees on Legal and Constitutional Legislative Committee, and the Senate will not vote on the bill until November 2019.47
The Medevac Legislation is an important step forward in assisting refugees and asylum seekers detained on Nauru and Manus Island to be evacuated for medical treatment. However, the fate of the Medevac Legislation remains uncertain. Despite the time and resources required to pursue a court claim, the established common law duty owed to refugees and asylum seekers subject to Australia’s offshore processing regime remains a viable avenue for accessing life-saving medical treatment. It has proved to be a vital mechanism for facilitating access to justice for these refugees and asylum seekers in the absence of any other enforceable right to essential medical treatment.
Guy Donovan is the National Pro Bono Manager at Adviceline Injury Lawyers and Holding Redlich.
Isabelle McCombe is an Associate at Adviceline Injury Lawyers specialising in medical negligence law.
1 Asylum Seeker Resource Centre, Politicians miss kids off Nauru deadline (21 November 2018) <https://www.asrc.org.au/2018/11/21/politicians-miss-deadline/>.
2 ‘Final refugee children leave Nauru for US’, SBS News (online), 28 February 2019, <https://www.sbs.com.au/news/final-refugee-children-leave-nauru-for-us>.
3 S Borys, ‘Federal Government under mounting pressure to resettle refugees on Manus Island and Nauru’, ABC News (online), 17 June 2019, <https://www.abc.net.au/news/2019-06-17/pressure-on-federal-government-resettle-refugees-manus-nauru/11215064>.
4 Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (Tampa) (2001) 110 FCA 1297, –.
5 Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (Tampa) overturned on appeal by Ruddock and Others v Vadarlis and Others (2001) FCA 1329.
6 Select Committee on a Certain Maritime Incident, Report, October 2002, 292, <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Former_Committees/maritimeincident/index>.
7 Ibid, 5–7.
8 Migration Act 1958 (Cth), ss46A(1), 189 and 198AD(2).
9 Refugee Convention Act 2012 (Nr) and Migration Act 1978 (PNG).
10 (2014) 254 CLR 28.
11 (2016) 257 CLR 42.
12 Refugee Council of Australia, Offshore processing statistics (8 April 2019) <https://www.refugeecouncil.org.au/operation-sovereign-borders-offshore-detention-statistics/>.
13 For example, FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection  FCA 63 and AYX18 v Minister for Home Affairs  FCA 283.
14 Refugee Council of Australia and Asylum Seeker Resource Centre, Australia’s man-made crisis on Nauru: Six years on (September 2018) <https://www.refugeecouncil.org.au/nauru-report/>.
15 L Metherell, ‘Nauru mental health situation equivalent to “victims of torture”, Medecins Sans Frontieres says’, ABC News (online), 3 December 2018, <https://www.abc.net.au/news/2018-12-03/msf-says-nauru-is-equivalent-to-torture-victims/10575818>.
16 Refugee Council of Australia, above note 12, 10.
17  FCA 549.
18 Ibid, . See also Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour  FCAFC 93, .
19 219 CLR 486.
20 Ibid, per Gleeson CJ, .
21 Above note 11, .
22  FCA 483 (Plaintiff S99).
23 Ibid, .
24 Ibid, –.
25 Ibid, .
26 The ‘salient features’ test was outlined in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649.
27 Plaintiff S99, .
28 Ibid, –.
29  FCA 63 (FRX17).
30 Under the Migration Act a ‘transitory person’ can be brought to Australia for a temporary purpose: Migration Act, ss46B, 198(1A), 198AH and 198B.
31 Above note 29, .
32 For example, ELF18 v Minister for Home Affairs  FCA 1368; EHW18 v Minister for Home Affairs  FCA 1350 and FJG18 v Minister for Immigration and Border Protection, Citizenship and Multicultural Affairs  FCA 1585.
33 Plaintiff S99, .
34 FRX17, .
35 For an example of a court order see: EFL18 (By her litigation representative EFN18) v Minister for Home Affairs and Commonwealth of Australia VID1007/2018.
36 For example see: ELF18 v Minister for Home Affairs  FCA 1368 and EOD18 (By his litigation representative EOE18) v Minister for Home Affairs and Commonwealth of Australia VID1088/2018.
37 DMA18 (as litigation representative for DLZ18) and Anor v Minister for Home Affairs and Anor NSD1183/2018; FRX17 (as litigation representative for FRM17) v Minister for Home Affairs and Anor VID1388/2017; Marie Theresa Arthur (as litigation representative for BXD18) v Minister for Home Affairs and Anor VID412/2018; and DJA18 (as litigation representative for DIZ18) v Minister for Home Affairs and Anor VID776/2018.
38 Section 494AB of the Migration Act imposes a bar on ‘transitory persons’ from instituting or continuing legal proceedings.
39 For example, Plaintiff S99 was remitted from the High Court of Australia to the Federal Court of Australia.
40 Migration Act 1958 (Cth), s198E.
41 Ibid, s198F.
44 M Koslowski, ‘Medevac panel overturns two cases in four months, despite “floodgate” fears’, The Sydney Morning Herald (online), 23 June 2019, <https://www.smh.com.au/politics/federal/medevac-panel-overturns-two-cases-in-four-months-despite-floodgate-fears-20190622-p5208u.html>.
45  FCA 946.
46 Migration Amendment (Repairing Medical Transfers) Bill 2019.
47 Senate’s Standing Committees on Legal and Constitutional Legislative Committee, <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/RepairMedicaltransfers>.