FEDERAL COURT OF AUSTRALIA

FRM17 v Minister for Home Affairs [2019] FCAFC 148

ORDERS

THE COURT ORDERS THAT:

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; and

(b)    No.

2.    The respondents pay the applicant’s costs of and incidental to the hearing and determination of the separate questions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

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; and

(b)    Yes.

2.    The respondents pay the applicant’s costs of and incidental to the hearing and determination of the separate questions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

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)    Yes; and

(b)    Yes.

2.    The respondents pay the applicant’s costs of and incidental to the hearing and determination of the separate questions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

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; and

(b)    No.

2.    The respondents pay the applicants’ costs of and incidental to the hearing and determination of the separate questions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

TABLE OF CONTENTS

THE COURT:

INTRODUCTION

1    There are two separate questions for determination in each of the four proceedings before the Court. These questions are:

(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 that the proceeding cannot be continued in the Federal Court?

The four proceedings were selected by the parties as suitably representative of the over 50 proceedings pending in this Court where the effect of s 494AB has been raised. It is expected that the answers to the two separate questions in these four proceedings will provide guidance to the parties in the other pending proceedings. Depending on the answers to the two separate questions, each of the proceedings will remain to be heard and determined by this Court or, as presently pleaded, will have to be recommenced in the High Court of Australia.

2    In each proceeding, an order has been made, pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), that these questions be determined before any other question in the proceeding. A determination has been made under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the Court’s original jurisdiction in respect of the hearing and determination of the questions be exercised by a Full Court.

3    Applicants DLZ18 and FRM17 (through their litigation representatives DMA18 and FRX17) filed identical written submissions on 26 April 2019. Applicants DLZ18 and FRM17 had substantially the same legal team, who were mostly based in Sydney. When we refer to these applicants collectively, we shall refer to them as the Sydney cohort, as we did at the hearing. Senior counsel for the Sydney cohort was Mr G Watson SC.

4    Applicants BXD18 and DIZ18 (through their litigation representatives Marie Theresa Arthur and DJA18) filed identical submissions on 29 April 2019. Applicants BXD18 and DIZ18 had substantially the same legal team, who were based in Melbourne. When we refer to these applicants collectively, we shall refer to them as the Melbourne cohort, again as we did at the hearing. Senior counsel for the Melbourne cohort were Mr C Horan QC and Ms L De Ferrari SC.

5    In all four proceedings, the respondents (whom we shall refer to collectively hereafter as the Commonwealth parties) filed identical submissions dated 16 April 2019 and, in reply, dated 2 May 2019. Senior counsel for the Commonwealth parties was Mr T Howe QC.

6    We received evidence and oral submissions on the separate questions on 7 and 8 May 2019.

7    The circumstances in which the questions arise are important for an appreciation of the issues bearing on the determination of the separate questions, including the arrangements made by Australia and the Republic of Nauru with respect to people travelling “irregularly” by sea to Australia.

KEY STATUTORY PROVISIONS

8    As we have indicated, the separate questions concern the application of s 494AB of the Migration Act (the bar) to all four proceedings before the Court. At all relevant times, s 494AB was in the following terms:

494AB         Bar on certain legal proceedings relating to transitory persons

(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.

9    The Commonwealth parties relied on ss 494AB(1)(a), (ca) and (d) in support of their contention that the bar applied to each of the four proceedings.

10    The expression “transitory person” is defined in s 5(1), relevantly for these proceedings, to mean:

(a)    a person who was taken to another country under repealed section 198A; or

(aa)    a person who was taken to a regional processing country under section 198AD; or

…

   (d)    the child of a transitory person mentioned in paragraph (aa) … if:

(i)    the child was born in a regional processing country to which the parent was taken as mentioned in the relevant paragraph; and

    (ii)    the child was not an Australian citizen at the time of birth; or

…

There was no dispute that the applicants in all four proceedings were and are transitory persons, as defined in s 5(1) of the Migration Act.

11    Strictly speaking, the four cases here may be subject to different versions of the Migration Act, although nothing appears to turn on any differences in answering the separate questions. In extracting the key provisions in these reasons, we have used the compilation provided to us by both parties at the hearing. At the hearing, Mr Horan QC urged us to rely on the version that applied at the date of the hearing, including the provisions introduced by Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Cth), assented to on 1 March 2019. We note that Mr Horan QC referred to these amendments in passing, but that no party developed any submission that they are important in resolving the separate questions. In contrast, the Commonwealth parties informed us that the compilation as at 9 December 2017 was “safe” to rely on, although Mr Howe QC stated that he was using the 12 August 2018 compilation.

12    Subdivision B of Div 8 of Pt 2 of the Migration Act (which is expressly referred to in s 494AB(1)(ca)) is headed “Regional processing”. Section 198AA sets out the reason for this subdivision as follows:

198AA        Reason for Subdivision

This Subdivision is enacted because the Parliament considers that:

(a)    people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and

(b)    unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and

(c)    it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and

(d)    the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.

13    Provision is made in this subdivision of the Migration Act for the Minister to designate a country as a regional processing country (under s 198AB), to which unauthorised maritime arrivals are to be taken (under s 198AD). Broadly speaking, under s 5AA(1), an unauthorised maritime arrival is a person who entered Australia by sea without a visa. Under s 5AA(1AA), the term also covers a person born in a regional processing country if a parent of that person was an unauthorised maritime arrival at the time of their birth, regardless of where that parent was at the time of birth. Unless the Minister exercises the power conferred by s 198AE to disapply s 198AD, s 198AD(2) requires that unauthorised maritime arrivals detained under s 189 of the Migration Act must be taken to a regional processing country. For this purpose, an officer of the Commonwealth is empowered by s 198AD(3) to place or restrain the unauthorised maritime arrival on a vehicle or vessel, to remove such a person from the place where he or she is detained or a vehicle or vessel, and to “use such force as is necessary and reasonable”.

14    Section 198AHA of the Migration Act, which is in Subdiv B of Div 8 of Pt 2 of that statute, and is central to the Commonwealth parties’ case, provides:

198AHA     Power to take action etc. in relation to arrangement or regional processing functions of a country

(1)    This section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country.

(2)    The Commonwealth may do all or any of the following:

(a)    take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country;

(b)    make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country;

(c)    do anything else that is incidental or conducive to the taking of such action or the making of such payments.

(3)    To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.

(4)    Nothing in this section limits the executive power of the Commonwealth.

(5)    In this section:

    action includes:

(a)    exercising restraint over the liberty of a person; and

(b)    action in a regional processing country or another country.

arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

regional processing functions includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.

15    Notwithstanding that the focus of these provisions is the removal of unauthorised maritime arrivals to a regional processing country, there is provision in s 198B for a transitory person to be brought to Australia. Section 198B provides:

(1)    An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.

(2)    The power under subsection (1) includes the power to do any of the following things within or outside Australia:

(a)     place the person on a vehicle or vessel;

(b)     restrain the person on a vehicle or vessel;

(c)     remove the person from a vehicle or vessel;

(d)     use such force as is necessary and reasonable.

…

16    We also reproduce the terms of ss 198AD and 198AH, as follows:

198AD    Taking unauthorised maritime arrivals to a regional processing country

(1)    Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189.

Note:    For when this section applies to a transitory person, see section 198AH.

(2)    An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.

(2A)    However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person’s parent mentioned in the relevant subsection entered Australia before 13 August 2012.

Note 1:    Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances.

Note 2:    This section does not apply in relation to a person who entered Australia by sea before 13 August 2012: see the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012.

Powers of an officer

(3)    For the purposes of subsection (2) and without limiting that subsection, an officer may do any or all of the following things within or outside Australia:

(a)    place the unauthorised maritime arrival on a vehicle or vessel;

(b)    restrain the unauthorised maritime arrival on a vehicle or vessel;

(c)    remove the unauthorised maritime arrival from:

(i)    the place at which the unauthorised maritime arrival is detained; or

    (ii)    a vehicle or vessel;

(d)    use such force as is necessary and reasonable.

(4)    If, in the course of taking an unauthorised maritime arrival to a regional processing country, an officer considers that it is necessary to return the unauthorised maritime arrival to Australia:

(a)    subsection (3) applies until the unauthorised maritime arrival is returned to Australia; and

(b)    section 42 does not apply in relation to the unauthorised maritime arrival’s return to Australia.

Ministerial direction

(5)    If there are 2 or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.

(6)    If the Minister gives an officer a direction under subsection (5), the officer must comply with the direction.

(7)    The duty under subsection (5) may only be performed by the Minister personally.

(8)    The only condition for the performance of the duty under subsection (5) is that the Minister thinks that it is in the public interest to direct the officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.

(9)    The rules of natural justice do not apply to the performance of the duty under subsection (5).

(10)    A direction under subsection (5) is not a legislative instrument.

Not in immigration detention

(11)    An unauthorised maritime arrival who is being dealt with under subsection (3) is taken not to be in immigration detention (as defined in subsection 5(1)).

Meaning of officer

(12)    In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

198AH     Application of section 198AD to certain transitory persons

(1)    Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if, the person is covered by subsection (1A) or (1B).

(1A)    A transitory person is covered by this subsection if:

(a)    the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B for a temporary purpose; and

   (b)     the person is detained under section 189; and

(c)     the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved).

(1B)    A transitory person (a transitory child) is covered by this subsection if:

(a)     a transitory person covered by subsection (1A) gives birth to the transitory child while in Australia; and

   (b)     the transitory child is detained under section 189; and

(c)     the transitory child is a transitory person because of paragraph (e) of the definition of transitory person in subsection 5(1).

(2)    Subsection (1) of this section applies whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.

ARRANGEMENTS BETWEEN AUSTRALIA AND NAURU

17    The parties relied on a statement of agreed facts common to all of the proceedings. Broadly speaking, this statement outlined the arrangements between Australia and Nauru for the transfer of unauthorised maritime arrivals and for the provision of services to them. What follows is derived from the statement of agreed facts, including the accompanying documents.

18    Since 2013, the Australian Government policy has been that any person arriving in Australia by boat without a valid visa will not be permanently settled in Australia.

19    On 10 September 2012, the then Minister for Immigration and Citizenship designated Nauru as a “regional processing country” under s 198AB(1) of the Migration Act. On 3 August 2013, Australia and Nauru signed a document entitled “Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the Transfer to and Assessment of Persons in Nauru” (MOU).

20    The persons who were to be transferred to Nauru under the MOU were persons who:

(a)    have travelled irregularly by sea to Australia; or

(b)    have been intercepted at sea by Australian authorities or rescued in the course of trying to reach Australia by irregular means; and

(c)    are authorised by Australian law to be transferred to Nauru; and

(d)    have undergone short health, security and identity checks in Australia.

21    Under the MOU, Nauru agreed to “host” the Nauru Regional Processing Centres (RPCs). Nauru further agreed to enable the people it determined to be in need of international protection to settle in Nauru. Australia agreed to “bear all costs incurred under and incidental to this MOU as agreed”. Clause 8 provided for the administrative measures to give effect to the MOU to be made at a later date.

22    On 11 April 2014, the Secretary of the Department of Immigration and Border Protection of the Commonwealth and the Minister for Justice of Nauru signed a document entitled “Administrative Arrangements for Regional Processing and Settlement Arrangements in Nauru” (Administrative Arrangements).

23    The Administrative Arrangements provided that “[c]onsistent with … the MOU … Australia will bear all costs incurred under and incidental to the MOU, including any reasonable costs associated with legal claims arising from activities under the MOU”. The Administrative Arrangements included provisions for RPCs, allocating responsibilities regarding them between the two countries. It was provided that transferees were to be accommodated at a Regional Processing Centre (RPC) while their claims to be recognised as a refugee under Nauruan law were assessed. It was further provided that transferees determined to be in need of international protection were to be given “appropriate accommodation in Nauru until a durable solution is available”. Clause 4.2.4 of the Administrative Arrangements provided that:

The Governments of Australia and Nauru will, in exceptional circumstances, facilitate arrangements for the temporary return of [t]ransferees to Australia (for example, to enable a [t]ransferee to receive medical treatment).

24    The Commonwealth has entered into contracts for the provision of services on Nauru including:

(a)    contracts with Transfield Services (Australia) Pty Ltd (Transfield), which were in effect from 14 September 2012 to 31 October 2017;

(b)    a contract with International Health and Medical Services (IHMS) for the provision on Nauru of health services to persons transferred there by the Commonwealth parties and heads of agreement with IHMS for the provision of health services at a “Settlement Health Clinic” on Nauru;

(c)    a contract with Save the Children Australia (Save the Children);

(d)    a contract with Craddock Murray Neumann Lawyers Pty Ltd (Craddock Lawyers) in effect from 12 March 2013 to the present;

(e)    a contract with Adult Multicultural Education Services trading as AMES (AMES) in effect from 8 December 2014 to 7 December 2016; and

(f)    a contract with the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education (Brisbane Catholic Education) in effect from 22 January 2016 to 21 January 2018.

25    In addition, the Commonwealth authorised the engagement by Transfield of Wilson Parking Australia 1992 Pty Ltd trading as Wilson Security (Wilson) pursuant to a contract between Transfield and Wilson for the provision by Wilson of services on Nauru. Transfield and Wilson subsequently entered into a subcontract relating to the provision of services on Nauru in 2013. The Commonwealth authorised a further subcontract between Transfield and Wilson Security Pty Ltd that was entered into in 2014.

26    The Commonwealth:

(a)    contracted for the construction and maintenance of, and funded, security infrastructure at the RPCs, including a perimeter fence;

(b)    funded, and continues to fund, all costs of the RPCs;

(c)    possessed and exercised rights under the contracts with Transfield; and

(d)    was able, while a person it had taken to Nauru was on Nauru, to request information regarding that person’s health and welfare (among other matters) from the service providers it had entered into contracts with.

Facts not agreed

27    In a statement of facts not agreed, the Commonwealth parties alleged, and the Melbourne cohort did not agree, that the Commonwealth participated in their detention and the detention of their family members in so far as it did the things referred to in [26] above, and further that:

(a)    the Commonwealth had representatives on, and provided secretariat support to, governance bodies that advised and oversaw matters including the practical management of security services for the RPCs;

(b)    it undertook to provide security infrastructure at the RPCs, pursuant to the Transfield contract; and

(c)    it had step-in rights under the 2014 Transfield contract.

28    The Commonwealth parties alleged, and the Melbourne cohort did not agree, that the actions referred to in [27] above were authorised by s 198AHA(2) of the Migration Act.

29    In a separate statement of facts not agreed, the Commonwealth parties alleged and the Sydney cohort did not agree, in respect of the RPCs, that the Commonwealth, under s 198AHA(2) of the Migration Act had or did each of the things referred to in [27].

30    Further, the Commonwealth parties alleged, and the applicants did not agree, that the Commonwealth’s actions in making the Administrative Arrangements, entering into the contracts, funding the costs of the RPCs and doing any of the other things referred to in [22]-[26] above were authorised by s 198AHA(2) of the Migration Act.

31    The Commonwealth parties alleged, and the applicants did not agree, that:

(a)    the applicants and their family members were brought to Australia in exercise of the powers under s 198B of the Migration Act; and

(b)    the applicants and their families did not enter Australia as the holders of visas and have not been granted any visas since entering Australia.

32    Also in statements of facts not agreed, the Commonwealth parties said, and the applicants did not agree, that the applicants were found to be refugees by the Government of Nauru pursuant to Nauruan law. The Melbourne cohort said, and the Commonwealth parties did not agree, that it was irrelevant for the purposes of the Refugees Convention, to which Australia is a party, under which domestic law a person is determined to be a refugee. The Commonwealth parties said, and the Melbourne cohort did not agree, that in so far as the applicants and their family members were detained while on Nauru, they were detained by the Government of Nauru pursuant to Nauruan law.

OUTLINE OF EACH APPLICANT’S SITUATION

33    The circumstances concerning the individual applicants also bear on an understanding of the issues affecting the determination of the separate questions. The facts outlined below are derived from statements of agreed facts filed in each of the four proceedings. There were also separate statements of facts not agreed, one for each proceeding.

Applicant FRM17

34    FRM17 is represented by her mother, FRX17, in her capacity as FRM17’s litigation representative. FRM17 is not yet a teenager.

35    FRM17 arrived on Christmas Island on 25 July 2013 with her mother, father and sister. Upon their arrival, officers of the Commonwealth (Commonwealth officers) took FRM17 and her family into immigration detention pursuant to s 189 of the Migration Act. About a month later, on or about 20 August 2013, Commonwealth officers took FRM17 and her family to Nauru. On or shortly before they arrived on Nauru, a Commonwealth officer made an application to the Secretary of the Department of Justice and Border Control of Nauru (relevant Nauruan authority) for RPC visas in respect of FRM17, her mother, father and sister. The Commonwealth parties alleged, and FRM17 did not agree, that the making of such applications was authorised by s 198AHA(2) of the Migration Act.

36    While on Nauru, the family’s protection claims were considered and, as a result, on 22 September 2014, FRM17 and her family were determined by Nauru to be refugees. After they were found to be refugees, from on or about 20 October 2014 until about 20 December 2017, FRM17 and her family resided in the community on Nauru outside the RPCs. From 20 December 2017 to 24 December 2017, the family resided at the Restricted Accommodation Area (RAA) within the RPC.

37    Professional notes recorded that FRM17 reported that she attempted suicide on 9 December 2017 by taking an overdose of medication. At the time FRM17 was on Nauru, there were no tertiary level specialist child mental health facilities there. In a statement of facts not agreed, FRM17 alleged, and the Commonwealth parties did not agree, that professional notes recorded that FRM17 continued to express suicidal ideation after 9 December 2017 and that she was variously described in professional notes as being assessed at moderate risk of self-harm and having been diagnosed with adjustment disorder and anxious mood.

38    On 14 December 2017, an advocate for FRM17 separately emailed the Chief Medical Officer of the then Department of Immigration and Border Protection and IHMS. On 15 December 2017, FRM17’s legal representatives emailed the Australian Government Solicitor (AGS).

39    On 20 December 2017, FRM17 commenced proceedings in this Court by filing an originating application, an application for urgent interlocutory relief and supporting affidavits. On 22 December 2017, a judge of the Court made orders, including that the Commonwealth parties place FRM17 in a specialist child mental health facility. The Commonwealth parties alleged, and FRM17 did not agree, that there were no tertiary level specialist child mental health facilities in Nauru or Papua New Guinea (PNG).

40    On 24 December 2017, FRM17 arrived in Australia with her mother and sister. They remain in Australia.

41    On 24 December 2018, the Commonwealth sought to file an interlocutory application seeking an order that FRM17’s originating application be set aside on the basis that the Court lacked jurisdiction to entertain it. That application was accepted for filing by the Court on 24 January 2019.

42    On 11 January 2018, FRM17 filed a statement of claim (amended on 16 March 2018 and 6 March 2019) seeking damages and an injunction.

43    On 27 April 2018, the Commonwealth parties filed a defence (amended on 20 March 2019). In their amended defence the Commonwealth parties raised the question of s 494AB of the Migration Act as a bar to the proceeding being instituted or continued in this Court.

Applicant DLZ18

44    DLZ18 is represented by her father, DMA18, in his capacity as her litigation representative. DLZ18 is about the same age as FRM17. She was born in Iran. She and her family claim to be Kurds persecuted in Iran on account of their ethnicity. DLZ18’s mother, FZR18, is the second applicant in this proceeding.

45    The involvement of the Commonwealth parties in the life of DLZ18 and her family began on 26 July 2013, when an Australian naval vessel intercepted the boat carrying DLZ18 (then quite a young child) and her parents. This naval vessel took DLZ18 and her family to Christmas Island, where Commonwealth officers detained her and her parents in immigration detention pursuant to s 189 of the Migration Act. Some six weeks later, on 4 September 2013, Commonwealth officers took DLZ18 and her family to Nauru.

46    On or shortly before their arrival on Nauru, a Commonwealth officer made an application to the relevant Nauruan authority for RPC visas in respect of DLZ18 and her parents. (The Commonwealth parties alleged, and DLZ18 did not agree, that the making of such applications was authorised by s 198AHA(2) of the Migration Act.)

47    They were each granted an RPC visa upon their arrival in Nauru and resided in the Nauru RPCs from 5 September 2013 until 21 January 2015. During this time, the family’s protection claims were considered and, as a result, on 28 December 2014, DLZ18 and her family were determined by Nauru to be refugees. After this determination was made, DLZ18, her mother and father resided in the community of Nauru.

48    DLZ18 and her mother (FZR18) allege and the Commonwealth parties do not agree that, during her time on Nauru, DLZ18 was variously described in professional notes as having or being diagnosed with anorexia, a depressive disorder, and suicidal ideation. DLZ18 and her mother allege, and the Commonwealth parties do not agree, that in October 2018, DLZ18’s father (DMA18) informed their solicitor that DLZ18 had self-harmed while alone in the hospital while her mother (FZR18) was hospitalised and he was detained in Villawood Immigration Detention Centre.

49    DLZ18 and FZR18 allege and the Commonwealth parties do not agree that during her time on Nauru, FZR18 was variously described in professional notes as having, or being diagnosed with, a depressive disorder with anxious features and being at moderate risk of self-harm or suicide.

50    Further, DLZ18 and her mother allege and the Commonwealth parties do not agree that in July 2018, DLZ18 was admitted to the Children’s Hospital at Westmead with diagnoses of pervasive refusal syndrome, post-traumatic stress disorder, separation anxiety, malnutrition, vitamin D deficiency and profound deconditioning. DLZ18 and her mother allege and the Commonwealth parties do not agree that since her transfer to Australia, professional notes reflect that FZR18 was admitted to psychiatric facilities multiple times.

51    On 4 July 2018, DLZ18 commenced proceedings in this Court seeking damages and urgent interlocutory relief by way of an interlocutory application. An originating application (amended on 22 November 2018) and supporting affidavits were also filed at that time. The Commonwealth parties alleged, and DLZ18 and her mother did not agree, that Australia was the only place to which they could be brought having regard to the timeframes and nature and scope of the medical care sought in their interlocutory application.

52    On 6 July 2018, DLZ18 and her mother (FZR18) boarded a 6:30am flight from Nauru arriving in Brisbane around 9:00am Brisbane time. On that same day, at about 10:30am, a judge of the Court dismissed the interlocutory application filed two days before.

53    On 9 September 2018, DLZ18’s father arrived in Australia. DLZ18, her mother and father remain in Australia.

54    On 22 and 28 November 2018, DLZ18 (joined by her mother as a second applicant) filed an originating application and a statement of claim respectively.

55    On 19 December 2018, the Commonwealth parties filed a defence to the statement of claim filed on 28 November 2018. In their defence the Commonwealth parties raised the question of s 494AB of the Migration Act as a bar to the proceeding being instituted or continued in this Court.

Applicant BXD18

56    BXD18 is a child. Marie Theresa Arthur is her litigation representative. Like DLZ18 and FRM17, BXD18 came by sea to Christmas Island with members of her family to seek asylum in Australia. On arriving on Christmas Island on 11 November 2013, BXD18, her father and brother were detained by Commonwealth officers in immigration detention pursuant to s 189 of the Migration Act. Commonwealth officers took BXD18, her father and brother to Nauru shortly afterwards.

57    On or shortly before their arrival on Nauru, a Commonwealth officer made an application to the relevant Nauruan authority for visas in respect of BXD18, her father and brother. (The Commonwealth parties alleged, and BXD18 did not agree, that the making of such applications was authorised by s 198AHA(2) of the Migration Act.)

58    On their arrival in Nauru, on or about 14 November 2013, BXD18, her father and brother were detained at a RPC.

59    While on Nauru, the family’s protection claims were considered and, as a result, on 15 March 2015, BXD18, her father and brother were determined by Nauru to be refugees. They subsequently resided in the community of Nauru.

60    On 13 April 2018, BXD18 commenced proceedings in this Court seeking damages and an interlocutory injunction. An originating application, interlocutory application, statement of claim (amended on 27 August 2018) and supporting affidavits were filed at that time. The Commonwealth parties agreed to transfer BXD18 to Australia for medical treatment, accompanied by her father and brother. The Commonwealth parties did not raise the question of s 494AB of the Migration Act at that time. No orders for an interlocutory injunction were made.

61    On 15 April 2018, BXD18, her father and brother were brought to Australia. They remain in Australia.

62    On 19 November 2018, the Commonwealth parties filed their defence to BXD18’s amended statement of claim, amongst other things raising the question of the bar in s 494AB of the Migration Act.

63    On 8 April 2019, BXD18 filed an amended reply to the Commonwealth parties’ defence. On 9 April 2019, the Commonwealth parties filed a rejoinder to the amended reply.

Applicant DIZ18

64    DIZ18 is represented by her father, DJA18, in his capacity as her litigation representative. DIZ18 was born on Nauru and is now three years old. Her father and mother are Iranian nationals.

65    Before 13 September 2013, DIZ18’s parents had been held in immigration detention in Australia. On or about that date, Commonwealth officers took them to Nauru. On or shortly before their arrival on Nauru, a Commonwealth officer made an application to the relevant Nauruan authority for visas in respect of DIZ18’s parents. (The Commonwealth parties alleged, and DIZ18 did not agree, that the making of such applications was authorised by s 198AHA(2) of the Migration Act.)

66    When they arrived on Nauru, DIZ18’s parents were detained at a RPC.

67    While DIZ18’s parents were on Nauru, their protection claims were considered and, in consequence, on or before 15 July 2014, they were determined by Nauru to be refugees. Thereafter they resided in the community of Nauru.

68    On or before 22 November 2016, DIZ18 was recognised on Nauru as a refugee.

69    On 11 June 2018, DIZ18 was transferred to the health clinic, located in the Nauru RPC and run by IHMS, with a 6-day history of fevers that were not responding to treatment. (IHMS provides primary and mental health care services to people in immigration detention, including on Nauru, under a contract with the Commonwealth: see [24] above.)

70    By 12 June 2018, the medical advice to the Commonwealth parties was that DIZ18 needed to be evacuated from Nauru urgently and taken to a first world tertiary hospital and/or a centre with a specialist paediatric intensive care unit.

71    On 12 June 2018, DIZ18 was transferred to the Republic of Nauru Hospital, and then returned to the health clinic run by IHMS for further treatment.

72    On or around 14 June 2018, Commonwealth officers determined that DIZ18 and her mother (DJB18) should be transported to Port Moresby, PNG. The Commonwealth parties made arrangements and took all necessary actions to transfer them to the Pacific International Hospital (PIH) in Port Moresby, for DIZ18 to receive medical treatment. Her father (DJA18) remained on Nauru. The parties agreed that at all relevant times the PIH was not a first world tertiary hospital and that it did not have a specialist paediatric intensive care unit.

73    DIZ18 remained a patient at the PIH between 14 June 2018 and 4 July 2018. On or prior to 27 June 2018, the Commonwealth parties determined that DIZ18 and her mother (DJB18) would be taken back to Nauru from PNG.

74    On 29 June 2018, DIZ18 brought proceedings in this Court seeking an urgent interlocutory injunction. An originating application, interlocutory application, statement of claim (amended on 1 March 2019) and supporting affidavits were filed at that time. Orders were made on 3 July 2018 requiring that, as soon as reasonably practicable, DIZ18 and her mother (DJB18) be brought to Australia, and that her father (DJA18) be brought to Australia by 6 July 2018. The Commonwealth parties did not raise the question of s 494AB of the Migration Act at that time.

75    On 4 July 2018, the Commonwealth parties took DIZ18 and her mother (DJB18) from PNG to Australia. On the same day, the Commonwealth parties took her father (DJA18) from Nauru to Australia to be with DIZ18 and DJB18. They remain in Australia.

76    The Commonwealth parties filed their defence to the amended statement of claim on 19 March 2019. In their defence the Commonwealth parties raised the question of s 494AB of the Migration Act as a bar to the proceeding being instituted or continued in this Court.

77    DIZ18 filed her reply on 2 April 2019. The Commonwealth parties filed a rejoinder to the reply on 9 April 2019.

Applicants FRM17, DLZ18, BXD18 and DIZ18

78    As regards all applicants in the four proceedings, the parties further agreed on the following facts.

79    Both prior to the determination that they were refugees, and after that determination, the Commonwealth paid for:

(a)    all of the services provided to FRM17 and DLZ18 (and their respective family members) on Nauru by IHMS, Save the Children and AMES;

(b)    all of the services provided to BXD18 and DIZ18 (and their respective family members) on Nauru by IHMS, Save the Children, Craddock Lawyers and AMES; and

(c)    all visa fees payable to Nauru in respect of FRM17, DLZ18, BXD18 and DIZ18 (and their respective family members).

80    While the applicants and their family members were residing in the community on Nauru, the Commonwealth funded their financial income support payments and also met their accommodation and utility costs.

81    In respect of the matters set out at [79] and [80] above, however, the Commonwealth parties alleged, and the applicants did not agree, that the Commonwealth’s actions were authorised by s 198AHA(2) of the Migration Act.

82    There were a number of other factual and associated matters in dispute between BXD18 and the Commonwealth parties, but it is unnecessary to set them out in detail here.

THE PARTIES’ SUBMISSIONS

83    Before turning in more detail to the parties’ respective pleadings, it may be useful to paint the broad parameters of the present dispute.

(a) The Commonwealth parties’ submissions summarised

84    The Commonwealth parties submitted that the separate questions should be answered “yes” in all four proceedings. In brief, they submitted that this was because:

(a)    the proceedings concern actions taken by them (including the taking of the applicants to Nauru, the contracting of services provided to the applicants, and the bringing of the applicants to Australia) and, therefore, the proceedings “relate to” the exercise of statutory powers under the Migration Act which engage the bar in ss 494AB(1)(a), (ca) and (d) of the Migration Act;

(b)    Subdiv B of Div 8 of Pt 2 and s 198B of the Migration Act, which authorised actions of the Commonwealth in relation to regional processing, must be considered in determining the applicants’ claims in negligence and, therefore, ss 494AB(1)(a) and (ca) apply;

(c)    properly construed, s 494AB is intended to capture “tort-based proceedings” concerning the exercise (or non-exercise) of regional processing powers; and

(d)    the pleadings and evidence in each case rely on or dispute actions taken (or not taken) under the regional processing provisions and/or s 198B, and seek relief preventing the removal of the applicants from Australia. Each case therefore raises factual issues and allegations about the statutory provisions that engage ss 494AB(1)(a), (ca) and (d).

85    Senior counsel for the Commonwealth parties explained at the hearing that the “narrowest” construction advanced by the Commonwealth parties is that, at the very least, the bar captures “proceedings which depend upon the statute”, not in the sense that the statute is sued upon because of an allegation of breach of statutory duty, but in the sense that “the rights and liabilities asserted by a claimant depend upon the statute, their consistency with the statute”. He reiterated, however, that the Commonwealth parties also advanced a broader construction, that it is sufficient for a proceeding to “relate to” the exercise of a statutory power if the duty or the breach of duty involves an analysis of the terms of the legislation.

86    Referring to O’Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 at 367-368 (Dawson J), 372-374 (Toohey and Gaudron JJ), 377 (McHugh J), the Commonwealth parties submitted that under s 494AB(1) the question was “which Court has jurisdiction”, there being no reason to read any component of s 494AB narrowly in order to safeguard access to the courts, because s 494AB only requires a party to go to a particular court, namely the High Court. The Commonwealth parties further submitted that the bar in s 494AB applied whenever the nexus between a proceeding and any topic in s 494AB is more than insubstantial or tenuous. They argued that this approach to the provision’s construction best served its purpose, which was to limit litigation in the courts with respect to regional processing to the extent constitutionally permissible. The Commonwealth parties added that, in light of the clear purpose of limiting litigation, the presumption against ouster of jurisdiction (invoked by the applicants in support of a narrow construction of the provision) did not assist. They also submitted that a narrow construction of “proceedings relating to” was apt to produce uncertainty. Acknowledging that a proceeding may involve more than one matter, the Commonwealth parties submitted that s 494AB applied where any matter or issue in a proceeding involved a topic identified in s 494AB, including where that topic was identified in a defence. In this regard, the Commonwealth parties added that “[t]here is an obvious parallel with the principles concerning accrued jurisdiction, where it is well established that the whole proceeding will be in federal jurisdiction if any part of it is in federal jurisdiction”.

87    At the hearing, senior counsel for the Commonwealth parties submitted that on its face, the bar applies “to all proceedings, and in all courts, whatsoever their origin or howsoever the proceedings arise. There is no a priori or ex facie exclusion of any kind with respect to particular classes of proceedings, suits, claims, demands or actions”. The Commonwealth parties submitted that it would be wrong to construe s 494AB as applying only to judicial review proceedings, having regard to the statutory context, the language of s 494AB(3) (and the parallel provision, s 494AA(3)), and the definition of “Commonwealth” in s 494AB(4) (and s 494AA(4)). Further, there was, so the Commonwealth parties submitted, no basis for the proposition that proceedings in tort relating to the exercise of the powers in ss 198AD(3) and 198B(2) were intended to lie outside the bar in s 494AB (and the separate bar in s 494AA). The Commonwealth parties also submitted that, having regard to the legislative history of the relevant provisions, s 494AB(1)(ca) should be construed in a way that “cohere[s] with s 494AA(1)(e); and since tort claims do not lie outside s 494AA, there was no warrant for suggesting a different result in relation to s 494AB.” Thus, the Commonwealth parties contended that the phrase “relating to” in s 494AB(1)(ca) should be construed to extend to actions in tort.

88    In reply, the Commonwealth parties submitted (citing Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; 184 CLR 453 at 463 (Brennan CJ, Dawson and Toohey JJ); R v Seller [2013] NSWCCA 42; 273 FLR 155 at [100] (Bathurst CJ); and s 11B(1) of the Acts Interpretation Act 1901 (Cth)) that the Melbourne cohort’s analysis of the legislative history was incorrect because it did not take into account that “the modern approach to the construction of an amended statute” was that “both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature”, with the result that whatever the meaning of s 494AB before amendment(s) of it (and other provisions of the Act), “it must now be construed in the light of that amendment”. They contended, in particular, that the retrospective operation of s 198AHA cannot be ignored or passed over as the Melbourne cohort seeks to do.

89    The Commonwealth parties argued that the separate questions should be answered by reference to the claims made by the parties, judged by reference to “the form and substance of the originating application, pleadings and interlocutory orders sought upon institution of the proceedings”. In support of their contention that the bar applies in these four proceedings, the Commonwealth parties repeated their contention that the legislature intended that tort-based proceedings concerning the exercise (or non-exercise) of regional processing powers would come within s 494AB. They further submitted that, in any event, the resolution of the disputed factual and legal issues in the proceedings would require consideration of the application and effect of the regional processing provisions in relation to the applicants, each of whom is a transitory person. In particular, they argued that the proceedings “relate to” the exercise of powers under Subdiv B, engaging s 494AB(1)(ca), because:

(a)    The Melbourne cohort either deny or do not admit the Commonwealth parties’ allegations that certain critical actions were authorised by s 198AHA. Whether these actions were so authorised is therefore an issue in each proceeding. In written submissions, the Commonwealth parties contended that the Sydney cohort had subsequently adopted the same position in written correspondence. At the hearing, Mr Watson SC stated that this was incorrect. Unlike the Melbourne cohort, the Sydney cohort did not file a reply in either proceeding, but the statement of facts not agreed for the Sydney cohort tends to confirm that they had adopted a similar position to the Melbourne cohort with respect to whether s 198AHA authorised certain conduct referred to in their pleadings (see statement of facts not agreed for the Sydney cohort, eg, at [1], [3] and see also the discussion of the parties’ pleadings below).

(b)    Sections 198AD and 198AHA are central to the duties of care and breaches of duty alleged by the applicants. For example, the applicants plead their subjection to the regional processing regime (see s 198AD) as a material fact giving rise to the duties of care alleged by them. Further, the applicants plead other alleged acts and alleged omissions, relevant to both duty and breach, which the Commonwealth parties say were authorised by s 198AHA.

The Commonwealth parties submitted that whether performance of the duty imposed by s 198AD can materially contribute or give rise to a duty of care is therefore a significant issue between the parties. They also contended that there is a further issue as to whether the exercise of regional processing functions, duties and powers is capable of, and did, attract a common law duty of care.

90    The Commonwealth parties submitted that the statutory framework within which public officials operate is relevant to all the elements of a cause of action in negligence. Citing Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540, Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 and Sullivan v Moody [2001] HCA 59; 207 CLR 562, the Commonwealth parties contended that an allegation that they failed to take certain actions only has significance if the Commonwealth parties had the power to take those actions; and since the primary source of power with respect to these actions is s 198AHA (in Subdiv B) the negligence claims necessarily “relate to” Subdiv B. Furthermore, the Commonwealth parties also relied on the proposition that, in determining the existence of any asserted duty of care, the Court would be required to consider “the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute” and, in consequence, to consider how ss 198AD, 198AE and 198AHA should inform the factual and legal analysis of the issues in the proceedings. In this context, they relied on Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 and Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 459, 500, in addition to other cases. The Commonwealth parties argued that it was immaterial whether the applicants’ actions were for negligence or for breach of statutory duty. The Commonwealth parties submitted, moreover, that the applicants misstated the effect of their own pleadings.

91    At the hearing, senior counsel for the Commonwealth parties helpfully explained their position in the following terms:

[W]hat is absolutely clear on the authorities … is that in a context such as the present, no duty of care, as a matter of law, that is under the general law, can ever exist simply on the basis of knowledge, foreseeability and vulnerability. They are necessary, but not sufficient matters which may in a particular case feed into consideration of whether a duty of care is owed, but … if a proper consideration of the statute leads to the conclusion that a duty of care is not owed, then no amount of attention or focus upon knowledge, foreseeability and vulnerability can undo that outcome.

92    Furthermore, the Commonwealth parties submitted that s 494AB(1)(a) applies because the applicants allege that the Commonwealth parties ought to have brought them to Australia, which, so the Commonwealth parties say, would involve an exercise of the power in s 198B. The Commonwealth parties further submitted that in so far as applicants FRM17, BXD18 and DIZ18 seek to avoid removal from Australia, then s 494AB(1)(d) applies.

93    The Commonwealth parties also contended, in written submissions in reply, that the Melbourne cohort’s passing suggestions in written submissions that the High Court lacks power to remit proceedings to which s 494AB apply to any other court should be rejected if they were truly pressed (which they ultimately were at the hearing), observing that, in Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [20], the High Court had expressly approved the power to remit proceedings caught by s 494AA(1)(e) in answer to a formal question put to it, and there is no reason to read s 494AB any differently. The Commonwealth parties submitted that the High Court’s power to remit “cures most, if not all, procedural issues that might be thought to arise”.

(b) The applicants’ submissions summarised

94    The applicants submitted that the separate questions should be answered “no”. This is primarily because they contended that the claims are common law negligence claims, which they say is demonstrated by their pleadings. They contended that claims of this kind do not fall within any part of s 494AB of the Migration Act and the bar does not apply. In particular, in written submissions filed before the hearing, the Sydney cohort argued that:

(a)    regarding s 494AB(1)(a), there is no allegation of negligence in respect of the decision to bring, or manner of bringing, the applicants to Australia;

(b)    regarding s 494AB(1)(ca), there is no complaint regarding anything that occurred before the applicants arrived on Nauru; and

(c)    regarding s 494AB(1)(d), there is no complaint made by the applicants in respect of their removal from Australia.

95    Mr Horan QC, for the Melbourne cohort, submitted that, properly construed, ss 494AB(1)(a), (ca) and (d) are directed to proceedings challenging:

(a)    the exercise of (or failure to exercise) the power conferred by s 198B;

(b)    the performance of a function or duty or exercise of a power located in Subdiv B, which has been, or is threatened to be, exercised in relation to a transitory person; and

(c)    the removal of a transitory person from Australia under the Migration Act.

Mr Horan QC submitted that the context and purpose of s 494AB, the presumption against ouster of jurisdiction, and the inconvenience of the Commonwealth parties’ approach indicated that the Commonwealth parties’ overly-broad construction of s 494AB was in error. Mr Horan QC argued that, on the Commonwealth parties’ construction, s 494AB would extend to all civil claims, such as a proceeding involving an action for damages for breach of contract by a supplier of goods or services to the Commonwealth on Nauru where such goods or services are used in relation to a transitory person. He posited practical and other difficulties arising from the Commonwealth parties’ construction, arguing that the Commonwealth parties’ approach “requires the parties and the courts to continually scrutinise the shifting sands of the proceedings progress, including any amendments to pleadings of defences, counterclaims, etc.” Mr Horan QC submitted that the character of a proceeding “can be identified from the claims that are made and the relief sought”, and that character does not change, so as to bring into effect the bar, depending on the course of pleadings, evidence or submissions. Amongst other things, considerations such as these led the Melbourne cohort to submit that “the ‘mischief’ is commencement of a proceeding; s 494AB(1) also addresses continuation, in order to deal with cases where the effect of the statutory bar might not have been appreciated at that time”. The applicants contended that the federal jurisdiction analogy relied on by the Commonwealth parties is inapt and should be rejected.

96    The applicants also submitted that the purposes of s 494AB(1) advanced by the Commonwealth parties should not be accepted. They argued that if, as the Commonwealth parties said, by virtue of s 494AB(1), all litigation with respect to regional processing must be commenced in the High Court, with a view to being remitted to this or another court, then the provision did not “limit” anything; and that this was an untenable construction. Mr Horan QC argued that there is limited, if any, support in the statutory text, legislative history or extrinsic materials for that construction.

97    Mr Horan QC submitted that the purpose of s 494AB was to limit only “certain legal proceedings” with the object of “stop[ping] legal proceedings being taken in relation to the transitory person’s presence in Australia”. He argued that the mischief to which ss 494AB(1)(a), (ca) and (d) is directed is “a form of scrutiny of proceedings when review is sought of the exercise of powers and functions or the performance of duties under the Act”. It was said that the legislative history of s 494AB confirmed that only a narrow category of proceedings was to be affected by the bar (including because s 494AB(1)(ca) was part of the Migration Act before s 198AHA was introduced).

98    In response to the Commonwealth parties’ submission that the applicants had wrongly sought to construe s 494AB as applying only to judicial review proceedings, Mr Watson SC emphasised in oral submissions that “at no time before or now has the Sydney cohort maintained that section 494AB is somehow limited only to circumstances of judicial review. We never said that; we never intended to say that”. Mr Horan QC similarly rejected the Commonwealth parties’ characterisation of their argument.

99    The applicants submitted that in determining whether the bar applies to these proceedings the Court must look at the substance of what has been pleaded. The applicants submitted that the proceedings did not fall within the bar simply because the interaction between the applicants and the Commonwealth parties occurred in the context of the Migration Act. It would be different, so they argued, if their claims were based on a breach of a statutory duty but that is not the basis of their case against the Commonwealth parties. Rather, the basis of the applicants’ claims was, in the words of the Sydney cohort, that “the [Commonwealth parties] had placed themselves in a position where it was unavoidable that the applicants would rely on them”; and that, when the Commonwealth parties knew that the applicants were suffering psychological problems, they took inadequate steps to address them. In this regard, the Sydney cohort relied on Heyman at 461 (Mason J), 479 (Brennan J), Birch v Central West County District Council [1969] HCA 67; 119 CLR 652 at 658-659 (Barwick CJ) and Howard v Jarvis [1958] HCA 19; 98 CLR 177 at 183 (Dixon CJ, Fullagar and Taylor JJ). The Sydney cohort argued that the relationships between each of the applicants and the Commonwealth parties are similar to other relationships that are known to give rise to a duty of care, such as guardian/ward, gaoler/prisoner and teacher/pupil. The applicants argued that each of their claims is based upon the relationship between each applicant and the Commonwealth parties and that, although that relationship may have commenced in circumstances where a statutory power was exercised, this does not mean that the proceedings relate to that fact. At the hearing, Mr Watson SC contended that, properly understood, references in the pleadings to the Migration Act and the exercise of powers with respect to the regional processing regime merely operate at the level of “background” to the common law negligence claim pleaded in each case.

100    The Melbourne cohort added that “[t]he complete cause of action is pleaded without reference to a function, duty or power under the [Migration] Act”. They submitted that “[t]here is no challenge (whether direct or collateral), to the validity of any actual or threatened exercise of (or failure to exercise) any function, duty, or power”; and that the relief sought was not directed to any power under the Migration Act. Further, so Mr Horan QC said, “[i]n characterising the proceeding, it is not even necessarily relevant whether or not the Respondents acted with lawful authority”. Finally, Mr Horan QC argued that, “for all practical purposes”, the “instituted” issue was moot (see s 494AB(1)). It was submitted, in this regard, that the Commonwealth parties were inviting this Court to conduct an ex post facto mini-trial of what the duty judge might have found at the interlocutory hearing on the basis of evidence that was not led.

101    The Sydney cohort added that, even if there was an issue about the existence of a duty, that issue would be resolved in favour of the applicants, and without any need to refer to the Migration Act. This was said to be because, having regard to the facts alleged in the applicants’ pleadings, the applicants would satisfy the “salient features” test described in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [102]-[107] (Allsop P).

102    Further, the applicants argued that the Commonwealth parties’ reliance on the line of cases including Graham Barclay Oysters, Stuart and Sullivan v Moody was misplaced. Mr Horan QC submitted that those cases simply support the proposition that “statute is relevant”, and even important, “in informing a common law action in negligence”, which the applicants do not deny; but “it remains a common law action”.

103    Finally, it should also be noted that at the hearing Ms De Ferrari SC submitted on behalf of the Melbourne cohort that, as a matter of statutory construction, the High Court has no power to remit matters commenced in the High Court by reason of the bar in s 494AB(1). She submitted that there is no authority of any court (including Plaintiff S156) that goes against that proposition.

THE PARTIES’ APPLICATIONS AND PLEADED CASES

104    The outcome of the separate questions depends on the resolution of some difficult issues of statutory construction and the proper characterisation of the four proceedings commenced and maintained in this Court by each of applicants FRM17, DLZ18, BXD18 and DIZ18, through their respective legal representatives. As the above overview of the parties’ submissions indicates, this characterisation mostly depends on each party’s pleaded case. What follows is an examination of the parties’ pleadings, which is done in some detail because of the test case nature of these four proceedings.

Applicant FRM17

105    Proceedings were begun for applicant FRM17 by an originating application seeking an interim injunction restraining the Commonwealth parties from:

(a)    detaining FRM17 (and her mother and sister) on Nauru or at any other offshore regional processing centre not within Australia; and

(b)    not permitting FRM17 to travel to another country for the purpose of obtaining urgent psychiatric medical attention.

As the originating application and the subsequent history of the proceeding make clear, FRM17 was, in substance, seeking appropriate medical treatment that she alleged could not be provided on Nauru or at another RPC, notwithstanding the terms of paragraph (a) of the interim injunction and [6] of the originating application might appear to indicate a wider focus.

106    The originating application included two claims for relief in [6] and [7] as follows:

[6]    Unless otherwise agreed in writing between [FRM17] and the Respondents, upon the Respondents discharging their duty to exercise reasonable care to obtain for [FRM17] urgent psychiatric care that is clinically recommended where that care is not provided to [FRM17] in Nauru or in any other off-shore environment and where the care is consistent with the expert psychiatric medical reports of Professor Louise Newman dated 19 December 2017 and Dr. Nick Martin dated 19 December 2017.

[7]    Unless otherwise agreed in writing between the legal representative of [FRM17] and the Respondent, the Respondent shall provide on an ongoing basis the psychiatric and medical care to [FRM17] as shall be clinically recommended by treating child psychiatrists or suitably qualified medical practitioners who are providing ongoing care to [FRM17].

The meaning of [6] is far from clear, but it does not appear to be a claim for injunctive relief. It may be that [7] is a claim for mandatory injunctive relief, but it does not relate to any of the provisions in Subdiv B. A separate interlocutory application filed at the same time sought FRM17’s transfer to a location “where [FRM17] can receive the Specified Treatment”.

Further amended statement of claim

107    FRM17’s further amended statement of claim (FRM17’s FASC) commenced in the conventional way with a description of the parties, including some of the matters that are now included in the separate statement of agreed facts pertaining to her and in the statement of agreed facts common to all the proceedings. By FRM17’s FASC, through her litigation representative, she claimed damages and an injunction to require the Commonwealth parties’ procurement of appropriate specialist child psychiatric health treatment in conditions where FRM17’s social, educational, recreational and domicile needs are met.

108    It was pleaded (at [18]) that the Commonwealth owed FRM17 a duty to take reasonable care to avoid foreseeable harm to her to:

(a)    take reasonable care to ensure that her detention did not cause injury, or exacerbate existing injury;

(b)    provide reasonable health care in the event she suffered an injury and to prevent injuries; and

(c)    to exercise due care and skill in providing such care.

109    The facts from which the duty of care was said to arise included that:

(a)    FRM17 was detained on Nauru at a detention facility and other detention environments by the Commonwealth parties from about 21 August 2013 until her removal to Australia on 24 December 2017 (see FRM17’s FASC at [3(c)]);

(b)    the Commonwealth has continued to take actions most of which are set out in [24]-[26] above and assumed responsibilities in relation to her under ss 198AHA(2)(a) and (c) of the Migration Act (see FRM17’s FASC at [9(h)], [14]);

(c)    the Commonwealth, in exercise of its powers under s 198AHA of the Migration Act and/or s 61 of the Constitution, directed Nauruan officers such that while Nauruan management and control of the detention facility and other detention environments in which FRM17 lived was theoretically within the delegated authority of Nauruan officers, in practice and effect from 21 August 2013 until 24 December 2017 the Commonwealth maintained practical de facto financial and physical control over:

(i)    the day to day operation of the detention facility and the other detention environments in respect of FRM17 and her family;

(ii)    the placement of FRM17 and her family on Nauru as a place of detention;

(iii)    the placement and location of FRM17 in detention within the detention facility and the detention environments on Nauru (including Iijuw refugee camp); and

(iv)    restrictions on the movement of FRM17 within the detention facility.

See FRM17’s FASC at [15];

(d)    the Commonwealth, in exercise of its powers under s 198AHA of the Migration Act and/or s 61 of the Constitution:

(i)    made arrangements for the care and welfare of FRM17 much of which is set out in [24]-[26] above pending her claim for refugee status pursuant to the MOU and Administrative Arrangements;

(ii)    provided food and water, shelter and accommodation, medical treatment and health care and physical security for FRM17 pursuant to the MOU and Administrative Arrangements;

(iii)    paid and provided for all aspects of her detention, care and maintenance for the duration of the time on Nauru pursuant to the MOU and Administrative Arrangements, including her visa in Nauru, her accommodation, all other fees payable in respect of her residence, and her education;

(iv)    was able to remove FRM17 on and off Nauru;

(v)    provided FRM17 with access to medical treatment and health care at no cost made through arrangements to pay IHMS to provide a Settlement Health Clinic within the detention facility;

(vi)    provided for the detention and services to FRM17’s family; and

(vii)    has continued to assume responsibility for FRM17 in paying for her maintenance and health care since her arrival in Nauru pending her settlement.

See FRM17’s FASC at [16]; see also at [14]; and

(e)    at all material times while FRM17 was in detention on Nauru, the conditions to which she was subject were under the control of the Commonwealth and/or the Minister for Home Affairs, together with their servants and agents, including:

(i)    Transfield, which, by reason of the Transfield contracts, controlled who was able to visit, telephone or otherwise contact FRM17; and

(ii)    IHMS, which by reason of the Heads of Agreement, controlled who was able to provide medical care to FRM17.

See FRM17’s FASC at [17D].

110    FRM17’s FASC further pleaded the existence of a duty of care (at [22A]) (apparently said to arise from what FRM17 alleged the Commonwealth parties knew, or ought reasonably have known (at [22])) to take reasonable steps to ensure that FRM17 was provided with:

(a)    shelter and accommodation that was reasonably adapted to the tropical conditions of Nauru;

(b)    medical care and health services that were appropriate for a young child in the conditions as they existed at Christmas Island and on Nauru for both her mental and physical health;

(c)    access to reasonable amenities, opportunities for education, and recreational facilities;

(d)    reasonable protection from exposure to adult’s self-harming or threatening to self-harm, and physical violence; and

(e)    reasonable protection from exposure to intimidation, discrimination, ostracization, bullying and/or other anti-social behaviours from other persons.

A breach of this duty was pleaded at [23] of FRM17’s FASC.

111    In FRM17’s FASC (at [24]; particulars omitted) it was pleaded that:

[FRM17] has been suffering from psychiatric and psychological injuries while on Nauru where her symptoms have included her being angry, violent, withdrawn, depressed and sad and where she experienced voices and had suicidal thoughts which she acted upon.

112    It was further pleaded (at [25]; particulars omitted) that FRM17:

(a)    has been harmed by the actions and failures of the Commonwealth parties since her detention in Australia in 2013;

(b)    has developed a psychiatric illness on Nauru which illness has not been appropriately diagnosed or treated; and

(c)    was harmed by the continued effective detention within the community on Nauru since February 2015.

113    FRM17’s FASC alleged a further duty of care (at [31]) owed to FRM17, which was to:

(d)    develop a protocol for conducting a specialised developmentally-appropriate pre-RPC transfer mental health assessment for high risk children, including FRM17 on Christmas Island;

(e)    detain FRM17 in an environment that did not cause her to develop a psychiatric injury;

(f)    audit FRM17 to ensure that she was not suffering from any psychiatric or psychological conditions;

(g)    place FRM17 in a specialist child mental health facility with a comprehensive tertiary level child psychiatric assessment;

(h)    provide FRM17 with access to experienced child and adolescent mental health professional staff with a background in psychiatric nursing or psychology and experience in child mental illness;

(i)    procure a comprehensive psychiatric assessment of FRM17;

(j)    ensure such an assessment was conducted by a qualified specialist in child psychiatry;

(k)    ensure such treatment was procured in an inpatient child mental health facility; and

(l)    implement an effective safety plan including treatment and monitoring of FRM17.

114    Further pleaded facts from which this duty was said to arise included that:

(a)    the Commonwealth had made an agreement with Nauru that:

(i)    service providers would ensure that persons (including FRM17) maintain access to health services to the best available standard to a standard consistent with health care available to the Australian community;

(ii)    the Commonwealth will, in exceptional circumstances, facilitate arrangements for the temporary return of persons (including FRM17) to Australia to enable such persons to receive medical treatment; and

(iii)    special arrangements will be developed and agreed to for vulnerable cases, including unaccompanied minors.

See FRM17’s FASC at [26]; and

(b)    the Commonwealth in the exercise of powers under s 198AHA of the Migration Act and/or s 61 of the Constitution:

(i)    assumed responsibility for, and control over, FRM17 for the purpose of arranging to have her placed in a RAA in the detention facility to treat her illness;

(ii)    otherwise assumed responsibility and control of FRM17 in respect of her mental illness;

(iii)    paid for all costs incidental to FRM17’s care and maintenance on Nauru;

(iv)    assumed effective control and responsibility over FRM17’s mental health, wellbeing and safety;

(v)    is aware that FRM17 is entirely reliant on the Commonwealth to procure her adequate mental health treatment;

(vi)    decided that FRM17 could be adequately treated for her depression and persistent suicidality on Nauru and placed her within a RAA within the detention facility on Nauru for treatment; and

(vii)    is responsible for creating the detention facility environment on Nauru, and transferring FRM17 to Nauru, the environment of which is harmful to her.

See FRM17’s FASC at [27].

115    There were further allegations in FRM17’s FASC about the Commonwealth parties’ knowledge (at [29]-[30]); and pleadings as to breach of duty (at [32]). There were extensive particulars given for these alleged breaches. There were also pleadings as to FRM17’s vulnerability (at [33]), and pleadings about resultant injury (at [28] and [35]). The prayers for relief included damages and a permanent injunction which would have the effect of obliging the Commonwealth parties, within five days of the making of the order, to cease to fail to discharge their duty of care to procure specialist child psychiatric health treatment for FRM17.

Amended defence

116    Generally speaking, the Commonwealth parties’ amended defence did not take issue with the description of the parties as pleaded in FRM17’s FASC, although the Commonwealth parties’ pleaded position was that, if FRM17 was detained while residing in the detention facility on Nauru, her detention was by the Nauruan Government under Nauruan law. The Commonwealth parties further pleaded that on the grant of a temporary settlement visa by the Nauruan Government, FRM17 was no longer subject to movement restrictions and was able to settle in the community on Nauru (see at [2(m)], [3(c)(vi)]).

117    The Commonwealth parties admitted (at [18]) that the Commonwealth owed FRM17 a duty of care to ensure that reasonable care was taken of her while she was detained on Christmas Island (prior to her transfer to Nauru), but otherwise denied any duty of care was owed by the Commonwealth parties to her when she was on Nauru. At [14] of their amended defence, the Commonwealth parties did not dispute some of their actions as set out at [22]-[26] above.

118    The Commonwealth parties admitted (at [16]):

(a)    entry into the MOU and the making of the Administrative Arrangements;

(b)    that the Commonwealth paid for all aspects of FRM17’s accommodation, care and maintenance when she was housed in the detention facility;

(c)    that the Commonwealth contracted with, and paid for, IHMS to provide a Settlement Health Clinic within the detention facility and that FRM17 was able to access medical and health care at the clinic from IHMS at no cost to her; and

(d)    that the Commonwealth has power under s 198B of the Migration Act to bring a transitory person from Nauru to Australia for temporary purposes, although removal from Nauru was subject to the agreement of the Nauruan Government.

119    The Commonwealth parties denied the other alleged facts and matters on which FRM17 relied for a duty of care to avoid foreseeable harm to her on Nauru. The Commonwealth parties further pleaded (at [15]) that the day to day operation of the detention facility and the placement of FRM17 were matters for the Nauruan Government; and that Commonwealth officers assisted Nauruan officers in the management of the detention facility and refugee camp pursuant to intergovernmental agreements and s 198AHA of the Migration Act.

120    The Commonwealth parties denied (at [22A]) that they owed a duty of care of the kind pleaded at [22A] of FRM17’s FASC: see [110] above. As to the pleading at [24] of FRM17’s FASC (see [111] above), the Commonwealth parties pleaded:

In relation to paragraph 24, the respondents;

a.    admit that [FRM17] had appointments with various medical professionals from time to time at which complaints were made as recorded in those professional’s notes; and

  b.     otherwise do not admit the allegation in paragraph 24.

The Commonwealth parties denied the allegations in [25] of FRM17’s FASC (see [112] above), and affirmed that FRM17 was brought to Australia pursuant to s 198B of the Migration Act on 24 December 2017.

121    The Commonwealth parties denied the existence of the duty of care pleaded in FRM17’s FASC at [31] (see [113] above). As seen above, however, the Commonwealth parties admitted some of the facts and matters on which this alleged duty was apparently said to depend, including that the Commonwealth had entered into the Administrative Arrangements and a contract with IHMS to provide health services. The Commonwealth parties also admitted (at [26]) the allegation that, under an agreement with Nauru, the Commonwealth would, in exceptional circumstances, facilitate arrangements for the temporary return of persons to Australia for medical treatment and make special arrangements for vulnerable cases. In conformity with other parts of their pleading, the Commonwealth parties also admitted (at [27]) that the Commonwealth paid for accommodation and health care; and affirmed that they “reasonably believed that [FRM17] was receiving and could receive appropriate care on Nauru based on medical advice from IHMS”.

122    The Commonwealth parties denied the further allegations made about their knowledge at [29]-[30] of FRM17’s FASC and her pleadings (at [32]) as to breach of duty. They did not admit, or denied, the pleadings as to her vulnerability at [33], save to admit that FRM17 was a child, and they denied the resulting injury to FRM17 alleged in [28] and [35] of FRM17’s FASC (see [115] above).

123    Lastly, the Commonwealth parties further pleaded:

[38]    In answer to the whole of the further amended statement of claim, the respondents say that the allegations made by the applicant concerning her transfer to and period in Nauru impermissibly invites the Court to apply the standard of negligence to decisions of high-level government policy, which involve or are dictated by economic, social and political factors, including the [Commonwealth’s] relationship with foreign governments, and in respect of which the Court should not impose a duty of care.

[39]    In further answer to the whole of the amended statement of claim, the respondents say that [FRM17’s] transfer to Nauru was lawful and pursuant to s 198AD of the [Migration] Act and that the imposition of a duty of care in relation to her lawful transfer to and period in Nauru would be incompatible with:

   a.    the statutory duty contained in s 198AD(2) of the [Migration] Act; and

b.     the purpose of subdivision B of Division 8 of Part 2 of the [Migration] Act.

124    Under the heading “Jurisdiction”, the Commonwealth parties alleged that ss 494AB(1)(a), (ca) and (d) of the Migration Act applied to bar the proceeding because, among other things ss 198B, 198AD and 198AHA were engaged (see at [40]-[48]).

Applicant DLZ18

125    As already indicated, the proceedings in this Court for DLZ18 were commenced by the filing of an originating application on 4 July 2018, together with an interlocutory application and supporting affidavits. An amended originating application was filed on 22 November 2018 and a statement of claim, on 28 November 2018. The Commonwealth parties filed their defence on 19 December 2018.

126    At the hearing, Mr Watson SC agreed with Mr Howe QC that none of the differences between the pleadings in each case in the Sydney cohort was material to the answers to the separate questions. Perusal of the pleadings in the cases of DLZ18 and FRM17 confirms that they substantially resemble one another. In these circumstances, it is unnecessary to consider the pleadings in DLZ18’s case in detail. We would, however, make the following general observations.

127    The statement of claim filed on behalf of DLZ18 and her mother FZR18 set out their pleadings under a number of specific headings. Included under the heading “Factual Matters” were the following allegations:

[37]    During the period of detention of the Applicant Family on Nauru, the applicants were required to live in conditions which were inappropriate for the development, welfare and education of the applicants, in particular [DLZ18], and the class of persons of which they were members (the Conditions on Nauru).

[38]    The Conditions on Nauru exposed the applicants to a risk of harm, including psychological harm.

[39]    From approximately late September 2013 – ie when the Applicant Family was transferred from Christmas Island to Nauru – the respondents were aware that the detention of the applicants, and the class of persons of which they were a member, on Nauru exposed them to a risk of harm including psychological harm.

There were detailed particulars given for [37] and [39].

128    There were detailed allegations (at [40]-[44]) in the statement of claim concerning DLZ18’s mental and physical deterioration and allegations (at [45]-[54]) concerning the Commonwealth parties’ knowledge and failure to take appropriate action in relation to DLZ18, and in relation to DLZ18’s subsequent admission to hospital in Australia. There were equivalent allegations (at [66]-[71]) concerning FZR18’s psychological health and the Commonwealth parties’ knowledge.

129    Under the heading “Duty of Care”, it was alleged:

[72]    At all material times, the respondents owed a common law duty of care, the content of which changed over time.

[73]    From 26 July 2013 the respondents owed the applicant a duty to ensure that reasonable care was taken of the applicants whilst they were detained under s 189 of the [Migration] Act on Christmas Island.

[74]    From approximately late September 2013 – ie when the applicants were transferred from Christmas Island to Nauru – the respondents owed the applicants a duty to take reasonable care:

74.1    To protect the applicants from unreasonable risks of harm, including psychological and physical harm, following their removal from Christmas Island and their relocation to Nauru;

74.2    To monitor the condition of the applicants to ascertain whether the Conditions on Nauru were having a deleterious effect upon the applicants;

74.3    To take measures, including the provision of appropriate medical treatment, in the event the applicant manifested adverse effects.

130    There followed allegations as to the Commonwealth parties’ state of knowledge concerning DLZ18 and FZR18’s deteriorating health (at [75]-[78]), an allegation of breach of duty (at [79]), and allegations of psychological injuries suffered by each of DLZ18 and FZR18 (at [80]-[81]). At [82], it was alleged that:

The breach by the respondents of the duty of care owed to the applicants:

82.1    Caused the applicants to suffer the Psychological Injury; or

82.2    Alternatively, worsened or aggravated the applicants’ Psychological Injuries.

By way of relief, damages were sought.

131    The Commonwealth parties’ defence did not materially differ from their defence in FRM17’s case. In particular, the Commonwealth parties’ answers to [37] of the statement of claim filed for DLZ18 and her mother (see [127] above) included a denial and an assertion that:

[W]hile the Applicant Family were residing in the RPC, the day-to-day operation of the RPC, the placement and location of the members of the Applicant Family were matters for the Government of Nauru to be determined pursuant to the laws of Nauru[.]

132    A significant number of the critical allegations in [38]-[54] and [66]-[78] of the statement of claim filed for DLZ18 and her mother were denied or not admitted, including the existence of a common law duty of care owed by the Commonwealth to DLZ18 whilst she was on Nauru (at [74]). In answer to [74], the Commonwealth parties included an allegation that “the actions which the alleged duty of care required the Commonwealth parties to undertake would have required the Commonwealth to exercise powers under s 198AHA and/or an officer to exercise power under s 198B”. A similar allegation is made elsewhere in the Commonwealth parties’ defence, including at [75.3], [76.3], [77.3] and [78.3]. At [78B], the Commonwealth parties further alleged:

In further answer to paragraphs 74, 75, 76, and 77, the second respondent denies the existence of the alleged duty or duties of care because:

78B.1    they are incompatible with the control which the Government of Nauru exercised or could exercise over the applicants while in its territory;

78B.2    they are inconsistent with the scheme of the [Migration] Act, and in particular Subdivision B of Division 8 of Part 2 of the [Migration] Act and the assistance which the Commonwealth can render under those provisions in relation to an arrangement or regional processing functions of a country.

133    The Commonwealth parties did not admit or denied the allegations of injury and causation in [80]-[82] of the statement of claim.

134    At [84], the Commonwealth parties made claims about the law applicable to alleged acts or omissions of the Commonwealth parties during the period the applicants were detained in Nauru and Christmas Island; and also made the same allegations that appear in their defence to FRM17’s FASC at [38]-[39] (see [123] above). At [85]-[89], the Commonwealth parties set out their claims about the Court’s lack of jurisdiction by reason of the bar in ss 494AB(1)(a) and (ca) of the Migration Act. (We note that the reference in the defence to s 494AB(1)(b) is a clear typographical error.)

Applicant BXD18

135    The case of BXD18 was part of the Melbourne cohort. This proceeding was begun when an originating application was filed (seeking injunctive and declaratory relief and damages) along with a statement of claim and an interlocutory application seeking, amongst other things, an order that the first respondent “immediately transfer” BXD18, together with her father and brother, to a location where BXD18 could receive an immediate psychiatric assessment and treatment in an inpatient child mental health facility (among other things). An amended statement of claim was filed on 27 August 2018. The Commonwealth parties filed their defence on 19 November 2018.

136    At the hearing, Mr Horan QC and Mr Watson SC agreed that, for the purposes of answering the separate questions, there was no material difference in the pleadings between the Melbourne cohort and the Sydney cohort. Mr Howe QC observed that the Commonwealth parties accepted that there was no material difference so far as the pleadings were concerned between the applicants within the Melbourne cohort. Mr Horan QC did not disagree with this proposition.

137    As will become apparent, however, we consider that there are some relevant differences which do affect the outcome.

138    At [13] of the amended statement of claim in BXD18’s case, it is alleged that the Commonwealth parties owed BXD18:

a.     a duty of care to take reasonable care to prevent her from suffering psychiatric injury and from suffering physical, emotional and/or child abuse;

b.     a duty to ensure that the service providers exercised reasonable care to prevent her from suffering psychiatric injury and from suffering physical, emotional and/or child abuse … .

139    The facts and matters relied on to give rise to this duty are set out at [4]-[12] of BXD18’s amended statement of claim and included:

(a)    the designation of Nauru as a “regional processing country” under s 198AB(1) of the Migration Act (at [4]);

(b)    the Commonwealth’s entry into the MOU and the Administrative Arrangements with Nauru (at [5]-[6]);

(c)    the circumstances in which BXD18 and her family members came to Australia, their detention on Christmas Island, their detention and residence on Nauru, as well as other of the Commonwealth parties’ actions and their assumption of responsibilities in relation to her (at [7]);

(d)    facts and matters of the kind set out above at [24]-[26] and [109](c)-(d) (at [9]-[10]);

(e)    assumed responsibility for BXD18’s and her family members’ health and welfare (at [9]);

(f)    the Commonwealth parties’ knowledge about the risk of physical, emotional and child abuse on Nauru, and psychiatric injury (at [11]); and

(g)    BXD18’s dependence on the Commonwealth parties, directly or through their service providers, for the provision of medical treatment, psychological and psychiatric treatment, welfare services, support services and educational services (at [12]).

140    There was a pleading at [14] concerning the standard of care applicable in the circumstances, which, in summary, was a set of statements about the steps that the Commonwealth parties should have taken to avoid their alleged breach of duty, including removing BXD18 from Nauru (at [14](c)). At [16]-[18], it was alleged that:

[16]    At all relevant times the Respondents knew or alternatively ought to have known that a failure to act with reasonable care … would place [BXD18] at risk of:

a.    suffering physical, emotional and/or child abuse;

b.    suffering psychiatric injury.

[17]    In the premises, it was reasonably foreseeable that:

a.    not removing [BXD18] from Nauru;

b.    alternatively, continuing to keep [BXD18] and her family on Nauru, particularly after they were found to be refugees, while there existed non-negligible risks of physical, emotional and child abuse and of psychiatric injury,

would lead to [BXD18] suffering physical, emotional and/or child abuse and/or suffering psychiatric injury.

[18]    In the premises:

a.     the Minister breached his duty of care to [BXD18];

b.    the Commonwealth breached its duty of care to [BXD18].

141    There were further allegations as to breach of duty by the Commonwealth parties’ service providers and therefore by them (at [20]-[21]). It was further alleged (at [22]) that BXD18 had suffered injury, loss and damage as a result of:

 a.     the Respondents’ failure to remove [BXD18] from Nauru;

b.     alternatively, the Respondents’ decision to continue to keep [BXD18] and each member of her family on Nauru, including by failing to resettle [BXD18] and each member of her family after each was found to be a refugee, with knowledge (actual, or which they ought to have had) that she would be at risk of physical, emotional and child abuse, and at risk of psychiatric injury;

c.     additionally and/or alternatively, the Respondents’ failure to ensure that the service providers exercised reasonable care in relation to [BXD18].

Causational issues and loss and damage was further addressed at [23]-[26] of BXD18’s amended statement of claim.

142    The claimed relief included damages and an injunction requiring the Commonwealth parties to resettle BXD18 and her family; alternatively, an injunction requiring the Commonwealth parties not to take steps to remove BXD18 and her family to any “regional processing country” where she would be at risk of the same damage she allegedly suffered in Nauru; alternatively, an injunction requiring the Commonwealth parties not to take any steps to remove BXD18 and her family from Australia other than to a country that is a signatory to the Refugees Convention which has accepted her and her family for permanent settlement as refugees, until she has reached maximum medical improvement and provided that a psychiatric condition would not be at risk to again deteriorate.

143    For the most part, the Commonwealth parties’ defence in BXD18’s case was substantially the same as their defences in the Sydney cohort cases. The Commonwealth parties’ defence included the further allegation (at [14A]) that:

(a)    … the standard of care pleaded is inconsistent with:

   (i)     the duty in s 198AD of the [Migration] Act;

(ii)     the non-compellable nature of the power in s 198AE of the [Migration] Act;

(iii)     the discretionary and temporary nature of s 198B of the [Migration] Act; and

   (iv)    the scheme of Subdivision B of Division 9 of Part 2 as a whole … .

144    Furthermore, at [27]-[28] of their defence the Commonwealth parties denied that BXD18 was entitled to the relief that she sought, on basis that the Court had no power to make a resettlement order and the proposed injunctive relief was inconsistent with the scheme of the Migration Act, particularly ss 189, 198B, 198AD, 198AE and 198AH.

145    In an amended reply filed on 9 April 2019, BXD18 said (at [1A]) that, “with particular reference to all pleas in the Respondents’ defence of s 198AHA of the Migration Act”:

(a)    from 25 March 2015, being the date that [BXD18], her father and her brother were determined to be refugees, there existed no purpose of processing or determining any protection claims of any of them;

(b)    as of 25 March 2015, the Commonwealth had not put in place any arrangement … for the permanent resettlement of any of [BXD18], her father, or her brother to a country other than Australia;

(c)    at all times, the Commonwealth’s position has been that it would never permit the permanent resettlement in Australia of any person which it had taken to Nauru for the purpose of processing or determining that person’s protection claims; and

(d)    in the premises, the power in s 198AHA of the Migration Act 1958 (Cth) ceased on 25 March 2015 to be available in respect of each and all of [BXD18], her father, and her brother.

146    The Commonwealth parties filed a rejoinder on 9 April 2019 in which they denied the substance of BXD18’s reply and made further assertions about s 198AHA.

Applicant DIZ18

147    As already indicated, proceedings were begun for DIZ18 on 29 June 2018 while she was in PNG, with the filing of an originating application, an interlocutory application, supporting affidavits, and a statement of claim. An amended statement of claim was filed on 1 March 2019 and a defence on 19 March 2019. As in BXD18’s case, there was a reply and rejoinder, filed on 2 April 2019 and 9 April 2019 respectively.

148    The allegations at [29]-[30] of the amended statement of claim in the case of DIZ18, which were set out under the heading “Duty of care, breach and injury”, were as follows:

[29]    [DIZ18] (a very young child) and [DIZ18’s] parents in Nauru:

29.1    had no ability to control whether; and

29.2    relied on the Commonwealth to ensure that

      [DIZ18] could receive an adequate and reasonable standard of medical care in an appropriate environment.

[30]    In the premises:

30.1    from at least when she was born, the Respondents have assumed responsibility for [DIZ18’s] health and welfare;

30.2    at all relevant times, [DIZ18] has been dependent on the Respondents for the provision of medical treatment she might require, including dependent on them for receiving medical treatment of an adequate standard and where in the world it would be provided to her;

30.3    at all relevant times and continuing, the Respondents have owed [DIZ18] a duty of care to take all reasonable steps to procure for [DIZ18] a reasonable and adequate standard of medical treatment, to be provided in an appropriate environment.

149    The Particulars to [30] said:

(i)    The Respondents exercised effective and substantial control over, and assumed responsibility for, the medical treatment of [DIZ18] including the location of the medical treatment.

(ii)    Unless and until settled permanently as refugees in a country that will comply with the Refugees Convention not to discriminate against refugees including in the provision of medical care, the Mother and Father of [DIZ18] have no means, or ability to access medical treatment for [DIZ18], whether acute or ongoing, independent from that supplied or procured by the Respondents.

(iii)    [DIZ18] relied on the medical treatment, including diagnosis and limitations thereon, procured by the Respondents and which were initially only [to] be provided on Nauru.

(iv)    The Respondents exercised their control over [DIZ18] by determining to take her to PNG for medical treatment, given the limitation of the health services on Nauru.

(v)    By effectively and substantively controlling the medical treatment available to [DIZ18], the Respondents were in a position of power and responsibility over the future health outcomes of [DIZ18].

(vi)    The Respondents knew or ought to have known that failure to procure adequate and reasonable medical treatment for [DIZ18] may cause harm to [DIZ18]. …

150    Previous paragraphs alleged facts and other matters of the same or a similar kind as those said to give rise to the alleged duty of care in the case of BXD18. DIZ18’s amended statement of claim at [31] contained an analogous pleading with respect to the “relevant standard of care” as that in [14] of the statement of claim in the case of BXD18 (see [140] above).

151    The amended statement of claim in DIZ18’s case (at [32]) alleged that the Commonwealth parties “acted negligently and in breach of the duty they owed” to DIZ18. In Particulars to [32] it was said:

(i)    Upon [DIZ18] becoming critically unwell, and in particular upon the receipt by the Respondent of the urgent medical advice on 12 June 2018, by failing to take all reasonable steps to urgently procure for [DIZ18] a reasonable standard of medical care, specifically treatment at a first world tertiary hospital with specialist intensive care services for paediatric patients.

(ii)    Taking [DIZ18] and the Mother to PNG for treatment at the PIH on 14 June 2018 in circumstances where:

a.    the PIH did not have the appropriate capabilities to treat [DIZ18] including but not limited to specialist intensive care services for paediatric patients, paediatric neurologist, ability to undertake paediatric MRI, or immediate capabilities to conduct a paediatric EEG.

b.    taking [DIZ18] to PNG was contrary to urgent medical advice at the time;

c.    the decision to take [DIZ18] to PNG was not made in consideration of her best medical interests, nor in the best interests of her as a child, and was in fact not in [DIZ18’s] best medical interests;

d.    there was no medical justification for the decision to not take [DIZ18] to Australia.

(iii)    Prior to taking [DIZ18] to PNG, failing to make adequate enquiries about the medical care required by [DIZ18], including failing to refer [DIZ18’s] medical circumstances to a Clinical Advisory Team at the Department to determine the standard of care required by [DIZ18].

(iv)    Prior to taking [DIZ18] to PNG, failing to make adequate enquiries to ensure that the PIH had appropriate capabilities, facilities and expertise to treat [DIZ18];

(v)    Causing and/or failing to prevent unreasonable delay in the treatment, diagnosis and rehabilitation of [DIZ18’s] acute condition and any neurological sequelae.

The amended statement of claim pleaded (at [33] and [34]) resulting loss and damage, including “[p]otential long term neurological deficits”.

152    Besides damages, the relief sought included an “injunction requiring the Respondents to take and to continue to take all steps within their power to ensure that [DIZ18] receives treatment”.

153    The defence filed by the Commonwealth parties on 19 March 2019 was substantially to the same effect as the defence that they had filed in the case of BXD18. The Commonwealth parties denied the existence of a duty of care and breach. They did not admit the alleged loss and damage, and they denied that DIZ18 was entitled to the relief sought. The Commonwealth parties’ defence was followed by a reply filed on behalf of DIZ18, which in substance resembled the reply filed in the case of BXD18. That is, the reply in DIZ18’s case also challenged the Commonwealth parties’ reliance on the authority conferred by s 198AHA and alleged (at [11]) that “ss 198AD, 198AE and 198B and the ‘scheme’ as a whole of Subdiv B of Div 8 of Part 2 of the [Migration] Act, are incapable of applying to deny the duty [of] care, or to show inconsistency affecting the standard of care”. A rejoinder filed on 9 April 2019 was in substance the same as the rejoinder filed in BXD18’s case.

CONSTRUCTION OF SECTION 494AB

154    The resolution of this issue turns on the proper construction of relevant provisions in the Migration Act and then applying those provisions to the applicants’ proceedings, when those proceedings are characterised as a matter of substance and not mere form.

155    The proper approach to contemporary statutory construction is well settled. It is reflected in the following observations of the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] (footnotes omitted):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

156    The difficulty lies not in identifying the relevant principles which guide statutory construction, but rather in their application.

(a) The legislative history concerning sections 494AB and 198AHA and related provisions

157    As noted above, context is an important consideration in statutory construction, including historical context. In brief, the legislative history relating to ss 494AB and 198AHA reveals the following.

(a)    Section 494AB in its original form was enacted in 2002, at the same time when the definition of a “transitory person” was inserted in s 5(1) and the power of an officer to bring a transitory person from outside Australia to Australia for a temporary purpose was introduced in s 198B of the Migration Act.

(b)    The mischief to which s 494AB was then directed was to ensure that a transitory person’s presence in Australia was as short as possible and that, to that end, legal proceedings which could frustrate that objective should be barred, apart from proceedings in the High Court under s 75 of the Constitution.

(c)    It was not until 2012 that paragraph (ca) was inserted into s 494AB(1), at the same time when Subdiv B was inserted. Subdiv B deals with regional processing although, when it was originally enacted, it contained relatively few provisions relating to regional processing. They included the Minister’s power to designate a country to be a “regional processing country” (s 198AB) and the duty of an officer to “take”, as soon as reasonably practicable, an “offshore entry person” (as then defined in s 5(1)) from Australia to a regional processing country (s 198AD(2)). For the purposes of “taking” an offshore entry person from Australia to a regional processing country, various powers were conferred upon an officer under s 198AD(3), including placing such a person on a vehicle or vessel for that purpose and using such force as is necessary and reasonable. Subdivision B also included provisions which conferred on the Minister personally a non-compellable discretion to disapply the duty in s 198AD to take an offshore entry person to a regional processing country (s 198AE) and specified when the duty in s 198AD applies to a transitory person who is brought to Australia under s 198B (s 198AH).

(d)    It was not until 30 June 2015 that s 198AHA was inserted into Subdiv B, with retrospective effect to 18 August 2012 (ie when the original Subdiv B had commenced).

158    It is desirable to now expand upon the legislative history relating to the relationship between the bar imposed by s 494AB(1)(ca) and the operation of s 198AHA. The terms of those provisions are set out above at [8] and [14] and need not be repeated.

(i) The position in September 2001

159    The first thing to note is the legislative history relating to s 494AA, which also imposes a bar on certain proceedings concerning specified persons other than “transitory persons”. When originally enacted in September 2001 by the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) (Excision Act), the bar in s 494AA operated by reference to certain legal proceedings concerning “offshore entry persons” as then defined in s 5(1) of the Migration Act. As originally enacted, s 494AA was in the following terms:

494AA        Bar on certain legal proceedings relating to offshore entry persons

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

   (a)    proceedings relating to an offshore entry by an offshore entry person;

(b)    proceedings relating to the status of an offshore entry person as an unlawful non‑citizen during any part of the ineligibility period;

(c)    proceedings relating to the lawfulness of the detention of an offshore entry person during the ineligibility period, being a detention based on the status of the person as an unlawful non‑citizen;

   (d)    proceedings relating to the exercise of powers under section 198A.

  (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 of the offshore entry until the time when the person next ceases to be an unlawful non‑citizen.

offshore entry means an entry into Australia that occurs:

(a)    at an excised offshore place; and

(b)    after the excision time for the offshore place concerned.

160    There are four things to note about the position in September 2001. First, the bar imposed by s 494AB had not yet been introduced, nor had the concept of a “transitory person”. This did not occur until 2002 with the enactment of the Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth) (Transitional Movement Act).

161    Secondly, the bar imposed by s 494AA operated in respect of four kinds of proceedings. It was not until 2012 that s 494AA(1) was amended so as to add a fifth kind of proceeding (as set out in paragraph (e) thereof), which barred “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 an offshore entry person”. At the same time, s 494AB(1) was amended by inserting into that provision a new paragraph (ca), which is in substantially similar terms to paragraph (e) of s 494AA(1), save that instead of referring to an “offshore entry person”, paragraph (ca) refers to a “transitory person”.

162    Thirdly, the concept of an “unauthorised maritime arrival” was substituted for the earlier concept of an “offshore entry person” in 2013 with the enactment of the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth).

163    Fourthly, the reference in s 494AA(1)(d) at that time to “proceedings relating to the exercise of powers under section 198A” is a reference to a provision which was also inserted into the Migration Act in 2001 by the Excision Act. Under s 198A(1) an officer was empowered to “take” an offshore entry person from Australia to a country in respect of which a Ministerial declaration was in force under s 198A(3). The officer’s power under s 198A(1) was stated in s 198A(2) to include the power to do various things both within and outside Australia, including placing the person on a vehicle or vessel and using such force as is necessary and reasonable. It is to be noted that an officer’s power to take a person to another country from Australia under s 198A(1) was discretionary and not mandatory. As will shortly emerge, this position changed in 2012 when s 198A was repealed and s 198AD was inserted.

164    It is desirable to say something more about the significance of the Transitional Movement Act, which introduced the concept of a “transitory person” in 2002.

(ii) The Transitional Movement Act (2002)

165    The following definition of “transitory person” was inserted by this Act into s 5(1) of the Migration Act:

transitory person means:

(a)    an offshore entry person who was taken to another country under section 198A; or

(b)    a person who was taken to a place outside Australia under paragraph 245F(9)(b); or

(c)    a person who, while a non citizen and during the period from 27 August 2001 to 6 October 2001:

(i)    was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and

(ii)    was then taken by HMAS Manoora to another country; and

(iii)    disembarked in that other country;

but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.

166    The Transitional Movement Act also introduced other important amendments, including:

(a)    severe restrictions on the capacity of a transitory person to apply for a visa while the person is in Australia (s 46A);

(b)    a non-compellable power of the Minister to waive those restrictions (ss 46A(2)-(7));

(c)    s 198B was enacted, which empowered an officer, for a temporary purpose, to bring a transitory person to Australia from a country or place outside Australia. The power was defined as including the power to do various things both within or outside Australia, including placing the person on a vehicle or vessel and using such force as is reasonable and necessary;

(d)    in addition, s 198C was enacted, which created an entitlement for a transitory person who was brought to Australia under s 198B and who remained in Australia for a continuous period of six months to request the Refugee Review Tribunal to assess whether the person was a refugee within the meaning of the Refugees Convention. Under s 198C(8)(a), the Minister was obliged to determine a class of visa for the purposes of this provision; and

(e)    as noted above, the bar in s 494AB relating to the bringing of legal proceedings concerning transitory persons was introduced in its original form (ie not including what was later to become s 494AB(1)(ca)).

(iii) The 2012 amendments

167    Key relevant features of the amendments made to the Migration Act by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) (Regional Processing Act) included the following:

(a)    Section 198A was repealed and replaced by Subdiv B, which is headed “Regional processing”. The reason for Subdiv B was spelled out in s 198AA (see further at [169] below). Provision was also made for the Minister by legislative instrument to designate a country as a regional processing country (s 198AB). Section 198AD was also enacted. It obliged an officer, as soon as reasonably practicable, to take an offshore entry person who is detained under s 189 to a regional processing country. For that purpose, s 198AD(3) empowered an officer to do various things, both within or outside Australia, including placing an offshore entry person on a vehicle or vessel and using such force as is necessary and reasonable.

(b)    Subdivision C of Div 8 of Pt 2 was created for the first time. It is headed “Transitory persons etc.”. Section 198B is one of the existing provisions which were brought into this subdivision. As noted above, it empowered an officer, for a temporary purpose, to bring a transitory person to Australia from a country or place outside Australia and also clarified the nature of that power.

168    Another point to emphasise is that when s 494AB(1)(ca) was first inserted in 2012 by the Regional Processing Act (together with the insertion of Subdiv B and the heading to Subdiv C, and the repeal of s 198A), the legislation did not contain any explicit provision concerning actions taken by the Commonwealth or its agents in relation to persons who had been taken to a RPC and were being detained there. Presumably, that was because the view was taken that the detention was based on the laws of the relevant regional processing country. As noted at [157](c) above, the provisions in Subdiv B were relatively confined.

169    We accept the applicants’ submission that, as enacted, Subdiv B did not introduce a statutory scheme for the Commonwealth or its agents to exercise powers, perform functions or discharge duties in a regional processing country. Those matters were left to the law of the relevant regional processing country. This is substantially reflected in s 198AA of the Migration Act, which describes the reason for Subdiv B (as opposed to Subdiv C which deals with “transitory persons”). For convenience, the provision is set out again in full:

198AA        Reason for Subdivision

This Subdivision is enacted because the Parliament considers that:

(a)    people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and

(b)    unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and

(c)    it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and

(d)    the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.

It is notable that this provision makes no reference to the conferral of any duty, power or function on the Commonwealth or its agents in respect of actions taken in a regional processing country after an unauthorised maritime arrival has been removed from Australia and taken to such a country.

170    The further significant point to emphasise about the legislative history is the catalyst for the insertion of s 198AHA (on 30 June 2015, with retrospective effect to 18 August 2012) by the Migration Amendment (Regional Processing Arrangements) Act 2015 (Cth) (Regional Processing Arrangements Act). As noted above, s 198AHA was inserted in Subdiv B (and not Subdiv C which deals with “transitory persons”). The timing of the enactment is explained by litigation which was then pending in the High Court in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42, the hearing of which commenced on 7 October 2015. The plaintiff in Plaintiff M68 alleged that the Commonwealth did not have any statutory authority to detain persons on Nauru or to fund their detention, relying for the latter contention on Williams v Commonwealth [2012] HCA 23; 248 CLR 156 (Williams (No 1)). Section 198AHA was enacted with the objective of providing the Commonwealth with statutory authority to fund and provide assistance to other countries in carrying out regional processing activities. This was recognised by Gageler J in Plaintiff M68 at [175] where his Honour said (emphasis added):

The procurement of the plaintiff’s detention on Nauru by the Executive Government of the Commonwealth under the Transfield contract was therefore beyond the executive power of the Commonwealth unless it was authorised by valid Commonwealth law. Before 30 June 2015, there was no applicable Commonwealth law. On that day, as has already been noted, s 198AHA was inserted with retrospective effect to 18 August 2012 … .

171    To similar effect, Keane J stated at [196] (emphasis added):

… To the extent that the Commonwealth is said to have participated in the restraints upon the plaintiff’s liberty in Nauru, the Minister and the Commonwealth contend that s 198AHA of the Migration Act affords such statutory authority as may be necessary to enable that action and to make any payments related to it.

172    These matters are confirmed by the Explanatory Memorandum which accompanied the Regional Processing Arrangements Act (2015 Explanatory Memorandum), as well as the Statement of Compatibility with Human Rights which was attached to that Explanatory Memorandum.

173    Relevantly, the 2015 Explanatory Memorandum stated that the Bill (emphasis added):

… provides statutory authority for the Commonwealth to provide assistance to other countries to carry into effect arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing countries, including the expenditure of Commonwealth money on these arrangements … [and] confirms the ability of Australian officials, acting on behalf of the Commonwealth, to take action to assist the foreign government in the regional processing country, consistent with the law of that country.

174    It further stated that the amendments were given retrospective operation to (emphasis added):

… put beyond doubt the Commonwealth’s authority to take, or cause to be taken, actions in relation to regional processing arrangements or the regional processing functions of a country, and associated Commonwealth expenditure, from the date of commencement of the [Regional Processing Act]. The retrospective operation of these provisions will provide authority for all activity undertaken in relation to regional processing arrangements for the entire period these arrangements have been in place.

175    As regards s 198AHA, the 2015 Explanatory Memorandum stated that (emphasis added):

The purpose of new subsection 198AHA(2) is to provide express statutory authority for the actions of the Commonwealth in relation to regional processing functions. It is intended that this would include the performance by the Commonwealth of an arrangement that the Commonwealth has entered into with a person or body in relation to the regional processing functions of a country. This provision is directed at ensuring that there is legislative authority to carry into effect arrangements for the processing and management of unauthorised maritime arrivals who have been taken to regional processing countries, and does not purport to have any effect in itself on the rights of those persons.

The amendments in the Bill are consistent with the power provided in sections 198AB and 198AD of the Migration Act. The amendments authorise the Commonwealth to undertake action and expenditure to give effect to the regional processing arrangements authorised by those provisions. Subsection 198AHA(2) does not purport to provide the legal authority to detain a person taken to a regional processing country as any authority to exercise restraint over the liberty of a person arises under the law of the regional processing country. The purpose of subsection 198AHA(2) is merely to provide the Commonwealth with the express authority to carry into effect arrangements for supporting the processing and management of persons who have been taken to regional processing countries, consistent with the law of those countries.

New subsection 198AHA(3) provides that, to avoid doubt, subsection 198AHA(2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action.

176    The Statement of Compatibility with Human Rights attached to the 2015 Explanatory Memorandum stated that (emphasis added):

This Bill does not engage with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, because the Government’s view is that the Regional Processing Centres are managed and administered by the governments of the countries in which they are located, under the law of those countries.

…

The amendments made by this Bill strengthen and put beyond any doubt the existing legislative authority to give practical effect to the substantive regional processing provisions inserted by the [Regional Processing Act].

…

Australia does not restrain the liberty of persons in regional processing countries. To the extent that the liberty of persons taken to regional processing countries is restrained in those countries, this is done under the laws of that country. The Bill confirms the ability of Australian officials, acting on behalf of the Commonwealth, to take action to assist the foreign government in the regional processing country. These amendments do not otherwise provide authority for any restraint over the liberty of persons. The lawful authority for any restraint over liberty arises under the law of the relevant regional processing country.

The amendments in the Bill do not engage Australia’s human rights obligations because the Government’s position is that the … Regional Processing Centres are managed and administered by the governments of the countries in which they are located, under the law of those countries.

(b) General aspects of the construction of section 494AB

177    In light of the legislative history we have just canvassed and the terms of s 494AB it is not possible to discern one overarching purpose other than that, so far as constitutionally possible, certain proceedings are not to be instituted or continued except in the High Court. The effect of this is that, as stated in s 494AB(3), the jurisdiction of the High Court under s 75 of the Constitution is not affected. In practical terms, any proceedings which are barred by s 494AB may be commenced in the High Court.

178    Access to the courts generally is not removed but is limited as we have just explained. Contrary to the applicants’ submissions, s 494AB is not a broad ouster clause: see O’Grady at 372. As the present litigation shows, however, the nature of the proceedings which are barred in the sense we have explained calls for closer examination. Since the jurisdiction of all courts other than the High Court is displaced in relation to the proceedings to which the bar applies, there is room for the application here of the “general proposition that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably”: see Shergold v Tanner [2002] HCA 19; 209 CLR 126 at [34] (footnote omitted). On the argument of the Commonwealth parties, not only is the jurisdiction in relation to those proceedings withdrawn from federal courts but also from State courts exercising federal jurisdiction, including in respect of actions in negligence against the Commonwealth.

179    In the task of statutory construction we have not been assisted by the consideration of the “inconvenience” of the specified proceedings being, in effect, required to be commenced in the High Court and, subject to s 44 of the Judiciary Act 1903 (Cth), heard and determined in that Court. No doubt the consequences of a particular interpretation may be taken into account: interpretation by reference to consequences is described as “essentially a shorthand version of the purposive approach to interpretation” by Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) at [2.39]. Nevertheless we would give those consequences little weight as they seem to us to amount to, at most, merely inconvenient or unsatisfactory consequences rather than consequences amounting to injustice or capriciousness or arbitrariness. We therefore do not need to consider the discussion of the question of remitter in DBE17 v Commonwealth [2018] FCA 1307; 361 ALR 423 at [130] and following.

180    It is to be noted that, contrary to the tenor of some of the submissions on behalf of the Commonwealth parties, s 494AB does not proceed by reference to “matters” as that word appears in Chapter III of the Constitution: rather, the relevant word is “proceedings” which appears in each of the paragraphs as well as in s 494AB(1). The cases have long drawn a distinction between those words: see, eg, Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. This means, in our opinion, that the authorities relating to federal jurisdiction and in particular accrued jurisdiction are not directly applicable. We do not accept the “obvious parallel” contended for by the Commonwealth parties with reference to Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; 145 CLR 457 at 481 and Felton v Mulligan [1971] HCA 39; 124 CLR 367 at 373. Neither do we accept what appears to be a related submission by the Commonwealth parties that s 494AB(1)(a) applies because the applicants allege that the Commonwealth parties ought to have brought the applicants to Australia, and the Commonwealth parties contend that the source of power for doing so is s 198B. While that contention might well be sufficient to mean that the matter was in federal jurisdiction even if the Commonwealth was not a party, that does not necessarily mean that the present proceedings have the character referred to in s 494AB(1)(a).

181    In our opinion, s 494AB requires a characterisation of the proceedings as a matter of substance rather than form, and that character will commonly be discerned at the institution of the proceedings.

182    In that respect we note that we do not accept the submission on behalf of the Melbourne cohort that the word “continued” in the expression in s 494AB(1) “may not be instituted or continued in any court” is limited to proceedings which were commenced before the introduction of s 494AB into the Migration Act. We reject that submission because it would be an unusual place to find a transitional provision and, in our view, the word has work to do in applying to proceedings which are maintained in any court other than the High Court, including such proceedings which by amendment take on the character of proceedings barred by s 494AB. We understand that in DBE17 at [61], in relation to the same wording in s 494AA(1), Mortimer J said that the chronology of the Tampa incident, and the litigation surrounding it, informed why it was important that s 494AA included the “continuation” of proceedings. But we would not accept what may be implicit in her Honour’s statement that the “continuation” limb applied only to proceedings which were commenced before the introduction of the section. We accept that in s 494AB the words “or continued” would apply to proceedings pending when the section was introduced, but we do not consider that that language is so limited. As we have said, in our view the language extends to proceedings which take on the character of any of the barred proceedings after the proceedings have been commenced.

183    In each of the three paragraphs in s 494AB(1) on which the Commonwealth parties relied, the words “relating to” are used to describe, in part, the character of the proceedings to which the bar applies. We accept the submission on behalf of the Commonwealth parties that “relating to” is a broad expression but that tells the reader very little about the kinds of relationship which the paragraphs envisage. This is a question of statutory construction, well explained, with respect, by French CJ and Hayne J in Travelex Ltd v Commissioner of Taxation [2010] HCA 33; 241 CLR 510 at [25] (footnotes omitted):

It may readily be accepted that “in relation to” is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that “the subject matter of the inquiry, the legislative history, and the facts of the case” are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply “in relation to” rights.

In that case the relevant question was whether selling foreign currency on the departure side of the Customs barrier at Sydney International Airport to a traveller who intends to use the currency overseas was a supply made “in relation to rights” within item 4 in the table in s 38-190(1) of A New Tax System (Goods and Services Tax) Act 1999 (Cth). Contrary to the submissions on behalf of the applicants, we do not derive any specific assistance from the decision in Perlman v Perlman [1984] HCA 4; 155 CLR 474, where it was held that proceedings commenced in the Supreme Court of New South Wales to enforce a maintenance agreement did not fall within the definition of “matrimonial cause” and were therefore not outside the jurisdiction of the Supreme Court. Those proceedings were held not to be “proceedings … in relation to concurrent, pending or completed proceedings of a kind referred to” in the preceding paragraphs of the definition of “matrimonial cause” as defined in s 4(1) of the Family Law Act 1975 (Cth), those earlier proceedings being proceedings in which the Family Court of Australia approved the agreement.

184    The task is one of statutory construction. In that task it is significant that in the first of the paragraphs relied on by the Commonwealth parties, s 494AB(1)(a), the proceedings are those relating “to the exercise of powers” (emphasis added) under section 198B. In the second of the paragraphs so relied on, s 494AB(1)(ca), the proceedings are those relating “to the performance or exercise of a function, duty or power” (emphasis added) under Subdiv B of Div 8 of Pt 2. In the third of those paragraphs, s 494AB(1)(d), the proceedings are those relating “to the removal of a transitory person from Australia under the Act” (emphasis added). As will become apparent, the emphasised aspects of the language of ss 494AB(1)(a), (ca) and (d) shed light on the sort of relationship required to be shown between a proceeding and the relevant provisions of the Migration Act in order to conclude that the proceeding has the relevant character.