HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Saturday, May 28, 2022

COVID-19, the Principle of Legality and the 'Legislative Bulldozer' of the Biosecurity Act 2015 (Cth)

Samuel Walpole (TC Beirne School of Law), William Isdale (University of Queensland), COVID-19, the Principle of Legality and the 'Legislative Bulldozer' of the Biosecurity Act 2015 (Cth), 32 Pub. L. Rev. 287 (2021):

The COVID-19 pandemic has prompted wide-reaching and stringent public health measures, many of which draw their legal authority from the framework provided under the Biosecurity Act 2015 (Cth). Perhaps the most controversial measure has been the determination made by the Minister for Health and Aged Care (the Minister) under s 477 of the Biosecurity Act on 30 April 2021 that, for a period of two weeks, it would be prohibited for a person to enter Australian territory by aircraft without an exemption if that person had been in India within 14 days of the aircraft’s scheduled date of departure. Following the making of the determination, the applicant, Mr Newman, brought proceedings in the Federal Court challenging the validity of the determination and the statutory provision under which it was made. Mr Newman’s application raised a number of arguments, including that there existed in the Commonwealth Constitution an implied freedom of all citizens to enter Australia. Owing to the time limited nature of the determination, the Federal Court ordered that the hearing of grounds that did not involve a constitutional question be expedited.

On 10 May 2021, in Newman v Minister for Health and Aged Care, Thawley J dismissed the challenges to the validity of the determination based on administrative law grounds, giving extempore reasons. This note focuses on one of these grounds, which contended that – in accordance with the principle of legality – the Biosecurity Act had not abrogated the fundamental common law right of citizens to re-enter their country of citizenship with clarity sufficient so as to render the determination valid.

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