No Way Out?

Australia's Overseas Travel Ban and 'Rights-Based' Interpretation

Abstract

Shortly after COVID-19 was recognised as a national threat to Australia, in late March 2020 the Commonwealth Government prohibited Australian citizens and permanent residents from travelling overseas, with severe criminal penalties for non-compliance.  The overseas travel ban, made under human biosecurity emergency powers under the Biosecurity Act 2015 (Cth), caused significant outrage.  Australia was seen as an outlier in its approach to interfering with the rights of citizens and permanent residents to exit the country.  The ban engaged a citizen’s fundamental common law right to depart from Australia, and a person’s human right to leave their own country.  This article analyses the relevance and limits of two statutory interpretation principles protective of those rights – the principle of legality and presumption of consistency with international law.  It examines the treatment of those principles in the Full Court of the Federal Court case of LibertyWorks Inc v Commonwealth of Australia [2021] FCAFC 90.  The article concludes that the Full Court’s decision was underdeveloped with respect to the principle of legality.  It draws further observations including on the willingness of courts to deploy ‘rights-based’ interpretive principles to broad statutory emergency powers.