LibertyWorks Inc v Commonwealth of Australia  FCAFC 90
In LibertyWorks, the Full Federal Court, Katzmann, Wigney and Thawley JJ, determined that s 477(6) of the Biosecurity Act 2015 (Cth) (the Biosecurity Act) did not limit the power of the Minister of Health (the Minister) to make a determination prohibiting overseas travel by Australian citizens or permanent residents. In the Full Court’s view, applying LibertyWorks’ narrow interpretation of s 477 would limit the intentionally broad powers conferred on the Minister by the Biosecurity Act.
In October 2020, an employee of the applicant, LibertyWorks, made an application to the Department of Home Affairs for an exemption to travel from Sydney to London under s 7(1) of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) (the Determination). Section 5 of the Determination prohibits any overseas travel by an Australian citizen or permanent resident, unless an exemption is granted. The employee’s application was rejected by a delegate of the Australian Border Force Commissioner.
LibertyWorks subsequently filed an originating application in the Federal Court seeking a declaration that the Determination is 'invalid by reason of inconsistency with, or of lacking authority' in the BiosecurityAct.
LibertyWorks contended that the making of the Determination was ultra vires. Section 477(6) precludes the Minister from making a determination which requires an individual to be subject to a biosecurity measure of a kind set out under Subdivision B of Division 3 of Part 3 of Chapter 2 of the Biosecurity Act. Section 96 in Subdivision B empowers the Minister to make a human biosecurity control order on an individual to not leave Australian territory on an outgoing passenger aircraft or vessel. In LibertyWorks’ view, s 5 of the Determination has the same effect as a measure empowered by s 96.
Decision of the Full Federal Court
Purpose of the Biosecurity Act and s 477
The Full Court emphasised that the Minister possesses broad powers to make determinations under the Biosecurity Act given the primary purpose of the Act is to ensure the availability of executive power to manage serious communicable diseases.
For the Full Court, the purpose of s 477 is to prevent or control the spread of human disease into Australian territory. The principal way of achieving the purpose of s 477(1) is, in the Full Court’s view, to restrict international travel. While LibertyWorks submitted that this could be achieved through other measures such as disinfecting outgoing mail and freight, the Full Court held that whilst these measures may have a role to play, they are unlikely to be the primary or intended method of fulfilling the statutory purpose of s 477.
Reconciling s 477(1) and s 477(6)
Considering the purpose of both s 477 and the Biosecurity Act as a whole, the Full Court concluded that LibertyWorks’ construction of s 477(6) would substantially frustrate Parliament’s clear intention of giving the Minister broad emergency powers. If s 477(6) precluded the making of a determination that bans overseas travel, the only way to prevent or reduce the risk of contagion from Australians who travel overseas would be through making a human biosecurity control order on every single individual under s 96. This would produce a manifestly impractical result.
Instead, the Full Court concluded that the mischief that s 477(6) is intended to remedy is to ensure that biosecurity measures are not imposed on an individual under s 477(1) that could be imposed through a human biosecurity control order under Part 3 of Chapter 2 of the Biosecurity Act. The mere fact that s 5 of the Determination affects individuals does not render it invalid by reason of s 477(6), as the Determination is not directed at a specific individual.
Comments and Conclusions
The decision in LibertyWorks clarifies that the limitation under s 477(6) of the Biosecurity Act should not be read so narrowly as to completely frustrate the ability of the Minister to make a determination under s 477(1) for the purpose of preventing or controlling the spread of a human disease.
The Full Federal Court’s decision follows a line of failed challenges to the Minister’s determinations during the COVID-19 pandemic: Palmer v Western Australia  HCA 5, Gerner v Victoria  HCA 48 and Newman v Minister for Health and Aged Care  FCA 517. LibertyWorks serves as another reminder that the court will interpret emergency powers conferred by statute on the executive broadly, as it is reluctant to interfere with the executive’s crucial role in managing a global health crisis.
Further details available at LibertyWorks Inc v Commonwealth of Australia  FCAFC 90.
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