AS v Minister for Immigration and Border Protection
[2016] VSCA 206
•26 August 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0110
| AS by her litigation guardian MARIE THERESA ARTHUR | Applicant |
| v | |
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION | First Respondent |
| and | |
| COMMONWEALTH OF AUSTRALIA | Second Respondent |
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| JUDGES: | WARREN CJ and OSBORN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 August 2016 |
| DATE OF JUDGMENT: | 26 August 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 206 |
| JUDGMENT APPEALED FROM: | [2016] VSC 351 (J Forrest J) |
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TORTS – Statutes – Statutory duty – Whether s 4AA of Migration Act 1958 (Cth) creates independent and actionable statutory duty – Intention of the Parliament – Detention of minors – Parliament affirming as a principle that minors shall only be detained as a measure of last resort – Residence determination – Reference to minor being detained not including reference to minor residing at place in accordance with residence determination – No actionable statutory duty – Migration Act 1958 (Cth), ss 4, 4AA, 189, 197AB, 197AC, 197AE, 197AF and 474.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Hanks QC with Mr M L L Albert and Mr M Guo | Maurice Blackburn |
| For the First and Second Respondents | Mr R Williams QC with Mr A P Yuile | Australian Government Solicitor |
WARREN CJ
OSBORN JA
BEACH JA:
Section 4AA of the Migration Act 1958 (Cth) (‘the Act’) provides:
4AA Detention of minors a last resort
(1)The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
(2)For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.
In this Court, the issue in dispute between the parties is whether s 4AA gives rise to an independent and actionable statutory duty. The judge at first instance held that the section did not give rise to an independent or actionable statutory duty.[1] For the reasons given below, we have determined that, while the matter is sufficiently arguable to grant the applicant leave to appeal, the appeal must be dismissed as there was no error in the judge’s ultimate conclusion.
[1]AS v Minister for Immigration and Border Protection (Ruling No 4) [2016] VSC 351 (‘Reasons’).
The proceeding at first instance
The applicant (AS) is the representative plaintiff in a class action[2] brought, in the Trial Division, on behalf of asylum seekers detained under the Act in the Christmas Island detention centre between August 2011 and August 2014. The respondents are the Minister for Immigration and Border Protection and the Commonwealth of Australia.
[2]The proceeding is more particularly described as a group proceeding, brought by the applicant on her own behalf and on behalf of group members pursuant to pt 4A of the Supreme Court Act 1986.
The ruling that is the subject of challenge in this Court was generated by an application by AS to amend the statement of claim. In that application, the parties accepted that one of the issues that required determination was whether s 4AA of the Act created a statutory duty that was actionable against the respondents. While it was accepted by the respondents that the Commonwealth ‘owed a non-delegable duty of care to provide reasonable health care to persons held in detention on Christmas Island pursuant to the Act’,[3] the respondents dispute that s 4AA of the Act creates any independent cause of action against either of them. The respondents’ position is that s 4AA is no more than an ‘aspirational statement of principle to be applied to other provisions within the Act’.
[3]Reasons [12]. See further, AS v Minister for Immigration and Border Protection [2014] VSC 593 [24] and the authorities cited therein.
In determining whether s 4AA created an independent and actionable statutory duty, the judge posed four questions for consideration, namely:
(1) Does s 4AA impose an obligation or duty upon one or other of the respondents?
(2) If so, does s 4AA demonstrate a legislative intention to create a private right of action?
(3) If so, is this obligation imposed for the protection or benefit of a particular class of persons?
(4) If so, who is subject to this obligation?[4]
[4]Reasons [25].
The judge answered the first two questions ‘No’.[5] That was sufficient to dispose of the question of statutory duty, however, the judge went on to consider questions (3) and (4) — answering them, favourably to the applicant, ‘Yes, minors in detention’ and ‘The Minister, and perhaps the Commonwealth’ respectively.[6]
[5]Ibid [26]–[55].
[6]Ibid [56].
On 30 June 2016, and in conformity with the judge’s reasons for judgment, the judge ordered (in paragraph 4 of his orders made that day) that the claim for breach of statutory duty based on s 4AA of the Act was struck out. It is that order (paragraph 4) that the applicant seeks to challenge in this Court. The applicant seeks leave to appeal and (if leave is granted) to appeal on the ground that:
The court erred in its interpretation of s 4AA of the Migration Act 1958 (Cth) when it concluded that s 4AA did not give rise to a statutory duty on the part of either or both of the respondents:
(a)only to detain minors, including the applicant, as a measure of last resort;
(b)capable of founding a private right of action by a minor detained in breach of the duty.
Relevant provisions of the Act
We have already set out s 4AA of the Act. The objects of the Act are to be found in s 4 of the Act. Section 4 provides:
4 Object of Act
(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.
(2) To advance its object, this Act provides for visas permitting non‑citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain.
(3) To advance its object, this Act provides for non‑citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non‑citizens whose presence in Australia is not permitted by this Act.
(5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
Sections 189, 197AB, 197AC and 197AE deal with the detention of unlawful non-citizens,[7] the ability of the Minister to make a residence determination,[8] the effect of a residence determination and whether the Minister has any duty to consider whether to exercise the power to make, vary or revoke a residence determination. Specifically, s 189 of the Act provides for the mandatory detention of certain persons known or reasonably suspected of being unlawful non-citizens. Relevantly, ss 197AB and 197AC provide:
[7]By a combination of ss 5(1), 13 and 14 of the Act, the expression ‘unlawful non-citizen’ is relevantly defined to mean a ‘non-citizen’ in Australia’s migration zone (the expression ‘the migration zone’ is itself defined in s 5(1) of the Act) who does not hold a visa.
[8]The expression ‘residence determination’ is defined in s 5(1) to have the meaning given to that expression by s 197AB(1) of the Act.
197AB Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.
(1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).
…
197AC Effect of residence determination
Act and regulations apply as if person were in detention in accordance with section 189
(1) While a residence determination is in force, this Act and the regulations apply (subject to subsection (3)) to a person who is covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with section 189.
…
Section 197AE deals with the question of the Minister’s duty to make a decision concerning a residence determination. That section provides:
197AE Minister not under duty to consider whether to exercise powers
The Minister does not have a duty to consider whether to exercise the power to make, vary or revoke a residence determination, whether he or she is requested to do so by any person, or in any other circumstances.
While s 197AE provides specifically that the Minister does not have a duty to consider whether to exercise the power to make a residence determination, the Act contains a more general provision, s 474, that provides that any decision, defined as a ‘privative clause decision’, ‘is final and conclusive’; must not be ‘challenged, appealed against, reviewed, quashed or called in question in any court’; and is not ‘subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account’.
A decision of the Minister not to exercise, or not to consider the exercise of, the Minister’s power to grant a residence determination is a ‘privative clause decision’ within the meaning of s 474 of the Act.[9]
[9]See s 474(7)(a) of the Act.
The parties’ submissions
The applicant submitted that there are reasons which, independently or together, support a conclusion that s 4AA gives rise to an independent and actionable (at the suit of the applicant) statutory duty on the part of the respondents to detain the applicant only as a measure of last resort.
First, it was submitted that the use of the word ‘shall’ in s 4AA was significant. ‘Shall’, it was submitted, imposed an obligation, whereas if the word ‘may’ had been used then this would ‘only impose a discretion’.
Secondly, it was submitted that statutory provisions which provide a ‘specific precaution’, or ‘means’ rather than merely the ‘ends’, are consistent with the existence of a statutory duty. The applicant contended that s 4AA(1), when read with ss 4AA(2) and 197AA–197AG, ‘contemplated the means’ by which the objective in s 4AA(1) was to be achieved — namely, by the making of a residence determination. The applicant contended also that s 197AC, a deeming provision, resolved any tension between the fact of mandatory detention and the principle in s 4AA.
Thirdly, the applicant submitted that ‘the rule against surplusage’ meant that s 4AA(1) needed to be given work to do. Read in the context of ss 4AA(2), 189 and 197AC, it was submitted that s 4AA(1)’s only possible work was to oblige the Minister to detain a minor only if all other options, including a residence determination, were ruled out.
Fourthly, the applicant submitted that the use of the word ‘principle’ in s 4AA supported the notion that, contrary to the judge’s ruling,[10] the section is ‘something more than aspirational’.
[10]Reasons [31].
Fifthly, the applicant submitted that the legislative history of the enactment of s 4AA, which included the adoption in s 4AA of language used in Article 37(b) of the Convention on the Rights of the Child (‘the CROC’), supported the conclusion that a statutory duty arises from s 4AA of the Act. In support of this submission, the applicant relied upon other provisions of the CROC and extrinsic materials concerning the enactment of the Migration Amendment (Detention Arrangements) Act 2005, that inserted s 4AA into the Act.
Sixthly, the applicant relied upon a proposition in the authorities that if a statute provides no other remedy for its breach, and the parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action, since otherwise there is no method of securing the protection the statute was intended to confer.
Specifically, in X v Bedfordshire County Council,[11] Lord Browne-Wilkinson said:
There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: Cutler v. Wandsworth Stadium Ltd; Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2). However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy.[12]
[11][1995] 2 AC 633 (‘X v Bedfordshire’).
[12]Ibid 731 (citations omitted).
The applicant submitted that s 4AA of the Act disclosed an intention to protect a limited class (minors), in circumstances where the Act did not provide any remedy for a ‘breach’ of s 4AA. In this regard, the applicant relied upon the fact that the Minister’s power to make a residence determination was a personal one which was not reviewable,[13] and s 474 of the Act prohibited the review of such a decision, other than by the High Court in its original jurisdiction pursuant to s 75(v) of the Constitution. It was submitted that these provisions which prevent a minor from taking proceedings to review a decision to detain him or her, or to review a failure to make a residence determination, told in favour of a parliamentary intention to give an independent actionable statutory right, to a minor who has been detained, to compel compliance with s 4AA.
[13]See ss 197AE and 197AF of the Act.
Seventhly, in reliance upon another passage in the judgment of Lord Browne-Wilkinson in X v Bedfordshire, the applicant submitted that the statutory duty for which she contended was ‘very limited and specific’ as opposed to one which involved more difficult contestable questions of fact and questions that might involve competing questions of value and judgment. On this issue, in X v Bedfordshire, Lord Browne-Wilkinson said:
The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions.[14]
[14]X v Bedfordshire [1995] 2 AC 633, 732.
Finally, the applicant submitted that ‘given that the Commonwealth is already, under the general law of negligence, bound to exercise due care, a breach of s 4AA ought give rise to a private right of action for the reasons explained by Dixon J in O’Connor v S P Bray Ltd.[15] In O’Connor, in the context of a workplace accident, Dixon J said:
Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid, is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on.[16]
[15](1937) 56 CLR 464 (‘O’Connor’).
[16]Ibid 478.
On the other hand, the respondents submitted that s 4AA does not impose a duty upon any person to exercise any power; does not compel the Minister to act or exercise any powers (including any discretionary power) under the Act; and does not evince an intention to provide a remedy to any person who might be affected by the operation of the Act. The respondents submitted that, on their face, the words in s 4AA(1) constituted a statement of principle for the guidance of those exercising discretionary powers under the Act.
The respondents also submitted that a fundamental difficulty with the applicant’s case is that it attempts to find a duty out of s 4AA by linking that section to a part of the Act providing for the Minister’s discretion, in circumstances where s 197AE of the Act provides that the Minister does not have a duty to consider whether to exercise the power to make a residence determination, the power given to the Minister being a personal,[17] non-compellable, non-reviewable, discretionary power.
[17]See s 197AF of the Act.
Analysis
Authorities concerning the question of whether or not a particular statute confers a cause of action for breach of statutory duty have not always spoken with one voice. As was observed by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council:[18]
[T]he principles respecting the construction of statutes to discern the conferral of a cause of action for breach of statutory duty, for which express words are not required, have been refined in authorities such as Sovar v Henry Lane Pty Ltd.[19] Whether the nineteenth century authorities concerning this cause of action would necessarily be decided the same way in the light of cases such as Sovar is a subject which does not arise in this litigation.
[18](2001) 206 CLR 512, 541 [58].
[19](1967) 116 CLR 397 (‘Sovar’).
In Byrne v Australian Airlines Ltd,[20] McHugh and Gummow JJ referred to the ‘effort’ made by the High Court in Sovar ‘to restore the subject to a principled basis’.[21] Their Honours then cited with approval the judgment of Kitto J in Sovar as follows:
The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then ‘imputed’ to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation.[22]
[20](1995) 185 CLR 410 (‘Byrne’).
[21]Byrne (1995) 185 CLR 410, 460. See further, Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304, 315–316 [27]–[29] (Gleeson CJ, Gummow and Hayne JJ).
[22]Sovar (1967) 116 CLR 397, 405. See also O’Connor (1937) 56 CLR 464, 477–8.
In the present case, it may be accepted that, in enacting s 4AA, the Commonwealth Parliament adopted the language of Article 37(b) of the CROC, which provided:
The … detention … of a child shall be in conformity with the law and shall be used only as a measure of last resort … .
Moreover, it may be accepted that, in adopting the language of the CROC, the Commonwealth Parliament enacted, as part of Australian domestic law, the proposition that the Parliament affirmed as a principle ‘that a minor shall only be detained as a measure of last resort’. Additionally, it can be accepted that the applicant is correct in submitting that the words of s 4AA of the Act must be given operation, and not merely regarded as some sort of ‘surplusage’. However, that is not to say that, when construing the Act as a whole, in its context, and having regard to its legislative history, s 4AA must be held to give rise to an independent and actionable statutory duty. Undoubtedly, decisions made under the Act must be made in accordance with the provisions, object and purpose of the Act.[23] Plainly, the provisions of the Act include the provision in s 4AA(1) which ‘affirms as a principle that a minor shall only be detained as a measure of last resort’. In making decisions in accordance with the provisions, object and purpose of the Act, relevant decision-makers (including the Minister) are required to do so in accordance with the principle affirmed in s 4AA(1). In that way, s 4AA(1) is given effect. However, contrary to the applicant’s submissions, the failure to hold that s 4AA(1) gives rise to an independent and actionable statutory duty does not involve any infringement of the so-called ‘rule against surplusage’.
[23]Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 134 (Windeyer J).
Indeed, if anything, the ‘surplusage’ issue is more of a problem for the applicant than the respondent. One might think that if, in enacting s 4AA of the Act, it was the intention of the Parliament (objectively ascertained) to create an independent statutory cause of action, then one might have expected s 4AA to be in terms that actively prohibited the detention of minors except as a measure of last resort. The insertion of the words ‘The Parliament affirms as a principle’ at the start of s 4AA(1) suggests that no actionable obligation was being cast on any individual or body by s 4AA(1). If an actionable obligation was intended to be cast on the respondents, or some other relevant entity, one might have expected s 4AA(1) to merely provide, ‘A minor shall only be detained as a measure of last resort’. Thus, contrary to the applicant’s submissions, the construction and consequence proffered by the applicant involves giving no effect to the introductory words of s 4AA.
For similar reasons, the use of the word ‘shall’ is of no assistance to the applicant on the issue presently before this Court. The word ‘shall’ forms part of the principle affirmed by the Parliament. However, the use of the word ‘shall’ says nothing about the intention of the Parliament to create a private, actionable right.
So far as the enactment of a ‘specific precaution’ is concerned (namely, the ability of the Minister to make a residence determination), the problem for the applicant is that the Minister’s decisions in respect of residence determinations are discretionary: the Minister not having any duty to consider whether or not to exercise the relevant power.[24] In such circumstances, it is difficult to see how s 4AA(1) might be held to create a private, actionable right. Moreover, it is not necessarily correct to say that s 4AA(2) provides the means of compliance with s 4AA(1). The principle affirmed in s 4AA potentially has work to do in respect of decisions other than with respect to residence determinations.[25]
[24]Section 197AE of the Act.
[25]See for example s 195A of the Act.
While it may be accepted that a statute that does not provide a remedy for a breach of a provision intended to protect a limited class discloses an intention to give a private right of action, different considerations apply where the same statute discloses an intention not to permit any person (including a member of the limited class) to challenge or otherwise call into question the decision, the making or not making of which is said to be capable of founding the claimed private statutory cause of action. The applicant sought to establish a clear division between the availability of judicial review remedies and that of remedies for tort. The applicant relied on Plaintiff S99/2016 v Minister for Immigration and Border Protection[26] to support her contention that the exclusion of judicial review did not exclude a right to seek tortious damages. In our view, when the exercise before the court is to construe whether a statute intends to confer a private right of action, the exclusion of other remedies informs the statutory context. Further, what was said by Lord Browne-Wilkinson in X v Bedfordshire[27] on this aspect is of no assistance to the applicant. In the absence of ss 197AE and 474 of the Act, there may have been some force in the applicant’s contentions. However, it seems to us that the existence of those provisions (ss 197AE and 474) make it plain that s 4AA of the Act does not give rise to an independent, actionable statutory duty.
[26][2016] FCA 483.
[27]X v Bedfordshire [1995] 2 AC 633, 731.
Moreover, so far as what Lord Browne-Wilkinson said in X v Bedfordshire about actionable statutory duties being found to exist in cases where the statutory duty is limited and specific,[28] we do not think that this analysis is of great assistance to the applicant in the present case. It seems to us, that questions of whether a minor is being detained as a matter of last resort, or should be detained, may involve competing and difficult questions of some complexity. For example, there may be security considerations that pull in one direction, while there might also be competing questions about the best interests of the minor, either in the minor being kept out of detention and away from his or her family, or in being kept together with his or her parents in detention. In the end, we do not think that the apparent simplicity of the text of s 4AA of the Act is of assistance in resolving the present question.
[28]Ibid 732.
In argument, the applicant made complaint about the judge’s description of s 4AA as containing a ‘statement of principle to be aspired to’.[29] It may be accepted that s 4AA(1) cannot be dismissed as merely ‘aspirational’. The Parliament has taken the trouble to specifically affirm, as part of the Act, a principle that many would regard as of the utmost importance and seriousness. As we have said, decisions made under the Act must be made in accordance with the provisions, object and purpose of the Act, which include this affirmed principle. But the fact that the section might not be properly categorised as ‘merely aspirational’ does not lead to the affirmative conclusion that the Parliament intended, by its enactment, to create an independent, private, actionable right. To the contrary, it seems to us, when one examines the whole of the Act (and in particular the sections relied upon by the applicant) one cannot discern any intention to create an independent statutory cause of action.
[29]Reasons [31].
Finally, in our view, the passage in Dixon J’s judgment in O’Connor, relied upon by the applicant, is of no assistance in the present case. O’Connor was a case involving personal injury caused to an employee when a lift fell and injured the plaintiff. It was in that very different context[30] that Dixon J said that, in circumstances where a common law duty of care existed, a correlative private right might arise ‘unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears’. In any event, even if O’Connor could be held to have a relevant application in this case, for the reasons we have already given, in our view, a contrary intention appears from the provisions of the Act.
[30]See Sovar (1967) 116 CLR 397, 404 (Kitto J).
Conclusion
While we will grant the applicant leave to appeal from paragraph 4 of the judge’s orders of 30 June 2016, the appeal must be dismissed.
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