Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

1.    Prayers 1 and 2 of the originating application be dismissed.

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

REASONS FOR JUDGMENT

(revised from transcript)

THAWLEY J:

Introduction

1    These proceedings, commenced by an originating application filed on 5 May 2021, concern a “Determination” made by the Minister for Health and Aged Care purportedly under s 477(1) of the Biosecurity Act 2015 (Cth). The formal name of the Determination is the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth). The critical part of the Determination for present purposes is s 6 which provides that a “person who is a passenger of an aircraft on a relevant international flight must not enter Australian territory at a landing place if the person had been in India within 14 days before the day the flight was scheduled to commence” unless an exemption provided in s 7 of the Determination applies.

2    The Determination was made by the Minister on 30 April 2021 and provides for its commencement on 3 May 2021 and its own repeal at the start of 15 May 2021.

3    The originating application which commenced these proceedings contains four prayers for relief. The first to third prayers for relief ask the Court to make declarations that the whole, or alternatively s 6, of the Determination is invalid and of no effect. The second prayer for relief was narrowed orally on 6 May 2021 to make it clear it did not raise any constitutional grounds. The fourth prayer for relief asks the Court to make a declaration that s 477 of the Act (or alternatively the Determination) is invalid and of no effect because that section (or the Determination): (a) “impermissibly burden the implied freedom of citizens to enter Australia granted to all citizens under the Commonwealth Constitution”; and (b) “exceed the legislative power granted to the Commonwealth Parliament under section 51 of the Commonwealth Constitution in that no head of power, nor any implied source of power, is capable of sustaining section 477 of the Act or the Determination”.

4    The matter, being urgent, was brought before the duty judge, Justice Burley, on 5 May 2021. His Honour made various orders, including that the matter be expedited, and that prayers 1 and 2 of the originating application be heard separately from the other prayers for relief. Prayers 1 and 2 do not involve any constitutional point and were considered to be capable of expeditious resolution. The third and fourth prayers for relief were considered not to be capable of being heard as expeditiously. Those prayers for relief would remain to be determined if the applicant is unsuccessful in relation to prayers 1 and 2.

5    On 6 May 2021, the Chief Justice listed prayers 1 and 2 of the originating application for hearing on 10 May 2021.

6    Before turning to the factual background to the application, it is useful to say something about the legislative regime.

Legislative Regime

The Biosecurity Act 2015

7    The Biosecurity Act 2015 (Cth) is divided into 11 Chapters. Chapter 1 is entitled “Preliminary”. It comprises ss 1 to 32. Section 3 contains a “simplified outline” of the Act. Section 3 describes Chs 2 and 8 in the following way:

Chapter 2 deals with managing risks to human health. That Chapter mainly deals with diseases (listed human diseases) that are listed in a legislative instrument. 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. However, Chapter 2 also includes requirements in relation to persons entering or leaving Australian territory, and rules relating to managing deceased individuals.

…

Chapter 8 provides for the Governor‑General to declare biosecurity emergencies and human biosecurity emergencies. Part 1 gives the Agriculture Minister special powers to deal with biosecurity emergencies and provides for certain powers to be delegated to national response agencies. Part 1 also includes other modifications of the Act that apply during biosecurity emergencies. Part 2 gives the Health Minister special powers to deal with human biosecurity emergencies, including by giving effect to recommendations of the World Health Organization.

8    The Minister’s power to make a (general) determination under s 477(1) is found in Ch 8, which applies where a relevant human biosecurity emergency has been declared. Chapter 2, which allows for the imposition of human biosecurity control orders on (specific) individuals applies irrespective of whether an emergency has been declared. It has some relevance to the proper construction of Ch 8.

9    Chapter 1 also contains an express statement of the objects of the Act. Section 4 provides:

4 Objects of this Act

The objects of this Act are the following:

(a)     to provide for managing the following:

   (i)     biosecurity risks;

(ii)     the risk of contagion of a listed human disease or any other infectious human disease;

(iii)     the risk of listed human diseases or any other infectious human diseases entering Australian territory or a part of Australian territory, or emerging, establishing themselves or spreading in Australian territory or a part of Australian territory;

   (iv)     risks related to ballast water;

   (v)     biosecurity emergencies and human biosecurity emergencies;

(b)     to give effect to Australia’s international rights and obligations, including under the International Health Regulations, the SPS Agreement, the Ballast Water Convention, the United Nations Convention on the Law of the Sea and the Biodiversity Convention.

Note:     The expression biosecurity risk referred to in subparagraph (a)(i) has different meanings depending on whether it is for the purposes of Chapter 6 (managing biosecurity risks: monitoring, control and response) or another part of this Act (see sections 9 and 310).

10    The Act operates concurrently with the laws of a State or Territory where that is possible, although certain identified provisions of the Act do exclude or limit those laws: s 8.

11    Chapter 8 is divided into two parts. Part 1 is entitled “Biosecurity emergencies”. Part 2 is entitled “Human biosecurity emergencies”. Under Pt 1, the Governor-General may make a biosecurity emergency declaration if the Agriculture Minister is satisfied that the special powers furnished by Pt 1 are needed to deal with a biosecurity emergency. A “biosecurity emergency” has the meaning given by s 443(1): s 9. It concerns diseases or pests which pose a severe and immediate threat, or which are causing harm, on a nationally significant scale, to animal or plant health, the environment or economic activities related to those matters: s 443(1).

12    It is Pt 2 of Ch 8 with which these proceedings are concerned: “Human biosecurity emergencies”. Part 2 comprises ss 473 to 479. Section 473 contains a “simplified outline” of Pt 2, as follows:

473 Simplified outline of this Part

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.

13    Section 474 provides that any powers exercised under Pt 2 of Ch 8 must be exercised by the Health Minister personally:

474 Health Minister to exercise human biosecurity emergency powers personally

A power of the Health Minister under this Part may only be exercised by the Minister personally.

14    Section 475(1) provides that the Governor-General may declare that a human biosecurity emergency exists if the Health Minister is satisfied of the matters in paras (a) and (b) of s 475(1):

475 Governor‑General may declare that a human biosecurity emergency exists

(1)     The Governor‑General may declare that a human biosecurity emergency exists 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.

  Note 1:     The declaration is a human biosecurity emergency declaration (see section 9).

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

Note 3:     A human biosecurity emergency declaration may be varied under section 476. Subsection 33(3) of the Acts Interpretation Act 1901 does not apply in relation to variation of a human biosecurity emergency declaration.

15    Section 475(2) provides that a human biosecurity emergency declaration is a non-disallowable legislative instrument:

(2)      A human biosecurity emergency declaration is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.

16    Section 475(3) sets out certain requirements as to what the human biosecurity emergency declaration must specify:

Requirements for human biosecurity emergency declaration

(3)     A human biosecurity emergency declaration must specify:

   (a)     the listed human disease to which the declaration relates; and

(b)     the nature of the human biosecurity emergency and the conditions that gave rise to it; and

   (c)     the period during which the declaration is in force.

Note 1:     The listed human disease specified under paragraph (3)(a) is the declaration listed human disease (see section 9).

Note 2:     The period specified under paragraph (3)(c) is the human biosecurity emergency period (see section 9).

17    Section 475(4) addresses the period of a human biosecurity emergency, noting that it can be extended under s 476:

(4)      A human biosecurity emergency period:

(a)      must not be longer than the period that the Health Minister considers necessary 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; and

(b)      in any case, must not be longer than 3 months.

Note:     A human biosecurity emergency period may be extended under section 476.

18    On 18 March 2020, the Governor-General declared under s 475(1) that a human biosecurity emergency exists regarding the listed human disease “human coronavirus with pandemic potential” (COVID-19). The human biosecurity emergency period has been repeatedly extended under s 476 roughly every three months since.

19    Section 477 is the provision of central importance in the present case. Section 477(1) gives the Health Minister power to determine emergency requirements during a human biosecurity emergency period. Section 477(1) provides:

477 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.

20    Like the Governor-General’s declaration under s 475(1), the Health Minister’s determination is a non-disallowable legislative instrument by reason of s 477(2), which provides:

(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.

21    Section 477(3) expressly states certain requirements the Health Minister may determine in a way which does not limit the operation of s 477(1):

(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.

22    The Health Minister is, however, not permitted to determine a requirement under s 477(1) unless the Minister is satisfied of each of the matters identified in s 477(4). Section 477(4) provides:

(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.

23    Section 477(5) provides that a requirement determined under subs (1) applies despite any other Australian law:

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

24    Australian law is defined by s 9 in the following way:

Australian law means a law of the Commonwealth, or of a State or Territory.

25    Also relevant to the operation of s 477(5) is s 8(1), which – as mentioned – deals with the concurrent operation of State and Territory laws, providing that the Act does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the Act. Section 8(1), however, is subject to s 477(5) – see: s 8(2)(c).

26    Section 477(6) provides:

(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.

27    Section 477(7) provides:

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.

28    As noted earlier, the Determination provided in s 5 for its own repeal at the start of 15 May 2021.

29    Section 479(1) requires all persons to comply with a requirement determined by the Minister under s 477(1) and s 479(3) provides that it is an offence to engage in conduct which contravenes a requirement determined by the Minister under s 477(1). Those subsections provide:

479  Person must comply with emergency requirements and directions

(1)      A person must comply with a requirement determined under subsection 477(1) that applies to the person.

…

Fault-based offences

(3)     A person commits an offence if:

(a)     a requirement determined under subsection 477(1) applies to the person; and

   (b)      the person engages in conduct; and

   (c)      the conduct contravenes the requirement.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

The Determination

30    The Minister’s Determination is divided into two parts: “Part 1 – Preliminary” (ss 1 to 5) and “Part 2 – Requirements” (ss 6 and 7). Part 1 includes definitions in s 4. It provides:

4 Definitions

Note:    A number of expressions used in this instrument are defined in the Act, including the following:

(a)    Australian territory;

(b)    landing place;

(c)    passenger.

In this instrument:

Act means the Biosecurity Act 2015.

Australian Defence Force has the same meaning as in the Defence Act 1903.

member has the same meaning as in the Defence Act 1903.

relevant international flight means a flight:

(a)    that commences outside Australian territory and is intended to arrive at a landing place in Australian territory; and

(b)    for which the scheduled departure time is at or after 12.01 am on 3 May 2021 in the place where the flight commences; and

(c)    that is not an Australian Government facilitated flight; and

(d)    that is not an emergency medical evacuation flight.

31    Part 2 contains the “requirements” determined under s 477(1) and certain exemptions:

Part 2—Requirements

6 Requirement not to enter Australian territory

A person who is a passenger of an aircraft on a relevant international flight must not enter Australian territory at a landing place if the person had been in India within 14 days before the day the flight was scheduled to commence, unless an exemption set out in section 7 applies to the person.

Note:    A person who fails to comply with a requirement that applies to the person under this instrument may commit an offence (see section 479 of the Act). For generally available defences to offences, see Part 2.3 of the Criminal Code.

7 Exemptions

An exemption from the requirement in section 6 applies to the following persons:

 (a)    a member of the crew of an aircraft or vessel;

 (b)    a worker associated with the safety or maintenance of an aircraft or vessel;

 (c)    a person engaged in the day-to-day conduct of inbound and outbound freight;

(d)    a person (including a member of the Australian Defence Force) who is travelling on official government business on an Australian official or diplomatic passport;

(e)    a person who is an immediate family member of a person mentioned in paragraph (d);

 (f)    a diplomatic, consular or other foreign official accredited to Australia;

 (g)    a person:

(i)    who is an immediate family member of a person mentioned in paragraph (f); and

  (ii)    who holds a Subclass 995 (Diplomatic (Temporary)) visa;

 (h)    a member of an Australian Medical Assistance Team (AUSMAT).

32    An Explanatory Statement was also issued. It included:

Purpose

The [Determination] requires passengers on a relevant international flight not to enter Australian territory at a landing place if the person has been in India within 14 days of the day the flight was scheduled to commence.

The Determination to temporarily restrict entry to Australia for people who have been in India in the last 14 days reflects the latest health advice that there is a high likelihood of COVID-19 cases arriving in Australia via a person travelling from India, or who has been in India in the last 14 days.

India has been identified as a high risk country due to the significant increase in COVID-19 positive case numbers in travellers to Australia from India. The Determination protects the quarantine and health resources needed to prevent and control the entry, and the emergence, establishment or spread of COVID-19 into Australian territory or a part of Australian territory. The measures maintain the integrity of Australia’s quarantine system and allow the system to recover capacity, which is a critical intervention in preventing and managing the spread of COVID-19.

The Determination commences on 3 May 2021. The Determination remains in force until the start of 15 May 2021, unless it is revoked earlier.

On the basis of the above, the Minister for Health is satisfied that the Determination is necessary to prevent or control the further entry into, or the emergence, establishment or spread of COVID-19 into Australian territory or a part of Australian territory.

33    Before turning to the challenges made by the applicant to the Determination by prayers 1 and 2 of the originating application, it is necessary to set out the factual background.

Factual background

34    The applicant, Mr Gary Newman, is a 73 year old Australian citizen born in Melbourne. He holds a passport from the Commonwealth of Australia, which expired on 15 November 2020. Many of Mr Newman’s family, friends and former colleagues currently reside in Australia.

35    Mr Newman is also a citizen of, and holds a passport from, the United Kingdom. He has two sons who live in the UK. He acquired his UK citizenship so that he could visit his children and grandchildren without visa restrictions. He has not visited the UK in over two years. Mr Newman identifies primarily as an Australian citizen.

36    Mr Newman also holds a visa granted by the Republic of India. He flew to India from Melbourne, arriving on 6 March 2020. He went to visit friends. He has remained in India since he arrived over a year ago. Mr Newman did not attempt to book a return flight to Australia before November 2020, because he understood that airlines were not operating regular scheduled passenger flights from India to Australia. In November, Mr Newman booked a flight to Melbourne. At the time of booking, he understood that airlines had recommenced operating scheduled passenger flights from India. The airline later cancelled Mr Newman’s flight.

37    On 27 April 2021, the Prime Minister of Australia announced a ban on direct flights from India to Australia.

38    On 30 April 2021, Professor Paul Kelly, the Chief Medical Officer (CMO), wrote to the Minister in the following terms:

Dear Minister Hunt

I am writing to provide advice to assist your considerations to make a determination under section 477 of the Biosecurity Act 2015 (the Act) to make it an offence for a person, including Australian citizens and permanent residents, to enter Australia if they have been in India in the preceding 14 days. I note that such a determination, if made, would be the first time that such a determination has been used to prevent Australian citizens and permanent residents entering Australia.

Background

On 27 April 2021, the Prime Minister announced new measures in response to the worsening COVID-19 situation in India. The new measures include a temporary pause on all direct flights from India to Australia, which include Australian Government facilitated repatriation flights, until 15 May 2021.

I note that although Australia has already implemented a ban on direct flights from India, flights through transit hubs continue to provide an avenue for individuals who have recently been in India to enter Australia.

It is important in any measures we implement that we balance the burden on our quarantine and health systems and the protection of our community with the need to help Australians to get home, including those currently residing in high risk countries.

Biosecurity Act 2015

On 18 March 2020, the Governor-General declared a human biosecurity emergency in relation to the global outbreak of the listed human disease “human coronavirus with pandemic potential” (COVID-19) under section 475 of the Act.

This declaration enlivens the power for you to determine emergency requirements and directions under the Act that are necessary to prevent or control the entry into, or the emergence, establishment or spread of COVID-19 in Australian territory or part of Australian territory. The declaration was recently extended by the Governor General until 17 June 2021.

During a human biosecurity emergency period, in accordance with section 477 of the Act, you, as the Health Minister, may determine requirements that you consider are necessary to prevent or control the entry into, or the emergence, establishment or spread of COVID-19 in Australian territory or part of Australian territory.

The Act provides that before determining emergency requirements under subsection 477(1), you must be satisfied that any requirements are necessary to prevent or control the entry into, or the emergence, establishment or spread of COVID-19 in Australian territory or part of Australian territory. The Act also requires that you are satisfied that the requirements are:

•    likely to be effective in, or contribute to, achieving its purpose;

•    appropriate and adapted to the purpose;

•    no more restrictive or intrusive than required in the circumstances;

•    are applied in a manner that is no more restrictive or intrusive than required in the circumstances; and

•    in place for only as long as necessary.

The penalty for breaching a section 477 determination is 5 years jail or 300 penalty units ($66,600) or both.

Medical advice to support a s477 Determination

COVID-19 continues to represent a severe and immediate threat to human health in Australia. COVID-19 has the ability to cause high levels of morbidity and mortality, and disrupt the Australian community socially and economically. The number of new cases of COVID-19 recorded globally continues to rise at an alarming rate. There are over 149.1 million cases of COVID-19, with over 3.1 million deaths recorded (an approximate crude case fatality rate of 2.1 per cent).

India has been identified as a high-risk country due to the significant increase in COVID-19 positive case numbers in returned travellers from India. India has recorded over 18.3 million positive COVID-19 cases, and over 204,000 deaths, with daily case numbers reached global record levels this week (379,257 new infections and 3,645 deaths on 29 April 2021).

Following the introduction of pre-departure testing and changes to international arrival caps in late January 2021, overseas acquired cases among air arrivals fell from approximately 1.0% to approximately 0.5% in February 2021. This proportion has since increased, with approximately 1.8% of recent air arrivals being identified as cases (19-25 April 2021). Since late March 2021, there has been a sharp increase in the number and proportion of overseas acquired cases that were reported as acquiring their infection in India; over 50% of overseas acquired cases since mid-April 2021 were acquired in India.

There are a range of emerging risks associated with international arrivals, including particularly those who have been in India, arising in the following circumstances:

•    The continuing rapid increase and likely under-reporting of the numbers of COVID-19 cases in India through community transmission.

•    Lack of verification mechanisms for negative COVID-19 test results obtained internationally.

•    High rates of COVID-19 detected from arrivals from India, with a high proportion of overseas-acquired cases detected in Australia having acquired their infection in India.

•    A high proportion of variants of concern and variants of interest amongst those cases and

•    Community transmission within hotel quarantine, as seen recently in New South Wales and Western Australia.

Each new case identified in quarantine increases the risk of leakage into the Australian community through transmission to quarantine workers or other quarantined returnees and subsequently into the Australian community more broadly. This quarantine ‘leakage’ presents a significant risk to the Australian community. Of particular concern, New South Wales and Western Australia have recently seen COVID-19 transmitted in hotel quarantine facilities, as two sets of guests, in rooms opposite each other, had the same sequence of virus, despite arriving from different countries at different times.

Australia’s quarantine and health resources needed to prevent and control COVID-19 introduced into Australia from international arrivals are limited. Due to the high proportion of positive cases arising from arrivals from India, I consider a pause until 15 May 2021 on arrivals from India to be an effective and proportionate measure to maintain the integrity of Australia’s quarantine system. This measure will likely allow the system to recover capacity, which is a critical intervention in preventing and managing the spread of COVID-19 in Australia.

In line with the Prime Minister’s announcement of a temporary pause on all direct flights from India to Australia until at least 15 May 2021, the determination, if made, will be in effect for a limited duration (15 May 2021). Given the proposed limited duration of the determination, I am satisfied this meets the criteria that such an emergency requirement is in place for only as long as necessary.

I wish to note the potential consequences for Australian citizens and permanent residents as a result of this pause on flights and entry into Australia. These include the risk of serious illness without access to health care, the potential for Australians to be stranded in a transit country, and in a worst-case scenario, deaths. I consider that these serious implications can be mitigated through having the restriction only temporarily in place, ie a pause, and by ensuring there are categories of exemptions.

I recommend the determination allows exemptions to the pause on travel for the following classes for persons:

•    a member of the crew of an aircraft or vessel;

•    a worker associated with the safety or maintenance of an aircraft or vessel;

•    a person engaged in the day-to-day conduct of inbound and outbound freight;

•    a person (including a member of the Australian Defence Force) who is travelling on official government business on an Australian official or diplomatic passport;

•    a person who is an immediate family member of a person mentioned in paragraph above[;]

•    a diplomat accredited to Australia;

•    a person:

•    who is an immediate family member of a diplomat accredited to Australia; and

•    who holds a subclass 995 (Diplomatic (Temporary)) visa;

•    a person:

•    who is an immediate family member of a diplomat accredited to Australia; and

•    who holds a subclass of 995 (Diplomatic (Temporary)) visa;

•    a member of an Australian Medical Assistance Team (AUSMAT).

The recommended exemptions above will ensure the determination is appropriate and adapted to the purpose, no more restrictive or intrusive than required in the circumstances, and is applied in a manner that is no more restrictive or intrusive than required in the circumstances.

I am satisfied that a determination made under section 477 of the Act to make it an offence for a person to enter Australia if they have been in India in the preceding 14 days is necessary to prevent and control the entry into, or the emergence, establishment or spread of COVID-19 in Australia. I recommend that you, in your capacity as Minister for Health and Aged Care, agree to make this determination.

39    The Minister made the Determination on 30 April 2021 and, at the time he made that Determination, had the letter from the CMO before him. The other documents which were before the Minister at the time he made the Determination are discussed later in these reasons.

40    On 30 April 2021, the Office of the Director General of Civil Aviation, of the Government of India, issued a circular whereby it suspended all scheduled international commercial passenger services to and from India, until 11:59pm on 31 May 2021. The circular stated that some scheduled international flights may be allowed on selected routes on a case by case basis.

41    Mr Newman presently resides in the city of Bengaluru in the state of Karnataka. On 3 May 2021, the city of Bengaluru recorded approximately 22,000 new cases of COVID-19. As at 5 May 2020 when these proceedings were commenced, Mr Newman had not left his residence in the previous 12 days because he was fearful of contracting COVID-19 and suffering severe illness. He would be willing to leave his residence for the purpose of travelling out of India.

42    Mr Newman would like to fly home to Australia.

43    At the hearing of prayers for relief 1 and 2 today, a further affidavit of Mr Bradley, the solicitor for Mr Newman, was relied upon. This affidavit indicated that, as perhaps anticipated by the circular issued by the Office of the Director General of Civil Aviation, certain international flights had departed from India. Mr Bradley identified, in particular, two flights which had departed on 9 May 2021. Mr Bradley also gave evidence of searches he had undertaken of flights available for Mr Newman to use to seek to return to Australia. The Minister accepted that Mr Newman had standing to bring this application, a position which I also accept.

Consideration

Prayer 1 of the Originating Application

44    As mentioned, by prayer 1 of the originating application, the applicant seeks a declaration that the Minister’s Determination is invalid or, alternatively, that s 6 of the Determination is invalid. The applicant contends it is entitled to that relief for two reasons:

(1)    First, the applicant contends that the Minister failed properly to consider the statutory preconditions to the exercise of the power to make the determination, being paras (a) and (c) of s 477(4).

(2)    Secondly, the applicant says that the Determination otherwise exceeded the power conferred by the Act because:

(a)    it wholly prohibits entry into Australia, rather than imposing requirements upon re-entry as is authorised by s 477(3)(a) of the Act;

(b)    insofar as the Determination purports to “restrict or prevent the movement of persons … in or between specified places” as authorised by s 477(3)(b) of the Act, the Determination is purporting to operate extraterritorially by restricting international travel between India and Australia, in circumstances where Ch 8 of the Act does not have any extraterritorial effect.

First argument: failure properly to consider statutory pre-conditions

45    The applicant contends that the Minister failed properly to consider:

(1)    whether the Determination was likely to be effective in, or to contribute to, achieving the purpose for which it is to be determined as required by s 477(4)(a) by failing to take into account the public health concerns arising from the Determination, including the ability of Commonwealth or State governments to manage the risk of infection within prison populations where persons potentially infected by COVID-19 are detained or taken into remand on suspicion of committing an offence pursuant to s 479 of the Act for failure to comply with the Determination; and

(2)    whether the Determination was no more restrictive or intrusive than is required in the circumstances as required by s 477(4)(c) by failing to take into account whether there were less restrictive and onerous means to manage the public health risk, other than prohibiting entry into Australia by Australian citizens who have been in India in the preceding 14 days, and imposing by operation of s 479 of the Act, criminal penalties in respect of any non-compliance with the Determination.

46    The applicant pleaded that the failure in (1) above is to be inferred from the fact that the advice from the CMO, contained in his letter of 30 April 2021, contained no advice or consideration of that risk.

47    The applicant pleaded that the failure in (2) above is to be inferred from the fact that the advice from the CMO:

(a)    notes that “such a determination, if made, would be the first time that such a determination has been used to prevent Australian citizens and permanent residents entering Australia” (paragraph 1);

(b)    does not advise on alternative means;

(c)    does not advise on the appropriateness of imposing a criminal penalty; and

(d)    notwithstanding (b) and (c) above, states that the CMO was “satisfied that a determination made under section 477 of the Act to make it an offence for a person to enter Australia if they have been in India in the preceding 14 days is necessary to prevent and control the entry into, or the emergence, establishment or spread of COVID 19 in Australia” (final paragraph) being the same matters the Minister is required to be satisfied of before making the Determination.

48    The first matter to note about the terms of s 477(1) and (4) is that both subs (1) and subs (4) of s 477 require the Minister to reach states of satisfaction. Each of the states of satisfaction referred to in subs (4) are expressed as ones which must be reached before determining a requirement under s 477(1) that the Minister is satisfied is necessary to achieve the objects identified in paras (a) to (c) of s 477(1).

49    The Minister submitted that subss (1) and (4) operate together to require the Minister to undertake what is, in substance, an analysis under subs (4) of whether the proposed measure or requirement is proportionate to achieving the object sought to be achieved through determining a requirement under subs (1) that the Minister is satisfied is necessary. For example, the assessment under s 477(4) of whether the requirement will be “effective in” (para (a)), and “appropriate and adapted to” (para (b)), achieving one of the purposes in s 477(1) gives content to the requirement, under s 477(1), that the Minister be satisfied the requirement is necessary. Whether or not that is right, s 477(4) sets out states of satisfaction which must be met, and prayer 1 in these proceedings is a challenge on Avon Downs grounds to two of those states of satisfaction, namely those in paras (a) and (c), and not a challenge expressed to be on proportionality grounds.

50    Section 477(4) does not expressly set out what matters the Minister must consider in reaching the relevant states of satisfaction identified in the subsection. The matters about which the Minister must be satisfied relevant to the applicant’s argument are:

(a)    that the requirement is likely to be effective in, or to contribute to, achieving 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;

51    In Avon Downs Pty Ltd v Commissioner of Taxation (1949) 78 CLR 353 at 360, Dixon J outlined the circumstances in which a state of satisfaction, being a pre-condition to the exercise of a power, might successfully be reviewed in the following passage:

But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

52    The applicant’s case is that two matters relevant to the states of satisfaction in paras (a) and (c) of s 477(4) were not considered – see [45] above. Because the Minister must be satisfied about each of the matters in s 477(4), it follows by necessary implication that he must consider those matters. It does not follow that he must consider every single fact which might be thought of as being potentially relevant to the existence of each of the matters identified in s 477(4). A statute might require a decision-maker to consider a matter by:

(1)    expressly stating that the decision-maker must consider the matter; or

(2)    necessary implication because the consideration is a mandatory one having regard to the subject matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; Singh v Minister for Home Affairs (2019) 267 FCR 200 at [31].

53    The applicant accepted in argument that he must show that the matters he says were not taken into account were ones which the Minister had to take into account as mandatory relevant considerations (in the Peko-Wallsend sense). This concession is correct. In Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) (2019) 167 ALD 492 at [53], Derrington J considered that the reference to “relevant factors” in Avon Downs was “substantially the same” as the phrase “relevant considerations” in the Peko-Wallsend sense; see also: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [54].

54    The applicant bears the onus of establishing that the relevant repository of power did not have the necessary state of satisfaction (including for the reason that it was not properly formed for one of the reasons identified in Avon Downs): Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 at 59.

55    At the time of making the Determination, the Minister had before him:

(1)    a Ministerial Submission containing recommendations. This had three documents attached to it:

    Attachment A – the Chief Medical Officer’s letter dated 30 April 2021;

    Attachment B – the (proposed) determination dated 30 April 2021;

    Attachment C – an Explanatory Statement;

(2)    a Draft Media Release;

(3)    advice from the Solicitor-General dated 14 March 2020;

(4)    advice from the Solicitor-General dated 26 November 2020.

56    Legal professional privilege was claimed over the two advices from the Solicitor-General.

57    The Minister’s practice was to read the material electronically. The Minister printed the two pages of the Ministerial Submission containing the recommendations and annotated, dated and signed those two pages. The annotations show that the Minister “noted” the CMO’s advice. Notwithstanding the applicant’s suggestion that I should not, I infer from this, and the circumstances, that the Minister in fact read the CMO’s advice. The annotations show that the Minister answered “yes” to being satisfied of each of the matters referred to in s 477(4)(a) to (e). The annotations then show that the Minister answered “yes” to being satisfied of the matter referred to in s 477(1).

58    The applicant complains that the Minister could only have considered the material for less than one day. I do not regard that as surprising in the present context. The material was not voluminous. It would be hoped that the Minister acted expeditiously in an emergency situation.

59    As to the contended failure in [45](1) above, being the failure to consider the risk of infection within prison populations, the Minister was not required to consider – as a mandatory relevant consideration in the Peko-Wallsend sense – the ability of Commonwealth or State governments to manage the risk of infection within prison populations where persons potentially infected by COVID-19 are detained or taken into remand on suspicion of committing an offence under s 479 of the Act for failure to comply with the Determination. It follows that the challenge to the state of satisfaction under s 477(4)(a) must fail. The same result would follow if the challenge were to the state of satisfaction under s 477(4)(b). I make that observation because, whilst the originating application refers to s 477(4)(a), the language used appears to come from s 477(4)(b). Nevertheless, Senior Counsel for the applicant indicated that the challenge was intended to be to s 477(4)(a).

60    Further, the applicant’s submission assumes, without justification, that: (a) Australian citizens would ignore or defy the Determination and, within the 12 days for which it was in effect, enter Australia illegally on commercial flights through transit countries; and (b) then, those persons would be arrested and denied bail such that they would be detained in high-density prison populations without any protective measures being implemented to reduce the risk of transmission of COVID-19. These assumed events are difficult to treat as a serious possibility.

61    As to the contended failure in [45](2) above, being the challenge to the state of satisfaction in s 477(4)(c), I would not infer that the Minister failed to consider whether the requirement the subject of his determination is no more restrictive or intrusive than is required in the circumstances. First, that is against his acceptance of the recommendation made in the Ministerial Submission in those terms. Secondly, I would infer that the Minister considered how to make the requirement no more restrictive and intrusive than was necessary. The Minister relied on the advice of the CMO and considered the draft Determination:

    There are two aspects of the Determination which contained important limitations. First, there are the express exemptions contained in s 7 of the Determination. Second, and perhaps more importantly, the definition of “relevant international flight” carves out flights which are “facilitated” by the Australian Government and “emergency medical evacuation flights” thus preventing the Determination from operating with respect to Australian citizens entering Australia on such flights. This fact was expressly referred to in the Ministerial Submission at [19], which I infer the Minister read.

    The CMO’s letter referred to the fact that the Prime Minister had announced a ban on direct flights from India to Australia on 27 April 2021, indicating that that matter was also something which the Minister took into account. The CMO’s reference to this ban was immediately followed by a statement that “although Australia has already implemented a ban on direct flights from India, flights through transit hubs continue to provide an avenue for individuals who have recently been in India to enter Australia”. I infer that the Minister took this consideration into account, it being contained in the CMO’s letter which I concluded the Minister read. It is tolerably clear from the CMO’s letter that the CMO thought further relief would come to the Australian quarantine system by taking the additional measure of preventing entry, even for those travelling indirectly through transit hubs if those persons had been in India within 14 days from when the relevant flight was scheduled to depart. This additional measure was considered against the background of the existing direct flight ban announced by the Prime Minister on 27 April 2021.

62    It follows that I reject the applicant’s first argument.

Second argument: extraterritorial operation

63    Properly construed the Determination does not operated extraterritorially. Section 6, read with s 479 of the Act, makes it an offence to “enter Australian territory”. An offence is committed only if a person enters Australia as a passenger on a “relevant international flight”, being a flight that “is intended to arrive at a landing place in Australian territory”: s 4 of the Determination. An offence is not committed until a person actually enters Australian territory. Legislation does not operate extraterritorially merely because it might have some relationship to events which occur overseas, such as boarding a flight.

64    A not entirely dissimilar situation was addressed by Herring CJ in Broadhurst v Paul [1954] VLR 541. That case concerned a provision which created an offence of driving a commercial goods vehicle in Victoria without having at least 10 consecutive hours of rest in any period of 24 hours. The case concerned a driver who had driven from the State of New South Wales into Victoria. It was submitted that the offence was not made out, because one could only look at the driving which occurred in Victoria and that the driving which occurred in New South Wales was to be ignored in the relevant calculations. The Chief Justice dealt with that submission in the following way (at 543):

In my opinion this contention cannot prevail. The offence is driving in Victoria without sufficient rest. So long as a driver stays in New South Wales the Act has nothing to say to him; it is only when he crosses into Victoria and drives there that he becomes subject to the section, and then it is not his driving in New South Wales that makes him liable thereunder, it is his driving in Victoria. The driving in New South Wales is only looked at to see what state he is in when he drives in Victoria, whether or not at that time he is properly rested, and I can see no reason why, for this purpose, such driving in New South Wales should not be looked at. By so doing you do not seek to make him liable for his driving in New South Wales, the offence charged being merely in respect of his actions in Victoria, where the whole of the offence is committed.

65    The applicant submitted that Broadhurst could be distinguished on the basis that the commercial truck driver had a choice of whether to enter Victoria, whereas once on a plane a passenger has no choice but to get off at the final destination. I do not accept that Broadhurst can be distinguished on this basis. It could equally be said that a passenger has a choice not to get on the plane.

66    It follows that I reject the applicant’s second argument.

Prayer 2 of the Originating Application

67    Prayer 2 of the originating application proceeds from an assumption that there is a “fundamental common law right of citizens to re-enter their country of citizenship”.

68    The argument proceeds also from an assumption that the Commonwealth Parliament has legislative power to abrogate or limit the right to re-enter. The question whether the Commonwealth Parliament in fact has such legislative power is the subject of prayer 4 and arises for later determination and only if the applicant fails in respect of prayers 1 and 2. In making the assumption that the Commonwealth Parliament has legislative power to abrogate or limit the right to re-enter, the applicant made it clear that he did not intend to prejudice his right to run the constitutional argument should he fail in respect of prayers 1 and 2.

69    It was not in contest that there is a common law right on the part of Australian citizens to re-enter Australia. This right has been recognised by the High Court on several occasions, at least in dicta. In Potter v Minahan (1908) 7 CLR 277 at 289, Griffith CJ stated (citations omitted):

But anterior, both in order of thought and in order of time, to the concepts of nationality and domicil is another, upon which both are founded, and which is, I think, an elementary part of the concept of human society, namely, the division of human beings into communities. From this it follows that every person becomes at birth a member of the community into which he is born, and is entitled to remain in it until excluded by some competent authority. It follows also that every human being (unless outlawed) is a member of some community, and is entitled to regard the part of the earth occupied by that community as a place to which he may resort when he thinks fit. In the case of Musgrove v Chun Teeong Toy it was held that an alien (though an alien friend) has no legal right to enter a country of which he is not a national. Yet, unless he is outlawed from human society, he must be entitled to enter some community. So, by process of exclusion, we ascertain at least one part of the world to which every human being, not an outlaw, can claim the right of entry when he thinks fit.

70    Barton J stated at 293-294:

Now, in a unitary or undivided State, every subject of it has the right of egress and ingress and of remaining in any part of that State to the extent to which his freedom in that regard is not controlled by express law. So when self-government is granted to any part of that State, while the parent State may include in the grant, or reserve to itself, a power of restricting this right of ingress, egress, and sojourn, yet unless the Sovereign State grants the subsidiary State the right to apply such restrictions to those subjects of the former who are born within the latter, I very much doubt whether there is any right to impose them on those who may be termed in one sense its own nationals, who at birth were part of its self-governing community, and whose liberty in the regard mentioned is a birthright. Hence, where a charter of self-government, such as ours, grants the right to deal with immigration, which includes the right wholly to prohibit the landing of an immigrant, it is open to doubt whether the grant includes the right to prohibit the entry of those who are subjects of the Crown born within our bounds, and who, to adapt a phrase of Lord Watson’s, may be called Australian born subjects of the King.

71    O’Connor J stated at 304-305:

[The respondent] … urged that there was one right which it would not be assumed the legislature intended to take away except by express words or necessary implication. That is the right of every British subject born in Australia, and whose home is in Australia, to remain in, depart from, or re-enter Australia as and when he thought fit, unless there was in force in Australia a positive law to the contrary. The existence of that right is, to my mind, beyond serious controversy …

It cannot be denied that subject to the constitution, the Commonwealth may make such laws as it may deem necessary affecting the going and coming of members of the Australian community. But in the interpretation of those laws it must, I think, be assumed that the legislature did not intend to deprive any Australian born member of the Australian community of the right after absence to re-enter Australia unless it is so enacted by express terms or necessary implication.

72    In Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 469, the High Court (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ) stated that “[t]he right of the Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or ‘clearance’ from the Executive”; see also: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 at [22].

73    In Re Canavan (2017) 263 CLR 284 at [131], the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) referred to a person’s “right of abode” which was said to include “the right to enter and to reside in the country of nationality”.

74    In Love v Commonwealth (2020) 94 ALJR 198, Gageler, Nettle, Gordon and Edelman JJ (in separate judgments) considered that a “right to enter”, a “right of abode” or a “right [to not be] … denied reentry” was a relevant point of distinction between a citizen and alien (at [94]-[95] (Gageler J), [273] (Nettle J), [325] (Gordon J), [440] (Edelman J)). Gageler and Edelman JJ, referring to Potter, referred to a “fundamental” or “absolute and unqualified” right of a citizen to enter their country of citizenship.

75    Some of the history of “the right to enter and reside” has also been nicely set out by Flick J in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35 at [101] to [117].

76    The common law right may be abrogated by valid legislation. In Potter at 304, O’Connor J referred to the right as one “to remain in, depart from, or re-enter Australia as and when [a citizen] thought fit, unless there was in force in Australia a positive law to the contrary”. Although dealing with ejection rather than entry, Blackstone’s Commentaries on the Laws of England (17th ed, 1830) at Book 1, Chapter 1, p 137 observes that “no power on earth, except the authority of parliament, can send any subject of England out of the land against his will” (emphasis in original). The question raised by prayer 2 is whether the Act does purport to abrogate the right. As mentioned, if it does, the question whether Parliament had power to enact the legislation remains to be determined.

77    Legislation will not be construed to interfere with “fundamental common law rights”, freedoms or principles in the absence of unmistakable and unambiguous language. In Coco v The Queen (1994) 179 CLR 427 at 437, Mason CJ, Brennan, Gaudron and McHugh JJ observed (citations omitted):

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

78    In Momcilovic v The Queen (2011) 245 CLR 1 at [43], French CJ observed (citations omitted):

The principle of legality has been applied on many occasions by this Court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law. The range of rights and freedoms covered by the principle has frequently been qualified by the adjective “fundamental”. There are difficulties with that designation. It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power. Nevertheless, the principle is a powerful one. It protects, within constitutional limits, commonly accepted “rights” and “freedoms”. It applies to the rules of procedural fairness in the exercise of statutory powers. It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be read down so as to bring it within the limits of constitutional power. It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations.

79    In R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459 at [40], the plurality (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ) stated (citations omitted):

The appellants sought to invoke, as the first step in their argument, the principle of statutory construction known as the principle of legality, whereby common law rights are to be regarded as abrogated by statute only by the use of language which manifests a clear intention to do so. The principle of legality means that common law rights will not be taken by a court to have been displaced by legislation save where the intention to do so is “expressed with irresistible clearness”.

80    Gageler J stated at [76] and [77]:

Legislation is sometimes harsh. It is rarely incoherent. It should not be reduced to incoherence by judicial construction. An interpretative technique which involves examining a complex and prescriptive legislative scheme designed to comply with identified substantive human rights norms in order to determine whether, and if so to what extent, that legislative scheme might butt up against a free-standing common law principle is inherently problematic. The technique is even more problematic if the common law principle lacks precise definition yet demands legislative perspicacity and acuity if it is not to create of its own force an exception to the scheme that is spelt out in the statutory language.

Be that as it may, any common law principle or presumption of interpretation must surely have reached the limit of its operation where its application to read down legislation plain on its face would frustrate an object of that legislation or render means by which the legislation sets out to achieve that object inoperative or nonsensical. The appellants’ invocation of the companion rule to read down the IBAC Act would do both.

81    The end object of the process of statutory construction is to give the words of the particular statute the meaning which the legislature is taken to have intended them to have: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [43]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25]-[26]. The preferred construction is reached through common law and statutory rules of construction, including the legality principle, the application of which involves the identification of a statutory purpose from any express statement in the statute, or by inference from the text and structure of the statute and by appropriate reference to extrinsic materials: Lacey at [44].

82    In my view, it is a necessary incident of the scheme contemplated by Ch 8 that a person may be prevented from both entering and leaving Australia. Section 477(1)(a) and 477(1)(b) empower the Health Minister to impose (determine) such requirements as he is satisfied are necessary to “prevent” or “control” the “entry” into Australia of a listed human disease, or the spread of the declaration listed human disease to “another country”. The most obvious method of achieving either result, at least in relation to human to human transmissible diseases, is to prevent entry of persons into Australia and departure from Australia.

83    The applicant submitted that the word “prevent” in s 477(1) does not bear its ordinary meaning. In my view, it does. The word cannot be substituted by another, but – for the sake of explanation – it means, in this context, “stop” or “to keep something from happening”. The power to restrict the movement of persons across borders is a necessary incident of a power to prevent the entry of a human disease into Australia or to prevent the spread of such a disease from Australia to another country. That the Act was intended to impinge on common law rights is confirmed also by s 96 which empowers the Minister to prevent “an individual” from leaving Australia. Section 96 is located in Ch 2 and operates whether or not a human biosecurity emergency has been declared under s 475. But the point is that the Act contemplated it might be necessary to impinge on the rights of individuals (Ch 2) or make determinations which impinged on rights of people generally (Ch 8).

84    As the Minister submitted, that the legislature should be taken to have intended to give the Minister power to restrict movement across the Australian border is also reinforced by:

(1)    s 477(1)(c) which confers a power to determine any requirement necessary to give effect to a recommendation made by the World Health Organization (WHO) under Part III of the International Health Regulations. Those regulations permit recommendations to refuse entry to persons whether or not infected with a disease – see: Arts 1 (Definitions), 15, 16 and 18 of the International Health Regulations (2005), done at Geneva on 23 May 2005. The Explanatory Memorandum to the Biosecurity Bill 2014 (Cth) (at p 294) describes such regulations as “health measures to prevent or reduce the international spread of disease”. Implicit in that description, is an acknowledgment, consistent with common sense and with the kinds of recommendations which might be made by the WHO under the International Health Regulations, that a determination under s 477(1) may be directed at preventing the spread of diseases across international borders by preventing movement across those borders;

(2)    the observation in the human rights compatibility statement in the Explanatory Memorandum to the Biosecurity Bill 2014 (Cth) that s 477 would confer a power to take actions “including restricting or preventing the movement of persons, goods or conveyances”, which “may operate to limit the right to free movement”: at 31. Contextually, the reference to the right to free movement is a reference to freedom of movement under Art 12 of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 3 March 1976) (see p 20), which provides:

Article 12

1.     Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

   2.     Everyone shall be free to leave any country, including his own.

3.     The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4.     No one shall be arbitrarily deprived of the right to enter his own country.

85    Little assistance is provided by s 477(3). By its express terms, it applies “without limiting” s 477(1). The words “without limiting” in s 477(3) evince an intention that a “general power should be given a construction that accords with the width of the language in which it is expressed and … is not to be restricted by reference to the more specific character of that which follows”: Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 (Mason J), applied in PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240 at [38] (French CJ, Gummow, Hayne and Crennan JJ).

86    As to s 477(3)(a), the word “requirements” in para (a) of s 477(3) bears the same meaning as the word “requirement” in s 477(1). Section 477(3)(a) provides, as an example of a requirement that the Minister might be satisfied is necessary under s 477(1), requirements that apply when entering or leaving specified places. As the applicant submitted, s 477(3)(a) does not speak to a requirement to prevent entry, but rather speaks to requirements to be made “when entering”. This does not limit s 477(1); it is just an example.

87    As to s 477(3)(b), it also merely gives an example of what requirements might be the subject of a determination under s 477(1). None of s 477(3) limits the operation of subs (1). Section 477(3)(b) cannot be read as meaning that the Minister cannot make a determination which has the effect of preventing a person entering Australia as that would be directly inconsistent with the clear terms of s 477(1)(a).

88    The applicant submitted the phrase “specified places” found in each of paras (a) to (c) of s 477(3) should be read as limited to specified places within Australia, relying on s 21 of the Acts Interpretation Act 1901 (Cth) and an argument that the phrase should mean the same thing in each of paras (a), (b) and (c) of s 477(3). Section 21(1)(a) of the Acts Interpretation Act is in the following terms:

(1)     In any Act:

…

(b)     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.

89    Section 2(2) of the Acts Interpretation Act provides that the “application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention”.

90    As to this argument there are two responses. First, it does not matter what “specified places” in s 477(3)(b) means. Even if it is limited in the way the applicant contends, that does not limit the meaning of s 477(1). In any event, it would be unlikely that the legislature considered it appropriate to give power to the Minister to prevent movement within Australia of a disease which had entered and not allow the Minister power to prevent entry of the disease in the first place. Subparagraph (a)(i) of s 477(1) reveals that such an unlikely conclusion should not be visited on the legislature as its presumed intention.

91    Secondly, s 477(1) requires an understanding that the phrase “specified places” used in s 477(3)(b) is not confined to places within Australia although it includes such places. That is, s 2(2) of the Acts Interpretation Act is engaged because s 477(1) and the context of the Biosecurity Act as a whole reveals a “contrary intention” disengaging the application of s 21(1)(a) to s 477(3)(a) to (c).

92    Subsection 477(1) was deliberately drafted broadly to provide the Minister with power to determine “any” requirement. The context for exercise of the broad power is that the Governor-General has declared a human biosecurity emergency exists. The precise nature of future threats could not be known. In this context and appreciating that emergencies may take a wide variety of forms it is hardly surprising that the legislature would want to provide a broad power capable of addressing human biosecurity emergencies of whatever kind. Parliament should be taken to have intended to provide a broad power to facilitate appropriate responses, including novel responses, to future and unknown threats. Parliament did not intend to limit the power under s 477(1) through the specific examples of s 477(3).

93    The Minister’s power under s 477(1) has its limits and safeguards. The power is conditioned first on the existence of a declared human biosecurity emergency that can only happen where, amongst other things, the Minister is satisfied that “a listed human disease poses a severe and immediate threat, or is causing harm, to human health on a nationally significant scale”: see s 475(1)(a). Secondly, exercise of the power under subs (1) of s 477 is conditioned on the existence of the states of satisfaction which must first be reached under s 477(4). As mentioned, and as the applicant in fact attempts in this case, these states of satisfaction can be reviewed on Avon Downs grounds, being necessary pre-conditions to attaining the state of satisfaction in s 477(1) (also challengeable on Avon Downs grounds).

94    As the Minister submitted, the legislature’s contemplation that the common law right of entry or exit would be affected by the provisions of the Act, including s 477(1), is also supported by the terms of s 477(4), which requires what is in substance a proportionality analysis to ensure that there is a rational approach to the question of whether a particular encroachment upon rights can be justified – cf: Palmer v Western Australia (2021) 95 ALJR 229 at [55] (Kiefel CJ and Keane J). The statutory architecture here, including s 477(5), suggests an assumption that rights will be impinged upon and provides a means for the relevant degree of impingement to be determined.

95    The applicant does not argue that s 477(1) could not be used to prevent non-citizens from entering Australia. Indeed, in oral argument the applicant accepted that s 477(1) could be so employed. The principle of legality could have nothing to say as to the position of non-citizens, who enjoy no right to be in Australia or to form part of its community – see: Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [92]. To read the power in s 477(1) as confined to particular classes of persons would run contrary to the scheme of Ch 8, which is to confer powers which are broad in scope, applicable to all and subject to carefully delineated – and express – preconditions (for example, in s 477(4)) and safeguards (for example, s 477(6)). The utility of s 477(1) would be significantly adversely affected if a Determination made under s 477(1) could prevent entry of non-citizens in a human biosecurity emergency but not prevent the entry of citizens.

96    Other provisions of the Act reveal an intention that Parliament intended to restrict the ability of persons, including citizens, to enter Australian territory at will. The Act empowers the Director of Biosecurity (being the Agriculture Secretary: s 540) to approve a direction that an aircraft not land at any landing place in Australian territory (s 241(2)) or that a vessel not be moored at any port in Australian territory (s 249(2)). The Director of Biosecurity may also approve a direction that an aircraft or vessel be moved to a place outside Australian territory: s 206(3)(a). Such powers are conferred whether or not a human biosecurity emergency has been declared and are not confined to the management of human biosecurity risks. I have previously mentioned s 96 in Ch 2, but there are other provisions in Ch 2 which, likewise, suggest an intention on the part of Parliament to impinge upon fundamental common law rights.

97    It follows that I reject prayer 2 (as narrowed on 6 May 2021) of the applicant’s originating application. As I have indicated, that leaves prayers 3 and 4 for determination.

Conclusion

98    Prayers 1 and 2 of the originating application must be dismissed.

Associate:

Dated:    14 May 2021