Federal Court. Does legislation "operate extraterritorially merely because it might have some relationship to events which occur overseas"? Does s 6 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth) operate extraterritorially? Is there a "common law right on the part of Australian citizens to re-enter Australia"? If so, was that right abrogated by legislation?
The Minister for Health and Aged Care made a "Determination" purportedly under s 477(1) of the Biosecurity Act 2015 (Cth), namely the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth).
Section 6 of the Determination provided that a "person who is a passenger of an aircraft on a relevant international flight must not enter Australian territory at a landing place if the person had been in India within 14 days before the day the flight was scheduled to commence", unless an exemption provided in s 7 applies.
Section 477(1) (contained in Ch 8) of the Act provided:
477 Health Minister may determine emergency requirements during human biosecurity emergency period
(1) During a human biosecurity emergency period, the Health Minister may determine any requirement that he or she is satisfied is necessary:
(a) to prevent or control:
(i) the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or
(ii) the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; or
(b) to prevent or control the spread of the declaration listed human disease to another country; or
(c) if a recommendation has been made to the Health Minister by the World Health Organization under Part III of the International Health Regulations in relation to the declaration listed human disease—to give effect to the recommendation.
Note 1: A person who fails to comply with a requirement determined under this subsection may commit an offence (see section 479).
Note 2: For variation and revocation, see subsections 33(3) and (3AA) of the Acts Interpretation Act 1901.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Did Ch 8 of the Act have extraterritorial effect?
Question 2: Does legislation "operate extraterritorially merely because it might have some relationship to events which occur overseas"?
Question 3: Broadhurst v Paul [1954] VLR 541 concerned a provision that "created an offence of driving a commercial goods vehicle in Victoria without having at least 10 consecutive hours of rest in any period of 24 hours. The case concerned a driver who had driven from the State of New South Wales into Victoria. It was submitted that the offence was not made out, because one could only look at the driving which occurred in Victoria and that the driving which occurred in New South Wales was to be ignored in the relevant calculations". Herring CJ held that the driving in NSW should be considered once the person crossed into Victoria for the purpose of assessing the driver's state when he/she drove in Victoria. Could Broadhurst be "distinguished on the basis that the commercial truck driver had a choice of whether to enter Victoria, whereas once on a plane a passenger has no choice but to get off at the final destination"?
Question 4: Does the Determination, or s 6 of it, operate extraterritorially?
Question 5: Is there a "common law right on the part of Australian citizens to re-enter Australia"?
Question 6: If the answer to Question 5 is "yes", can that common law right be abrogated by legislation?
Question 7: If the answer to Question 6 is "yes", is it "a necessary incident of the scheme contemplated by Ch 8 that a person may be prevented from both entering and leaving Australia"?
Question 8: Can it be said that "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"?
Question 9: In circumstances where s 477(1) could be used to prevent non-citizens from entering Australia, would the argument that it could not be used to prevents Australian citizens from entering Australia be "contrary to the scheme of Ch 8, which is to confer powers which are broad in scope, applicable to all"?
The FCA answered those questions as follows: