Philip Santucci and Kathleen Morris (led by C S Ward SC) acted in a recent challenge before the Federal Court of Australia to the Commonwealth Government’s introduction of an offence prohibiting Australian citizens from returning home from India. The case was brought on behalf of Mr Gary Newman, a 73 year old Australian man who had left Australia before outward travel was banned and had been unable to return home from India. Mr Newman was ultimately unsuccessful: Newman v Minister for Health and Aged Care [2021] FCA 517
The Health Minister used emergency powers under section 477 of the Biosecurity Act 2015 (Cth) to make a “Determination” that prohibited anyone re-entering Australia by air travel if they had been in India in the preceding 14 days. By section 479 of the Act it was an offence to contravene the Determination.
Mr Newman challenged the Determination on a number of grounds including a constitutional challenge. However, in order to bring the matter on urgently, the only grounds before the Court on 10 May 2021 were a challenge to the Minister having satisfied the relevant statutory preconditions to making a determination (under s477(4) of the Act); an argument that the Determination operated extraterritorially beyond what was permitted by section 477 of the Act; and an argument based on the principle of legality.
The legality argument was to the effect that there exists a common law right of citizens to return home to Australia, and that the words of the regulation making power in section 477 did not evince a clear legislative intention to permit the Minister to abrogate that right of return by threat of criminal sanction. Mr Newman argued that section 477 of the Act may have been wide enough to permit the Minister to take steps to ban the means of travel to Australia (eg by imposing flight bans, or prohibiting cruise ships entering port), but was not wide enough to abrogate the common law right of return, by prohibiting a citizen from engaging in the act of re-entering Australia.
The Minister conceded the existence of a common law right of return (at [69]), but argued that the broad words of section 477 were wide enough to prohibit re-entry by citizens.
The Federal Court (constituted by Thawley J) rejected Mr Newman’s challenge. The Court held that the Minister had been satisfied of the necessary statutory preconditions (at [62]); that the Determination did not operate extraterritorially (at [63]); and that section 477 was wide enough to prohibit re-entry of citizens to Australia (at [82], [95]-[96]).
