FEDERAL COURT OF AUSTRALIA

CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1050

ORDERS

THE COURT ORDERS THAT:

    If by 4 pm on Friday 12 July 2019, the applicant has not been transferred to Australia in accordance with paragraph 2 of the orders of this Court made on 14 June 2019, then by 4 pm on Monday 15 July 2019, the respondents are to file and serve affidavit evidence:

(a)    setting out what steps, if any, they have taken, since 1 July 2019, towards securing the applicant’s transfer from Nauru to Australia;

(b)    providing an explanation as to why the applicant has not been transferred to Australia;

(c)    identifying, by name, those individuals whom the respondents understand are responsible for any decisions or conduct which have caused or contributed to the situation that the applicant has not been transferred to Australia as contemplated by paragraph 2 of the orders of this Court made on 14 June 2019; and

(d)    identifying the decisions or conduct of each of those individuals and how they have caused or contributed to the situation that the applicant has not been transferred to Australia as contemplated by paragraph 2 of the orders of this Court made on 14 June 2019.

    The applicant has liberty to apply to the Court, on 24 hours’ notice to the respondents.

    The respondents have leave to remove from the Court’s electronic file the affidavit of Alana Sullivan sworn 1 July 2019.

    The affidavit of Alana Sullivan must be removed from the Court’s electronic file on or before 4 pm on Tuesday 9 July 2019; otherwise it is to remain on the Court’s electronic file and will be taken as read and relied upon by the respondents in the interlocutory hearing held on 1 July 2019.

    The respondents have leave to file and serve any submissions they wish to make as to why the Court should not order the respondents to pay any legal costs incurred by the applicant in relation to the interlocutory application heard on 1 July 2019.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    More than two weeks ago, this Court made orders to require the respondents to transfer the applicant to Australia for medical and psychiatric treatment, which he needed, and which was not available to him on Nauru. The relevant order made by the Court on 14 June 2019 was as follows:

The Respondents take all steps within their power to cause transfer of the Applicant as soon as reasonably practicable to a location in Australia where the Applicant can immediately access treatment as an inpatient at an Australian tertiary hospital in accordance with the recommendations of Dr Andrew Bezzina dated 14 May 2019 and Dr Hannah Lake dated 18 May 2019 and 5 June 2019, or as recommended by the clinicians and practitioners assigned to treat the Applicant upon his arrival in Australia, and if clinically indicated with access to an accredited interpreter as required during the course of treatment.

2    The applicant has not been transferred to Australia. He remains on Nauru. The most recent medical records in evidence before the Court reveal a man with serious medical and psychiatric issues which do not appear capable of being adequately addressed in his circumstances on Nauru.

3    At one level, responsibility for the applicant’s transfer having not been effected lies principally with the Government of Nauru. The evidence discloses that processes it insists be undertaken, and decisions it insists be made, are impeding the applicant’s transfer to Australia.

4    At another level, the responsibility for the applicant’s transfer having not been effected lies with the respondents, who have, on the evidence:

(a)    formed a view that they need to defer to the Government of Nauru by not engaging in any conduct which they apprehend might lead to criticism or complaint from the Government of Nauru, or which might cause the transfer of the applicant to be further impeded; and

(b)    chosen to give preference to an approach which places the Commonwealth’s relationship with Nauru ahead of the steps both the first respondent (under s 198E of the Migration Act 1958 (Cth)) and this Court (on 14 June 2019) have determined to be necessary to undertake for the applicant’s health and welfare.

5    Those choices are matters for the Commonwealth and for Nauru, not for this Court. However, those choices provide the context for this interlocutory application.

6    The oral interlocutory application which is determined by the Court’s orders today was made pursuant to the liberty to apply reserved to the parties in paragraph 5 of the Court’s orders made on 14 June 2019. As I understand it, it was common ground that the applicant’s amended interlocutory application filed on 17 June 2019 remains undetermined as to at least part of it. The respondents did not seek any orders finally disposing of that application.

7    As ultimately framed, the applicant now seeks a series of orders which have two objectives:

(a)    first, to ensure the Court is able to assess the nature and extent of compliance by the respondents with the Court’s orders of 14 June 2019; and

(b)    second, to impose on the respondents express obligations to take certain steps to facilitate the applicant’s transfer to Australia.

8    For the reasons set out below, the orders sought by the applicant will not be made in the terms proposed. An order will be made requiring the respondents to provide further evidence of the updated situation facing the applicant, shortly after the foreshadowed Overseas Medical Referral (OMR) Committee meeting on 11 July 2019. I am otherwise not persuaded that mandatory orders against the respondents are appropriate.

9    I am conscious this leaves the applicant, as an individual, in a precarious position in more than one way, and I am acutely conscious of the extremity of his condition, on the evidence before the Court. The applicant through his solicitors will have liberty to apply to my chambers, on 24 hours’ notice to the respondents, for any further orders that he contends are necessary.

Evidence relied on in support of the interlocutory application

10    At the interlocutory hearing on 1 July 2019, the applicant read and relied on the following affidavits:

(a)    affidavit of Rachele Elene Troup affirmed on 5 June 2019; and

(b)    second affidavit of Rachele Elene Troup affirmed on 30 June 2019.

11    Counsel for the applicant clarified at the hearing that the applicant did not rely on the expert report of Matthew Albert previously filed in this proceeding on 17 June 2019 for the purposes of this application.

12    Counsel for the applicant also tendered photographs showing the applicant’s most recent acts of self-harm, to which Ms Troup refers in her second affidavit. They are confronting.

13    The respondents read and relied on the following affidavits:

(a)    affidavit of Peter Lawrence Timson sworn on 6 June 2019;

(b)    affidavit of Alana Sullivan sworn on 30 June 2019; and

(c)    second affidavit of Peter Lawrence Timson sworn on 1 July 2019.

14    In relation to the affidavit of Ms Sullivan, counsel for the respondents sought non-publication orders in respect of the substantive parts of that affidavit, pursuant to s 37AF or s 37AI of the Federal Court of Australia Act 1976 (Cth). I have decided not to grant the orders sought pursuant to either of those provisions, and I explain why at [89] to [100] below.

The applicant’s cause of action and the Court’s jurisdiction

15    A general overview of the regional processing arrangements in place between Australia and the Government of Nauru is contained in the first affidavit of Mr Timson at [6]-[13]. I refer also to my previous summary of these arrangements in EMK18 v Minister for Home Affairs [2018] FCA 1357 at [15]-[16] and to Bromberg J’s recent summary in CCA19 v Minister for Home Affairs [2019] FCA 939 at [18]-[22], also by reference to affidavit evidence from Mr Timson filed in that proceeding. Broadly speaking, the applicant’s statement of claim filed on 5 June 2019 alleges that the second respondent owes the applicant a duty of care to exercise its statutory powers (as vested in the first respondent) and non-statutory executive power to take all reasonable steps:

(a)    to procure for the applicant an adequate and reasonable standard of medical treatment, to be provided in an appropriate environment; and

(b)    to avoid or minimise the risk of the applicant suffering risk of harm, including the harm particularised at paragraphs [11]-[33] of the statement of claim.

16    The applicant alleges that the respondents have breached and will continue to breach that duty of care due to their failure to ensure the applicant receives reasonable and adequate medical care in an appropriate environment, and their failure to transfer the applicant to Australia for medical treatment, as particularised at paragraphs [42]-[47] of the statement of claim.

17    This cause of action is similar to the causes of action advanced and described by me in my decisions in EMK18 at [17]-[20] and ELF18 v Minister for Home Affairs [2018] FCA 1368 at [36]-[39]. In CCA19 at [5], Bromberg J listed some of the many interlocutory decisions of this Court where the Court has accepted on a prima facie basis, in the context of similar causes of action, that a duty of care exists. In Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17, the Court found at final hearing that a similar duty of care existed.

18    There is an extant challenge by the respondents to this Court’s jurisdiction to hear and determine a proceeding such as this. The challenge was heard on 7-8 May 2019 by a bench of three judges, sitting as a Full Court in this Court’s original jurisdiction pursuant to a direction of the Chief Justice under s 20(1A) of the Federal Court Act. Judgment is currently reserved. In this proceeding, as in others, the respondents’ objection to the Court’s jurisdiction was noted, but the respondents appeared to accept the Court could proceed to make interlocutory orders (including the 14 June order), in accordance with the principles in R v Ross-Jones; Ex parte Green [1984] HCA 82; 156 CLR 185 at 202 (Gibbs CJ, Mason J agreeing) and 213 (Wilson and Dawson JJ).

Relevant narrative of events

19    The applicant is in his early thirties. He was taken to Nauru in August 2013 and was recognised as a refugee by the Government of Nauru in December 2018. Therefore, he has been on Nauru for almost six years. He possesses a visa, granted by the Nauruan Government, which, as contemplated by the offshore processing arrangements, is granted to those individuals who are recognised as refugees under the Refugees Convention. Nauru became a signatory to that Convention in 2011, only shortly before the current offshore processing arrangements commenced.

20    It is common ground on this application that the visa held by the applicant entitles him, under Nauruan law, to remain in Nauru, but also to leave Nauru and re-enter. Counsel for the respondents submitted the respondents accept there is no legal impediment to the applicant leaving Nauru. He submitted the impediments were “practical”. Whilst I do not necessarily accept the distinction as it was made by counsel, the Court proceeds on the basis of the respondents’ agreement that the applicant’s visa entitles him to leave and re-enter Nauru.

21    This matter first came before this Court by way of an interlocutory application on 6 June 2019. Prior to the proceeding being issued in this Court, the applicant’s solicitors and legal representatives at the Human Rights Law Centre (HRLC) had attempted to persuade the respondents that the preconditions existed for an exercise of power under s 198E of the Migration Act, one of the so-called “Medevac provisions”. Those attempts were at that stage unsuccessful, despite the provision of expert reports from Dr Andrew Bezzina, an emergency physician, and Dr Hannah Lake, a consultant psychiatrist. Each had provided a report on the applicant’s medical and psychiatric conditions, the treatment he was (or was not) receiving on Nauru, and what in their expert opinion was likely to happen to the applicant if he was not transferred off Nauru. Those reports were prepared after the practitioners’ review of the medical records relating to the applicant which are kept by the Commonwealth-contracted medical treatment provider in Nauru, International Health and Medical Services (IHMS). It was not possible for those experts to have a consultation directly with the applicant, even by a method such as Skype or telephone. The Government of Nauru had taken action to ensure such consultations could not occur, by the making of regulations which prohibited such consultations: see the Health Practitioners (Telemedicine Prohibition) Regulations 2019 (Nr).

22    On 6 June 2019, no substantive orders were made by the Court, on the basis of the applicant’s apparent lack of cooperation with the undertaking of an assessment by IHMS. The Court accepted it was necessary for IHMS to refer the applicant to what was submitted to be a necessary step in the transfer process: consideration by Nauru’s OMR Committee of the question whether the applicant should be permitted to leave Nauru for the purpose of medical treatment.

23    The Court encouraged the applicant’s solicitors to see if they could persuade the applicant to cooperate with IHMS, and the applicant’s solicitors agreed to attempt to do that. I note the expert report of Dr Lake dated 5 June 2019 in particular explains why that was not an easy step to ask the applicant to take and why his apparent lack of cooperation with IHMS, and with mental health services more generally, is part of his illness. Dr Lake explains it thus in her report:

[The applicant] appears to have disengaged from mental health services.

[The applicant’s] disengagement from mental health services represents a marked deterioration in his condition.

…

[The applicant] has been very clear in recent months that he does not feel mental health services, including admission to RPC-1, is helpful to him. In fact, he has declined significantly despite outreach. This is in keeping with my formulation of his current illness…

24    Subsequently, the applicant did cooperate sufficiently for IHMS to conduct an assessment of him and refer his case to the OMR Committee, although, due to circumstances to which Ms Troup deposed in her second affidavit, neither the applicant’s solicitors, nor any other nominated person, was able to support him during that process. I should note here that Ms Troup deposed in her first affidavit that the applicant presently has no family on Nauru.

25    On 10 June 2019, the applicant’s solicitors were informed by the respondents’ solicitors, the Australian Government Solicitor (AGS), that IHMS was referring the applicant’s case to the OMR Committee for consideration. The AGS informed the applicant’s solicitors that “there may not be enough time for that to occur” at the OMR Committee meeting scheduled for that same week.

26    The next day, the applicant’s solicitors were informed that a decision had been made to exercise the power conferred by s 198B of the Migration Act, to temporarily transfer the applicant to Australia for medical and psychiatric treatment. The relevant correspondence from the AGS stated:

We are instructed that the Department of Home Affairs has approved the temporary transfer of the applicant to Australia for medical/psychiatric assessment and treatment under s 198B of the Migration Act 1958. As you know, that approval is subject to the approval of the transfer by the Republic of Nauru Hospital’s OMR Committee and uplift approval from the Government of Nauru.

As we informed you yesterday, IHMS has agreed to refer the applicant’s case to the OMR Committee and the next OMR Committee fortnightly meeting is scheduled this Thursday 13 June 2019. The Department has asked IHMS to confirm whether there is enough time for the applicant’s case to be referred to this week’s OMR Committee meeting, but has not received a response from IHMS as yet.

We will let you know as soon as we receive instructions.

27    The applicant’s solicitors had pressed for the applicant to be examined by an independent psychiatrist, or to be provided with an independent third person to assist in his engagement with IHMS, given the breakdown of his trust and relationship with IHMS. That suggestion was not taken up.

28    The OMR Committee did not make a decision on the applicant’s transfer on 13 June 2019. That prompted the applicant’s solicitors to return to the Court. On that occasion (14 June 2019), the Court accepted that, given the decision made under s 198B, it was appropriate to make orders including the order I have set out at [1] above, in light of the fact that the OMR Committee had not made any decision about the applicant’s transfer the day before.

29    I emphasise that order was made both despite the fact of the s 198B decision, and also in a way because of it. In other words, on the evidence, the Court was persuaded a mandatory transfer order should be made, even though the respondents had indicated there was an administrative decision made a few days earlier to transfer the applicant.

30    No transfer occurred. I note that at the time the Court made its orders on 14 June, several weeks had passed since the respondents were first informed about the expert opinions of Dr Bezzina and Dr Lake.

31    What follows are excerpts of some of the opinions in those reports. Dr Bezzina stated:

I am of the opinion that [the applicant] is manifesting illness both from a mental health perspective and medically. His major and most pressing issue is his mental health and remains a risk to his life.

His medical issues remain incompletely explored despite symptoms and abnormal findings over a period of years. There remains potential for currently undiagnosed metabolic issues that may cause renal dysfunction over time.

Furthermore, some of his current and intermittent management options are contributing to, if not completely responsible for, additional medical issues.

32    Dr Bezzina also stated:

Premised on what is evident in the medical record and without a capacity to examine [the applicant] directly it is not clear that at this stage [the applicant] is receiving appropriate care. He is certainly not receiving effective care with respect to his psychological issues and he is certainly not receiving thorough care regarding his medical issues and their underlying causes as outlined above.

…

… I believe it is necessary to bring [the applicant] out of Nauru in order to complete those assessments and determine an effective pathway forward that avoids the risk of suicide and removes concern regarding his renal function and upper gastrointestinal issues.

33    Dr Lake stated in her report dated 18 May 2019:

[The applicant] is clearly suffering from a major depressive illness with psychotic features, however he requires a longitudinal inpatient assessment by a psychiatrist to determine what treatment is appropriate. He will need a medication review to determine what pharmacotherapy may be next trialled. He will need to be assessed for potentially requiring electroconvulsive therapy (ECT). When he is sufficiently recovered from this illness the diagnosis of acquired brain injury can be explored. This would involve cognitive testing and potentially imaging such as MRI Brain.

An extensive assessment of his suicidality and risk of self-harm is required urgently.

34    Dr Lake also stated in that report, including typographical errors in the original:

[The applicant] is high risk for completed suicide. I cannot see that [the applicant] has a future if he remains on Nauru. Indefinite detention and other linked psychosocial circumstances are clearly powerful predisposing, precipitating and perpetuating factors in his severe illness and he cannot recover while he remains in this situation. He not recover and instead almost certainly continue to deteriorate. [The applicant] will require a full medical history and examination, and investigation into his state of physical health.

…

[The applicant] requires immediate containment and monitoring in an inpatient unit, to manage suicide risk and his physical health. [The applicant] is at high risk of completed suicide.

…

The assessment and treatment he has been receiving is far from what is required and profoundly less than the care he would receive in Australia. The most basic assessments have not been conducted including regular weights, postural blood pressure and cognitive testing.

35    She continued on the next page, including typographical errors in the original:

[The applicant] has been on a deteriorating trajectory for several years. The care of his psychiatric condition appears to have plateaued.

[The applicant] reports deep hopelessness regarding his future. This appears to be a significant driver of his illness. [The applicant’s] illness cannot be adequately treated unless this is addressed. I do not believe that there are adequately facilities or services in Nauru to reliably and consistently deliver the intensive care that [the applicant] requires. Given the high level risk of fatal consequences of [the applicant’s] mental illness (by suicide), [the applicant] requires urgent transfer to a facility that can unambiguously meet his significant health care needs.

36    In her report of 5 June 2019, Dr Lake stated:

In my previous report I stated that [the applicant] is clearly suffering from major depressive disorder with psychotic features. The updated information that I have received is in keeping with this opinion, and points to a marked deterioration in his illness.

…

I state in the strongest possible terms that [the applicant] is at very high risk of completed suicide. His risk is higher than it was at the time of my previous report, as at that time he was maintaining a (tenuous) therapeutic relationship with mental health services. He is now completely socially isolated, suffering a psychotic depression with command auditory hallucinations to commit suicide, and has a recent history of attempting suicide.

My treatment recommendations per my previous report still stand. The urgency for these actions to be undertaken has escalated. Again, [the applicant] is at imminent risk of completed suicide. He requires transfer from Nauru immediately and without further delay.

(Original emphasis.)

37    On 18 June 2019, the applicant’s solicitors inquired of the AGS about when the applicant would be transferred, and what steps had been taken to give effect to paragraph 2 of the Court’s orders made on 14 June 2019. The response received on 20 June 2019 from the AGS should be reproduced in full:

CEU19 ([the applicant]) VID600 of 2019

We refer to your letter of 18 June 2019.

The respondents are conscious and respectful of the orders made by his Honour on 14 June 2019. As you know, the Department of Home Affairs (the Department) has already approved the temporary transfer of the applicant to Australia under s 198B of the Migration Act 1958 (Cth).

However, the Government of Nauru requires all overseas medical transfers to be approved by the Republic of Nauru (RoN) Hospital’s Overseas Medical Referral (OMR) Committee. That process, including the importance of the Australian Government respecting that process, was explained in detail in the affidavit of Acting Assistant Commissioner Peter Timson (the Timson affidavit) filed by the respondents in this proceeding. Further, the Department or respondents have no part or power in the OMR Committee’s decision making process, which is now enshrined in the Nauru law: see paragraphs 65 to 67 of the Timson affidavit).

The OMR Committee meets fortnightly. As you know, the last OMR Committee meeting took place on 13 June 2019. We had informed you previously that there may not be enough time for the applicant’s case to be presented at that meeting given that he did not agree to be assessed by an IHMS psychiatrist until 9 June 2019 (noting that IHMS is responsible for referring and often presenting the cases to the OMR Committee: see paragraph 33 of the Timson affidavit).

We are however instructed that the applicant’s case has formally been referred to the OMR Committee’s chair for the committee’s consideration. The Department anticipates that the case will be considered at the next OMR Committee meeting on 27 June 2019.

We are instructed that the Department has considered at senior level what reasonable steps the respondents might be able to take before the next OMR Committee meeting to effect the applicant’s transfer to Australia. Given in particular that presently there has been no delay in the consideration of the applicant’s case by the OMR Committee, it is considered that any steps that the Department might take at this stage are likely to be of no utility and are likely to be counterproductive because they would be perceived by the Government of Nauru as interference with their processes and therefore disrespectful to their sovereignty. The Timson affidavit explains in detail the importance of the Australian Government respecting the Nauru processes and contains numerous examples of the counterproductive effect previous attempts to circumvent those processes have had on the relationship with the Government of Nauru. As a result, after careful consideration, a decision has been made not to take any steps before the likely consideration of the applicant’s case at the next OMR Committee on 27 June 2019.

Should the OMR Committee approve the applicant’s overseas medical transfer on 27 June 2019, the Department will take all reasonable steps to effect that transfer as soon as practicable including to obtain the uplift approval from the Government of Nauru, arrange flights and receiving care in Australia for the applicant. Should the OMR Committee refuse, or not consider, the applicant’s transfer to Australia at the next meeting, the Department will at that stage urgently again consider what reasonable steps are available to the respondents to progress the transfer.

Meanwhile, we are instructed that IHMS continues to regularly monitor the applicant by way of outreach visits to his home. His latest clinical record is attached in that regard. IHMS has informed the Department that the applicant was offered admission into the Supported Accommodation Area as recommended by Dr Mohanraj (the IHMS psychiatrist who examined the applicant on 9 June 2019), but the applicant has declined that offer.

We also note that the IHMS has informed the Department that the applicant did not attend a scheduled psychiatry review yesterday. They have advised that they will attempt to reschedule the appointment at the applicant’s home. That is also relevant to the email from your office dated 12 June 2019 complaining, amongst other things, about the applicant’s case worker from the Australian Refugee Resource Centre not being present (by phone) during the applicant’s psychiatric examination on 9 June 2019. IHMS has since confirmed that they did not permit the case worker to be present for the reasons set out in our emails to you dated 9 and 10 June 2019. We note that this is IHMS’s clinical decision over which the Department has no control. If you wish to query this further in relation to appointments going forward, we suggest that you contact IHMS directly.

If you wish to discuss anything please contact the writer.

38    On 25 June 2019, the applicant’s solicitors were advised that the HRLC had been notified of another decision relating to the applicant, this time a decision made by the first respondent under s 198E of the Migration Act:

I wish to advise that the Minister for Home Affairs (the Minister) has approved [the applicant’s] transfer to Australia under section 198E of the Act.

As the Minister has approved the transfer of [the applicant] to Australia under section 198E of the Act, the Department will, as soon as practicable, bring [the applicant] to Australia for the temporary purpose of medical or psychiatric assessment or treatment.

Please be aware that prior to transfer to Australia it will necessary to obtain all required local approvals from the Government of Nauru.

39    At this point, the applicant’s solicitors foreshadowed a further application to the Court, and received a response from the AGS indicating the respondents did not presently intend to take any further steps to transfer the applicant, pending the outcome of the OMR Committee meeting on 27 June 2019.

40    One of the other issues dealt with in this correspondence was whether the OMR Committee would be provided with the reports of Dr Bezzina and Dr Lake. The evidence before the Court suggests this is a sensitive issue for the OMR Committee.

41    The AGS relevantly stated in its correspondence:

When asked whether they provided the OMR Committee with the two reports of Dr Lake and the report of Dr Brezzina, IHMS responded to the Department as follows:

IHMS provided a comprehensive and appropriate clinical briefing to the OMR Committee regarding [the applicant’s] case. The OMR Committee was briefed on the external medical documents attached to your e-mail, but did not request a copy.

As you are aware the OMR committee objects to attempted legal intervention from Australia and attempted intervention from external medical practitioners, who are neither registered in nor practice in Nauru, into Nauruan medical care and other internal Nauruan processes.

To provide such documents to the OMR committee without request from the committee would be viewed unfavourably by the committee and be counter-productive in achieving an optimal clinical outcome. It would also adversely affect professional relationships between IHMS and the RoN.

42    On 27 June 2019, the day the OMR Committee meeting was scheduled to take place, the applicant’s solicitors wrote to the AGS to foreshadow the kind of orders they would seek from the Court if the OMR Committee did not consider the applicant’s case or approve the applicant’s transfer:

If the OMR Committee does not consider our client’s case at tonight’s Committee meeting, or if the OMR Committee reaches a decision that is unfavourable to our client, we will make an urgent application to the Court seeking the following orders:

•    That the Commonwealth urgently make an application to the Nauruan Minister of Health and/or Nauruan Ministry of Multicultural Affairs to have the OMR Process dispensed with; and/or

•    That the Commonwealth urgently seek to secure “uplift approval” for our client within the meaning of paragraph [50] of the affidavit of Mr Peter Timson sworn on 6 June 2019.

43    In his second affidavit, Mr Timson described what happened at the OMR Committee meeting on 27 June 2019:

The applicant’s case has been held over pending Dr Smith, the Medical Officer with responsibility for psychiatric matters at the Republic of Nauru Hospital, conducting a medical assessment of the applicant, which is scheduled for 3pm on 3 July 2019. Dr Smith’s report would subsequently be provided to the OMR Committee. The OMR Committee is expected to meet again on Thursday 11 July 2019.

44    I note the evidence is that the OMR Committee is “expected” to meet on 11 July 2019. Mr Timson’s overall evidence supports the qualified way in which he expresses himself in this paragraph. On the evidence as a whole, the OMR Committee’s conduct, in terms of both its scheduling of meetings, and its decision-making, appears to have some unpredictability about it.

45    I should at this point mention two other pieces of evidence. Ms Troup deposed to having received a communication on 28 June 2019 from Dr Beth O’Connor, a psychiatrist who worked on Nauru with Médecins Sans Frontières (MSF) from October 2017 to September 2018. MSF provided mental healthcare to asylum seekers and refugees who had been transferred to Nauru pursuant to Australia’s offshore processing arrangements, and also to Nauruan nationals, but was compelled to leave Nauru by the Nauruan Government in October 2018.

46    Dr O’Connor stated that, when she was working on Nauru, Dr Smith informed her that he had qualified as a doctor and had two years of postgraduate mental health training in Fiji, but that he had not obtained the qualification of a psychiatrist. The respondents did not dispute this evidence.

47    Dr Smith was the practitioner who also played a role recently in the apparently so far unsuccessful attempts to transfer another individual from Nauru known, by reason of his proceedings in this Court, as CCA19. Orders have been made by this Court in relation to CCA19’s predicament, however, at the time of the Court’s hearing on 1 July 2019, he also remained on Nauru. Ms Troup deposes in her second affidavit, on information and belief, that:

In the case of CCA19 v Minister for Home Affairs [2019] FCA 939, the OMR Committee also required the applicant in that matter to be reviewed by Dr Smith before Dr Smith reported back to the OMR Committee with the outcome of his review. In that proceeding:

(a)    The OMR Committee said that it needed a report from Dr Smith on 16 May 2019, in order to consider the applicant’s case at the OMR Committee meeting scheduled for 30 May 2019;

(b)    On 30 May 2019, the OMR Committee again said that it required a report from Dr Smith, which had not yet been provided, and adjourned until 13 June 2019 for the purpose of receiving his report;

(c)    The Court was told on 13 June that no written report had been prepared by Dr Smith as at that date and that instead, the OMR Committee would meet and receive an oral report from Dr Smith; and

(d)    Dr Smith did not show up to the OMR Committee’s meeting on 13 June and as a result, the decision of the OMR Committee with regards to the applicant’s transfer to Australia was not made that day.

48    Ms Troup also deposes that at the time of affirming her second affidavit, she was informed there is still no indication that Dr Smith has provided a report in respect of the applicant in CCA19.

49    Again, this evidence was not disputed by the respondents.

Orders sought

50    Initially, the applicant sought orders in the following terms:

The Court orders that the Respondents:

1.    File and serve affidavit evidence as a matter of urgency setting out the steps that have taken to progress the Applicant’s rapid transfer to Australia, by whom, and when.

2.    Urgently make an application to the Nauruan Minister of Health and/or Nauruan Ministry of Multicultural Affairs to have the OMR Process dispensed with.

3.    Urgently seek to secure “uplift approval” for the Applicant within the meaning of paragraph [50] of the affidavit of Mr Peter Timson sworn on 6 June 2019.

4.    Urgently take all reasonable steps it can outside the OMR process to effect the transfer of the Applicant to Australia – including but not limited to:

a.    giving the Applicant permission to land in Australia and communicating that permission to relevant airlines;

b.    arranging an airline ticket to Australia or passage on a charter flight to Australia;

c.    arranging any accompanying persons necessary for the Applicant to travel to Australia; and

d.    directing IHMS to take all reasonable steps it can to effect the transfer of the Applicant to Australia.

51    The respondents submitted that they had complied in substance with the first order, and objected to the remaining orders on two bases.

52    First, the orders were contended to be beyond the power of the Court to make, because they “impermissibly seek to direct the conduct of Australia’s foreign relations”. The respondents filed detailed written submissions on this contention, and foreshadowed an intention to file a notice pursuant to s 78B of the Judiciary Act 1903 (Cth). It suffices to extract one of the paragraphs of the respondents’ written submissions:

… the area of difficulty arises in relation to the relief the applicant seeks. That relief would involve this Court directing the Commonwealth to take particular steps in Nauru, in relation to the government of Nauru, and then sitting in judgment (on an interlocutory basis) upon the adequacy of those steps. Doing so would involve this Court assuming for itself the role of determining how best to conduct Australia’s relations with a foreign country. This Court is not equipped to choose or assess the manner in which the Commonwealth should conduct its relations with Nauru, or to enter into the essentially political question of the desirability of making particular representations to the Nauruan Government. There is no judicial standard against which the adequacy of the executive’s actions can be judged by the Court. The orders that are now sought require the determination of questions that are beyond the constitutional competence of this Court to determine.

(Footnote omitted and original emphasis.)

53    A large number of authorities, both from Australia and the United Kingdom, were referred to in the respondents’ written submissions. Some of the ones on which principal reliance was placed were: R v Burgess; Ex parte Henry [1936] HCA 52; 55 CLR 608; R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279; [2008] QB 289; Thorpe v Commonwealth (No 3) [1997] HCA 21; 144 ALR 677; Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth [2003] FCAFC 3; 126 FCR 354; Gamogab v Akiba [2007] FCAFC 74; 159 FCR 578; Thomas v Mowbray [2007] HCA 33; 233 CLR 307; Habib v Commonwealth (No 2) [2009] FCA 228; 175 FCR 350 and Rahmatullah v Secretary of State for Defence [2012] UKSC 48; [2013] 1 AC 614.

54    The respondents also submitted that insofar as the orders made by Flick J in CDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 890, and by Bromberg J in CCA19, infringed the principles on which they relied, those orders were beyond power and invalid. The respondents accepted that no argument of the kind put to the Court in this proceeding was developed before Flick or Bromberg JJ, although counsel noted in oral submissions in respect of the proceeding before Bromberg J that the argument was raised as a factor relevant to the “balance of convenience” rather than “head on as a question of power”. The respondents also informed the Court that no application for leave to appeal had been filed by them in relation to either of those sets of orders. The respondents accepted that the time to do so had expired. The respondents’ counsel informed the Court he was instructed that leave to appeal applications remain under consideration, and a final decision has not yet been made.

55    The respondents also submitted that the orders made by the Chief Justice in Moana v Minister for Immigration and Border Protection [2019] FCA 659 infringed these principles and were beyond power.

56    Second, even if the Court has the power to make such orders, as a matter of discretion the respondents submitted it should not do so because “there is a real risk that the orders may impede the objective of taking the applicant to Australia”. I note the respondents describe the Court’s orders as the impediment, rather than the conduct of the Government of Nauru. This second submission is based on the respondents’ evidence about the sensitivities of the Nauruan Government to what it perceives as interference in its domestic affairs, and with its sovereignty. The respondents’ submissions refer to the affidavits of Mr Timson and Ms Sullivan, and to Mr Timson’s evidence in particular about how, in other cases and circumstances, those sensitivities have led to undesirable outcomes in relation to transfers of people in the same position as the applicant.

57    Indeed, Mr Timson goes so far as to relevantly depose (in his first affidavit at [64] and [83]):

Furthermore, as these examples illustrate, the Government of Nauru was exercising its sovereignty by enforcing its procedural requirements:

64.1. regardless of the means by which the ABF proposed to effect the medical transfer (whether by commercial flight or air ambulance);

64.2. notwithstanding that the holder of a temporary settlement visa is otherwise entitled to enter and depart Nauru on a commercial flight; and

64.3. notwithstanding any injunctions issued by the Federal Court of Australia to the Commonwealth, its Ministers or officers.

…

It is therefore essential, in my opinion that Australia retains and builds upon its strong working relationships with Nauruan officials. This, in turn, requires mutual respect. In practice, this means that Australia must continue to demonstrate respect for Nauruan sovereignty in its dealings with Nauruan officials, including by:

83.1. the Australian Government respecting the procedural requirements imposed by the Government of Nauru, including by not attempting to effect medical transfers in the absence of necessary approvals; and

83.2. Australian courts not making orders that appear to be premised on the notion that the Australian Government controls what happens on the ground in Nauru. Any such a notion has, in my view, been comprehensively disproved by the events described above.

58    The respondents submitted that paragraph 4 of the applicant’s proposed orders was also affected by these two arguments, whereas the applicant submitted the contents of that paragraph (as distinct from paragraphs 2 and 3) could not properly be described as orders which sought to direct the Commonwealth in the conduct of its foreign relations.

59    After argument had proceeded during the morning of the hearing, the Court adjourned to read some of the recently filed affidavit material. On resuming, counsel for the applicant informed the Court that the applicant now sought a different set of orders, modified to address some of the points made by the respondents. The proposed orders on which the applicant’s counsel confirmed the Court should rule were the following:

The Court orders that:

1.    The Respondents file and serve affidavit evidence setting out the steps that have been taken to progress the Applicant’s rapid transfer to Australia, including by whom those steps were taken, and when those steps were taken, and that evidence be filed on or before [ ] or two days before the next OMR meeting, whichever is the earlier date.

2.    If the Applicant has not yet arrived in Australia as at [ ], then the Respondents file and serve affidavit evidence setting out the steps that have been taken to progress the Applicant’s rapid transfer to Australia, including by whom those steps were taken, and when those steps were taken, and that evidence be filed on or before [ ] or 1 day after the next OMR meeting.

3.    The Respondents urgently take the following steps:

a.    give the Applicant permission to land in Australia and communicate that permission to relevant airlines;

b.    arrange an airline ticket to Australia or passage on a charter flight to Australia;

c.    arrange any accompanying persons necessary for the Applicant to travel to Australia; and

d.    direct IHMS to take all reasonable steps IHMS can to effect the transfer of the Applicant to Australia.

60    As I understood the respondents’ position, they did not agree the first two orders were necessary, in light of the existing evidence and the uncertainty about what the OMR Committee would do. Counsel for the respondents had indicated earlier in oral submissions that on the evidence (and apparently on his instructions), it was in fact unclear whether the approval of the OMR Committee was the only requisite step needed, or whether seeking the so-called “uplift approval” from the Nauruan Government (through the Nauruan Secretary of Multicultural Affairs) was, in every case, a subsequent and separate step.

61    However, I did not understand there to be any general opposition from the respondents to subsequently providing affidavit material to the Court which updates it on the situation concerning the applicant’s transfer. Indeed, the respondents were cooperative and forthcoming with material for the 1 July 2019 hearing, when the Court informally requested it.

62    The respondents submitted paragraph 3 of the revised orders carried the same difficulties as to power and discretion as paragraph 4 of the former version of the orders, with the exception of paragraph 3(d) concerning the direction to IHMS. As to that matter, counsel for the respondents informed the Court he was instructed that consideration is being given this week, at a meeting between senior Commonwealth officials and IHMS, to the giving of such a direction to IHMS. During the hearing, both counsel touched on the question whether the contract between IHMS and the Commonwealth authorised the Commonwealth to give IHMS directions relevant to the applicant’s situation.

63    A summary in the respondents’ submissions (omitting the cross-references to the evidence) puts their position with clarity:

In summary, the evidence establishes that:

8.1 Nauruan authorities have created a process, applicable to all Nauruan residents, by which there will be consideration given to whether that person is in need of medical treatment that cannot be provided in Nauru, and if so, whether permission will be granted to leave Nauru for that purpose. That can fairly be understood as a policy of the Nauruan government that refugees in Nauru should be treated equally to Nauruan citizens in relation to the provision of medical treatment.

8.2 Nauruan authorities have perceived past attempts to circumvent this process unfavourably. Indeed, there is some evidence to indicate that these frustrations might have been relevant to the enactment of the Health Practitioners (Overseas Medical Referrals Compliance) Regulations 2019 (Nr).

8.3 Nauruan authorities have practical means of enforcing compliance with these processes, eg, by denying a person the ability to board an airplane (even though refugees in Nauru are not subject to any legal prohibition from leaving Nauru[)].

What is not necessary to decide

64    Given the wide-ranging nature of the evidence and the submissions, it is appropriate to identify a number of matters which are unnecessary to decide, in part because of the shift in the focus of the orders proposed by the applicant, and in part because of the view I have taken on the orders which are sought.

65    It is unnecessary to decide the respondents’ argument about the powers of this Court, or to decide whether the orders now sought by the applicant fall within the principles to which the respondents refer. The “power” argument is a large question, and may not be appropriate for determination by a single judge, unless strictly necessary in a given case. It is certainly not necessary to decide it on this application, given the conclusions I have reached.

66    It is also not necessary to decide whether, as a matter of discretion, such specific orders should be made due to the sensitivities of the Nauruan Government and/or certain of its officials. Therefore it is not necessary to make any findings about the respondents’ evidence in this respect. I have formed the view that for other reasons, the orders sought by the applicant in his proposed paragraph 3 are not appropriate.

67    Nor is it currently necessary to make any finding about Dr Smith’s qualifications or expertise, or whether the role Dr Smith is apparently playing in treatment and transfer decisions about the applicant is appropriate.

68    Finally, it is not necessary to enter into the debate about precisely how it can be the case, in a legal sense, that the Government of Nauru can prevent the applicant from leaving Nauru, in circumstances where it is clear on the evidence (looking for example at the Memorandum of Understanding between the Commonwealth and Nauru (MOU), and the Administrative Arrangements for Regional Processing and Settlement Arrangements in Nauru (Administrative Arrangements)) that:

(a)    the Commonwealth bears all the costs of the applicant’s transfer;

(b)    IHMS is obliged to provide an escort to him under its contract with the Commonwealth if such an escort is requested (see cl 26.1 of Sch 2); and

(c)    the applicant has a legal entitlement under his visa to leave Nauru and to re-enter.

69    The source of any authority of the OMR Committee to control the otherwise lawful freedom of movement of persons such as the applicant, and apparently its own citizens, may well deserve closer attention. It is not necessary to do so on this application.

Resolution

70    The latest medical evidence about the applicant’s situation is contained in the IHMS medical records annexed to Mr Timson’s second affidavit.

71    The second record in the annexure, which appears to be based at least indirectly on an observation of the applicant, is from 26 June 2019. That states:

Progress Notes Note added on 2:20 PM: Little change in presentation to AOT. Awaiting review by Dr Smith from RoN. He DNA’d my apt with him and told staff he did not want to see me, specifically. This week he is indicating he would see another psychiatrist. Suggest awaiting Dr Smith’s assessment and rebooking with IHMS psychiatrist. If Dr Smith and GoN support him going to Australia I suggest a period of assessment there before starting any new medication such as Clozapine as his history is very atypical and there may be significant improvement especially if he is re-united with his cousin in Australia. (Nauru is not a safe environment to use Clozapine in.) If he is not supported to leave Nauru he will likely deteriorate and develop new sx and will need reassessment as to risk.

72    To be clear, the opinion expressed here is the opinion of an IHMS psychiatrist. This document was produced by Mr Timson and demonstrates the respondents are aware that the applicant’s condition is deteriorating, the risk to his health and safety is increasing, and that there are issues with the medication proposed to be given to him on Nauru.

73    Also dated 26 June is a record, based on direct observations by a mental health nurse who visited the applicant at his home. In that record, the mental health nurse recorded observations that:

(a)    there was spilt coffee and dried blood on the applicant’s kitchen floor;

(b)    when asked if he could mop the floor to clean up the coffee and blood, the applicant responded by saying he did not think his place required cleaning;

(c)    there were no dishes in the sink and there was no evidence that the applicant had been preparing meals for himself;

(d)    whilst the applicant stated he had been drinking water, his eyes appeared sunken and black;

(e)    the applicant stated that he was only consuming biscuits and coffee;

(f)    the applicant has had no social support since his flatmate left;

(g)    the applicant has been smoking 25 cigarettes per day and the ashtray in his accommodation was brimming over; and

(h)    the applicant did not appear to be attending to his personal hygiene, and was still dressed in the same clothes he had worn on the nurse’s previous two visits.

74    Again, this is an IHMS record. As this record was produced by Mr Timson, the Court can and does assume the respondents are fully aware of the unacceptable and deteriorating circumstances in which the applicant is currently living.

75    And yet, the respondents’ position on this application is that they propose to take no further steps to have the applicant transferred until the Nauruan Government completes its processes, in its own time. If those processes do not produce consent to the applicant’s transfer, the respondents’ counsel was unable to inform the Court of what the next step might be.

76    Subject to the one matter I refer to at [77], I find on the evidence that the respondents do not propose to take any active steps to progress the applicant’s transfer from Nauru to Australia, but instead intend to await what happens with the OMR process, and then await any further steps set by the Nauruan Government (such as the rather Delphic “uplift approval”), in a timeframe determined by the Nauruan Government and its officials.

77    As I have noted above, counsel for the respondents did inform the Court that senior Commonwealth officials are meeting with IHMS this week, and that under consideration is the giving of a direction by the Commonwealth to IHMS broadly in the terms articulated by the applicant in his proposed orders: that is, “to take all reasonable steps IHMS can to effect the transfer of the Applicant to Australia”.

78    No further detail about this meeting, or the direction which might be under consideration, was available. On the evidence as it stands, it is difficult to see what it is that IHMS itself might be able to do that the respondents could not. However, there may be aspects of the situation on Nauru that are not dealt with in the present evidence where such a direction may have some tangible effect.

79    For present purposes, given the information provided to the Court, I am prepared to accept that the respondents intend to consider whether the Commonwealth should give a direction to IHMS. In my opinion, that removes the need for an order of the kind proposed in paragraph 3(d).

80    As to the orders in paragraphs 3(a)-(c), it would not have been appropriate to assume the “power” issue favourably to the applicant. That matter is not necessarily the same as the exercise of jurisdiction in order to preserve the subject-matter of a proceeding, or so as to decide whether the Court has jurisdiction: see [18] above. The orders involved are mandatory in nature: in my opinion, if the Court was otherwise to consider making such orders, it would need to determine for itself whether it had the power to do so.

81    However, the questions of power and discretion can be put to one side. On the evidence, the making of orders such as those proposed in paragraphs 3(a)-(c) would be futile. The evidence is very clear that the applicant would not be permitted to board a flight from Nauru, even if he presented at the airport (with or without an IHMS escort, or any other escort provided by the respondents). That is because, at present, the approval of the OMR Committee appears to be one of the “assessments” which must be completed before the Nauruan airline will accept a person in the applicant’s position as a passenger.

82    Further, there is a real possibility the Nauruan Government may take other steps to prevent the applicant being transferred, unless and until it has itself decided to permit his transfer. Where the Nauruan Government controls the airport, the airline and the airspace, and has the attitude the evidence discloses, it would be futile to make mandatory orders against the respondents about specific steps. The present futility of the applicant’s proposed orders is the basis for my rejection of them.

83    One outcome of the present situation appears to be that the performance of the Commonwealth’s duty of care, as it has been accepted to exist at a prima facie level now in a series of decisions of this Court, appears to be subject to the conduct, or agreement, of the Nauruan Government.

84    How this situation sits with the first respondent’s decision under s 198E of the Migration Act is difficult to understand. That decision means, amongst other matters, that the first respondent believes, reflecting the terms of s 198E(4)(a), that it is “necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment”. Section 198E(3A) requires that, after being notified by the Secretary that “a person is a relevant transitory person”, a decision must be made by the Minister regarding a person’s transfer to Australia within 72 hours of notification or “as soon as practicable after being notified”. The clear purpose for this short period of time is because Parliament intends these powers to be exercised with expedition, due to the serious threats to a person’s health and wellbeing which exist, and necessitate the transfer. Although s 198B is the source of the transfer power itself, it may well be inferred Parliament intended a transfer made because of a decision under s 198E would occur with commensurate expedition.

85    Notwithstanding those observations, I consider all that it is appropriate for the Court to do at present is to give the respondents one further opportunity to effect the transfer of the applicant from Nauru, within the framework they insist is necessary: namely, to work through over the next few weeks the presently proposed domestic steps in Nauru, in accordance with a process approved by the Government of Nauru.

86    Thereafter, I consider it is appropriate for the Court to be informed whether its orders of 14 June 2019 are in fact going to be complied with or not. The orders were that the respondents “take all steps within their power” to transfer the applicant to Australia “as soon as reasonably practicable”. It seems to me that the situation after the next few weeks will make it clear, one way or the other, whether the respondents have in fact taken all steps within their power. It is appropriate to require the respondents to file further updating evidence with the Court after the date of the next foreshadowed OMR Committee meeting, but no more than that.

87    All concerned must hope that the applicant is able to be sustained by the knowledge that he has legal and medical practitioners working to secure his transfer, and that the respondents have publicly expressed a commitment to that outcome. However, in case matters take a turn for the worse, the applicant through his solicitors should have the ability to return to the Court on a more urgent basis, and there will be an order to that effect.

88    Finally, there can be no doubt on the evidence that the only reason the applicant’s legal representatives have had to expend significant resources in returning to Court, and preparing substantial affidavit material, is because the respondents have chosen a course of conduct that does not reflect wholesale compliance with the Court’s orders of 14 June 2019. That conduct is responsible for the expenditure of costs and resources on the applicant’s side. The respondents should be given an opportunity to make submissions as to why in these circumstances, it is not appropriate for the Court to make a costs order against them, in respect of the hearing on 1 July 2019.

The application for orders under ss 37AF or 37AI over evidence in Ms Sullivan’s affidavit

89    In Giddings v Australian Information Commissioner [2017] FCAFC 225, the Full Court stated at [25], citing the plurality judgment in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651:

The onus on the party seeking to persuade the court to make an order pursuant to s 37AF is a “very heavy one”: Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198 at [16], (1999) 88 FCR 438 at 442 per Madgwick J. So much is underscored by the term “necessary” in s 37AG(1)(a). When commenting upon the comparable provision to that now found in s 37AG, namely the now-repealed s 50 of the Federal Court of Australia Act, it has been recognised that the term “necessary” is a “strong word”: Hogan v Australian Crime Commission [2010] HCA 21 at [30], (2010) 240 CLR 651 at 664. French CJ, Gummow, Hayne, Heydon and Kiefel JJ there made the following comments in relation to s 50 (at 663 to 664):

The construction of s 50

[29] It has been assumed, no doubt correctly, that an order made under s 50 of the Federal Court Act may be made until further order and, in any event, may be vacated if the continuation of the order no longer appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. As a general proposition, a court remains in control of its interlocutory orders and a further order will be appropriate, for example, where new facts and circumstances appear or are discovered, which render unjust the enforcement of the existing order.

[30] As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish [(1980) 43 FLR 129 at 133], that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

[31] It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

[32] If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.

[33] It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.

(Footnotes omitted.)

(Original emphasis.)

90    The usual position is that once an affidavit is read then, subject to the Court’s leave, it may be inspected by third parties. Leave is usually granted if an affidavit has been read in open court and there are no orders of the kind now sought in place. The respondents’ position is that if the content of Ms Sullivan’s affidavit is made available in that way, that content would cause Nauruan officials significant embarrassment, and would disclose private communications, including complaints, between foreign government officials. This is likely, the respondents contend, to cause the kind of harm to the relationship with Nauru that the Commonwealth is seeking to avoid by refraining from making further representations about the transfer of the applicant.

91    If any power is appropriate as a basis for the orders sought, it is the interim power under s 37AI of the Federal Court Act. However, I do not consider there are grounds for the exercise of that power. Counsel for the respondents properly accepted that, despite invoking s 37AG(1)(b), there was no basis in the evidence for the Court to accept that a non-publication order is necessary to prevent prejudice to the interests of the Commonwealth in relation to national or international security. The subsection does not concern prejudice to the interests of the Commonwealth without any qualification.

92    That leaves s 37AG(1)(a) as the only ground which is invoked. The order must be necessary to prevent prejudice to the proper administration of justice. The respondents appear to be contending the order is necessary for that purpose because the reaction of the Nauruan Government to Ms Sullivan’s affidavit being available to third parties (and possibly thereby disclosed to the public) would be such that the respondents could be even further impeded in taking steps under the 14 June orders to effect the transfer of the applicant.

93    As the plurality stated in Hogan, the “administration of justice” is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth. That exercise of judicial power occurred on 14 June 2019, and the outcome of that exercise remains unfulfilled. The respondents have already made it abundantly clear they do not intend to take any further steps, if those steps could adversely affect the Commonwealth’s relationship with Nauru. They have already made it clear they consider they have done all they are prepared to do. It is not that they have taken all the steps within their power, but they have done all they are prepared to do, taking the context of their relationship with Nauru into account.

94    On that basis, I fail to see what protective function to the administration of justice is served by the making of an order suppressing Ms Sullivan’s evidence. The administration of justice, in terms of the observation of, and obedience to, the Court’s orders of 14 June 2019, is already damaged. Any prejudice to the willingness of parties such as the respondents to be frank with the Court is not engaged, in my opinion. That is because Mr Timson has already been commendably frank in his affidavits, as have the respondents in their written submissions. No orders are sought over those documents.

95    In contrast, I consider there is a real prospect of prejudice to the proper administration of justice if Ms Sullivan’s evidence is not made available in the usual way, noting access by third parties is always subject to leave of the Court in relation to affidavits.

96    The subject-matter of proceedings such as this involves the exercise of a wide range of public powers in a wide range of circumstances, as well as the implementation of policies which have serious effects on individuals. The conduct by the Commonwealth of the offshore processing arrangements, its relationship (financial, political and otherwise) with Nauru, and the enormous amount of public monies expended on that system (see for example Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [311]-[313] (Gordon J)) are matters of public interest. The now considerable numbers of individuals with serious medical and/or psychiatric conditions, at least most of whom have been found to be refugees, who have been transferred to Australia for treatment that was ultimately usually accepted by the respondents not to be available on Nauru, or not to be capable of being delivered on Nauru, are matters of public interest. As the MSF report which is in evidence demonstrates, they are also matters of international concern.

97    While, as Hogan also states, the public interest is not co-extensive with the concept of the administration of justice, the subject-matter and context of these proceedings is relevant to how this Court discharges its function of exercising judicial power. The premise is it does so in open court: see s 17(1) of the Federal Court Act. Whatever view is taken by individual members of the Australian community on these issues, the Australian community is entitled to be informed about what the Commonwealth, and the responsible Minister, are saying to the Court in defence of their conduct, and what they are saying in order to persuade the Court to make, or not make, certain orders. It is vital that there be transparency and open justice in the conduct of cases such as this. That is what is in the interests of the administration of justice.

98    Further, Ms Sullivan’s evidence is general in the extreme: it names no one. It speaks of “Nauruan officials” and “the Nauruan bureaucracy”. It mostly consists of her own opinion. I do not suggest she is not qualified to express the views she does. However, in substance the affidavit says little more than what is already in the affidavit evidence of Mr Timson, over which no non-publication orders have been sought. Her affidavit also goes little further than the respondents’ written submissions. It is being relied on for the purpose of persuading the Court that it should refrain from exercising any further judicial power in this proceeding, and that the Court should, as Mr Timson deposes in substance, step back. That is a submission, and a persuasive exercise, that the respondents are entitled to undertake in the context of this proceeding. However, they should do so openly, and not by reliance on evidence that is hidden from public scrutiny, even when it may tend to reveal the very difficult situation the respondents now find themselves in because the Commonwealth chose to enter into arrangements of the kind set out in the MOU and the Administrative Arrangements with another sovereign state.

99    Accordingly, the application for orders under s 37AF and/or s 37AI will be refused.

100    The respondents will be granted leave to remove the affidavit of Ms Sullivan from the Court’s file, if they choose not to continue to rely on it in light of this ruling. They will be required to take that step promptly. I can indicate I have not relied on Ms Sullivan’s affidavit in forming the opinions I have expressed in these reasons because in my view, in substance, the remainder of the evidence, and the respondents’ submissions, are a sufficient basis for the conclusions I have reached.

Associate:

Dated:    5 July 2019