BY LIZ HICKS AND SANGEETHA PILLAI

The closure of international borders has been a key pillar of Australia’s response to the COVID-19 crisis. Australia’s strategy to “aggressively suppress” (in practice, eliminate) COVID-19 within its borders has relied heavily on restrictive measures, including flight caps and travel bans, to limit the importation of the virus. When citizens, residents and other exempt persons are permitted to enter Australia, they must quarantine in dedicated hotels for 14 days and undergo a rigorous testing regime.

Despite this, there have been a number of local outbreaks, due to failures or limitations of infection control protocols within quarantine systems. Where these have occurred, the primary measure taken by Australian governments to mitigate the risk of further outbreaks has been to reduce the ‘caps’ of those allowed to return to Australia each week.

As quarantine is a concurrent legislative power, both the Commonwealth and the states can regulate it. In practice, early in the pandemic it was agreed at National Cabinet that the states would assume responsibility for hotel quarantine. Since then, state governments (in consultation with the Commonwealth through National Cabinet), have determined the number of Australians who can return each week.

The Commonwealth, for its part, has conferred extremely broad powers on the Minister for Health under s 477 of the Biosecurity Act 2015 (Cth). These powers allow the Minister to determine any requirement deemed necessary to prevent or control the spread of COVID-19 in Australia or another country. These powers have been used to impose onerous restrictions on entering and leaving Australia, including for Australian citizens and permanent residents.

For example, on 27 April 2021, in response to a rising number of positive cases in hotel quarantine from people returning from India during its second wave, the Australian government suspended direct flights from India to Australia. Three days later, the Minister issued a s 477 determination banning any person who had been in India during the previous 14 days from returning to Australia.

Australian citizens and residents are also restricted from leaving Australia without an exemption (granted in a small number of circumstances). Until very recently, Australian citizens ordinarily resident in other countries who have been able to return to Australia (for instance, to visit family), have been allowed to leave again without applying for an exemption. As of 11 August 2021, the government has removed the exception for Australians who live abroad. This means that if they return to Australia (for whatever reason) they will not be able to leave again unless they meet the narrow grounds for permission to leave.

Breaching a s 477 determination carries steep penalty provisions of up to five years imprisonment, a $66,000 fine, or both.

The Commonwealth government has viewed these restrictions as necessary to relieve pressure on Australia’s quarantine system. Whether the restrictions are, in fact, a proportionate way of achieving this is debatable. So too is whether the heavy reliance placed on limiting places in the hotel quarantine system since the start of the pandemic is itself a proportionate means of preventing the spread of COVID-19 in Australia.

In this post, we explore the challenges of assessing the proportionality of government pandemic management measures. The insights in this blog are relevant to proportionality assessments globally but assume particular significance in Australia due to its lack of a rights catalogue. We then discuss the case of Newman v Minister for Health and Aged Care – an unsuccessful Federal Court challenge to the India travel ban. Newman is the first case in which an Australian court has been called on to assess the validity of a Commonwealth COVID-19 restriction. It illustrates that, due to the lack of a clear and comprehensive rights catalogue, courts are relatively confined in their capacity to substantively assess the proportionality of Commonwealth government actions to manage COVID-19. In this way, Australia serves as a ‘laboratory’ for how political mechanisms, in the absence of comprehensive protection of rights, struggle to protect minority interests — particularly in crisis settings.

Proportionality and COVID-19

Structured proportionality was first developed in Prussian administrative courts during the late nineteenth century. After the second world war, it emerged as a touchstone that provided a means for judges in constitutional courts across the globe to navigate emerging rights catalogues. Its success stemmed from its capacity to structure judicial value judgments regarding the adequacy of justifications for government action.

The model of structured proportionality that is used globally in rights review examines whether a restriction on a right is legitimate via four component questions: whether the measure employed pursues a legitimate goal; whether it is a suitable means of achieving that end (‘suitability’); whether it is ‘necessary’, in the sense that an alternative means could not achieve the end with a lesser impact on the right (‘necessity’); and, finally, whether the means employed is ‘proportionate in the strict sense’. The ‘strict proportionality’ question ensures that the harm caused by restricting a right does not grossly outweigh the benefit of the measure, even if all other steps are satisfied.

In Australia, a functionally similar requirement that an instrument chosen by the executive be ‘appropriate and adapted’ to the end it seeks to achieve has emerged. Along with this a modified version of structured proportionality has begun to be employed in areas of constitutional law that require proportionality assessments, such as the implied freedom of political communication.

Proportionality analysis has emerged as a key challenge for public law across the globe during the COVID-19 pandemic. Restrictions on rights — particularly movement rights — have been necessary to contain transmission of the virus. At the same time, as the pandemic has morphed from an acute crisis into a medium-term problem, there have been growing questions about whether state choices meet proportionality requirements, particularly the ‘necessity’ component. Whether a restriction on a right or movement is necessary in the medium term may depend on whether the state is actively investing in systems or facilitating less burdensome alternatives.

In practice, however, the intersection of proportionality analysis and the precautionary principle poses a challenge for constitutional courts across the world. Assessing the necessity of a measure – such as a lockdown or a travel restriction – in the context of a global pandemic is difficult to do at the time it is enforced, as its success in diffusing an emergency situation can only be known in hindsight. Similarly, the value of longer-term, less individually burdensome alternatives that have not been adopted may also become apparent with the benefit of hindsight. At the same time, as the COVID-19 crisis enters its medium-term phase, the urgency that may excuse limitations of rights in the short term falls away.

The India travel ban — and Australia’s management of travel restrictions more generally — provides an illustration of this problem. It might be argued now that if Australian governments had taken steps much earlier to build alternatives to hotel quarantine – such as a combination of dedicated quarantine facilities and home quarantine options — or simply improved infection control protocol within quarantine settings rather than limiting caps, this would have been less burdensome and more proportionate than the India travel ban. To conclude this, however, a court considering the proportionality of an emergency measure needs to inquire into the choices and planning of the government over the medium term. This is a challenge for courts adjudicating within legal frameworks that construct the COVID-19 crisis as a short-term emergency.

In recognition of these problems, courts throughout the world have allowed some degree of legislative and executive discretion when assessing the proportionality of COVID-19 restrictions that burden protected rights. The degree of discretion allowed has differed across legal cultures.

Proportionality and rights protection in Australia

Australia is unlike many other constitutional systems in that it lacks comprehensive protection of fundamental rights. Unique amongst democratic nations, we do not have a constitutional or statutory bill of rights at a national level. This means that there is no comprehensive rights catalogue against which the proportionality of federal laws and executive actions, including those that are used to impose COVID-19 related restrictions, must be assessed.

That is not to say that rights protection is non-existent in Australia. New bills introduced into the Commonwealth Parliament must include a statement of compatibility with Australia’s international human rights obligations, and are also scrutinised for compatibility with these obligations by the Parliamentary Joint Committee on Human Rights. This does not require that new legislation be compatible with human rights, but it does require a weak level of rights discourse within Parliament at the federal level. There are also a small handful of rights and freedoms that have been recognised as constitutionally protected, for which proportionality testing is a key component of determining whether an infringement has occurred. As above, proportionality is relevant in assessing breaches of the implied freedom of political communications, and was also relevant, for instance, in assessing whether Western Australian border closures were compatible with s 92 of the Constitution.

Fundamental rights may also exist at common law. Relevantly, the right of Australian citizens to enter Australia is an example. These rights may be displaced by legislation, with no requirement that the legislation be proportionate. However, the principle of legality requires that Parliament demonstrate a clear intention to displace any fundamental common law right, if it wishes for courts to interpret legislation as doing so. This intention may be express or implicit, but where it is not present, courts will interpret legislation in a manner that is compatible with the fundamental common law right in question.

There is uncertainty about which rights are ‘fundamental’ at common law, and therefore protected by the principle of legality. In addition, there are sometimes unanswered questions about whether a fundamental common law right is also an implied constitutional right. This is the case with the citizens’ right to enter Australia, which some scholars have suggested has constitutional force. These factors create uncertainty about the rights that the Commonwealth Parliament needs to be cognisant of when passing legislation, and the extent to which it needs to do so.

Finally, proportionality standards may be incorporated into legislation by Parliament. Section 477 of the Biosecurity Act is an example of this. Subsection (4) requires that, before imposing a requirement, the Minister must be satisfied:

  • that it is appropriate and adapted to, and likely to play an effective part in achieving its purpose;
  • that both the requirement and the manner in which it is pursued are no more restrictive or intrusive than required in the circumstances; and
  • that the requirement does not apply for longer than necessary.

These criteria broadly map onto the ‘suitability’ and ‘necessity’ elements of structured proportionality, as well as the ‘appropriate and adapted’ standard. Importantly, however, measures imposed under s 477 are not required to be proportionate in any substantive sense: all that is needed is that the Minister be subjectively satisfied that a measure is proportionate. As such, s 477(4) is concerned with the process that the Minister undertakes when making a decision — not the objective reality that underpins that decision.

Newman v Minister for Health and Aged Care 

The lack of a comprehensive rights catalogue, uncertainties about the extent of rights recognition, and the weaker standard of proportionality provided for in the Biosecurity Act are features that combine to provide Parliament and the executive with significant discretion, and to limit the role of courts in ensuring that this discretion is used to adopt pandemic management mechanisms that maximise effectiveness while minimising burdens on rights. This is illustrated by the Federal Court decision in Newman v Minister for Health and Aged Care.

Newman was a challenge to the India travel ban. The applicant, Gary Newman, was a 73-year-old Australian citizen, who had been in India since March 2020. Despite efforts to make arrangements to return to Australia, he had been unable to do so, due to flight scarcity and cancellations. At the time that the travel ban was imposed, he was actively looking for options to return to Australia.

Newman’s challenge had an administrative law dimension and a constitutional law dimension, though only the administrative law arguments were ultimately heard. On this front, Newman argued that banning citizens from returning to Australia fell outside the scope of the powers conferred under s 477 of the Biosecurity Act.

Newman ran two main arguments. The first was a ‘proportionality’ argument: that the ban was invalid because the Minister had failed to comply with the criteria in s 477(4). The second was a ‘principle of legality’ argument: that even if the ban was valid, it did not extend to Australian citizens because Parliament had not indicated a sufficiently clear intention to abrogate the fundamental right of citizens to re-enter Australia. Both these arguments failed, as did a third argument related to extraterritoriality.

Proportionality and the Biosecurity Act

The Biosecurity Act does not expressly prescribe any specific materials that the Minister for Health must have regard to before imposing a restriction. Before implementing the travel ban, the Minister considered various documents, including a letter from the Chief Medical Officer (CMO) which advised that a pause on arrivals from India until 15 May would be an ‘effective and proportionate’ measure that would ‘likely allow [Australia’s quarantine system] to recover capacity’. The letter noted that banning entry would have serious potential consequences for Australian citizens and permanent residents in India, including serious injury and death. However, it also emphasised the risk of ‘leakage’ into the Australian community posed by positive cases in hotel quarantine, citing examples from NSW and Western Australia, and noted that Australia had limited quarantine and health resources to prevent and control COVID-19 introduced via international arrivals. Government statements at the time that the ban was in force suggested that the hotel quarantine system was unable to cope with more than 2% of positive cases amongst arrivals.

After considering the CMO’s advice, the Minister for Health formed the view that the ban satisfied the proportionality preconditions in s 477(4). Newman argued that, despite the advice, s 477(4) was not satisfied, because both the Minister and the CMO failed to take into account a number of necessarily relevant matters that were required to be considered pursuant to Avon Downs v Commissioner for Taxation and Minister for Aboriginal Affairs v Peko-Wallsend.

For example, Newman said that in order to be satisfied of the efficacy and proportionality of the ban, the Minister needed to consider potential risks that it might produce – such as the risk of spread in prisons if individuals breached the ban, returned to Australia and were incarcerated as a result. Justice Thawley found that this was not a consideration that the Minister was required to have regard to, and that the practical prospect of this chain of events occurring was remote.

Newman also argued that the Minister failed to consider less restrictive or intrusive measures before imposing the ban, noting that the CMO’s advice did not advise on alternative means of reducing the infection risk of arrivals. Justice Thawley found that the evidence suggested that the Minister had turned his mind to how to make the ban no more restrictive or intrusive than necessary: for example, various exemptions were carved out, including for flights that were ‘facilitated’ by the Australian government, and ‘emergency medical evacuation flights’. Accordingly, he decided that the Minister had been satisfied of the proportionality requirements in s 477(4).

The principle of legality

Newman’s principle of legality argument also failed. Both parties accepted, and Thawley J affirmed, that Australian citizens have a fundamental common law right to re-enter Australia. It was also accepted that non-citizens do not have any such right. Accordingly, Newman’s argument depended on a reading of s 477 that authorised a ban on non-citizens entering Australia, but not a ban on citizens returning.

Justice Thawley found that the provisions of the Biosecurity Act as a whole made it clear that Parliament did not intend for s 477 to be read in this way. He noted that several provisions indicated an intention to authorise limits on people moving in and out of Australia, and that the purpose of conferring very broad power on the Minister under s 477 was to allow flexibility in dealing with biosecurity emergencies. Accordingly, he found that the utility of s 477 ‘would be significantly adversely affected if a Determination… could prevent entry of non-citizens in a human biosecurity emergency but not prevent the entry of citizens’.

Constitutional arguments

The failure of Newman’s administrative law challenge opened the door for the constitutional law arguments in his case. These were initially reserved for a later hearing, as they would have required more time to prepare (in part because of the uncertainty surrounding constitutional rights in this area), and because a win for Newman on administrative law grounds would have made it unnecessary to decide the constitutional questions.

In his originating application, Newman raised two constitutional law arguments. The first was that, due to the deep common law links between citizenship and the right of return, citizens may have an implied constitutional right to enter Australia. If such a right exists, then unlike the common law right of entry, it could not simply be overridden by clear terms in the Biosecurity Act, although it is probable that the right would not be at large, and that proportionality testing or other criteria would apply to limit it. Newman’s second argument was that the Commonwealth’s constitutional heads of power did not authorise it to give the Minister power to ban citizens from entering Australia.

Ultimately, the constitutional part of Newman’s case was withdrawn, for practical reasons. The administrative law case was heard and decided just before the two-week travel ban lapsed. The ban lifting meant that there was no ongoing reason to answer the constitutional questions that Newman had raised.

Law firm Marque Lawyers, who acted for Newman, are currently investigating the prospect of a constitutional challenge to the Commonwealth’s move to require Australian citizens based overseas who have returned to Australia to apply for a travel exemption if they wish to leave again. If such a challenge proceeds, it may provide an opportunity for a court to examine similar questions to those raised in Newman.

Conclusions

Newman illustrates the limited role that Australian courts have to play in holding the Commonwealth accountable for the choices it makes about how to manage the COVID-19 pandemic. With very few clear constitutional protections, easily displaced common law rights and a legislative framework that is designed to maximise executive discretion, courts do not generally have the capacity to undertake granular assessments of the proportionality of measures that are implemented. Instead, in keeping with our strong traditions of parliamentary sovereignty and representative democracy, the public becomes the key mechanism for holding government to account and ensuring its actions are proportionate.

This can be problematic during crises, where decision-making emerges in an atmosphere of urgency and fear and crystallises around short-term utilitarianism. With few rights that they are required to take into account, governments may be incentivised to outsource the burden of reducing risk to individuals, particularly those who are away from Australian shores and therefore ‘out of sight’. The public, in turn, may be unaware of, or less incentivised to consider, the plight of new, rapidly constituted minorities ‘caught up in the wheels’ of collective benefitting measures. Crises increase public self-interest and the importance placed on security and safety. This frustrates dispassionate analysis of whether alternative measures — such as properly implemented infection control protocols in quarantine systems — could achieve the same ends, resulting in the effect sometimes described as the ‘tyranny of the majority’.

Ultimately, this may mean that a minority of people may be suspended in extremely difficult circumstances for extended periods, while important discussions about how system design can be improved over the medium to long term are foregone by both the majority and their representatives.

Liz Hicks is a joint doctoral candidate at Melbourne Law School and Humboldt University of Berlin. She is also a member of the Melbourne Law School’s COVID-19 Research Network.

Sangeetha Pillai is a Senior Research Associate at the Andrew and Renata Kaldor Centre for International Refugee Law, UNSW Law & Justice. 

Suggested citation: Liz Hicks and Sangeetha Pillai, ‘Proportionality, rights and Australia’s COVID-19 response: Insights from the India travel ban’ on AUSPUBLAW (16 August 2021) <https://auspublaw.org/2021/08/proportionality-rights-and-australias-covid-19-response-insights-from-the-india-travel-ban/>