Mixed results for asylum seekers vs Peter Dutton at High Court

By Chris Woods

Wednesday December 2, 2020

The High Court, Canberra (AAP Image/Lukas Coch)

The High Court has unanimously held that the federal court can hear negligence claims brought by people in offshore detention, while also allowing an appeal from the government against a federal court ruling last year.

In a court decision that has heralded contrasting, if nonetheless accurate, headlines — ‘Government has partial win in High Court asylum seeker cases, gaining new defence in health cases’ (ABC); and ‘High Court frees up legal avenues for asylum seekers’ (Crikey) — the High Court has allowed the government to appeal a case relating to four young asylum seekers but, crucially, rejected the government’s claim that only the High Court can hear such cases, instead finding the government’s defence relied on issues raised in specific cases:

These appeals are not concerned with whether the respondents were owed the pleaded duty of care or whether that duty, if owed, was breached. Although each appeal should be allowed and the cross-appeals dismissed, the answers given to the separate questions are not the answers the Commonwealth sought. In these circumstances, each party should bear their own costs of their proceeding in this Court.”

Specifically, Home Affairs minister Peter Dutton claimed that Section 494AB of the Migration Act 1958 prevents claimants from taking action in lower courts for negligence and breaches of duty of care while held in the government’s custody.

The High Court ruled, however, that:

s494AB is not a law that takes away the jurisdiction of those courts (or that of this Court) to hear and determine proceedings of the kinds described in s 494AB(1)…

That conclusion is grounded in the established principle 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.

So construing s 494AB as a statutory bar avoids the High Court being made a post box for the commencement of proceedings destined to be remitted to another court. It avoids diverting the High Court away from its central work as the apex court of the Australian judicial system. And, further, it avoids administrative inconveniences for the courts, the profession and litigants in circumstances where the Commonwealth could not identify any purpose or utility in requiring the proceedings to be filed in the High Court only for them to be remitted.

While the four test cases today will be heard by the High Court — and all claimed the government failed in its duty of care to asylum seekers in Nauru, including in the case of a two-year-old born on Nauru who developed a life-threatening neurological condition — lawyers point out the ruling allows 50 other cases to be brought to lower courts.

“This case represents a win for asylum seekers,” Australian Lawyers Alliance human rights spokesman Greg Barns SC told Crikey. “In essence, the Minister for Home Affairs [Peter Dutton] was trying to knock out claims for damages made by asylum seekers altogether.”

“[But] the High Court has reminded the Commonwealth that it has to behave as a model litigant, which means that it should not use defences and legislation to prevent cases which have obvious merit from being heard.”

George Newhouse, principal solicitor and director of the National Justice Project, which is acting for the asylum seekers, says the High Court’s decision was a vindication of its clients.

“We’ve argued successfully at every stage that the federal court has the jurisdiction to hear these claims,” Newhouse said.

“Today the High Court agreed. In an act of legal bastardry, the government tried to slow down the course of justice, and they failed.”

“The decision vindicates our clients. By taking legal action against the government, our clients hope to access the long-term medical and psychological care that they need.”

“Many of our clients are young children who have suffered so much from the Minister’s cruel policies. These children suffer from constant nightmares, they struggle to interact with other children, and they experience suicidal thoughts. Some of them have self-harmed or attempted to take their own lives.”

“Now, we will fight in the Federal Court to make the government accountable for what it has done to these children.”

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