LSJ June 2021

Legal updates ADMINISTRATIVE & CONSTITUTIONAL LAW

Newman also argued that Hunt failed to consider less re- strictive or intrusive measures before imposing the travel ban. Thawley J rejected this argument. He noted that, in accor- dance with the CMO’s advice, various exceptions had been carved out, where the ban did not apply. These included ex- emptions for medical evacuation flights and medical assis- tance teams. Thawley J held that this indicated that Hunt had turned his mind to how to reduce the restrictive or intrusive impact of the ban (at [61]-[62]). The extraterritorial effect argument Newman also argued that the travel ban operated with extra- territorial effect because it applied to people who were outside Australia, and that this was not authorised by s 477. There is a statutory interpretation principle that statutes are presumed not to operate extraterritorially. Thawley J cut this argument off at the knees, finding that the travel ban did not actually operate extraterritorially, because no offence occurred until a person actually entered Australian territory (at [63]). The principle of legality argument Finally, Newman argued that due to the principle of legality, the Biosecurity Act did not provide authority for a determina- tion that banned Australian citizens from entering Australia. The principle of legality is a statutory interpretation principle that provides that statutes will not be interpreted to abrogate or limit fundamental common law rights unless Parliament makes it unmistakeably clear that this was what it intended to do. Parliament is ultimately allowed to abrogate these rights, but the principle of legality requires it to be clear in doing so, and wear any associated political cost. Both parties accepted, as various cases suggest, that Austra- lian citizens had a fundamental common law right to re-enter Australia. The question therefore was whether the Biosecuri- ty Act provided unmistakeably clear authority for a ban that would abrogate this right by banning citizens from returning to Australia. Thawley J held that several provisions of the Biosecurity Act clearly indicated that its intention was to authorise limits on people moving in and out of Australia. He held that it was not possible to read s 477(1) as only authorising limits on entry for non-citizens, because this would run contrary to the statutory purpose of conferring very broad powers on the Minister to allow flexibility in dealing with biosecurity emergencies. He noted that the utility of the power in s 477(1) ‘would be sig- nificantly adversely affected if a Determination … could pre- vent entry of non-citizens in a human biosecurity emergency but not prevent the entry of citizens’ (at [95]). Accordingly, Newman’s principle of legality argument failed.

Outstanding constitutional questions Due to the deep common law links between citizenship and the right of return, it has also been suggested citizens may have an implied constitutional right to enter Australia that could not be overridden by clear terms in the Biosecurity Act (see Helen Irving, ‘Still Call Australia Home: The Constitu- tion and the Citizen’s Right of Abode’ Sydney Law Review, Vol. 30, No. 1, pp. 133-153, 2008). This was an argument that would have been litigated in the next stage of Newman’s case, had it not been withdrawn. With no mention of Austra- lian citizenship in the Constitution , and no case law directly on point, the case for a constitutional right of entry is very speculative. It must await another day for consideration. So too must arguments that elements of the Biosecurity Act are not supported by a Commonwealth head of power. What does this mean for Australian citizens? Newman’s case illustrates that, in the absence of a bill of rights in Australia, rights that are fundamentally attached to citi- zenship under common law can be easily displaced by stat- ute, at least in a time-sensitive emergency context. A bill of rights, or clearer constitutional text, may have meant that the outstanding constitutional questions about a citizens’ right of entry could have been considered alongside the administrative law questions, rather than being deferred. The case may also indicate an emerging trend, first reflected in Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229, of courts apply- ing broad interpretations to legislation delegating emergency powers to deal with the COVID-19 pandemic. With no mention of Australian citizenship in the Constitution , and no case law directly on point, the case for a constitutional right of entry is very speculative. It must await another day for consideration. So too must arguments that elements of the Biosecurity Act are not supported by a Commonwealth head of power.

70 LSJ I ISSUE 78 I JUNE 2021

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