Plaintiff S99/2016 v The Minister for Immigration and Border Protection & Anor

[2016] HCATrans 81

[2016] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S99 of 2016

B e t w e e n -

PLAINTIFF S99/2016

Plaintiff

and

THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

Summons

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE AND SYDNEY

ON THURSDAY, 7 APRIL 2016, AT 3.28 PM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear on behalf of the plaintiff in this matter.  (instructed by The National Justice Project Ltd)

MR A. MARKUS:   If your Honour pleases, I appear for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Merkel.

MR MERKEL:   Your Honour, I apologise, the matter has come on somewhat urgently and unexpectedly because the plaintiff, without notice, was taken yesterday from Nauru to Papua New Guinea and the matter has been prepared as a matter of urgency.  Does your Honour have the outline of submissions?

HIS HONOUR:   I do.  I have your outline of submissions and I have your writ of summons filed today, the affidavit of George Newhouse sworn today and a further affidavit by Mr Newhouse sworn today.

MR MERKEL:   Yes, thank you, your Honour.

HIS HONOUR:   I should just ask Mr Markus whether he has any material.  Mr Markus, I have a couple of documents that appear to be consents to procedures signed, so it would appear, by the applicant.  Do you have any further material?

MR MARKUS:   No, your Honour.  Perhaps I should nevertheless just briefly outline my client’s position that your Honour understands where matters stand at the moment.

HIS HONOUR:   Well, Mr Merkel, I would be grateful for an indication from Mr Markus of his client’s attitude to the relief that your client is seeking.

MR MERKEL:   Yes, that would be helpful to us too, your Honour.

HIS HONOUR:   Thanks.  Yes, Mr Markus.

MR MARKUS:   Thank you, your Honour.  Your Honour, while we oppose the interlocutory relief sought because we say that they are both unnecessary and inappropriate, I should note the following matters.  Following the receipt of the documents filed in this matter, including the first affidavit of Mr Newhouse, we have made arrangements to ensure that all appointments for the plaintiff have been suspended, in substance, for the time being.  So, your Honour, there is no immediate issue about the plaintiff undergoing any procedures in Papua New Guinea.

I should just note, your Honour, that the plaintiff, if it is not clear from the documents, is not in fact in detention and was not in detention before being transferred or moved from Nauru to Papua New Guinea and is not in detention in Papua New Guinea.  The plaintiff is a person who has been recognised as a refugee in Nauru and who accordingly has been granted a temporary settlement visa and to the extent that my client assisted and arranged for a medical transfer of the plaintiff from Nauru to Papua New Guinea, it was not under any statutory power and it was done with the agreement, we say, of the plaintiff.

What follows from all of that, your Honour, is that we say and accept that our client has no power to require the plaintiff to do anything.  A determination, if there is to be a determination, whether in PNG or elsewhere, is of course a matter for the relevant medical practitioners and our client does have no power to force or arrange for that to occur, contrary to the wishes of the plaintiff. 

Similarly, your Honour, my clients are not in a position to require the plaintiff to travel anywhere contrary to her wishes.  Our client has arranged for and is accepting financial responsibility for the travel of the plaintiff and the treatment of the plaintiff contemplated in Papua New Guinea but is not otherwise in a position to require the plaintiff to undergo medical treatment or, indeed, to require anybody else to perform medical treatment on the plaintiff.

This is why we say, your Honour, that the proceeding and the interlocutory orders that are sought are misconceived and we say they are unnecessary because our client would not be able to do those matters that the plaintiff apparently seeks to prevent them doing.  That is our position ‑ ‑ ‑

HIS HONOUR:   Well, I suppose to the extent that it might be said against you that there is an arguable case that the plaintiff is in your client’s detention, given what you have said, to the extent that there is an arguable case that the plaintiff is in your detention then it could be said that there is no reason in terms of the balance of convenience why you would not give undertakings in terms of paragraphs 1a and b of Mr Merkel’s submissions.

MR MARKUS:   Well, your Honour, with respect ‑ ‑ ‑

HIS HONOUR:   I suppose I really should say do you accept that there is an arguable case on Mr Merkel’s material that the plaintiff is in your client’s custody?

MR MARKUS:   No, your Honour, I do not.

HIS HONOUR:   All right.  Well, then I should hear from Mr Merkel about it.  Thanks, Mr Markus.

MR MARKUS:   Thank you, your Honour.

HIS HONOUR:   Mr Merkel.

MR MERKEL:   Your Honour, with respect, we have set out two authorities, but the one that is very helpful is Price v State of NSW.  Does your Honour have that?

HIS HONOUR:   I do.  Mr Merkel, the sound is not good on your link, if you could make sure you speak close to the microphone and loudly if possible.

MR MERKEL:   I was told to talk loudly.  Your Honour, at paragraph 35 of the decision in Price and in numerous other cases, the key factor in attracting a duty of care is the assumption of responsibility and control, not necessarily custody or detention.  What we say is of course there is an argument that the Commonwealth may wish to put that, absent detention in a classical sense, there is no duty of care.

But when your Honour looks at the facts that we have put forward, to which there is no response to the Commonwealth, what occurred is that the plaintiff was told she was being transferred, she said the transfer, according to the evidence that is before the Court, was contrary to her will, she was taken with Wilson Security officers to Papua New Guinea, she was put in the custody of an Australian security officer in Papua New Guinea, she was taken there for the purpose of medical treatment which she indicated she wanted a termination, but in Australia, not Papua New Guinea, and the circumstances that must have led to her being able to enter New Guinea, which the Commonwealth has not explained, would require some kind of arrangement by which the Commonwealth would assume some requirement of responsibility.

But the idea that she is in New Guinea today without the Commonwealth having assumed responsibility and custody and effective control, if not legal control, but probably legal control when the facts are out, we would say is not sustainable on the evidence before us.  That means that on the prima facie case, which is what we are concerned with at this stage, a duty of care is attracted in respect of her medical attention.

HIS HONOUR:   Just apropos of one point in terms of the facts as you are recounting them, I note that the consent form that - the consent to procedures that your client signed, they do actually refer to procedures in Port Moresby.

MR MERKEL:   Yes, and, your Honour, can I just say this, two things - that consent is back on 22 and 23 March and she was removed without any warning or notice yesterday afternoon.  Mr Newhouse’s second affidavit makes it clear that the consent that she gave was not to being taken to Papua New Guinea.  She thought she was consenting to a termination and if consent were to be seriously argued by the Commonwealth in respect of the plaintiff - and the evidence is that she has limited literacy - then one would have to be talking of informed consent and the circumstances of the present case bespeak very strongly against anything even vaguely approaching informed consent.

I have not had a chance to take your Honour through the correspondence but what is somewhat surprising is Mr Newhouse was in active correspondence with the Australian Border Force who were taking control of and assuming responsibility for the plaintiff’s medical treatment in Nauru and I think on 18 March, when the Border Force indicated they would be taking up her pregnancy, there was a silence and nothing further taken to Mr Newhouse who was known to be the solicitor acting for the plaintiff.

Next thing we see for the first time, the Commonwealth produce a document which on its face just consents to medical treatment in PNG.  The evidence before your Honour is that there was no consent to a termination in PNG.  In fact to the contrary, she had expressed her wish to go to Australia, as had Mr Newhouse in the correspondence with the Border Force personnel, and then the next thing we hear out of the blue she rings Mr Newhouse from Papua New Guinea last night saying that she was taken at three in the afternoon and told she was being transferred without being told where she was being transferred to.

Now, your Honour, both on the issue of consent we say a lot more would need to be put forward than is before you to be able to say that there is an informed consent or some kind of estoppel, but also we say the facts bespeak very strongly of an assumption of responsibility and control by the Commonwealth.  They must be paying for everything that is occurring to her and they would, we suspect, have complete control on when she is to leave New Guinea and what she is to do in New Guinea.

Of course, they cannot compel her to have an abortion, but on sections 225 and 226 of the Criminal Code in 1974, it would appear if the Commonwealth were involved in that activity, it is probably illegal and she herself would be committing a criminal offence.  So there seems to be some misconception about the concept of taking her to New Guinea, so not only is her health at risk, your Honour, by what is being proposed by the

Commonwealth, but she runs a serious risk of committing a criminal offence if ‑ ‑ ‑

HIS HONOUR:   I do note in Mr Newhouse’s first affidavit he exhibits material that appears to be from the United Nations which records that terminations for the health, physical or mental, of the mother are not unlawful in New Guinea.

MR MERKEL:   Yes, we noticed that.  We put it before your Honour, but we say two things about.  It is under the heading of policy, not law, and it says termination for rape is not permitted as a matter of policy but, your Honour, when we look at the Code – and we have exhibited a recent case where this Code has been enforced in respect of I think it may have been a late‑term abortion, but the Code makes it quite clear that the exceptions that the United Nations talk of are not in the Criminal Code, your Honour.

HIS HONOUR:   Well, I think we probably do not need, for today’s purposes, to try to get to the bottom of that.  It is probably something that might need to be dealt with at greater length at some later time.  But whether it is or whether it is not, it does seem that we are in a situation at the moment where, at least so far as the substantive relief you seek today, that is, that the Commonwealth, to the extent that it can be said to be in some way in a position to effect some control over your client, take no step to cause or otherwise be involved in a termination and take no steps to remove her from PNG.  There seems to be no contest about that.

MR MERKEL:   That is correct, your Honour, and we would say that we would welcome an undertaking from the Commonwealth but, if they do not give that undertaking, we would ask the Court to make an order.

HIS HONOUR:   Yes.  Well, just let me ask Mr Markus about that.  Mr Markus, Mr Merkel, as you heard, puts the plaintiff’s case on the basis that there is a sufficient factual basis, at least for today’s interim relief, on the point that it is arguable that your client has assumed responsibility for the plaintiff’s health.  I am just wondering whether on that footing your client is in a position to offer undertakings in terms of paragraphs 1a and b, and I ask you that because, given the urgency of the matter and the gravity of the consequences, and particularly the circumstance that your position actually is that you do not have any intention to do any of the things that Mr Merkel wants to stop your client doing, I would be minded, if you were not minded to give the undertaking, to make the orders.

MR MARKUS:   I understand what your Honour is putting to me and, your Honour, I did explain the reason why our clients are reluctant to give the undertaking is because we say it is unnecessary but if your Honour is of a different view then ‑ ‑ ‑

HIS HONOUR:   Well, I am not saying it is necessary, I am just putting to you so that you can make a decision whether you wish to give the undertakings on the footing that if they are not given my inclination is that there is a sufficient case made, given the gravity of the consequences for the applicant and the absence in terms of the balance of convenience of any conceivable inconvenience to your client, that it would seem to be an appropriate case to make the orders, if you are not minded to give the undertaking.

MR MARKUS:   I understand what your Honour is putting to me.  It is not so much a question of me being minded to give the undertaking, your Honour.  It is a question whether I have instructions to do so and I ‑ ‑ ‑

HIS HONOUR:   Quite, quite right.

MR MARKUS:   ‑ ‑ ‑ and I do not have ‑ ‑ ‑

HIS HONOUR:   Very well.

MR MARKUS:    ‑ ‑ ‑ instructions to do so ‑ ‑ ‑

HIS HONOUR:   Very well.  That is fine.

MR MARKUS:   I should just say - I apologise, your Honour, for interrupting – I should just say that the issue that is sought to be addressed by the second of the orders sought by the plaintiff, your Honour, as we understand it, the question there is whether the plaintiff is to stay in Papua New Guinea.

Your Honour, we cannot guarantee that the plaintiff will remain in Papua New Guinea.  We can undertake even that we will take no steps to remove her from there without her consent.  We can undertake that, your Honour, but, your Honour, she presumably has some authority which may be a limited authority, to remain in Papua New Guinea and it is ultimately up to the Papua New Guinea authorities whether she is allowed to remain there or not.

I say that only, your Honour, because whilst the order is in terms of not removing the plaintiff from Papua New Guinea, our client as I said would not be exercising statutory powers but would be, if anything, assisting the plaintiff to return to Nauru whence she came from.  That is the only possible movement that is being contemplated at the moment, your Honour.

HIS HONOUR:   Well, the difficulty that arises from what you have just said is that it seems to me that, if I were to make an order in terms of paragraph 1b, that should not have any adverse effect on your client, so long as your client does not actively involve itself, whether by its officers, servants or agents or contractors, in removing her.

MR MARKUS:   I understand that, your Honour.  I just wanted to clarify the position.

HIS HONOUR:   So, if what you tell me is right, then your client will not be adversely affected by that order.

MR MARKUS:   I accept that, your Honour.

HIS HONOUR:   Very well.  I understand why you cannot give the undertakings, but I am minded to make the order.  Before I make it can I ask you, Mr Markus, this action, is there any reason why this matter could not be determined in the Federal Court, that is to say, is there any jurisdictional limitation on the Federal Court which requires it to come here?

MR MARKUS:   I cannot see that being the case, your Honour, because in our view there is no action that is being taken under the Migration Act at all here.

HIS HONOUR:   No.  The action, so far as appears from the writ, is an action put on the footing of an obligation at common law in terms of the duty of care ‑ ‑ ‑

MR MARKUS:   Yes.

HIS HONOUR:   ‑ ‑ ‑ that is said to be owed to your client.  That seems to be something which exists independently of any suggested decision, much less a migration decision.

MR MARKUS:   Yes, your Honour.

HIS HONOUR:   In those circumstances, and given that this matter is likely to require a degree of management in terms of its further conduct and the garnering of evidence, it would seem to me that far and away the more convenient course, in the absence of any obstacle to the Federal Court hearing it, would be to remit the matter to the Federal Court.  Do you have any view about that?

MR MARKUS:   Your Honour, I think that is a sensible suggestion.

HIS HONOUR:   Thanks, Mr Markus.  Mr Merkel, I am minded to make the orders you seek, but in the absence of a reason to think that there is some difficulty with the matter being remitted to the Federal Court, given the obvious likelihood that the evidence that needs to be obtained in relation to both any further injunctions and the likelihood of a contest about the effect of that evidence going to the very question of the Commonwealth’s control over your client, not to mention questions of the lawfulness of any procedure in PNG, your client’s need for counselling, whether that counselling is available in PNG, whether Australian counsellors might be taken to PNG rather than your client coming here, it seems to me that in the absence of some disability in the Federal Court taking the matter, the better course for me to take would be, after making these orders, to remit the matter to the Federal Court.

MR MERKEL:   Yes, we agree with that, your Honour.  We do not see any obstacle ‑ ‑ ‑

HIS HONOUR:   Very well.

MR MERKEL:   ‑ ‑ ‑ to the Federal Court dealing with it.

HIS HONOUR:   Thanks, Mr Merkel.

In the circumstances, given the urgency of the matter, the gravity of the consequences for the applicant and the absence of any indication of any detriment to the defendants, I am satisfied that there is a sufficiently arguable case shown to grant relief on an interim basis in terms of the orders sought by Mr Merkel on behalf of the plaintiff.  Accordingly, I propose to make an order that until 4.15 pm on – and I propose to make the date 14 April.  Does anybody have an objection to that?

MR MERKEL:   No, your Honour.

MR MARKUS:   No, your Honour.

HIS HONOUR:  

1.Until 4.15 pm on 14 April 2016, or until further order, the defendants, whether by their officers, servants, agents, contractors or otherwise:

(a)take no step to cause, procure or otherwise be involved in a termination of the plaintiff’s pregnancy in Papua New Guinea; and

(b)take no step to remove the plaintiff from Papua New Guinea, other than to Australia.

2.The further conduct of the matter be remitted to the Federal Court of Australia.

3.Reserve today’s costs.

Are there any further orders sought, gentlemen?

MR MERKEL:   No, your Honour, but can I indicate to your Honour that, given that it is interim relief that is injunctive relief, I did seek my instructor’s instructions to give the usual undertaking as to damages.  I understand that is able to be given – he is nodding to me.

HIS HONOUR:   I am sorry, Mr Merkel, I just could not hear that last sentence.

MR MERKEL:   Sorry, your Honour.  We proffer the usual undertaking as to damages as a condition of the interlocutory or interim relief.

HIS HONOUR:   Thank you, Mr Merkel.  Mr Markus, anything further?

MR MARKUS:   Nothing further, your Honour.

HIS HONOUR:   The interim injunction that I have referred to will be upon the usual undertaking as to damages which has been offered by Mr Merkel.  The orders will be as I have indicated. 

MR MERKEL:   Sorry, your Honour, there is just one last matter I omitted to mention.  In paragraph 31 of the affidavit, there is some information that could disclose the identity of the plaintiff to her family.  It is about anonymity.  We would ask for leave to refile that affidavit with paragraph 31 deleted, your Honour.  That is the first affidavit.

HIS HONOUR:   Sure.  I am sure Mr Markus does not have a difficulty with that.

MR MARKUS:   No, your Honour.

MR MERKEL:   Thank you, your Honour.

HIS HONOUR:   You have that leave.  Adjourn the Court, please.

AT 3.56 PM THE MATTER WAS CONCLUDED