COURT DETERMINES WHETHER S.494AB OF THE MIGRATION ACT LIMITS THE JURISDICTION OF OTHER COURTS
This case involves the respondents, while in regional processing country, instituted proceedings in Federal Court of Australia alleging Commonwealth breached duty of care to provide adequate medical treatment on Nauru. The Commonwealth alleged Federal Court did not have jurisdiction by reason of s.494AB of the Migration Act.
Facts:
Each respondent, while in a country designated as a regional processing country under s.198AB(1) of the Migration Act 1958, instituted proceedings in the Federal Court of Australia alleging, in various ways, that the appellants, the Minister for Home Affairs and the Commonwealth of Australia ("the Commonwealth"), breached a duty of care to provide them with adequate medical treatment on Nauru. At least part of the relief sought was to compel the Commonwealth to provide adequate medical treatment. After the proceedings were instituted, each respondent was transferred to Australia for the temporary purpose of receiving medical treatment.
The issue in each appeal is the proper construction and application of s.494AB of the Migration Act, headed "Bar on certain legal proceedings relating to transitory persons". There was no dispute that each respondent was and is a transitory person.
Full Court proceeded on the basis that s.494AB was to be understood as limiting the jurisdiction of the Federal Court and, indeed, of all courts except the High Court. That is, argument in the Full Court treated s.494AB as defining the Federal Court's jurisdiction by limiting or withdrawing the Federal Court's authority to decide the respondents' claims.
Issue: May the proceedings filed by the respondents against the Commonwealth be instituted in the Federal Court rather than the High Court?
Law:
- Constitution ss 75, 77
- Migration Act 1958 ss 198AB, 198AD, 198AH, 198AHA, 198B, 494AA, 494AB.
Analysis:
Section S.494AB(1) provides that certain "proceedings against the Commonwealth may not be instituted or continued in any court".
Those proceedings, listed in s 494AB(1)(a)-(d), are all described as "proceedings relating to" a particular subject matter.
In the case of s.494AB(1)(b), the proceedings are further identified by reference to a time period ("during any part of the ineligibility period"), but s.494AB(1) is not expressly framed as defining or taking away jurisdiction.
It does not say that identified courts other than the High Court have no jurisdiction in relation to the listed kinds of proceedings. Nor does it identify a single, broad subject matter such as "all claims relating to regional processing".
To provide, as s.494AB does, that certain "proceedings against the Commonwealth may not be instituted or continued in any court" does not, in its terms, or by a clear and unmistakeable implication[, take away jurisdiction otherwise conferred on federal courts or invested in State courts. It is not a law made in exercise of the powers given by either s.77(i) or (ii) of the Constitution.
Indeed, the word "jurisdiction" is used only in s.494AB(3), which states that "[n]othing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution".
This subsection is not to be read as implying that other provisions in s.494AB affect the jurisdiction of any court other than the High Court, rather, by confirming that the High Court's s.75 jurisdiction is unaffected, s.494AB(3) promotes a constitutionally valid construction of s.494AB such that s.494AB does not impinge on the exercise of the High Court's jurisdiction under s.75, including its jurisdiction not only under s.75(v) but also under the other provisions of s.75.
Conclusion: The proceedings may be instituted the Federal Court since s.494AB does not limit the jurisdiction of any court.
