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.