Federal court of australia

17.Application of Legal Principles to the Facts

243 I hold that the Minister owes a duty of care to the applicant to exercise reasonable care in the discharge of the responsibility that he assumed to procure for the applicant a safe and lawful abortion. The reasoning that has driven me to that conclusion follows.

244 I commence by reference to the observations of Gummow and Hayne JJ in Graham Barclay Oysters at [146] in the passage set out at [212] above. A close examination of the statutory scheme is required when the existence of a duty of care reposed in a statutory authority is being considered. The question is, does the statutory regime erect or facilitate a relationship between the repository of the statutory power, in this case the Commonwealth, and persons in the class of the applicant, sufficient in the circumstances to display characteristics answering the criteria for intervention by the tort of negligence.

245 Subdivision B of Part 2 of Division 8 of the Act (Subdivision B) provides a scheme for “regional processing”: M68 at [77] (Bell J). As is stated in s 198AA, Subdivision B was enacted because the Parliament considered that:

198 AA Reason for Subdivision

…

(b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country;

…

246 There are other reasons specified for the enactment of Subdivision B in s 198AA. The other primary reason (specified in s 198AA(a)) is the avoidance of “people smuggling, and its undesirable consequences”. The avoidance of those consequences and the removal of unauthorised maritime arrivals (UMAs) from Australia for processing are linked. I need not be detained by the nature or coherence of that connection. It is sufficient to observe that s 198AA(b) as well as s 198AB(3) contemplate that UMAs who have or may have protection obligations under the Refugees Convention should have their claims to such protection assessed. Subdivision B is (at least in part) designed to foster the assessment of those claims. That is to be done in a “regional processing country” designated as such by the Minister pursuant to s 198AB. Subdivision B was enacted in contemplation of Australia providing assistance to a regional processing country so as to facilitate the objective that UMAs have their protection claims assessed. The purpose of s 198AHA is to authorise the Commonwealth to enter into arrangements which facilitate the regional processing functions undertaken in the regional processing country. As French CJ, Kiefel and Nettle JJ said in M68 at [46]:

Section 198AHA is incidental to the implementation of regional processing functions for the purpose of determining claims by UMAs to refugee status under the Refugees Convention. The exercise of the powers conferred by that section must also therefore serve that purpose.

247 It is not in contest that the powers conferred by s 198AHA to facilitate regional processing functions extend to providing assistance to UMAs whose refugee status has been recognised and who are awaiting re-settlement in the regional processing country.

248 The characteristics of the Subdivision B regime which I have described, make it apparent that the regime “erects or facilitates a relationship” (c.f. Graham Barclay at [146]) between the Commonwealth and UMAs, in which the Commonwealth is empowered to provide assistance in relation to the processing in the regional processing country of protection claims of UMAs made under the Refugees Convention. The Commonwealth may or may not enter that relational field. It is not compelled to provide assistance, but it is empowered to do so.

249 The facts reveal that the Commonwealth has entered the field by providing very substantial assistance to the regional processing functions taken up by Nauru pursuant to the MOU. The nature and extent of that assistance is revealed by the terms of the Administrative Arrangements and the contracts with Service Providers made by the Commonwealth, as well as the actual provision of services to UMAs which I have described at [36]–[69].

250 One important aspect of the assistance provided by the Commonwealth pursuant to s 198AHA is the contribution made by the Commonwealth to the conditions of existence of UMAs on Nauru. One of the persons in that class is the applicant. I have described at [36][49] the Commonwealth’s involvement in the applicant’s detention on Nauru. It is not necessary to determine whether a duty of care was owed by the Commonwealth to the applicant while she was detained on Nauru and prior to her status as a refugee being recognised. It is sufficient to observe, as I do, that the facts show that the applicant was dependent upon the assistance provided by the Commonwealth to sustain her very existence. In that respect, the Commonwealth provided or was directly responsible for the provision to her of food, water, housing, security and medical services to maintain her health and wellbeing.

251 The facts at [50]–[69] also demonstrate that the sustenance provided by the Commonwealth to the applicant continued after the applicant ceased to be detained on Nauru. The “settlement services” extended beyond basic necessities to the education and welfare services provided by Connect.

252 The facts are clear. The applicant had no means of survival independent of the services provided by the Commonwealth through its Service Providers. She was dependent upon the Commonwealth for her very existence. The same may be said of each of the persons in the class. Again, it is not necessary that I consider whether a general duty of care was owed by the Commonwealth to the applicant to maintain her basic needs whilst a refugee on Nauru. However, the applicant’s dependence upon the Commonwealth for her very existence provides the contextual framework in which the specific duty of care claimed should be properly considered.

253 I turn next to the most-immediate facts. Having been raped and fallen pregnant, the applicant sought the assistance of the Commonwealth through its medical services provider, IHMS, to obtain an abortion. The facts demonstrate that the Commonwealth:

 procured medical professionals to assess the applicant’s physical and psychological condition and determine what treatment was required including whether the applicant ought to undergo a termination of her pregnancy and for that purpose be transferred to another country;

 through its officials, including Dr Brayley and Mr Nockels, gave consideration to the medical needs of the applicant and whether she should undergo a termination of her pregnancy and for that purpose be transferred to another country;

 decided to facilitate the transfer from Nauru to Papua New Guinea of the applicant for the purpose of the termination of her pregnancy;

 procured the medical professionals and facilities of PIH to perform an abortion in order to terminate the applicant’s pregnancy;

 provided medical records of the applicant to PIH for the purpose of the conduct of the abortion; and sought (and received) her consent to PIH providing to the Department of Immigration and Border Protection, amongst others, her “personal medical information”;

 procured travel documents (without the applicant’s involvement) sufficient to permit the applicant to travel to Papua New Guinea;

 procured a visa for the applicant (without her involvement) to enter Papua New Guinea and remain there for the purpose of having an abortion;

 made arrangements for the applicant to travel to Papua New Guinea, including by facilitating her passage through immigration and security and selecting and providing a flight to Papua New Guinea;

 made arrangements which facilitated the applicant’s travel from the airport at Port Moresby to a hotel in Port Moresby;

 procured the applicant’s accommodation in Port Moresby;

 procured security personnel to guard the applicant and provide her food in Port Moresby;

 procured the services of PIH to treat the applicant when she fell ill in Port Moresby;

 paid for all costs of and incidental to the applicant’s travel to, and care and maintenance in, Papua New Guinea.

254 It is also necessary to recall that the Minister has admitted that “it would not be possible for the Applicant to obtain an abortion without the assistance of the Commonwealth”. Furthermore, it is not in contest that all of the activities of the Commonwealth just described were done in the exercise of the Commonwealth’s power under s 198AHA for the purpose of the regional processing arrangements with Nauru, or its executive power.

255 The putative duty in question is the duty to provide the applicant with a safe and lawful abortion or, more exactly, a duty to exercise reasonable care in the discharge of the responsibility that the Minister assumed to procure for the applicant a safe and lawful abortion. I turn then to the “salient features” analysis, noting as I go that one of the three categories of conduct by a statutory repository of power in which a duty of care may be attracted is, as Ipp JA (with whom Mason P and McColl JA agreed) said in Amaca at 317:

Where a public authority acts so that others rely on it to take care for their safety.

256 I will analyse the facts most relevant to the existence of the putative duty by reference to those “salient features” identified by Allsop P in Stavar that are significant to the circumstances of this particular case. No additional factors were suggested by the parties.

257 The foreseeability of and the nature of the harm alleged are the first two features on the Stavar list. It is not in contest that in the absence of an abortion, the applicant will suffer harm. That the applicant will suffer harm in the absence of a safe and lawful abortion of the kind she alleges is required, is the subject of my later discussion dealing with breach of duty. I have found that it is foreseeable that the applicant may suffer grave harm (including the possibility of extreme harm), if the duty upon which she relies is breached. The foreseeability of harm and the nature of that harm strongly tend in favour of the existence of the duty of care asserted by the applicant.

258 I consider next the degree and nature of control able to be exercised by the Minister to avoid that harm being occasioned on the applicant. The facts show that the Minister controls whether the applicant can access an abortion and where that abortion takes place and, therefore, the legal and medical setting in which an abortion may be accessed by the applicant.

259 By its capacity to choose the legal setting, the Minister has control over whether or not, should an abortion occur, the applicant will be exposed to the risk of being prosecuted or convicted in relation to any law which prohibits an abortion. By its capacity to choose the medical setting, the Commonwealth controls the medical resources available in that setting to alleviate the risks of an abortion faced by the applicant. Again, I spell out in more detail when I address breach how it is that the potential harm to the applicant is a product of the legal and medical setting in which an abortion is performed. It is, as I also detail later, harm which the Minister has the capacity to avoid there being no material impediment to the alleviation of the foreseeable harm.

260 It follows that the Minister is able to avoid the harm to the applicant and in that respect has control. The degree and nature of the Minster’s control to avoid the harm is a strong factor in favour of the existence of the putative duty. It is, as I have said at [229], a factor of especial relevance.

261 The applicant is obviously in a position of vulnerability should the Minister fail to procure a safe and lawful abortion for her. The applicant has no capacity to protect herself from that potential for harm other than not to have the abortion. But, there is no issue that not having the abortion will also be harmful to the applicant, and the evidence, which I later address, shows the potential for harm to be grave. In those circumstances, no reasonable expectation can be imposed on the applicant to take steps to protect herself against the harm, nor could she. As the Minister admitted, she is entirely reliant upon the Commonwealth to procure the abortion. She is acutely vulnerable to the risk of harm in question and this factor strongly tends in favour of the existence of the putative duty.

262 The degree of reliance by the applicant on the Minister also tends in favour of the putative duty. As I have said, it is not in contest that the applicant cannot obtain an abortion without the assistance of the Minister and consequently cannot obtain a safe and lawful abortion without that assistance. In that respect, the applicant is entirely reliant on the Minister.

263 As to assumption of responsibility, the Minister was not required by the statutory regime to procure an abortion for the applicant. However, the Minister has entered into an exercise of his powers and in so doing has taken each of the steps outlined at [253] above, including facilitating the transfer of the applicant to a different country. The acts of the Minister in attending to the medical need of the applicant to have an abortion, carry with them a representation that her medical treatment will be safe and lawful, that is, that a safe and lawful abortion will be procured for her, and that reasonable care will be used in the discharge of that procurement. I say that because, unless the context suggests the contrary (and here it does not), it must be regarded as inherent in a representation made that any medical procedure will be procured, that it will be lawful and safe (in the sense that the risk of harm is minimised as far as is reasonably possible). The voluntary assumption of those tasks by the Minister in the context of the applicant’s “specific reliance” (see [237] above) on the representation inherent therein, demonstrates an assumption of responsibility by the Minister to exercise reasonable care to procure a safe and lawful abortion for the applicant. I consider this to be a potent factor in favour of the exercise of the putative duty. It is of especial relevance.

264 Items (g) and (h) in the Stavar list can be considered together. It is only proximity as between the Minister and the applicant in the relational sense that I think is relevant. There are more proximate categories of relationships that come to mind, including parent and child, gaoler and prisoner, and guardian and ward. However, given the general dependence of the applicant upon the Commonwealth and the nature of that dependence, there is, in my view, a dependency relationship between the Commonwealth and the applicant. The essentiality of it from the applicant’s perspective, suggests that the relationship should be regarded as sufficiently near to strongly tend in favour of the existence of a duty of care.

265 Item (k) on the Stavar list, applied to the facts at hand, addresses the knowledge by the Minister of the harm that his impugned conduct will likely cause to the applicant. In Lutz at 326 (set out above at [222]), McHugh JA said “[i]f in addition to the right of control the authority knows or ought to know of conduct or activities which may foreseeably give rise to a risk of harm to an individual, the authority should be under a duty to prevent that harm.” I deal with knowledge of and foreseeability of the risks of harm to the applicant in addressing breach and find both to be established. What is more, the evidence in this case is of actual knowledge by the Minister of risks of harm, their having been brought to his attention including in the reports of expert witnesses. This factor also tends in favour of the existence of the putative duty of care.

266 The nature and consequences of any action that can be taken to avoid harm to the applicant are addressed by item (m). That is also broadly dealt with below, where I address the extent to which any difficulty would be imposed upon the Minister to avoid the risk of harm to the applicant. As I later find, there are no consequences of material significance which the Minister relied on as an impediment, if the harm apprehended by the applicant is to be avoided. I therefore regard this factor as relevantly neutral. Indeed in his submissions against the grant of injunctive relief the Minister accepted that the factor of “hardship” was not a significant factor.

267 There is, then, left to be considered items (o), (p) and (q) on the Stavar list of “salient features”. Relevantly, they address considerations of consistency with the statutory regime relevant to the existence of a duty, considerations of policy, and coherence in the law. The Minister’s submissions were succinctly stated, as follows (footnotes omitted):

50. The imposition of a duty of care is inconsistent with the statutory and nonstatutory powers in question. Those powers confer a wide discretion upon the Commonwealth, including in relation to setting up and maintaining regional processing arrangements. Neither s 198AHA (nor s 61) purports to confer a private right or even regulate the exercise of private rights. Instead, the provisions confer a range of powers exercisable in the public interest. Determination of whether and how the powers should be exercised involves considerations of a range of matters. Chief among those considerations is the requirement of the Act that unauthorised maritime arrivals be removed to an regional processing country: s 198AD(2). A duty of care which operates to require the Applicant to be brought to Australia is directly inconsistent with that obligation.

51. True it is that s 198B confers a power to bring a transitory person to Australia for a temporary purpose. This power, however, only serves to illustrate the inconsistency between the statutory scheme and the duty of care alleged by the Applicant. The power in s 198B is a broad discretion to be exercised having regard to a range of considerations that reflect the public interest. The duty of care proposed by the Applicant is inconsistent with this broad discretion because it effectively dictates the exercise of the discretion in particular cases. The proposed duty therefore promotes incoherence in the law because it would tend to upset the balance of considerations that the relevant provisions permit by skewing those considerations in favour of the personal interest of the Applicant above all other considerations.

52. It must also be recognised that the exercise of power in this context (either under s.198AHA or s 61) is likely to involve sensitive policy questions and is not simply an operational or administrative decision. In particular, the exercise of power is likely to involve considerations of the Commonwealth’s relations with other sovereign states. It is not appropriate for the Court to impose a duty of care that may interfere with this matters which are properly the preserve of the executive government.

268 I agree that s 198AHA confers a wide discretion upon the Commonwealth. I agree also that no private rights are conferred and that s 198AHA is exercisable in the public interest involving potentially a wide range of considerations.

269 I do not agree that a duty of care which would operate to require a UMA to be brought to Australia is necessarily inconsistent with the requirement of s 198AD(2) for a UMA to be removed to a regional processing country. Section 198AD(2) must be construed in the light of s 198B and the power given to bring a “transitory person” to Australia for a temporary purpose. A duty of care that required that a “transitory person” be brought to Australia for a temporary purpose would not be inconsistent with s 198B, and not with s 198AD(2) when read in the light of s 198B.

270 In any event, there is nothing in the putative duty of care which necessarily requires the applicant to be brought to Australia. I may have given this factor much greater weight if it had been established that the only feasible way of discharging the putative duty of care was to bring the applicant to Australia. However, that was not the evidence, as my later discussion by reference to Mr Nockels’s evidence demonstrates.

271 The Minister’s submissions primarily relied upon McKenna (2014) 253 CLR 270. That was a case in which the recognition of the putative duty of care would have given rise to inconsistent obligations. It would have created a clash as between the duties and obligations imposed upon doctors by the Mental Health Act 1990 (NSW) in relation to involuntary detention and the putative duty of care: see at [29]–[33]. There is no clash of duties between any duty or obligation required or imposed by Subdivision B and the putative duty of care here in question. Nor is there inconsistency between the putative duty of care and any policy manifested by the statutory scheme pursuant to which the discretion reposed in the Minister by s 198AHA is to be exercised. Unlike MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417, which was relied upon by the Minister, Subdivision B does not “[lay] down the balance of interests to be assessed” in the exercise of the powers conferred by s 198AHA. There are two factors which point, although perhaps only faintly, to consistency rather than inconsistency. First, both the putative duty and s 198AHA are directed at providing assistance to a transitory person. Second, s 198AHA(3) suggests an intent that the powers and discretion conferred by s 198AHA(2) be exercised consistently with law.

272 Lastly, the Minister relies upon relations with other sovereign states as a matter of policy that forms a basis for incoherence or inconsistency with the putative duty. It is not clear how it is suggested that the imposition of the imputed duty would impact upon such relations. No evidence was led by the Minister to demonstrate the possibility of any such impact. Nor was a submission made which explained the basis for any apprehended impact.

273 I would expect that the Commonwealth is subject to a duty of care in many situations which have the capacity to touch on relations with sovereign states. The most obvious category is the duty of care owed to employees of the Commonwealth working overseas, some of whose work, I suspect, may involve issues of sensitivity. There can be no general rule against the existence of a duty of care owed by the Commonwealth simply because the existence of the duty may give rise to a possibility of some impact on Australia’s relations with other sovereign states. A far more concrete foundation needs to be established.

274 In the absence of that foundation, I am largely left to speculate. I accept that the imposition of the duty of care sought to be established may require the Commonwealth to interact with other sovereign states in relation to matters which may be sensitive. I can further accept that, hypothetically, it is possible that the interaction may be detrimental. Beyond that, I have nothing more to fasten upon so as to allocate weight to this consideration.

275 In the circumstances I give it some weight. I conclude that the issue of inconsistency and coherence tends against the existence of the putative duty of care in a material or not-insignificant way. I allocate due weight to that consideration. I recognise, however, that this consideration is of especial importance in the balancing process where statutory authorities are concerned (as here).

276 To my mind, that analysis shows that, on balance, there are sufficient characteristics displayed answering the criteria for intervention by the tort of negligence. Accordingly, the applicant has established a duty of care owed to her by the respondents that they will exercise reasonable care in the discharge of the responsibility that they assumed to procure for her a safe and lawful abortion.

277 I set out, before moving on to the question of apprehended breach, the following quote from Brennan J in Heyman, at 486:

I would not doubt that a public authority, which adopts a practice of so exercising its powers that it induces a plaintiff reasonably to expect that it will exercise them in the future, is liable to the plaintiff for a subsequent omission to exercise its powers, or a subsequent inadequate exercise of its powers, if the plaintiff has relied on the expectation induced by the authority and has thereby suffered damage provided that damage was reasonably foreseeable when the omission or inadequate exercise occurred and provided that any special element restricting a cause of action for negligence occasioning damage of that kind is satisfied.

278 That could have been written about this case.