Editor’s note: This story first appeared on Lawyers Weekly’s sister brand, Australian Aviation.
Federal Court Justice John Halley has dismissed the case brought by the women, ruling that it has no grounds under the international Montreal Convention governing the rules of aviation.
The complainants were pulled off the aircraft by authorities at Doha’s Hamad International Airport alongside dozens of other women on 2 October 2020 after the discovery of a premature baby abandoned in a bathroom and were strip-searched and subjected to invasive physical examinations without their consent.
Eight other Australian women on Qatar Airways Flight QR908 to Sydney were also subjected to the searches.
In his ruling, Justice Halley said that the circumstances of the searches, which took place in an ambulance on the tarmac of Doha Airport, precluded the women’s claims against the airline itself.
“In no view did the invasive examinations … take place ‘on board the aircraft’ or in the course of embarking or disembarking the aircraft,” he said.
“The exclusivity principle in the Montreal Convention therefore precludes the applicants advancing this claim and it must therefore be summarily dismissed or struck out.”
Justice Halley is allowing the women to file an amended claim solely against Doha Airport operator MATAR for its employees’ actions by early next month.
The women’s pro bono lawyer, Damian Sturzaker of Marque Lawyers, noted that the head of security for Hamad International Airport was jailed over the incident and told The Australian that he would be closely examining the reasoning around the Montreal Convention and the Qatari government’s sovereign immunity under Australian law.
“We’ll be looking at that and exploring what options there are in relation to appeal,” he said.
“It’s not the end. Insofar as the current court decision, there’s been a narrowing of the case, but the fundamental allegations remain the same: they are that the acts that were committed were illegal.”
Qatar Airways remains barred from increasing its services from Doha to Sydney, Melbourne, Brisbane, and Perth under Australian bilateral air service agreements. However, it is permitted to fly as many services as it likes to smaller airports like Canberra.
Transport Minister Catherine King indicated last year that the invasive search incident contributed to her decision not to allow Qatar Airways to fly more services into the major gateways.
“If you remember, we had multiple media requests on behalf of the women who had been escorted at gunpoint after a Qatar Airways flight and had then been subject on the tarmac in ambulances to invasive body searches. We’d had multiple media inquiries about that,” she said at the time.
“As I’ve said repeatedly, I made this decision in the national interest, and there is no one factor that I will point to that swayed my decision one way or the other.
“This is the only airline [where] something like that … has happened. And so, I can’t say that I wasn’t aware of it. But certainly, it wasn’t the only factor. It was a factor.”
