Was the Determination preventing Australian citizens, permanent residents, or operators of outgoing aircraft or vessels from leaving Australian territory, unless an exemption applied invalid by reason of s 477(6) Biosecurity Act, 2015 (Cth)?
LibertyWorks Inc v Commonwealth of Australia [2021] FCAFC 90 (1 June 2021)
Intro:-
Section 477 of the Biosecurity Act 2015 (Cth) gives the Health Minister the power to determine emergency requirements during a human biosecurity emergency period. This case is concerned with the validity of such a determination.
On 25 March 2020 the Health Minister made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth). In substance, the Determination prevents any Australian citizen, permanent resident, or operator of an outgoing aircraft or vessel from leaving Australian territory unless an exemption applies to the person or is granted to the operator. An exemption may only be granted by the Australian Border Force Commissioner or an ABF employee and only in “exceptional circumstances”, which are demonstrated by the provision of “a compelling reason for needing to leave Australian territory”.
By an originating application filed on 10 December 2020, LibertyWorks Inc challenges the validity of the Determination. It seeks a declaration that the Determination is “invalid by reason of inconsistency with, or of lacking authority in, the Act”.
There is no dispute that LibertyWorks has standing.
The application was supported by an affidavit of Andrew McDonald Cooper, the President of LibertyWorks, affirmed on 10 December 2020. The Commonwealth relied on one paragraph of an affidavit sworn by Brooke Marie Griffin, a lawyer with the Australian Government Solicitor, affirmed on 11 February 2021
Facts:-
LibertyWorks is a private think-tank established about five years ago. Its objective is to move public policy in the direction of increased individual rights and freedoms. Among its various activities it hosts an annual conference (the Conservative Political Action Conference Australia or CPAC Australia).
On 27 October 2020, at Mr Cooper’s request and on behalf of LibertyWorks, one of its employees, Christopher De Bruyne, applied through an online portal administered by the Department of Home Affairs for an exemption under s 7(1) of the Determination in order to travel from Sydney to London in November 2020 to “assess potential conference venues”
Within half an hour of his application, a delegate of the Australian Border Force Commissioner informed Mr De Bruyne that his request had been considered and the delegate had determined that his travel is “not exempt from the travel restrictions”.
During a human biosecurity emergency period, s 477(1) gives the Health Minister the power to determine any requirement that he or she is satisfied is necessary to prevent or control the entry of the listed human disease the subject of a declaration into Australia or its emergence, establishment or spread in Australia; to prevent or control the spread of the disease to another country; or to give effect to any recommendation in relation to the disease made to the Health Minister by the WHO under Pt III of the International Health Regulations (as defined in s 9). Subsection 477(6) provides that any such determination “must not require an individual to be subject to a biosecurity measure of a kind set out in Subdivision B of Division 3 of Chapter 2”.
The prohibition on overseas travel is imposed by s 5 of the Determination.
LibertyWorks does not challenge the validity of the Declaration, only the restrictions on overseas travel imposed by the Determination. LibertyWorks argues that the Determination is ultra vires because the restriction s 5 imposes on overseas travel is a measure “of a kind” that may not be included in the Determination.
In substance, the case turns on the proper construction of s 477(6).
In a nutshell LibertyWorks’ argument goes like this:-
"Subsection 477(6) precludes the Minister from making a determination under subs (1) which requires 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. Section 96 appears in that subdivision. It provides (in subs (1)) 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 Australian territory on an outgoing passenger aircraft or vessel. It is designated “a traveller movement measure”. Since s 5 of the Determination has the same purpose and effect as the measure permitted by s 96, the Determination is beyond the Minister’s power. The Health Minister cannot subject a group of individuals by a determination to a measure of a kind which the Chief Medical Officer could subject an individual by a biosecurity order."
Issue:-
a) Is the Determination made by the Minister under subsection 477(1) to prohibit overseas travel one which requires 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?
b) Whether s 477(6) prevents a determination applying to a group or class of individuals?
Analysis:-
The Proper Approach
Section 477(6) must be read in its context and its meaning determined by reference to that context. That means that regard must be had to the language of the Act as a whole. After all, “the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
The legislative context and purpose
The Act commenced on 16 June 2016. It replaced the Quarantine Act 1908 (Cth), which was repealed in whole by the Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015 (Cth). According to the Explanatory Memorandum to the Biosecurity Bill 2014 (Cth), the legislation was introduced to deal with the “new and challenging biosecurity environment”. The new Act would offer “a strong regulatory framework” for the more effective and efficient management of biosecurity risks.
The objects of the Act are listed in s 4. They include providing for the management of: biosecurity risks; the risk of contagions of a listed human disease or other infectious human diseases; the risk of such diseases entering Australian territory or any part of it or emerging, establishing themselves, or spreading in Australian territory or any part of it; and biosecurity emergencies and human biosecurity emergencies.
The proper construction of s 477(6)
In construing s 477(6), the starting point is that the Health Minister is entitled to impose any requirement he is satisfied is necessary, amongst other things, to prevent or control the entry of COVID-19 into Australian territory or the spread of the disease in Australia or elsewhere (s 477(1)). In the hierarchy of provisions, subs (1) takes precedence. The power is very broad, as might be expected in the case of an emergency power with such a purpose.
To this end, the Minister may impose requirements restricting or preventing the movement of persons in or between specified places (s 477(3)(b)).
It may be accepted that the travel restrictions are harsh. It may also be accepted that they intrude upon individual rights. But Parliament was aware of that. Parliament intended that, in an emergency of the kind declared by the Governor-General in accordance with s 475 and in the circumstances provided for in s 477(1), such measures could nonetheless be taken.
The biosecurity measure included in a human biosecurity control order under s 96 is a “traveller movement measure”.
It will be recalled that s 477(1) permits the Health Minister to determine any requirement he is satisfied is necessary “to prevent or control the spread of the declaration listed human disease to another country”. The principal (or at least the most effective) way of achieving this purpose is by restricting international travel. But the overseas travel restriction imposed by the Determination is not a measure which requires an individual to be subject to a biosecurity measure of the relevant kind.
In our view, the purpose of s 477(6) (and its analogues elsewhere in the Act) is to ensure that the powers to make determinations or directions or to give notices of general application are not used to impose biosecurity measures on an individual that could, instead, be imposed on him or her by means of a human biosecurity control order. By “individual” we mean someone answering the description in s 60(2). That is a specific individual. Section 477(6) does not preclude the making of a determination during a human biosecurity emergency which is not directed at a particular individual. As the Commonwealth submitted, it is apparent that the scheme established by Pt 3 of Ch 2, which requires a human biosecurity control order to be imposed on a case-by-case basis by reference to a particular individual, evinces an intention contrary to the presumption in s 23(b) of the Acts Interpretation Act that a reference to the singular includes a reference to the plural.
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. Nor does it mean that the operation of s 96 has been rendered nugatory by the Determination. As the simplified outline in s 473 states, Pt 2 of Ch 8 contains additional powers to those available under Ch 2. 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 s 7(2) of the Determination.
Conclusion:-
The Determination is not invalid. Consequently, the declaration LibertyWorks requested should not be made.
The originating application should be dismissed.
Costs should follow the event.
