Federal court hearing on the legality of the India travel ban kicking off now, before Thawley J. If you’re interested you can watch for yourself here: secure.quickchannel.com/qc/create/main…
The plaintiff is Gary Newman - a 73 y.o. man who has been in Bangalore India since March 2020. He is in a vulnerable category and wants to return to Australia as soon as possible in the circumstances, but says he has been unable to do so.
Today the court will hear arguments about whether a fundamental common law right allowing citizens to enter Australia, or other factors, mean that the travel ban could not be made under the Biosecurity Act.
There is also an argument that citizens have a constitutional right of entry, but that will be heard at a later stage if the case cannot be decided on the narrower statutory interpretation ground.
Newman’s lawyer, Christopher Ward SC, is talking through the operation of the travel ban (a ‘determination’ made by Minister Greg Hunt) now. Anyone who has been in India in the last 14 days is not allowed to enter Australia while the determination is in place.
If they do, they face criminal penalties. These are general criminal penalties that the Biosecurity Act applies to any health-related determinations Hunt makes - they’re not specific to this ban.
Ward is arguing that neither Hunt nor the CMO gave adequate consideration to the chilling effect that making it a criminal offence for citizens to re-enter Australia would have, and the proportionality of this.
Ward is now talking about a principle called the principle of legality - this is a statutory interpretation principle that says that statutes cannot abrogate fundamental common law rights unless they use the clearest terms.
Both parties agree that the right of Australian citizens to re-enter Australia is a fundamental common law right. So a key question is whether the Biosecurity Act is clear enough to displace it.
The Minister’s argument is that the Biosecurity Act is so clear and so broad in its terms that it must abrogate the right of entry. Ward says this can’t be. He says the power is broad, but implicitly respects fundamental rights unless Parliament specifically says otherwise.
For the same reason, Ward says, the power in the Biosecurity Act would not enable the Minister to make a determination that a particular class of people should be harmed, in order to mitigate risk to others. He says we might ask ‘why not’: the principle of legality is the answer.
The principle of legality doesn’t prevent Parliament abrogating fundamental common law rights - it just means it has to do so clearly. As @DarrenODonovan has just tweeted, the point is to make Parliament communicate clearly and wear any cost that comes from abrogating a right.
A right can be abrogated by ‘express words’ (i.e. saying so directly), or ‘necessary implication’ (making Parliament’s intention very clear). Ward says the Biosecurity Act doesn’t do this because of its generalised terms.
There was a dropout, but the stream is working now - if you have issues copy the link under Thawley J here: fedcourt.gov.au/court-calendar…
Two cases make it clear that there’s at a common law right of return, and that there’s a distinction between citizens and non-citizens: Potter v Minahan (1908) and Air Caledonie (1988). They may also have constitutional significance, but that will be debated on another day.
Ward is now talking through a number of recent instances in which Australian judges in the High Court and Federal Court has emphasised how fundamental the right of entry is. These include two cases that got a lot of public attention - Re Canavan (2017) and Love v Cth (2020)
They are now starting to look directly at s 477 of the Biosecurity Act, which gives Hunt the power to make ‘determinations’ like the travel ban. In order to make a determination, Hunt must be satisfied of various conditions, listed in s 477(4).
One thing Hunt needed to be satisfied of is that the ban was no more restrictive or intrusive than the circumstances required. Ward says criminalising the return of citizens is the most restrictive possible action, and everything short of this needed to be considered by Hunt.
This isn’t everything the plaintiff has to say on s 477(4), but they’re moving on now. For the full case you can read the plaintiff’s written submissions, which you can find here: fedcourt.gov.au/services/acces…
Ward is now arguing that there is a statutory interpretation presumption that statutes do not operate with extraterritorial effect.
He says this is relevant because s 477(3) of the Biosecurity Act *specifically* allows Hunt to make determinations that relate to movement between ‘places’.
Ward says this, along with the presumption against extraterritoriality, suggests the Bio. Act only authorises Hunt to make determinations relating to movement within Australia. This is in contrast to other parts of the Act, that clearly do operate with extraterritorial effect
That concludes the plaintiff’s submissions. Handing over to Craig Lenahan SC, who is representing the Minister. Lenehan is kicking off by saying that they accept that the plaintiff has standing to bring this case (previously something that was disputed).
Lenahan is taking the court through the structure of the Biosecurity Act. He notes that Part 2 is headed ‘Human Biosecurity Emergencies’. Headings can help determine the meaning of a statutory provision if multiple interpretations are available: see eg bit.ly/3xZcld2
Lenehan points out that similar emergency legislation passed in WA was interpreted broadly by the High Court in Palmer v WA (Clive Palmer’s challenge to state border closures).
He says the Biosecurity Act is even broader because of a provision that says that requirements determined under s 477(1) override any other law. This is sometimes called a Henry VIII clause, but Lenahan has just coined another term: ‘legislative bulldozer’
Because of this, Lenahan says that, contrary to the plaintiff’s argument, the general power to make determinations with extraterritorial effect isn’t restricted by the specific power to make movement determinations in s 477(3). This might be a bit complex for non-lawyers I know.
Lenahan making the point that the issue in the case is whether *Hunt* could reasonably have been satisfied that the ban satisfied the efficacy, necessity and proportionality criteria in s 477(4) - not whether the ban was proportionate per se.
In essence, the court doesn’t need to consider whether the ban was actually proportionate given all the circumstances - only whether Hunt could have reasonably reached this conclusion. @DarrenODonovan knows more about this than me so go see his tweets on the point! :)
Lenahan emphasising how important purpose is to the emergency powers here. The purpose that needs to underpin determinations under s 477(1)(a) is to prevent the entry or spread of COVID-19 in Australia. Because of this, he says this provision *must* operate extraterritorially.
Lenahan says that this also suggests that the references to places in s 477(3) should include places outside Australia. But he says we don’t need to go this far because the ban doesn’t have extraterritorial effect. It only kicks in once a person tries to enter Australia.
Thawley J asks: given s 477(1) is directed to preventing disease entering Aus, is the Minister saying it would be nonsensical to say that this doesn’t extend to preventing entry to Australia, and if so, is it nonsensical to say that there is a distinction b/w aliens and citizens
Lenahan answers this: yes.
Now Lenahan is looking at the criteria Hunt needed to be satisfied of (s 477(4)). He says these criteria are similar to the structured proportionality test that the High Court applied in relation to the freedom of political communication in McCloy & followed in Unions NSW v NSW.
Lenehan says that this approach accepts that a variety of approaches might be available, and that there is nothing in s 477(4) that suggests that it is mandatory to look in detail at any particular consideration, such as the chilling effect of the criminal penalty.
Lenehan also points out that the efficacy threshold is fairly low. Hunt needed to be satisfied that the ban was likely to contribute to achieving the purpose of preventing the entry or spread of COVID-19. He didn’t need to be satisfied it would be wholly effective in this.
They’re now talking about s 477(c) - which says Hunt needed to be satisfied that the ban was no more restrictive or intrusive than required in the circumstances. Thawley asks if the fact that some mercy exemptions were carved out indicates Hunt did consider this. Lehahan says yes
*Lenahan! I knew I’d make a typo somewhere! (there are probably many more…). He also says that to complete the picture, the CMO provided advice to Hunt that these exemptions ensured that the ban was no more restrictive or intrusive than required.
The upshot, Lenahan says, is that there is nothing that suggests that the specific things that the plaintiff says were not considered by Hunt needed to be considered in order for him to comply with the criteria in s 477(4).
Thawley J is saying that the question is whether Hunt was satisfied that the ban was proportionate, and Newman’s lawyers will need to amend pleadings and make further submissions if they wish to argue that he did not reach that state of mind.
They’re going to take a half hour break now. When the court returns at 3pm Lenahan will be outlining the Minister’s response to the principle of legality argument.
For any non-lawyers who don’t want to scroll all the way up, the gist of this argument is that citizens have a fundamental common law right to enter Australia. Parliament can take away this right by statute, but it has to do so clearly.
Both sides agree the fundamental common law right exists. Newmans lawyers said earlier today that the Biosecurity Act is not clear enough to take it away. The Ministers lawyers are about to argue that the Act is clear enough. About to start back up now.
A key provision that is going to feature here is s 477(5), which says that a requirement imposed made by Hunt under s 477(1) (such as the travel ban) applies ‘despite any provision or any other Australian law’.
Lenahan’s opened by saying that the legislative bulldozer he referenced earlier is even bigger than he initially suggested. He says that If s 477(5) refers to the common law (and he is of course saying it does), then this is a complete answer to the principle of legality argument
Gist of this argument is that because of s 477(5), as long as the requirements in s 477(4) are complied with, the ban made under s 477(1) will apply even if it abrogates the fundamental common law right to enter. Even if it doesn’t specify clearly how it is abrogating this right.
Lenahan says that the plaintiff is asking the court to read s 477(1), which is expressed in very general terms in a way that allows entry to be restricted for non-citizens but not for citizens. Ward confirms this is his argument.
Lenahan says this kind of reading can’t flow from a natural reading of the (generalised) language of s 477(1). He says sometimes this is done to make statutes consistent with the Constitution, but so far this technique hasn’t been used in relation to the principle of legality.
This completes what Lenahan has to say on behalf of the Minister. Ward's up again now to make a quick reply. Often these replies deal with pretty discrete points, but I’ll highlight anything that I can filter for the general audience I’m aiming these tweets at :)
Thawley J asking Ward if he accepts that s 477(4) is a legislative form of structured proportionality. Ward says in substance he does. He says that the ‘necessity’ part of this requires consideration of obvious, less-restrictive means that could have be used to meet the purpose
So what obvious, less-restrictive means does Ward say existed here? Simply stopping direct flights from India (as it had already done pre-ban). This already stopped people travelling to Aus directly from India.
The ban aimed to prevent people from transiting through third countries. And Ward says that there was no consideration by either Hunt or the CMO of how great a risk this category of people posed to the Australian quarantine system.
I’ve just seen that @DarrenODonovan has put this far better than me - Ward’s argument is that Hunt failed to consider whether the direct flight ban was working before launching the travel ban (which was designed to prevent indirect flights).
Ward confirms the plaintiff’s principle of legality argument is that non-citizens can be prevented from entering Australia under s 477(1) but citizens cannot. He says that pointing to a proportionality test in s 477(4) is no answer to this. That concludes his submissions.
But Lenahan is back up now, with more to say on this!
Lenahan drawing on Palmer v WA again. Says it illustrates that the question of alternative approaches wasn’t something that needed to be looked at in the context of this kind of test.
Thawley J asking how quickly the parties need a judgment. Lenahan defers to Ward. Ward says his client, Newman, is seeking to return asap. Given there’s a possibility this will become moot on Friday (when the ban lapses), a judgment (even w/o reasons) before then would be useful.
Thawley now asking what would happen if Newman loses, and the constitutional issues raised but not argued today become relevant. Ward says that if the ban lapses on Friday it’s possible that there may no longer be a justiciable matter, but we’ll have to wait and see how things go
Thawley J has adjourned the court temporarily to have a think about the best way forward.
Not sure if it’s clear to everyone why this might be moot come Friday. To bring a court case in Australia you need a person with ‘standing’ (which basically means they have skin in the game). Newman does, here, because he wants to return to Australia, and is currently banned.
But if the travel ban is lifted as scheduled on Friday, he will no longer be banned. So while there might still be outstanding legal questions, there may no longer be a person with skin in the game to ask them.
As @LizHcks has just said, this means that there’s a really good chance that the significant constitutional arguments that Newman’s lawyers have raised will not be answered. But there’s a lot that could happen, so we’ll just have to wait and see.
But - again as @LizHcks has pointed out - there will still be #strandedaussies. Flight caps have made it hard for many people to return - Newman himself has been stuck in India since March 2020. When India repatriations start there’s be 1 flight per 7-9 days. This will be slow.
They’re coming back in now. Let’s see what Thawley J has to say.
He’s giving an overview of the case and the structure of the Biosecurity Act. It sounds like he may possibly have a judgment today (the audio cut out right at the beginning when he started to speak so we missed a bit of what he said at the start).
And - if that’s where we’re headed - and it looks like it is, Thawley J is basically dictating a judgment on the spot, carving out spaces where he intends to quote provisions from the Act or go into more detail.
I will think of him with great envy the next time I spend all afternoon staring at the three sentences I have spent my day writing.
Thawley J summarising Newman’s argument now, which we stepped through earlier.
Thawley says both s 477(4) requires the Minister to be satisfied of various matters. The applicant bears the onus of establishing that he did not have this state of satisfaction.
Thawley J: The Minister had before him the CMOs advice, the proposed determination, an explanatory statement to a draft media release & two advices from the Solicitor-General. The Minister read and annotated this advice & determined he was satisfied of the relevant considerations
Thawley J: The applicant said the Minister only considered the evidence for 1 day. Not surprising given the state of emergency.
Thawley J says he would not infer that the Minister’s determination was more restrictive or intrusive than was necessary. He points to carve-outs where the determination did not apply, and the CMOs advice, which the Minister took into account.
Thawley J has rejected Newman’s first argument - that the Minister failed to reach satisfaction of the relevant criteria in s 477(4).
Thawley J also rejects Newman’s arguments on the extraterritorial operation point.
Onto the principle of legality point. Thawley J confirming that citizens do have a fundamental common law right to enter Australia. Also confirming this can be abrogated by valid legislation.
Thawley J noting as an aside that the question whether Parliament had the power to enact this legislation (i.e. the constitutional validity argument) remains to be determined. But onto statutory construction now.
Thawley J says that the statutory scheme in s 477(1) must be read as operating to prevent a person from entering Australia. There are also other provisions that indicate that the Act is intended to impinge on fundamental rights, including rights to move across Australia’s border.
Thawley says little assistance to Newman’s case comes from s 477(3). None of it restricts the scope of what the Minister might determine under s 477(1).
Thawley J: S 477(1) was deliberately drafted broadly to give the Minister the power to determine any requirement deemed necessary to deal with protecting against a human biosecurity emergency. It kicks in once it has been determined that a human biosecurity emergency exists.
Thawley J: The Minister’s submission that Parliament’s intention was to allow common law rights to be impinged upon by Ministerial determinations under s 477(1) is strengthened by the requirement in s 477(4) that the Minister must be satisfied of proportionality considerations
As to Newman’s argument that s 477(1) authorises entry restrictions on non-citizens but not citizens, Thawley J says other provisions of the Act indicates that entry of both citizens and non-citizens can be restricted.
On this basis, Thawley J has also rejected Newman’s principle of legality argument. Says in all the context, the intention behind s 477(1) was clearly to allow fundamental rights to be impinged upon.
The upshot: The statutory interpretation half of Newman’s case has been dismissed. The constitutional questions remain, but because the travel ban lifts on Friday, it’s not clear whether there’ll continue to be a justiciable matter. The parties will discuss next steps (& costs)
Phew! Thanks to everyone who followed along with me this afternoon. There was a lot bundled in there! I guess we wait and see what comes next now.

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