Federal Court of Australia

LibertyWorks Inc v Commonwealth of Australia [2021] FCAFC 90

File number:

NSD 1312 of 2020

Judgment of:

KATZMANN, WIGNEY AND THAWLEY JJ

Date of judgment:

1 June 2021

Catchwords:

ADMINISTRATIVE LAW challenge to validity of a determination made by the Health Minister under s 477(1) of the Biosecurity Act 2015 (Cth) – where determination prevented Australian citizens, permanent residents, or operators of outgoing aircraft or vessels from leaving Australian territory, unless an exemption applied – whether determination requires an individual to be subject to a biosecurity measure of a kind set out in Subdiv B of Div 3 of P3 of Ch 2 of the Act and is therefore invalid by reason of s 477(6)whether s 477(6) prevents a determination applying to a group or class of individuals

STATUTORY INTERPRETATION whether s 477(3)(b) of the Biosecurity Act 2015 (Cth) refers to “places” outside Australian territory whether Act displaces presumption that references to the singular include the plural

Legislation:

Acts Interpretation Act 1901 (Cth) ss 2(2), 2B, 15AA, 21(1)(b), 23(b)

Biosecurity Act 2015 (Cth)s 3, 4, 9, 21(1), 22(2), 34, 42(1), 44, 45, 59, 60, 63, 72(5), 74(4), 75, 76, 80, 82, 83, 96, 113, 333, 399, 448, 473, 474, 475, 477, 478, 479

Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 (Cth)

Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2020 (Cth)

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Cth) cll 4, 5, 6

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) ss 3, 4, 5, 6, 7

Biosecurity (Listed Human Diseases) Determination 2016 (Cth)

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 3 March 1976) Art 12

International Health Regulations (2005), done at Geneva on 23 May 2005, [2007] ATS 29

Explanatory Memorandum to the Biosecurity Bill 2014 (Cth)

Replacement Explanatory Statement to the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth)

McAdam, J “An Intellectual History of Freedom of Movement in International Law: The Right to Leave as a Personal Liberty” (2011) 12(1) Melbourne Journal of International Law 27

Cases cited:

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Commonwealth v Spaul (1987) 16 FCR 292

Newman v Minister for Health and Aged Care [2021] FCA 517

Palmer v Western Australia [2021] HCA 5; 388 ALR 180; 95 ALJR 229

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

75

Date of hearing:

6 May 2021

Counsel for the Applicant:

Mr JAC Potts with Mr R Scheelings

Solicitor for the Applicant:

Speed and Stracey Lawyers

Counsel for the Respondent:

Mr S Donoghue QC with Mr T Howe QC and Ms C Ernst

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

NSD 1312 of 2020

BETWEEN:

LIBERTYWORKS INC

Applicant

AND:

COMMONWEALTH OF AUSTRALIA

Respondent

order made by:

KATZMANN, WIGNEY AND THAWLEY JJ

DATE OF ORDER:

1 JUNE 2021

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    Section 477 of the Biosecurity Act 2015 (Cth) gives the Health Minister the power to determine emergency requirements during a human biosecurity emergency period. This case is concerned with the validity of such a determination.

2    On 18 March 2020, during the current pandemic, the Governor-General declared the existence of a human biosecurity emergency relating to the listed human disease “human coronavirus with pandemic potential”, noting that COVID-19 is the name given to the disease by the World Health Organization (WHO) and severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) is the name given by the International Committee on Taxonomy of Viruses to the virus that causes the disease: Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Cth). At roughly three monthly intervals thereafter declarations to the same effect have been made, including relevantly in September 2020. The effect of those declarations is to extend the human biosecurity emergency period.

3    On 25 March 2020 the Health Minister made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth). In substance, the Determination prevents any Australian citizen, permanent resident, or operator of an outgoing aircraft or vessel from leaving Australian territory unless an exemption applies to the person or is granted to the operator. An exemption may only be granted by the Australian Border Force Commissioner or an ABF employee and only in “exceptional circumstances”, which are demonstrated by the provision of “a compelling reason for needing to leave Australian territory”. The Determination has been amended three times (on 18 September 2020, 22 March 2021, and 19 April 2021) but none of the amendments are material.

4    By an originating application filed on 10 December 2020, LibertyWorks Inc challenges the validity of the Determination. It seeks a declaration that the Determination is “invalid by reason of inconsistency with, or of lacking authority in, the [Act]”. There is no dispute that LibertyWorks has standing.

5    The application was supported by an affidavit of Andrew McDonald Cooper, the President of LibertyWorks, affirmed on 10 December 2020. The Commonwealth relied on one paragraph of an affidavit sworn by Brooke Marie Griffin, a lawyer with the Australian Government Solicitor, affirmed on 11 February 2021.

6    For the reasons that follow the application must be dismissed.

The facts

7    LibertyWorks is a private think-tank established about five years ago. Its objective is to move public policy in the direction of increased individual rights and freedoms. Among its various activities it hosts an annual conference (the Conservative Political Action Conference Australia or CPAC Australia). Mr Cooper deposed that, in order to ensure the success of the conference, it was necessary for one or more people associated with LibertyWorks to travel overseas to organise speakers from various countries and liaise with its US co-sponsor.

8    On 27 October 2020, at Mr Cooper’s request and on behalf of LibertyWorks, one of its employees, Christopher De Bruyne, applied through an online portal administered by the Department of Home Affairs for an exemption under s 7(1) of the Determination in order to travel from Sydney to London in November 2020 to “assess potential conference venues”. Attached to his application was an email from Mr Cooper stating, simply:

As discussed, LW would like to send you to London to assess potential CPAC conference venues there on our behalf.

9    Within half an hour of his application, a delegate of the Australian Border Force Commissioner informed Mr De Bruyne that his request had been considered and the delegate had determined that his travel is not exempt from the travel restrictions”.

10    The Declaration that was in force at the time of Mr De Bruyne’s application was registered on 11 September 2020. It remained in force until 17 December 2020. It declared that a human biosecurity emergency exists (cl 4), that the instrument related to human coronavirus with pandemic potential (cl 5), and (in cl 6, under the heading “Nature of human biosecurity emergency and conditions that gave rise to it”) that:

Human coronavirus with pandemic potential is an infectious disease:

(a)    that has entered Australian territory; and

(b)    that is fatal in some cases; and

(c)    that there was no vaccine against, or antiviral treatment for, immediately before the commencement of this instrument; and

(d)    that is posing a severe and immediate threat to human health on a nationally significant scale.

Section 477

11    During a human biosecurity emergency period, s 477(1) gives the Health Minister the power to determine any requirement that he or she is satisfied is necessary to prevent or control the entry of the listed human disease the subject of a declaration into Australia or its emergence, establishment or spread in Australia; to prevent or control the spread of the disease to another country; or to give effect to any recommendation in relation to the disease made to the Health Minister by the WHO under Pt III of the International Health Regulations (as defined in s 9). Subsection 477(6) provides that any such determination “must not require an individual to be subject to a biosecurity measure of a kind set out in Subdivision B of Division 3 of Chapter 2”. Before any determination under subs (1) may be made, however, subs (4) provides that the Health Minister must be satisfied that the requirement is:

(a)    likely to be effective in, or to contribute to, achieving the purpose for which it is to be determined;

(b)    appropriate and adapted to achieve that purpose;

(c)    no more restrictive or intrusive than the circumstances require;

(d)    to be applied in a manner which is no more restrictive or intrusive than the circumstances require; and

(e)    to apply only for as long as it is necessary.

12    At times the submissions filed by LibertyWorks suggested that it was challenging the basis for the Determination. At one point it seemed to be arguing that the jurisdictional facts had not been satisfied. At another, that the Determination was legally unreasonable. In oral argument, however, LibertyWorks eschewed any such arguments. It made it clear that it does not contend that the Health Minister was not in fact satisfied of any of the matters in either subs (4) or subs (1) or that his state of satisfaction was not lawfully formed, except to the extent that it claims that the Minister misapprehended the law in making the Determination.

The Determination

13    The Determination is a non-disallowable legislative instrument made under s 477(1) (see s 477(2) and Determination, s 3). The prohibition on overseas travel is imposed by s 5 of the Determination, which is in the following terms:

5    Persons not to travel outside Australian territory

(1)    An Australian citizen or permanent resident (the person) must not leave Australian territory as a passenger on an outgoing aircraft or vessel unless:

(a)    an exemption set out in section 6 applies to the person; or

(b)    an exemption is granted to the operator of the aircraft or vessel or the person under section 7.

(2)    An operator of an outgoing aircraft or vessel must ensure that the aircraft or vessel does not leave Australian territory with any passenger who is an Australian citizen or permanent resident (the person) on board the aircraft or vessel unless:

(a)     an exemption set out in section 6 applies to the person; or

(b)    an exemption is granted to the operator or person under section 7.

14    By s 4 of the Determination, “Australian citizen” and “permanent resident” have the same meanings as in the Australian Citizenship Act 2007 (Cth).

15    “Outgoing aircraft or vessel” is defined in s 9 of the Act to mean:

an aircraft or vessel that intends to leave Australian territory from a landing place or port in Australian territory.

16    “Operator” of a conveyance (here an aircraft or vessel) relevantly means the body responsible for the operation of the conveyance (whether incorporated or not), or the person in charge of it: see ss 9 and 21(1) of the Act. “Person in charge of a conveyance” means the person in charge or command of the conveyance, but not a ship’s pilot: s 22(2).

17    Section 6 of the Determination provides a general exemption from s 5 to certain persons. They are: residents of other countries; crew members of aircraft or vessels (other than outgoing aircraft or vessels) and workers associated with their safety or maintenance; persons engaged in the day-to-day conduct of inbound and outbound freight; persons whose travel is associated with essential work at an offshore facility; and persons travelling on official government business (including members of the Australian Defence Force).

18    Section 7 gives the Australian Border Force Commission or an ABF employee the power to grant an exemption “in exceptional circumstances” to an Australian citizen or permanent resident or an operator of an outgoing aircraft or vessel. For this purpose, exceptional circumstances are demonstrated by the person in question providing “a compelling reason for needing to leave”.

19    The Replacement Explanatory Statement to the Determination stated:

This Determination is in response to the COVID-19 pandemic, which continues to represent a severe and immediate threat to human health in Australia and across the globe, and it has the ability to cause high level of morbidity and mortality and to disrupt the Australian community socially and economically. As worldwide case numbers of COVID-19 increase, and the countries reaching the peak of their epidemic curve change, it is impossible to manage the risk of imported cases through targeting specific countries. This is consistent with the Level Four “do not travel” advice issued by the Department of Foreign Affairs and Trade.

20    The Replacement Explanatory Statement also recorded that the Director of Human Biosecurity (the Commonwealth Chief Medical Officer) and the Secretary of the Department of Home Affairs had advised the Health Minister, and the Health Minister was satisfied, that the outbound travel restriction was “necessary to prevent or control the entry, emergence, establishment or spread of COVID-19 in Australian territory and abroad”.

The argument

21    LibertyWorks does not challenge the validity of the Declaration, only the restrictions on overseas travel imposed by the Determination. LibertyWorks argues that the Determination is ultra vires because the restriction s 5 imposes on overseas travel is a measure of a kind that may not be included in the Determination.

22    The genesis of this argument lies in s 477(6). It will be recalled that s 477(6) states:

A determination made under subsection (1) must not require an individual to be subject to a biosecurity measure of a kind set out in Subdivision B of Division 3 of Part 3 of Chapter 2.

23    LibertyWorks contends that the scope of the power to make the Determination is limited by that subsection. That much is not in dispute. The dispute concerns the nature of the limitation.

24    In substance, therefore, the case turns on the proper construction of s 477(6).

25    In a nutshell LibertyWorks’ argument goes like this.

26    Subsection 477(6) precludes the Minister from making a determination under subs (1) which requires an individual to be subject to a biosecurity measure of a kind set out in Subdivision B of Division 3 of Part 3 of Chapter 2. Section 96 appears in that subdivision. It provides (in subs (1)) that, for a specified period of no more than 28 days, an individual may be required by a human biosecurity control order not to leave Australian territory on an outgoing passenger aircraft or vessel. It is designated “a traveller movement measure”. Since s 5 of the Determination has the same purpose and effect as the measure permitted by s 96, the Determination is beyond the Minister’s power. The Health Minister cannot subject a group of individuals by a determination to a measure of a kind which the Chief Medical Officer could subject an individual by a biosecurity order.

27    LibertyWorks referred to analogues of s 477(6) throughout the Act, including ss 44(7), 45(7), 113(5), 333(3), 399(9)(a), 448(1) and 479(6) in support of its construction, and submitted that these provisions demonstrate Parliament’s concern for the protection of individual rights and freedoms. It contended that because some of these analogues were expressly overridden by other provisions, such as 448(2), and others permitted requirements in relation to both individuals leaving Australia and operators of outgoing passenger aircraft or vessels, such as s 45, this meant that 477(6) should not be interpreted in the way advanced by the Commonwealth. It also submitted that there was no contrary intention evident in the Act that would overturn the presumption in s 23(b) of the Acts Interpretation Act 1901 (Cth) that words in the singular include the plural. Therefore, it reasoned, the Health Minister could not subject a group of individuals to a measure of a kind mentioned in s 96 through a Determination under s 477.

28    LibertyWorks relied on the use of the term “any person” in s 478, which employs similar language to s 477, and contended that the power conferred by s 478(1) was confined to the power to issue directions to an individual. LibertyWorks argued that it followed that the purpose of s 478(6) could not be to ensure that a direction under s 478(1) could only apply to a class of individuals. Given its similarity to s 478, this construction was also said to apply to s 477. It is unclear how this submission can be reconciled with LibertyWorks’ earlier point in relation to the presumption of pluralisation.

29    LibertyWorks submitted that, if its construction were not correct, then “the operation of s 96 has been rendered nugatory since 25 March 2020”.

30    For the following reasons the argument must be rejected.

The proper approach

31    Section 477(6) must be read in its context and its meaning determined by reference to that context. That means that regard must be had to the language of the Act as a whole. After all, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). It also means that regard must be had to the existing state of the law and the mischief the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at [88] (Brennan CJ, Dawson, Toohey and Gummow JJ). In interpreting s 477(6) the interpretation that would best achieve the purpose or object of the Act is to be preferred to any other interpretation: Acts Interpretation Act, s 15AA.

32    Further, as the plurality explained in Project Bule Sky at [70], all legislation must be construed “on the prima facie basis that its provisions are intended to give effect to harmonious goals”. Their Honours continued (footnotes omitted):

Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

The legislative context and purpose

33    The Act commenced on 16 June 2016. It replaced the Quarantine Act 1908 (Cth), which was repealed in whole by the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 (Cth). According to the Explanatory Memorandum to the Biosecurity Bill 2014 (Cth), the legislation was introduced to deal with the “new and challenging biosecurity environment”. The new Act would offer “a strong regulatory framework” for the more effective and efficient management of biosecurity risks.

34    The Explanatory Memorandum emphasised the importance of the availability of legislative powers to manage “serious communicable diseases should they occur”, observing that this was “particularly highlighted by the recent announcements [of] the World Health Organization that diseases such as polio and Ebola virus disease have met the conditions for Public Health Emergencies of International Concern”.

35    The objects of the Act are listed in s 4. They include providing for the management of: biosecurity risks; the risk of contagions of a listed human disease or other infectious human diseases; the risk of such diseases entering Australian territory or any part of it or emerging, establishing themselves, or spreading in Australian territory or any part of it; and biosecurity emergencies and human biosecurity emergencies.

36    “Biosecurity risks” are defined in s 9 of the Act to include the likelihood of a disease or pest entering Australian territory or a part of it or establishing itself or spreading in such territory, and the potential for the disease or pest to cause harm to human, animal or plant health, to harm the environment, or to have economic consequences. A “human biosecurity emergency” is defined, also in s 9, to mean a human biosecurity emergency that is declared to exist under s 475(1).

37    A “listed human disease” is a disease determined by the Director of Human Biosecurity (the Commonwealth Chief Medical Officer) where the Director considers the disease may be communicable and cause significant harm to human health: ss 9 and 42(1). The Biosecurity (Listed Human Diseases) Determination 2016 (Cth), which was made under s 42(1) of the Act and in force at all relevant times, lists eight human diseases, the last of which is “human coronavirus with pandemic potential” (or COVID-19): s 4(h).

38    The Act is divided into chapters. As the Explanatory Memorandum foreshadowed, broadly speaking, there are operational chapters that support day to day biosecurity business (Chapters 3, 4 and 6); stand-alone chapters that support specialised biosecurity situations (Chapters 2, 5, 7 and 8); and general administrative chapters that support the other necessary functions and powers.

39    Chapter 2 contains a range of powers to control the spread of communicable diseases that may cause serious harm to human health. The powers only apply in relation to listed human diseases, determined by the Director of Human Biosecurity. The simplified outline of the Act, contained in s 3, notes that Ch 2 includes requirements in relation to persons entering or leaving Australian territory, but states that:

The main method of managing risks to human health is by imposing a human biosecurity control order on an individual who may have a listed human disease.

40    A particular focus of the case is on Div 2 of Pt 3 of Ch 2. It is headed: “Imposing human biosecurity control orders on individuals”. The simplified outline to Pt 3 records (in s 59):

Under Division 2, a human biosecurity control order can be imposed on an individual if the individual may have a listed human disease.

41    A “human biosecurity control order” means an order imposed on an individual under s 60. “Individual” is defined in s 2B of the Acts Interpretation Act to mean a natural person.

42    Section 60, which appears in Pt 3 of Ch 2 of the Act reads:

Imposing a human biosecurity control order on an individual

(1)    The following officers may impose a human biosecurity control order on an individual:

(a)    a chief human biosecurity officer;

(b)    a human biosecurity officer;

(c)    a biosecurity officer.

Note 1:    An officer who intends to impose a human biosecurity control order on an individual has certain powers under sections 68 and 69.

Note 2:        Before imposing a human biosecurity control order, an officer must be satisfied of the matters referred to in section 34 (the principles).

Note 3:    The Director of Human Biosecurity must be notified of the imposition of a human biosecurity control order (see section 67).

(2)    A human biosecurity control order may be imposed on an individual only if the officer is satisfied that:

(a)    the individual has one or more signs or symptoms of a listed human disease; or

(b)    the individual has been exposed to:

(i)    a listed human disease; or

(ii)    another individual who has one or more signs or symptoms of a listed human disease; or

(c)    the individual has failed to comply with an entry requirement in subsection 44(6) in relation to a listed human disease.

(3)    To avoid doubt, an individual may fail to comply with an entry requirement in subsection 44(6) even if the individual is not able to comply with the requirement.

(4)    An officer may include one or more biosecurity measures specified in Subdivision B of Division 3 in a human biosecurity control order.

Note:    For the biosecurity measures that each kind of officer can impose, see         section 82.

43    Subsection 44(2) provides that the Health Minister may determine one or more requirements for individuals entering Australia. Subsection 44(6) provides that the determination may specify requirements for an individual to provide a declaration as to whether, or evidence that, the individual has received a specified vaccination or other prophylaxis within a specified period; to complete a health questionnaire, which may include confirmation that the individual is undergoing or has undergone specific treatment within a specified period; to provide a declaration in relation to a specified listed human disease and a declaration or evidence of where the individual has been before entering Australian territory; and for the screening of an individual. The current entry requirements for the purposes of s 44 are specified in the Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2020 (Cth).

44    The principles mentioned in note 2 to s 60(1) appear in s 34(2). Any person who makes a decision to exercise a power in relation to, or impose a biosecurity measure on, an individual under Ch 2 (in order to manage the risk of contagion of a listed human disease or a listed human disease entering or emerging, establishing itself or spreading in Australian territory or a part of Australian territory) must comply with s 34(2). It provides that:

Before the person makes the decision, the person must be satisfied of all of the following:

(a)    that exercising the power, or imposing the biosecurity measure, is likely to be effective in, or to contribute to, managing the risk;

(b)    that exercising the power, or imposing the biosecurity measure, is appropriate and adapted to manage the risk;

(c)    that the circumstances are sufficiently serious to justify exercising the power, or imposing the biosecurity measure;

(d)    that the power, or the biosecurity measure, is no more restrictive or intrusive than is required in the circumstances;

(e)    that the manner in which the power is to be exercised, or the biosecurity measure is to be imposed, is no more restrictive or intrusive than is required in the circumstances;

(f)    if the power is to be exercised or the biosecurity measure imposed during a periodthat the period is only as long as is necessary.

45    The only exceptions are in relation to the making of a legislative instrument under Ch 2 in relation to a class of individuals (s 34(3)) and in relation to the making of a decision to require answers to questions or written information under Div 6 of Pt 2 of Ch 2 (s 34(4)).

46    Chapter 8 is relevantly concerned with human biosecurity emergencies but it also deals with biosecurity emergencies. Pt 1 deals with biosecurity emergencies, Pt 2 with human biosecurity emergencies. As the Explanatory Memorandum reported:

This Chapter contains provisions to manage a pest or disease that poses a nationally significant threat to human, plant and animal health, the environment or the economy. The focus of these powers is to enable a fast and effective response that helps manage the amount of damage to Australia‘s communities, local industries and economy.

The emergency chapter will complement existing agreements and state and territory controls, allowing for efficient and effective emergency responses in state, territory and Commonwealth jurisdictions.

(Emphasis added)

47    The Explanatory Memorandum makes it clear (at p 75) that the powers in Ch 8 were intended to be used in circumstances where there is an emergency of such scale and significance as to require management at a national level.

48    Sections 473–479 appear in Pt 2.

49    Section 473 contains a simplified outline of Pt 2. It reads:

This Part provides special powers for dealing with emergencies involving threats or harm to human health on a nationally significant scale (these are called human biosecurity emergencies).

The Governor-General may make a human biosecurity emergency declaration if the Health Minister is satisfied that the special powers in this Part are needed to deal with a human biosecurity emergency.

The Health Minister may exercise special powers under this Part to deal with a human biosecurity emergency, subject to limits and protections. These powers may be exercised anywhere in Australian territory.

The special emergency powers are in addition to the powers generally available under Chapter 2 (managing biosecurity risks: human health), which may also be used to deal with a human biosecurity emergency.

50    The powers conferred on the Health Minister may only be exercised personally (s 474).

51    Section 475 gives the Governor-General the power to declare that “a human biosecurity emergency exists”. That power is enlivened if the Health Minister is satisfied that:

(a)    a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale; and

(b)    the declaration is necessary to prevent or control:

(i)    the entry of the listed human disease into Australian territory or a part of Australian territory; or

(ii)    the emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory.

52    In full, s 477 reads:

Health Minister may determine emergency requirements during human biosecurity emergency period

(1)    During a human biosecurity emergency period, the Health Minister may determine any requirement that he or she is satisfied is necessary:

(a)    to prevent or control:

(i)    the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or

(ii)    the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; or

(b)    to prevent or control the spread of the declaration listed human disease to another country; or

(c)    if a recommendation has been made to the Health Minister by the World Health Organization under Part III of the International Health Regulations in relation to the declaration listed human disease—to give effect to the recommendation.

Note 1:    A person who fails to comply with a requirement determined under this subsection may commit an offence (see section 479).

Note 2:    For variation and revocation, see subsections 33(3) and (3AA) of the Acts Interpretation Act 1901.

(2)    A determination made under subsection (1) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

(3)    Without limiting subsection (1), the requirements that the Health Minister may determine include the following:

(a)    requirements that apply to persons, goods or conveyances when entering or leaving specified places;

(b)    requirements that restrict or prevent the movement of persons, goods or conveyances in or between specified places;

(c)    requirements for specified places to be evacuated;

(d)    if a recommendation has been made as referred to in paragraph (1)(c)—requirements for the purposes of giving effect to the recommendation.

(4)    Before determining a requirement under subsection (1), the Health Minister must be satisfied of all of the following:

(a)    that the requirement is likely to be effective in, or to contribute to, achieving the purpose for which it is to be determined;

(b)    that the requirement is appropriate and adapted to achieve the purpose for which it is to be determined;

(c)    that the requirement is no more restrictive or intrusive than is required in the circumstances;

(d)    that the manner in which the requirement is to be applied is no more restrictive or intrusive than is required in the circumstances;

(e)    that the period during which the requirement is to apply is only as long as is necessary.

(5)    A requirement determined under subsection (1) applies despite any provision of any other Australian law.

(6)    A determination made under subsection (1) must not require an individual to be subject to a biosecurity measure of a kind set out in Subdivision B of Division 3 of Part 3 of Chapter 2.

Note:    Subdivision B of Division 3 of Part 3 of Chapter 2 sets out the biosecurity measures that may be included in a human biosecurity control order.

    When determination ceases to have effect

(7)    A determination made under subsection (1) ceases to have effect at the end of the human biosecurity emergency period, unless it is revoked earlier.

53    The reference to International Health Regulations in s 477(1)(c) is to the International Health Regulations (2005), done at Geneva on 23 May 2005, as in force for Australia from time to time. Standing or temporary recommendations may be made by WHO under Part III of these Regulations which include health measures to be implemented by a State Party experiencing a public health emergency of international concern or by other State Parties regarding, amongst other things, persons and conveyances to prevent or reduce the international spread of disease: see Articles 15(2), 16. Recommendations may include advice to State Parties refusing entry, not only of “suspect and affected [infected] persons” but also of “unaffected persons to affected areas”, an affected area meaning a geographical location for which the WHO has recommended health measures under the Regulations. They may also include advice implementing restrictions on persons from affected areas: see Article 18 and the definitions in Article 1.

54    Section 478 is in similar terms to s 477. It gives the Health Minister the power to give certain directions to “any person” during a human biosecurity emergency period where the Minister is satisfied of the same matters that condition the power conferred by s 477 to make a determination. It includes the power to give a direction to a person to close or prevent access to premises and a direction for the purposes of giving effect to or enforcing a requirement determined under s 477. Like s 477(6), s 478(6) provides that:

A direction given under subsection (1) must not require an individual to be subject to a biosecurity measure of a kind set out in Subdivision B of Division 3 of Part 3 of Chapter 2.

55    Section 479(1) requires “a person” to comply with a requirement determined under s 477(1) that applies to the person. The effect of s 479(3) is that it is an offence for a person to engage in conduct which contravenes a requirement determined under s 477(1) if the requirement applies to a person. The offence is punishable by imprisonment for five years or 300 penalty units or both.

56    Subdivision B of Division 3 of Part 3 of Chapter 2 (ss 85–97) deals with biosecurity measures that may be included in a human biosecurity order. Each of them imposes requirements on “an individual”. Only a chief human biosecurity officer or human biosecurity officer may include a biosecurity measure in a human biosecurity order (s 82). Any such order is made in relation to “an individual”. Before an officer includes a biosecurity measure in a human biosecurity order, the officer must take reasonable steps to inform the individual of the risks posed by the listed human disease specified in the order to the individual’s health and the health of the public (s 83).

57    Section 96 provides:

Traveller movement measure

(1)    An individual may, for a specified period of no more than 28 days, be required by a human biosecurity control order not to leave Australian territory on an outgoing passenger aircraft or vessel.

Note:    For provisions relating to traveller movement measures, see Subdivision C.

Traveller movement measure ceasing to be in force before human biosecurity control order

(2)    If a traveller movement measure ceases to be in force, subsection (1) does not prevent another traveller movement measure from being included in the same human biosecurity control order.

When traveller movement measure ceases to be in force

(3)    A traveller movement measure ceases to be in force at the earliest of the following times:

(a)    at the end of the period specified under subsection (1);

(b)    the time when the human biosecurity control order ceases to be in force;

(c)    the time when the order is varied to remove the measure;

(d)     the time when the order is revoked.

The proper construction of s 477(6)

58    In construing s 477(6), the starting point is that the Health Minister is entitled to impose any requirement he is satisfied is necessary, amongst other things, to prevent or control the entry of COVID-19 into Australian territory or the spread of the disease in Australia or elsewhere (s 477(1)). In the hierarchy of provisions, subs (1) takes precedence. The power is very broad, as might be expected in the case of an emergency power with such a purpose.

59    To this end, the Minister may impose requirements restricting or preventing the movement of persons in or between specified places (s 477(3)(b)). LibertyWorks would read this so as to apply only to movement within Australia. But that would be contrary to the plain words of the subsection. To read it in this way would substantially limit the Minister’s power, despite the fact that the power of the Minister to include in a determination the matters listed in subs (3) is expressed to apply without limiting subs (1).

60    We acknowledge that s 21(1)(b) of the Acts Interpretation Act provides that “references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth”. Like every provision of the Acts Interpretation Act, however, this provision applies “subject to a contrary intention”: s 2(2). As the Commonwealth submitted, given the broad scope of s 477(1), which expressly contemplates measures designed to prevent or control the spread of human diseases across international borders, the reference to “places” in s 477(3)(b) must include places both inside and outside Australia. This interpretation is supported by the recent decision of Thawley J in Newman v Minister for Health and Aged Care [2021] FCA 517 at [88]–[91].

61    The following remarks were made by Gageler J in Palmer v Western Australia [2021] HCA 5; 388 ALR 180; 95 ALJR 229 at [155] with respect to the power conferred on the Western Australian Minister for Emergency Services to declare a state of emergency, one effect of which was that directions could be made by an authorised officer prohibiting the movement of persons into the State. They apply equally to the power conferred on the Health Minister by s 477 of the Act.

Reposing a power of that nature in a Minister reflects the reality that, within our constitutional system of representative and responsible government, at the State level as at the Commonwealth level, “[t]he Executive Government is the arm of government capable of and empowered to respond to a crisis” [Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 at [233]].

62    No such measures could be imposed, though, if LibertyWorks’ construction of s 477(6) were correct. The effect of its construction is that, no matter how grave the emergency facing the country, no precautions could be required or restrictions imposed if a relevant officer under s 60(1) could impose a biosecurity order of the same kind on an individual. That is so even though, it will be recalled, a human biosecurity control order can only be imposed on an individual if the individual has signs or symptoms of a listed human disease, has been exposed to such a disease or to another individual who has signs or symptoms of such a disease, or has failed to comply with an entry requirement in s 44(6) (see s 60(2)).

63    The Commonwealth submitted that interpreting the provision in this way would eviscerate the Minister’s power. There is force in that submission. It would at least emasculate it. And it would frustrate Parliament’s clear intention in enacting the emergency powers.

64    It would mean, for example, that the only way to prevent or reduce the risk of contagion from Australians who travel overseas during a pandemic would be through making a human biosecurity control order on every single individual who wishes to do so and then only for no more than 28 days. The officer imposing the order would be required to ensure that the contents of the order are read out to all these individuals (s 63). Before such an order could be made, a relevant officer would have to satisfy himself or herself of the principles in s 34(2) with respect to each individual who was planning an overseas trip. Before such an order could be made, the officer would be required to take reasonable steps to inform the individual of the risk posed to the health of the individual and the public by the listed human disease specified in the order (s 83).

65    The biosecurity measure included in a human biosecurity control order under s 96 is a “traveller movement measure”. By s 74(4) an individual is only required to comply with such a measure if the individual consents, or the Director of Human Biosecurity has given a direction for the individual to comply with the measure in accordance with s 72(5)(a) and the direction remains in force, or the individual refuses to consent to the measure during the first 72 hours after the direction has been given. The individual may seek merits review of the order in the Administrative Appeals Tribunal and the Director of Human Biosecurity must inform the individual of his rights to apply for a review (ss 75 and 76). If the Director gives a direction to the individual for compliance with the order, the individual may make an application for judicial review of the decision to do so under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (s 80). The application must be made within seven days of the making of the decision but a court may extend the period even after it expires.

66    Having regard to the steps required to be taken and the inevitable delays that necessarily follow from the exercise of review rights, it defies belief that in enacting s 477 Parliament intended that during an emergency of the kind with which Chapter 8 is concerned Australians could only be prevented from travelling overseas and therefore returning with a listed disease or spreading it to other countries, by means of an order under s 96 made with respect to every single would-be traveller under s 96. It may be accepted that the travel restrictions are harsh. It may also be accepted that they intrude upon individual rights. But Parliament was aware of that. Parliament intended that, in an emergency of the kind declared by the Governor-General in accordance with s 475 and in the circumstances provided for in s 477(1), such measures could nonetheless be taken.

67    It will be recalled that s 477(1) permits the Health Minister to determine any requirement he is satisfied is necessary “to prevent or control the spread of the declaration listed human disease to another country”. The principal (or at least the most effective) way of achieving this purpose is by restricting international travel. This fact alone tells against LibertyWorks’ construction. LibertyWorks suggested that it could be achieved by measures such as disinfecting outgoing mail or decontaminating outgoing freight. But the notion that measures such as these can be effective in preventing the spread to another country of a highly contagious disease needs only to be stated to be rejected. Similarly, LibertyWorks contended that measures such as disinfecting incoming freight, banning certain imports and exports, or stopping cruise ships from docking would prevent the entry, emergence, establishment or spread of the virus into Australia and would be permissible under s 477(6). While measures such as these might have a role to play in the containment of a contagious disease, they are unlikely to achieve the statutory purpose. We accept that the phrase “of a kind” used in s 477(6) and its analogues usually denotes a genus, class or description (see, for example, Commonwealth v Spaul (1987) 16 FCR 292 at 294 (Davies, Lockhart and Neaves JJ)). But the overseas travel restriction imposed by the Determination is not a measure which requires an individual to be subject to a biosecurity measure of the relevant kind.

68    In our view, the purpose of s 477(6) (and its analogues elsewhere in the Act) is to ensure that the powers to make determinations or directions or to give notices of general application are not used to impose biosecurity measures on an individual that could, instead, be imposed on him or her by means of a human biosecurity control order. By individual” we mean someone answering the description in s 60(2). That is a specific individual. Section 477(6) does not preclude the making of a determination during a human biosecurity emergency which is not directed at a particular individual. As the Commonwealth submitted, it is apparent that the scheme established by Pt 3 of Ch 2, which requires a human biosecurity control order to be imposed on a case-by-case basis by reference to a particular individual, evinces an intention contrary to the presumption in s 23(b) of the Acts Interpretation Act that a reference to the singular includes a reference to the plural.

69    The mere fact that a determination made under s 477(1) may affect individuals does not mean that the Health Minister is prevented from making it. Nor does it mean that the operation of s 96 has been rendered nugatory by the Determination. As the simplified outline in s 473 states, Pt 2 of Ch 8 contains additional powers to those available under Ch 2. Section 96 continues to permit the imposition of traveller movement measures on individuals irrespective of whether the individual is able to demonstrate “exceptional circumstances” for travel under s 7(2) of the Determination.

70    LibertyWorks submitted that its construction was in conformity with the principle of legality and Australia’s international obligations, pointing to the inclusion of freedom of movement as a right enshrined in Article 12 of the International Covenant on Civil and Political Rights, which Australia ratified in 1980. It submitted that an aspect of freedom of movement is a right to leave any country including one’s own, citing McAdam, J “An Intellectual History of Freedom of Movement in International Law: The Right to Leave as a Personal Liberty (2011) 12(1) Melbourne Journal of International Law 27.

71    The problem with this submission is that it proceeds from the erroneous premise that the right is absolute. Yet Article 12 expressly allows for restrictions provided by law which are necessary, among other reasons, to protect public health. The Human Rights Compatibility Statement (HRC Statement) to the Biosecurity Bill recognised that the right could be limited in certain circumstances, including where it is justified to protect public health. It also recognised that the legislation contains provisions which may operate to limit the right, noting at the same time that “[t]he limitation must be necessary and proportionate to protect the purpose for which it is imposed and should be as least intrusive as possible to achieve the desired result”. This issue is addressed in s 477(4) by requiring the Health Minister to be satisfied of such matters before determining a requirement under subs (1).

72    LibertyWorks relied on the following passage in the HRC Statement in support of its argument:

A direction under section 478 must not require an individual to be subject to biosecurity measures that may be set out in a human biosecurity control order such as isolation, treatment or movement measures. This means that these more invasive or restrictive measures can only be required if the criteria relating to biosecurity control orders are met.

73    But this passage does not assist. Subsection 478(6), like s 477(6), prevents the Health Minister from using the power conferred by the section to single out a particular individual. As the Commonwealth submitted, it is apparent that a direction under s 478(1) may apply to persons generally or to classes of persons. Accordingly LibertyWorks’ construction of s 478(6) cannot stand.

74    In any event, LibertyWorks seeks to strike down the whole of the Determination as invalid. Yet, s 477(6) does not limit the power of the Health Minister’s to prevent operators of aircraft or vessels from ensuring that the aircraft or vessel does not leave Australian territory with a passenger who is an Australian citizen or permanent resident unless they have an exemption. Indeed the requirement imposed on the operators of outgoing aircraft and vessels under s 5(2) of the Determination could not have been imposed on an operator under s 96, even in the rare case where the operator is an individual. It follows that the whole of the Determination cannot be invalid even on LibertyWorks construction.

Conclusion

75    The Determination is not invalid. Consequently, the declaration LibertyWorks requested should not be made. The originating application should be dismissed. Costs should follow the event.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann, Wigney and Thawley.

Associate:

Dated:    1 June 2021