In the absence of comprehensive human rights protection in federal legislation, vulnerable and marginalised individuals have on occasion been able to utilise the law of tort to hold the powerful to account. A notable example is the judgment of Bromberg J in S99 v Minister for Immigration and Border Protection, handed down in the Federal Court last Friday night after an urgent hearing. The case concerned the immediate health care needs of a young refugee identified in the proceedings as Plaintiff S99/2016 (S99).

S99 is a refugee from an undisclosed African nation. She travelled from Indonesia to Australia by boat in October 2013 and was detained by the Minister under the Migration Act 1958 and then transferred to Nauru for the processing. She was recognised as a refugee in November 2014 and released from detention pending resettlement. On 31 January 2016, while unconscious and suffering a seizure (likely to have been caused by epilepsy), S99 was raped. She is pregnant as a consequence of the rape.

S99’s medical needs are complex. She has a neurological condition, poor mental health and has suffered physical and psychological complications caused by a cultural practice to which she was subjected as a young girl. The fact that she needs an abortion was not in contest. The contest focussed on the application of the law of negligence, namely the scope and content of the duty of care owed to S99 by the Minister for Immigration and Border Protection and the Commonwealth of Australia.

Dutton’s duty of care

Justice Bromberg found that S99 was entitled to the protection of Australian law and that the Minister owed a duty to provide her with a safe and lawful abortion. More specifically, he owed a duty to exercise reasonable care in the discharge of the responsibility that he had assumed to procure for her a safe and lawful abortion.

Because of an absence of authority holding that a duty of care exists in directly comparable factual circumstances, Bromberg J considered a number of factors (known as ‘salient features’ which are used to determine whether a duty of care exists in novel circumstances) to ascertain the existence and scope of the duty owed to S99.

Important factors included S99’s vulnerability and dependence on the Commonwealth for her very existence (at [252]). She had no means of survival independent of the services provided by the Commonwealth through its service providers on Nauru, including access to food, water, housing and health care.

Further salient features included the foreseeable and grave (and possibly extreme) harm which would result from the absence of a safe and lawful abortion. Of further salience were the degree and nature of control exercisable by the Minister to avoid harm. Peter Dutton was in a position of control as to whether S99 can access an abortion and if so, the legal and medical setting in which the abortion could occur.

Of special relevance was the Minister’s assumption of responsibility. While the statutory regime of the Migration Act 1958 did not require him to procure an abortion for S99, the Minister took a number of steps in the exercise of his powers to attend to S99’s medical needs. He had assumed the responsibility to procure an abortion for S99. The question arose as to whether this responsibility was discharged in a way that disclosed an apprehended breach of his duty to exercise reasonable care.

Safe and lawful

The Commonwealth and Minister were in a position of control over the legal and medical setting of the abortion. Nauru did not provide an appropriate medical or legal setting. An abortion in Nauru would not be safe or lawful. Having assumed responsibility for S99’s healthcare, the Minister made arrangements for an abortion to be performed in Papua New Guinea (PNG) and S99 was transferred to Port Moresby.

Abortion is unlawful under the PNG Criminal Code Act 1974. A woman who procures her own miscarriage faces imprisonment of up to seven years. The Minister’s argument that S99’s risk of prosecution (should the procedure be performed in PNG) was negligible was rejected. Bromberg J considered a number of relevant prosecutions and concluded that local prosecutors did not consider the relevant provisions of the Criminal Code to be a ‘dead letter’. While the risk of prosecution to was low it was nevertheless real.

Evidence by a range of medical professionals (with expertise in neurological, gynaecological, and psychiatric medicine and anaesthesia) revealed the resources required to perform a safe abortion in S99’s circumstances were not available in PNG. The risks of an abortion being conducted in PNG or an equivalent medical setting would include brain damage, pneumonia or death.

The medical evidence revealed that Australia would provide an appropriate medical setting in which to procure the procedure. Beyond the expertise available in Australia, the Minister has the power to bring S99 to Australia for a temporary purpose without delay. The Minister has declined to exercise this power.

How can the Minister’s decision be explained? The explanation provided to the Federal Court was that Departmental policy was designed to ensure that irregular maritime arrivals are provided with medical treatment in countries other than Australia unless their circumstances are exceptional. The Minister maintained the extraordinary position that S99’s circumstances were not exceptional. Bromberg J notes the implausibility of this position at [401].

The refusal to bring a highly vulnerable and desperate women to Australia for urgent medical attention on the basis that her circumstances are not exceptional demonstrates the extent to which the government remains committed to using desperate people as a means to its end of maintaining a message of deterrence to irregular maritime arrivals. It also begs the question that if S99’s situation is indeed considered unexceptional, what kind of horrors would be required to remove someone’s circumstances from this nightmare realm of putative normality?

Apprehended breach

While the Minister’s position was that no duty of care exists, it was argued that if a duty is found to exist it would be discharged by the procurement of an abortion in PNG. No alternative setting for the procedure was proposed by the Minister.

Having concluded that the Minister owes S99 a duty which requires him to exercise reasonable care to discharge the responsibility he had assumed, Bromberg J considered that an abortion in PNG would be attended by safety and lawfulness risks that a reasonable person in the Minister’s position would have avoided. Procuring the abortion in PNG would therefore not discharge his duty of care.

By procuring an abortion in PNG, his Honour found that the Minister failed to exercise reasonable care to provide a safe and lawful abortion. Having not procured a safe and lawful abortion elsewhere and provided no indication of intention to do so, his Honour concluded that there is a reasonable apprehension that he will fail to discharge his duty of care.

The Court’s Orders

His Honour declared that it would be a breach of Dutton’s duty (to exercise reasonable care to discharge the responsibility he assumed to procure a safe and lawful abortion) to procure an abortion so that it takes place in a location where a person who participates in the procedure is exposed to criminal liability or where the abortion is procured so that it takes place in a medical facility that does not have available treating doctors with the necessary neurological, psychiatric, anaesthetic and gynaecological expertise.

His Honour granted injunctions to restrain the Minister from failing to exercise his duty, including an order that the abortion not be procured so that it takes place in PNG. He furthermore ordered that the abortion not be procured in a place where those participating in the procedure are exposed to criminal liability and that it not be procured in a place without the expertise and facilities required to address S99’s medical needs.

Justice Bromberg was not persuaded that feasible options for a safe and lawful termination are unavailable outside of Australia. While the Court’s orders preclude the Minister from procuring an abortion for S99 in PNG, they do not require him to bring her to Australia for the procedure.

The Minister has stated that an appeal will not be lodged and that S99 will obtain access to appropriate medical treatment. He now has the benefit of some judicial declarations setting out what appropriate treatment entails.