Federal Court Hears Challenge to COVID Travel Bans

Since March 2020, those residing in Australia have generally been prohibited from travelling overseas without a Federal Government exemption.

A recent exception to this rule is the New Zealand ‘travel bubble’, which since 19 April 2021 has permitted travel to our Kiwi neighbour provided there is no onward travel to other nations.

Federal Court challenge

But in December 2020, not-for-profit Queensland-based think-tank LibertyWorks filed legal proceedings in the Federal Court against the Commonwealth of Australia over the use of the Biosecurity Act 2015 (Cth) to prohibit Australians from travelling abroad without an exemption.

The legal challenge was initially centred around the argument that section 96 of the Biosecurity Act does not permit the Federal Health Minister, currently Greg Hunt, to impose a general travel ban on Australians.

That section is titled ‘Traveller movement measure’ and states in part:

‘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.’

Lawyers for the Commonwealth countered that this argument was misconceived because the travel restrictions were not made pursuant to section 96 (which relates to individuals) but under section 477 of the Act, which purports to empower the minister to give directions that apply to all residents during a ‘human biosecurity emergency period’.

In the Full Court yesterday, LibertyWorks’ Barrister, Jason Potts SC, made a more general submission that the ‘blanket ban’ amounts to an impermissible violation of the ‘fundamental right’ to ‘freedom of movement’.

He told the court:

‘In the context of the human biosecurity emergency, the Act still contains limits and protections on [the Health Minister’s] powers’, adding that the Act recognises the right to freedom of movement ‘except it’s subject to reasonable grounds link public health’.

The Commonwealth’s lawyer, Solicitor General Stephen Donaghue QC, contended that LibertyWorks’ interpretation of the law is erroneous.

The lawyer submitted that the Biosecurity Act is clear in the powers it confers on both the Health Minister and the Governor General.

He told the court that the Act empowers the Health Minister to impose a broad range of requirements which apply to all persons residing in Australia during a human biosecurity emergency period, and to give directions which enable those requirements to be effective.

He added that under the Act, the Governor General is empowered to declare a human biosecurity emergency on the Health Minister’s advice, and extend the period each three months provided there is a continuing threat to public health.

The court’s judgment has been reserved and will be delivered at a later date.

What rights are guaranteed by the Australian Constitution?

The Australian Constitution expressly guarantees just five rights, which are:

• The right to vote (Section 41),
• Protection against acquisition of property on unjust terms (Section 51 (xxxi)),
• The right to a trial by jury for criminal cases in the higher courts (Section 80),
• Freedom of religion (Section 116), and
• Prohibition of discrimination on the basis of State of residency (Section 117).

The High Court has also implied a freedom of political communication into the Constitution, which it found is essential for a citizen to:

“communicate his or her views… criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives…”

The Court added that:

“Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives.”

However, the Court also made clear that the freedom is not unfettered. Rather, the applicable test was set out in the case of Lange v Australian Broadcasting Corporation (1997), in which the justices ruled that legislation is permissible if it satisfies a legitimate purpose and fulfils two conditions:

1. It is compatible with the maintenance of the representative and responsible government mandated by the Constitution, and
2. It is “reasonably appropriate and adapted” to the fulfilment of a legitimate purpose.

This significant restriction on the ‘freedom’ has enabled governments to pass laws which restrict free political speech.

What about a Bill of Rights?

For at least the past two-decades, there have been calls for the introduction of a national Bill of Rights or Charter of Rights in Australia, protecting such rights as free movement, free association and free speech.

These calls have been led by a number of organisations, academics and politicians, including Independent Federal MP Andrew Wilkie who introduced the Australian Bill of Rights Bill into the House of Representative in 2017. The Bill was ultimately defeated.

Despite these calls and proposals, Australia remains one of the only developed democracies not to have a national Bill or Charter of Rights.

What does the Biosecurity Act say?

Among other things, the Biosecurity Act 2015 purports to provide a mechanism for the Federal Health Minister to impose requirements and give directions during a ‘human biosecurity emergency period’.

What is a human biosecurity emergency?

Section 475(1) of the Biosecurity Act empowers the federal health minister to declare a human biosecurity emergency if satisfied that:

• A listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale, and
• The declaration is necessary to prevent or control:
• The entry of the disease into Australia, or
• The emergence, establishment or spread of the disease in Australia.

What is a listed human disease?

Section 42 of the Act provides that the  director of human biosecurity may  determine that a human disease is a listed human disease if the Director considers that the disease may be communicable and cause significant harm to human health.

Before making such a determination, the director must consult with the chief health officer for each state and territory.

COVID-19 is currently a listed human disease.

Who can declare a human biosecurity emergency?

Section 475(1) of the Act provides that the governor-general may declare the existence of a human biosecurity emergency if the health minister is satisfied of its existence.

What must a human biosecurity emergency declaration specify?

Section 475(3) requires that a human biosecurity emergency declaration specify:

• The listed human disease to which it relates,
• The nature of the emergency and conditions that gave rise to it, and
• The period during which it is in force.

How long does a human biosecurity emergency last?

Section 475(4) stipulates that a human biosecurity emergency declaration can last no longer than the health minister considers it necessary to prevent or control:

• The entry of the listed human disease into Australia, or
• The emergence, establishment or spread of the disease in Australia.

The period cannot, in any case, last for more than 3 months.

Can a human biosecurity emergency period be extended?

Yes. Section 476 of the Act empowers the governor-general to extend the biosecurity emergency period for a further 3 months if the health minister is satisfied that:

• The disease continues to pose a severe and immediate threat, or continues to cause harm, to human health on a nationally significant scale, and
• The extension is necessary to prevent or control:
• The entry of the disease into Australia, or
• The emergence, establishment or spread of the disease in Australia.

This can be done an unlimited number of times, provided the above assessment and determination is made before each proposed extension.

When can a human biosecurity emergency requirement be imposed?

Section 477(1) of the Act empowers the health minister to impose requirements during a biosecurity emergency period if satisfied that it is necessary to prevent or control:

• The entry of the declared listed human disease into Australia,
• The emergence, establishment or spread of the disease in Australia,
• The spread of the disease to another country.

The minister may also impose requirements in order to give effect to recommendations by the World Health Organisation.

What types of requirements can be imposed?

Section 477(3) of the Act empowers the health minister to impose requirements:

• That apply to persons, goods or conveyances when entering or leaving specified places,
• That restrict or prevent the movement of persons, goods or conveyances in or between specified places,
• For specified places to be evacuated, and
• For the purposes of giving effect to the above.

The above list is not exhaustive.

What must be considered before a requirement is imposed?

Section 477(4) requires the health minister to be satisfied of the following before imposing a requirement:

• That the requirement is likely to be effective in, or contribute to, achieving the purpose for which it is made,
• That it is appropriate and adapted to achieving its purpose,
• That it is no more restrictive or intrusive than required in the circumstances, and
• That the period of the requirement is no longer than necessary.

When can a human biosecurity emergency direction be given?

Section 478(1) of the Act empowers the health minister to give directions during a biosecurity emergency period if satisfied that it is necessary to prevent or control:

• The entry of the declared listed human disease into Australia,
• The emergence, establishment or spread of the disease in Australia,
• The spread of the disease to another country.

The minister may also make directions to give effect to recommendations by the World Health Organisation.

What types of directions can be given?

Section 478(2) of the Act empowers the health minister to make directions:

• To close or prevent access to premises,
• That are required to give effect to or enforce a requirement under section 177,
• In order to give effect to the above.

The above list is not exhaustive.

What must be considered before a direction is made?

Section 478(3) requires the health minister to be satisfied of the following before giving a direction:

• That the direction is likely to be effective in, or contribute to, achieving the purpose for which it is made,
• That it is appropriate and adapted to achieving its purpose,
• That it is no more restrictive or intrusive than required in the circumstances, and
• That the period of the direction is no longer than necessary.

Who exercises human biosecurity emergency powers?

Section 474 of the Act makes clear that the above powers can only be exercised by the health minister.

What happens if a person breaches a requirement or direction?

Section 479 of the Biosecurity Act 2015 (Cth) makes if a criminal offence punishable by up to 5 years in prison and/or a fine of 300 penalty units (or $63,000, as a Commonwealth penalty unit is currently $210) to contravene a direction made under section 477 or 478 of the Act.

When it comes to providing information, such as entries on a customs declaration or the like, section 532 of the Act prescribes a civil penalty of up to 60 penalty units (currently $12,600) for giving information in compliance or purported compliance with the Act while knowing the information is false or misleading or by omitting any matter or thing without which the information is misleading.

Section 533 of the Act imposes the same 60 penalty units maximum penalty for producing a document to another person in compliance or purported compliance with the Act while knowing that the document is false or misleading.