Minister for Immigration required to facilitate safe and lawful abortion for asylum seeker woman

Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483

The Commonwealth Government has a duty of care to facilitate a safe and lawful abortion for a refugee who was sexually assaulted while on Nauru awaiting resettlement. The court’s  orders included an injunction to restrain the Minister from procuring an abortion for the applicant in Papua New Guinea (‘PNG’), but did not require the Minister to bring  the applicant to Australia.

The applicant was a young African woman who had sought asylum in Australia. She had been detained at the Nauru Regional Processing Centre until October 2015, when the centre became a ‘designated place of residence’ rather than a detention centre. The applicant remained on Nauru under the new arrangement and, on 31 January 2016, was raped whilst unconscious either during or in the immediate aftermath of a seizure that was likely caused by her suffering from epilepsy. As a result of the rape, she became pregnant.

There was expert medical evidence before the Court that the applicant suffered from a number of chronic and complex health conditions and thus the abortion needed to be conducted under the supervision of a range of medical experts. The procedure could not take place on Nauru because it would have been illegal under Nauruan law and her complex medical needs could notbe metby the facilities and personnel at the hospital on Nauru. The Minister conceded that an abortion was required in the circumstances and flew the applicant to Port Moresby in PNG for the purposes of procuring an abortion to terminate the pregnancy.

The Minister had the legal capacity to bring the applicant to Australia to facilitate the procedure but rejected that option on the basis of government policy that  ‘transitory persons’ will not be brought to Australia other than in exceptional circumstances.  

The applicant alleged that the terms of the abortion that the Commonwealth government was trying to administer were neither safe nor legal and that the Commonwealth had a duty of care to facilitate a safe and legal abortion. She sought a declaration to confirm as such, as well as injunctive relief to compel the government to comply with the duty of care she alleged. The injunction sought by the applicant was quia timet because there had not yet been a breach of the alleged duty, but rather, the actions of the government gave rise to the apprehension of an imminent breach.

The proceeding was commenced in the High Court and was subsequently referred to the Federal Court for an urgent hearing and determination.

Australian law applies
The applicant’s claim proceeded with reference to Australian tort law but the respondent argued that the standard of care to be applied should have been the law of PNG because that was the location of the threatened wrong.

Bromberg J applied the principle of lex loci deliciti (‘law of the place where the wrong was committed’) to find that Australian law was applicable for the purposes of the claim. Despite the fact that the abortion was to take place in PNG, the duty of care was held to arise Australia, being the place where the decision was made to procure the abortion.

The respondent’s defence did not plead in relation to the tort law of PNG which Bromberg J held was the responsibility of the party seeking to assert that foreign law is applicable. Rather than plead PNG law, the respondent argued that a PNG Court would consider the statutory context of the relationship between the applicant and the respondent and, accordingly, allow a higher threshold for the imposition of a duty than it otherwise would have. This submission was rejected by the Court.     

The Minister’s duty of care
The respondent rejected that a duty of care to provide a safe and lawful abortion existed and argued that, even if a duty of care did arise,  it had discharged that duty by offering the applicant an abortion in PNG.

Bromberg J held that there was no directly comparable precedent to establish the duty of care.  His honour then considered the salient factors relevant to the circumstances, finding that a duty of care did arise in the situation. The respondent’s assumption of responsibility for the procurement of the abortion was held to be particularly important, as was the vulnerability of the applicant and the foreseeability and nature of the apprehended harm.

The Court described as implausible the Minister’s contention  that the applicant would not be brought to Australia for the procedure because her circumstances were not exceptional. The Court also rejected the submissions by the respondent that criminal prosecution in PNG was unlikely, and that the hospital in PNG was adequately equipped to deal with the complex health needs of the applicant.

Is the Plaintiff precluded from seeking injunctive relief?
The respondent sought to rely on s. 474 of the Migration Act 1958 (Cth) (‘Act’) which protects certain decisions of the Minister from being subject to equitable remedies such as injunctions, contending that only damages would be available in the circumstance that a breach of duty occurred.

The Court held that the provision that the respondent sought to rely on to prevent the injunction only applied to circumstances where judicial review of a migration decision was sought. Having found that equitable relief was available, Bromberg J granted an injunction to restrain the respondent from failing to procure a safe and lawful abortion in a country other than PNG. His Honour also made a declaration that it would be a breach of the respondent’s duty of care to procure an abortion in a location that may expose any party to criminal liability or in a medical setting which was not capable of adequately complying with the treatment requirements of the applicant.

The applicant’s pleaded cause of action comprised a number of alternative claims including: that she was owed a fiduciary duty; that the decision not to bring her to Australia for an abortion was legally unreasonable; and that the potential breach would exceed powers conferred on the respondent by the Act and the Constitution. None of these claims succeeded.

Editor’s note
Successive Australian governments have gone to great lengths to place people seeking asylum beyond the reach of the rule of law and the Australian justice system. However, the court’s decision confirms that the Australian government can retain legal responsibility for those it transfers offshore.

Aspects of the judgment, particularly the finding that s.474 of the Migration Act does not preclude a court from granting injunctive relief, could pave the way for future negligence cases against the Minister.

The full text of the decision can be found here.

Jonathon Peck is a Trainee Lawyer at Maurice Blackburn Lawyers.