On 2 December 2020 the High Court of Australia held that the Migration Act 1958 (Cth) did not restrict the asylum seekers in question from commencing legal action in courts other than the High Court in their claims against the Australian government of negligence in offshore processing centres.
BACKGROUND TO THE RULING
This decision arose after the Commonwealth appealed to the High Court on the question of the Federal Court’s jurisdiction to hear the proceedings. The Commonwealth argued that the claims of the asylum seekers could only be filed in the High Court. The case heard before the High Court related to “four asylum seeker test cases”. The four test cases related to proceedings that had been filed by four asylum seekers that had been brought temporarily to Australia for medical treatment who are claiming that the government breached a duty of care in failing to provide them with proper healthcare, whilst they were being held in Nauru.
The appeal in the High Court turned on an interpretation of section 494AB of the Migration Act 1958 (Cth). The High Court determined that it was more appropriate to view 494AB as a “bar to a remedy, rather than a limitation on jurisdiction”. It was held that the better and more workable construction of s 494AB is that it does not limit the jurisdiction of federal courts or limit the federal jurisdiction invested in State courts. The High Court also found that section 494AB was also to be interpreted as a defence that may be pleaded by the Commonwealth.
Maurice Blackburn and the National Justice Project acted for the four asylum seekers in the case before the High Court. Jennifer Kanis, Principal Lawyer of Maurice Blackburn said that “…the High Court has confirmed that people in offshore detention in Nauru and Manus Island can seek urgent, lifesaving treatment through the Federal Court.” Ms Kanis further commented that “This decision means that refugees and asylum seekers will not have to endure the additional cost, inconvenience and delay of bringing health care claims through the High Court, which could have had disastrous consequences for their health.”
IMPACT OF DECISION
The impact of this decision is a positive result for around 50 other cases that relate to claims regarding the Commonwealth’s negligence and failure to provide proper health care to asylum seekers. These cases had been put on hold whilst the outcome of this High Court case was being determined.
Australia has become notorious for its stringent offshore processing policy of asylum seekers. Any person seeking asylum who arrives to Australia by boat without a valid visa is taken to centres in Papua New Guinea or Nauru for processing and held in indefinite detention during this period of time. Australia’s offshore processing policy has sparked much contention and debate over the treatment of the asylum seekers and refugees held in offshore detention centres. The policy has notably been condemned by the United Nations and in February 2020 The Office of the Prosecutor of the International Criminal Court stated that the detention conditions in the processing centres “appear to have constituted cruel, inhuman, or degrading treatment”.
Tate De Silva is an Australian solicitor practising in commercial law and commercial litigation. She has a strong interest in human rights and international humanitarian law and is passionate to raise awareness in these areas.