Federal Court of Australia upholds international travel ban during COVID-19 pandemic

LibertyWorks Inc v Commonwealth of Australia [2021] FCAFC 90

Summary

The Full Court of the Federal Court of Australia (the Court) dismissed an application by LibertyWorks Inc which challenged the validity the Health Minister's power to prevent Australians from leaving the country due to the COVID-19 pandemic. Drawing heavily on the context and purpose of the Biosecurity Act 2015 (Cth), the Court held that while it may be accepted that the travel restrictions were "harsh" and intruded on individual rights, they were nevertheless authorised by the legislation.

Facts

The Health Minister of Australia is authorised to determine emergency requirements during a human biosecurity emergency period under s477 of the Biosecurity Act 2015 (Cth) (the Act). On 25 March 2020, after the Governor-General had declared the existence of a human biosecurity emergency related to COVID-19, the Health Minister made the Biosecurity (Human Biosecurity Emergency)(Human Coronavirus with Pandemic Potential)(Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) (the Determination). The Determination prevents Australian citizens, permanent residents or operators of outgoing aircraft or vessels from leaving Australia unless they are granted an exemption.

LibertyWorks Inc (LibertyWorks) is a private think-tank which aims to move public policy in the direction of increased individual rights and freedoms. An employee of Liberty Works applied for an exemption under the Determination in order to travel from Sydney to London to "assess potential conference venues" for LibertyWorks' annual Conservative Political Action Conference Australia. The application was rejected.

LibertyWorks commenced proceedings in court, challenging the validity of the restrictions on overseas travel imposed by the Determination on the basis that it breached s 477(6) of the Act. Under this subsection, the Health Minister is prevented from making determinations which 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 of the Act. Section 96 of the Act, which appears in Subdivision B, provides 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 Australia on an outgoing passenger aircraft or vessel". LibertyWorks argued that the effect of the Determination was substantively the same as s 96 and did not conform to the 28-day limit, and therefore the Health Minister had exceeded its powers under the Act.

LibertyWorks further submitted that its construction of s 477(6) was consistent with the principle of legality and Australia's international obligations under Article 12 of the International Covenant on Civil and Political Rights (ICCPR), noting that freedom of movement includes a right to leave any country including one's own.

Decision

In a joint judgment (Katzmannn, Wigney and Thawley JJ) the Court rejected LibertyWorks' construction of s 477(6) of the Act and argument that it precluded the Health Minister from making the Determination.

The Court cited sections of the Explanatory Memorandum to the Biosecurity Bill 2014 (Cth), with emphasis on the fact that "the focus of these powers is to enable a fast and effective response" and "allowing for efficient and effective emergency responses". 

Under LibertyWorks' constructions, the only way to prevent the risk of contagion from Australians who travel overseas during a pandemic would have been, as per s 96, to issue a 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 the contents of the order are read out to the individuals. Before such an order could be made, the officer would have to satisfy themselves on the principles of s 34(2) with respect to each individual planning an overseas trip. The individual would then be entitled to a merits review of the order in the Administrative Appeals Tribunal and, if relevant, a subsequent judicial review. The Court held that in light of these inevitable delays, it "defie[d] belief" that when enacting s 477 of the Act, Parliament intended that the only way to prevent individuals from travelling overseas during a pandemic was by way of issuing individual biosecurity orders under s96 of the Act.

The Court also noted that, unlike s 96, under s 477(6) the Health Minister was prevented from using its powers under s 477(1) to single out a particular individual. Determinations may apply to persons generally or to classes of persons. 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. The Court noted at [69] that the operation of s477 did not affect the continued operation of s 96:

"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 s7(2) of the Determination".

In response to LibertyWorks' international law argument, the Court noted that Article 12 of the ICCPR expressly allows for restrictions by law which are necessary, among other reasons, to protect public health. The restraints on this power are contained in s 477(4) of the Act which require the Health Minister to be satisfied that the restrictions are necessary and proportionate to protect the purpose for which it is imposed. This point was not elaborated upon as s 477(4) was not at issue in this case. 

Commentary

This decision highlights the fact that courts are willing to accept Parliament's intention to override commonly accepted individual rights in situations of public health emergency. Although the Health Minister's broad powers under s 477(1) do not allow the 'singling out' of individuals, the fact that individuals may be affected by the Health Minister's Determination does not prevent the exercise of those powers. The Health Minister must simply be satisfied that the measures are necessary to prevent or control the entry of COVID-19 into Australia or elsewhere. LibertyWorks' failed challenge follows a line of recent failed challenges to the Minister's power to make determinations during the pandemic: Palmer v Western Australia [2021] HCA 5, Gerner v Victoria [2020] HCA 48 and Newman v Minister for Health and Aged Care [2021] FCA 517

Notably, the decision highlights the distinct operation of group determinations issued by the Health Minister under s 477 and individual biosecurity orders issued by the Chief Medical Officer or biosecurity officers under s 96. The obiter at [69] makes clear that even individuals who are able to claim an exemption due to "exceptional circumstances" under the Determination may still be prevented from travelling for 28 days under s 96. The Court's lack of elaboration on this point suggests that the implications of these two separate powers to restrict traveller movement during COVID-19, both at a group and individual level, are yet to be seen.

Read the full decision here.