The Australian quarantine and biosecurity legislation: Constitutionality and critique

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Abstract
Australia's quarantine and biosecurity laws have been in focus recently with the serious outbreak of the ebola virus and the not-so-serious incident involving an actor's dogs apparently gaining unauthorised access to Australia. These incidents have coincided with the move to replace Australia's existing quarantine legislation with a modern regulatory framework for managing biosecurity risks. This article critiques the existing and new Australian legislation, comparing them with approaches in other jurisdictions and discussing some relevant public policy issues. In particular, the article comments on the constitutionality of the provisions relating to the detention of individuals for public health reasons, such as to control or limit the spread of disease, finding the new legislation to be an improvement on the existing one.
The Australian quarantine and biosecurity
legislation: Constitutionality and critique
Anthony Gray
*
Australia’s quarantine and biosecurity laws have been in focus recently with
the serious outbreak of the ebola virus and the not-so-serious incident
involving an actor’s dogs apparently gaining unauthorised access to Australia.
These incidents have coincided with the move to replace Australia’s existing
quarantine legislation with a modern regulatory framework for managing
biosecurity risks. This article critiques the existing and new Australian
legislation, comparing them with approaches in other jurisdictions and dis-
cussing some relevant public policy issues. In particular, the article comments
on the constitutionality of the provisions relating to the detention of individuals
for public health reasons, such as to control or limit the spread of disease,
finding the new legislation to be an improvement on the existing one.
INTRODUCTION
There has been recent international community concern with an outbreak of the ebola virus in western
Africa and its feared or actual spread to western nations including Australia and the United States.
Naturally, this causes nations to consider the legal regimes used to respond to such outbreaks,
including the use of quarantine and isolation
1
to control and limit the spread of disease among
populations.
2
While detention is an obvious public health response to these outbreaks, its use raises
difficult questions regarding the human rights of those subject to detention, as balanced against
broader public health considerations. There are cases in history where an acknowledged executive
power to detain individuals through a quarantine process has been abused by government for reasons
other than genuine public health concerns,
3
or has been used in situations where modern eyes would
view isolation in this context as unnecessary.
4
*
BBus, LLB(Hons), GDipLegPrac, LLM QUT, PhD UNSW, Professor, School of Law and Justice, University of Southern
Queensland.
Correspondence to: Anthony.Gray@usq.edu.au.
1
The World Health Organization, International Health Regulations (2005) defines quarantine as the restriction of activities
and/or separation from others of suspect persons who are not ill or of suspect baggage, containers, conveyances or goods so as
to prevent the possible spread of infection or contamination. Isolation is a similar concept, but the definition applies it to those
who are “ill or contaminated”. References in the article to “quarantine” will be taken to include isolation unless otherwise
specified, for ease of reference.
2
Article 18 of the International Health Regulations specifically mentions quarantine and isolation as possible recommendations
that the Director-General of the World Health Organization might make to signatory nations in response to a public health
emergency of international scale. Approximately 200 nations are parties to the International Health Regulations, including
Australia, the United States, the United Kingdom, Canada, New Zealand, China, India, Russia and Indonesia.
3
Racism has been inextricably linked with quarantine on occasion: Batlan F, “Law in the Time of Cholera: Disease State Power
and Quarantines Past and Future” (2007) 80 Temp L Rev 53 at 75-76; Wong Wai v Williamson 103 F 1 (ND Cal, 1900)
(quarantine for plague limited to Chinese residents in San Francisco struck out as unconstitutional); Jew Ho v Williamson 103
F 10 (ND Cal, 1900).
4
Examples including the quarantine of prostitutes suspected of carrying a sexually transmitted disease, validated in 1922: Ex
Parte Company 139 NE 204 at 206 (Ohio, 1922) (it has been noted that 30,000 prostitutes were detained during this era: Batlan,
n 3 at 101) (this also occurred in Australia during the HIV-AIDS panic: McSherry B, “‘Dangerousness’ and Public Health”
(1998) 23(6) Alt LJ 275 at 277); and the quarantine of a woman suffering from gonorrhoea (Varholy v Sweat 153 Fla 571; 15 So
2d 267 (1943); and the infamous case of “Typhoid Mary”, where Mary Mallon was placed in isolation for life (she died after
30 years) on an island to prevent the spread of typhoid fever. She did not become ill from the disease, if she indeed had it. The
government alleged (with supporting medical evidence) she was a carrier of typhoid; Mallon (with supporting medical
evidence) denied that she was. A court rejected her habeas corpus application. Judith Leavitt notes “many people, including
some of the bacteriologists and physicians in whose care she found herself, came to think of her as expendable in the fight to
protect the public health of all New Yorkers. Influenced by social prejudices, they blamed Mallon for her own fate”: Leavitt J,
(2015) 22 JLM 788788
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While the use of quarantine has substantially declined in the 20th and 21st centuries given rapid
advances in medicine, it remains a public policy option sometimes used by government, as witnessed
recently. In October 2014, a North Queensland nurse was placed under light quarantine measures upon
returning to Australia from western Africa after having treated ebola patients.
5
Tests subsequently
revealed she was not infected with the virus.
The word “quarantine” is derived from the Italian word “quaranta”, meaning 40. Originally the
term was applied to the length of time that a ship arriving in an Italian port might be prevented from
having any contact with the shore, until it could be determined whether the ship’s cargo, crew or
passengers were carrying any infectious diseases. Often, but not always, the period of isolation was
40 days,
6
hence the word “quaranta” and, in English, quarantine. Later it was applied more generally
to things other than ships. There are references to the concept in the Bible, though without use of the
word “quarantine”.
7
Today it applies generally to isolation of persons, animals and plants that have
arrived in a territory where there is suspicion that such detention is necessary to limit or prevent the
spread of infectious disease. Such isolation may, particularly in the case of persons, include medical
treatment to reduce the risk of spread of infection and to cure the person infected, if possible.
Late in 2014, in Australia, the Biosecurity Bill 2014 (Cth) was introduced in the Federal
Parliament as part of a package of biosecurity measures to provide a modern regulatory framework for
managing biosecurity risks, including certain human diseases, and to replace the existing Quarantine
Act 1908 (Cth).
8
The new legislation was passed by Parliament on 14 May 2015 but, at the time of
writing, had not yet received royal assent. Most of the substantive provisions of the new law will enter
into force 12 months after royal assent is given. As a result, this article discusses both the “old” Act
(Quarantine Act 1908) and the “new” law (Biosecurity Bill 2014), using these terms to differentiate
between them throughout.
The purpose of this article is twofold: first, it considers whether there are any constitutional
difficulties with the old and new legislation. It is noted there are some aspects of the old legislation
that might be vulnerable to constitutional challenge; the constitutionality of the legislation was
assumed, rather than decided. Secondly, the article critically considers the new law, and the extent to
which it is an improvement on the old Act. The critical analysis is informed by consideration of
approaches in the United States, and from the legislation of Australian States passed in recent years,
often reflecting much more enlightened views than the old Commonwealth legislation. The article
focuses in particular on the quarantine of individuals.
OUTLINE OF QUARANTINE ACT 1908 (CTH)
The relevant provisions of the old Act, with particular emphasis on provisions relating to quarantine of
humans, are outlined below.
9
As indicated, the repeal of this Act has not, at the time of writing,
become effective.
Typhoid Mary: Captive to the Public’s Health (Beacon Press, 1996) p 10. The Illinois Supreme Court also upheld the quarantine
of a woman thought to be a carrier of typhoid. The woman had been placed under permanent house quarantine with a sign on
her door warning others. The court dismissed a challenge to the quarantine: People ex rel Barmore v Robertson 134 NE 815
at 816 (Ill, 1922).
5
“Nurse Emerges from the Eye of the Ebola Storm, Ready to Return”, The Weekend Australian (13-14 December 2014) p 7.
6
Sehdev P, “The Origin of Quarantine” (2002) 35 CID 1071 at 1072.
7
Leviticus 13:46: “all the days wherein the plague shall be in him he shall be defiled; he is unclean; he shall dwell alone; without
the camp shall his habitation be.”
8
See Biosecurity (Consequential Amendments and Transitional Provisions) Bill 2014 (Cth), designed to facilitate the transition
from the old Act to the new law.
9
The Quarantine Act 1908 (Cth) is complemented by State and Territory legislation: see Public Health Act 2010 (NSW); Public
Health and Wellbeing Act 2008 (Vic); Public Health Act 2005 (Qld); South Australian Public Health Act 2011 (SA); Health Act
1911 (WA); Public Health Act 1997 (Tas); Public Health Act 1997 (ACT); Terrorism (Emergency Powers) Act 2003 (NT). The
Commonwealth’s legislative power with respect to quarantine has been held not to be an exclusive one: Roughley v New South
Wales (1928) 42 CLR 162. This article does not discuss State provisions in detail; although, while discussion in the article about
whether a head of power supports the Commonwealth legislation is irrelevant to State laws, discussion of issues with Ch III and
The Australian quarantine and biosecurity legislation: Constitutionality and critique
(2015) 22 JLM 788 789
The Act empowers the Governor-General to declare the existence of an epidemic, or danger of an
epidemic, caused by a quarantinable disease.
10
A quarantinable disease is one declared by the
Governor-General. A list of current “quarantinable diseases” is not found in the Quarantine
Regulations 2000 (Cth). Once the proclamation has been made, the relevant Minister has very broad
powers to “give[] such directions and take such action” as they think necessary to control and
eradicate the epidemic, or to remove the danger, by taking quarantine measures.
11
Section 4 defines
quarantine broadly, to include measures for the examination, exclusion, detention, segregation,
protection and treatment of human beings, having as their object the prevention or control of the
introduction, establishment or spread of diseases that would or could cause significant injury to human
beings. Section 4(2) clarifies that ministerial action under s 2B(2) must be no more than is “reasonably
appropriate and adapted”
12
to control and eradicate the epidemic or removal of the danger.
13
Section 12A then confers upon the Minister extra power in cases of emergency. It states that where in
the Minister’s opinion an emergency has arisen, requiring the taking of action not otherwise authorised
under the Act, the Minister may take such measures and give such directions as thought necessary or
desirable for the prevention and control of the disease, or treatment.
Section 18 outlines who is subject to quarantine. It includes:
(a) a person infected with a quarantinable disease;
14
(b) a person reasonably suspected to be infected with a quarantinable disease;
15
(c) a person in contact with or exposed to infection by a person subject to quarantine;
16
and
(d) a person so ordered by a quarantine officer.
17
Of some note here is the ability of the quarantine officer to detain a person under the legislation in
the absence of reasonable suspicion or belief that the person detained is infected with a quarantinable
disease. This is reinforced by s 35, another provision apparently conferring power on a quarantine
officer to detain in quarantine various objects, as well as people, thought to be infected or the source
of infection of a quarantinable disease. That power is similarly not conditioned on the quarantine
officer’s belief being reasonable.
In deciding whether a person is, or is reasonably likely to be, suffering from a quarantinable
disease, a quarantine officer may, but need not, seek medical opinion.
18
A person quarantined under
s 35, s 35AA or s 35A may request an independent medical assessment at their expense.
19
Only in the
limited circumstances provided for in s 35(1A) is the quarantine office required to inform the person
quarantined of this right.
20
The chief quarantine officer is obliged to review the assessment and other
executive detention may be applicable to State laws given that State laws are vulnerable to a Ch III challenge. Similarly,
comments on desirable features of public health responses to infectious diseases, including the American Model Rules, may also
be applicable.
10
Quarantine Act 1908 (Cth), s 2B(1).
11
Quarantine Act 1908 (Cth), s 2B(2).
12
This wording is interesting, reminiscent of the phrase the High Court has used to consider whether particular subject matter
is within a given head of federal power: Commonwealth v Tasmania (1983) 158 CLR 1 at 138 (Mason J), 172 (Murphy J), 232
(Brennan J), 259 (Deane J) (at least with respect to purposive powers); it is rare to find it in legislation.
13
Quarantine Act 1908 (Cth), s 4(2)(b), (c) and (d).
14
Quarantine Act 1908 (Cth), s 18(1)(b).
15
Quarantine Act 1908 (Cth), s 18(1)(ba).
16
Quarantine Act 1908 (Cth), s 18(1)(c).
17
Quarantine Act 1908 (Cth), s 18(1)(f).
18
Quarantine Act 1908 (Cth), s 35(1AAAA).
19
Quarantine Act 1908 (Cth), s 35C.
20
Quarantine Act 1908 (Cth), s 35(1C).
Gray
(2015) 22 JLM 788790
relevant matters, and then assess whether the person should remain in quarantine.
21
Section 19A
confirms that a person remains in quarantine until release. No maximum time limit is prescribed.
22
Section 22 applies to the master of a vessel.
23
If a “prescribed symptom”
24
presents itself, or a
“prescribed disease”
25
breaks out on board, the master must notify a quarantine officer immediately,
and if the vessel “is not an overseas aircraft”, display the quarantine signal on the vessel until
authorised to remove it or until the vessel is released from quarantine. The stated maximum penalty
for non-compliance with these requirements is imprisonment for five years.
The Act also provides for quarantine surveillance periods. Section 34 applies where the quarantine
officer is satisfied that no-one on board the vessel is suffering from a quarantinable disease, but is not
satisfied the vessel is free from infection. In such a case, the officer may allow the vessel to be landed,
and for passengers to disembark, but they will be subject to a 30-day surveillance period.
26
A person
so taken into quarantine may then be released upon surveillance for a period. The precise period will
depend on the nature of the quarantinable disease. For “viral haemorrhagic fever” (a class that
includes ebola), the period is 21 days.
27
A person under quarantine surveillance can then be ordered
into quarantine if they display symptoms of a quarantinable disease.
28
OUTLINE OF BIOSECURITY BILL 2014 (CTH)
Chapter 2 of the new law contains the main provisions dealing with biosecurity as it relates to human
health. Clause 42, within that Chapter, sets out the power of the Director of Human Biosecurity to list
a human disease if they believe the disease: (a) may be communicable; and (b) may cause significant
harm to human health. If the Director so lists a disease, it becomes a listed human disease under the
Act. Clause 34 sets out general principles applicable to decision-makers under the Chapter in relation
to listed human diseases. Clause 34(2) states that, prior to making a decision under the Chapter, the
decision-maker must generally be satisfied of all of the following:
(a) that exercising the power, or imposing the biosecurity measure, is likely to be effective in, or
contribute to, managing the risk;
(b) that exercising the power or imposing the measure is appropriate and adapted to manage the risk;
c) that the circumstances are sufficiently serious to warrant exercising the power or imposing the
measure;
(d) that the power, or measure, is no more restrictive or intrusive than the circumstances require;
(e) that the manner in which the power is to be exercised, or the measure imposed, is no more
restrictive or intrusive than the circumstances require; and
(f) if the power is to the exercised or the measure applied for a period, that the period is no longer
than necessary.
21
Quarantine Act 1908 (Cth), s 35D.
22
Quarantine Act 1908 (Cth), s 19A(1).
23
A vessel is defined in s 5 of the Quarantine Act 1908 (Cth) to include ships and aircraft.
24
Regulation 6(1) of the Quarantine Regulations 2000 (Cth) states that these symptoms include temperature over 38 degrees,
unexplained skin rashes or lesions, persistent or severe vomiting unrelated to motion sickness or drunkenness, persistent, watery
or profuse diarrhoea, bleeding from the eyes, ears, nose, mouth, anus or skin (unless the person has cuts or abrasions, or is
predisposed to nosebleeds or haemorrhoids, glandular fever in the armpits or neck, prolonged loss of consciousness and not able
to be roused (not caused by drunkenness, drugs, fainting or sleeping), persistent coughing and difficulty with breathing (not
caused by asthma, heart disease, emphysema, bronchitis or obesity), or inability to disembark the vessel without difficulty
(unrelated to mobility issues or young age).
25
Regulation 6(2) of the Quarantine Regulations 2000 (Cth) defines these as cholera, dengue fever, influenza, malaria, measles,
plague, rabies, polio, severe acute respiratory syndrome, rabies, smallpox, tuberculosis, typhoid fever, yellow fever, and viral
haemorrhagic fever (which includes the ebola virus).
26
Quarantine Regulations 2000 (Cth), reg 42(1).
27
Quarantine Regulations 2000 (Cth), reg 42(3).
28
Quarantine Regulations 2000 (Cth), reg 47.
The Australian quarantine and biosecurity legislation: Constitutionality and critique
(2015) 22 JLM 788 791
These general principles do not apply to anything designated as the making of a legislative
instrument under the new law in relation to individuals
29
or to decisions requiring the answering of
questions.
30
For example, the determination of the Health Minister of requirements for individuals
entering Australia, in the context of preventing a listed disease from entering or spreading around
Australia,
31
is deemed to be a legislative instrument under the new law.
32
The Minister might require,
for instance, that incoming passengers state where they have been travelling, the passenger to be
screened for disease, the passenger demonstrate they have received a specified vaccination in the past,
or that the passenger submit to such a vaccination upon entry into Australia.
33
The Health Minister
also has broad powers to require or ban a practice in order to prevent a listed human disease to enter
or spread around Australia.
34
Clause 60 of the new law authorises a biosecurity officer to make a “human biosecurity control
order” on an individual the officer is satisfied has one or more symptoms of a listed human disease, or
has come into contact with another who has such a symptom. The order must contain details such as:
(a) the ground upon which the order is made;
(b) the listed human disease for which the order is made;
(c) what the sign or symptom/s is/are;
(d) each biosecurity measure with which the person must comply, and the reason for the measure;
(e) the time period of the order (maximum three months); and
(f) the person’s rights to review internally under the new law and pursuant to administrative law
review.
Prior to imposing any biosecurity measures on an individual, the officer must take reasonable
steps to explain to the individual the risks posed by the listed human disease to their own health and
to that of the general public.
35
The biosecurity measure can be imposed where the officer believes the
measure will manage the risk of contagion of a listed human disease, or prevent its entry or spread
around Australia.
36
The order may require an individual to remain at their intended place of residence
for a specified period, not to go to certain places, or avoid contact with specified classes of individuals
where there is a heightened risk of infection to such individuals.
37
Clause 103 permits the involuntary detention of a person who has failed to comply with an
isolation measure approved by the Director if an officer believes that detention is necessary to avoid a
significant risk of contagion. Such detention is only to remove that person to a medical facility. It may
be effected by a police officer. Clause 104 states that no more force may be used than absolutely
necessary and that indignity to the person must be minimised. They must be informed as soon as
possible of their right to contact others and given the means to do so. They can be detained for as long
as the original isolation order permitted.
38
It is an offence, punishable by up to five years, to fail to
comply with a human biosecurity order.
39
29
Biosecurity Bill 2014 (Cth), cl 34(3).
30
Biosecurity Bill 2014 (Cth), cl 34(4).
31
Biosecurity Bill 2014 (Cth), cl 44(2).
32
Biosecurity Bill 2014 (Cth), cl 44(3).
33
Biosecurity Bill 2014 (Cth), cl 44(6).
34
Biosecurity Bill 2014 (Cth), cl 51.
35
Biosecurity Bill 2014 (Cth), cl 83.
36
Biosecurity Bill 2014 (Cth), cl 84.
37
Biosecurity Bill 2014 (Cth), cl 87; the biosecurity measure can also include the use of protective clothing (cl 88),
decontamination (cl 89), medical examination (cl 90), provision of body samples for analysis (cl 91), receiving a vaccination or
treatment (cl 92), or receiving medication (cl 93). Force cannot be used with respect to any of these measures (cl 95). A person
may be required to be isolated in a medical facility (cl 97).
38
Biosecurity Bill 2014 (Cth), cl 105.
39
Biosecurity Bill 2014 (Cth), cl 107.
Gray
(2015) 22 JLM 788792
The individual concerned may consent to the measure.
40
If they refuse to do so, the Director will
review the necessity of the order within 72 hours of the refusal. If they are satisfied on reasonable
grounds that the order will reduce the risk of contagion of the listed human disease, or the listed
disease entering or spreading around Australia, they will confirm the order and direct the individual to
comply with it. This assessment is good for 28 days.
41
The direction must inform the person
concerned of their rights to appeal on administrative law grounds.
42
Any appeal to the Administrative
Appeals Tribunal must normally be determined within seven days;
43
an appeal under the
Administrative Decisions (Judicial Review) Act 1977 (Cth) is not so time constrained. Until the appeal
is determined, the original decision can be enforced.
44
A noteworthy feature of the new regime is its abrogation of the right to silence. Clause 56 entitles
an officer to ask a question of an individual thought to have one or more symptoms of a listed human
disease, or who has been exposed to such a disease. The question must relate to preventing a listed
human disease from entering or spreading around Australia, or to determining the risk to community
health posed by the relevant individual. Section 48 creates a strict liability offence for a person who
fails to answer a question or provide requested information. It is doubtful, according to current High
Court authority, that abrogation of the right to silence raises constitutional objections.
45
Another noteworthy provision of the legislation is that several aspects purport to authorise
restrictions on a person’s movement. For example, an officer can require a person to remain at a place
for six hours if it is intended that a control order may be made with respect to them,
46
the person can
be ordered to remain at home,
47
and during emergency periods, the Agriculture Minister may restrict
the movement of persons between specified places.
48
Clearly, the drafters were mindful of the
possibility that such measures could infringe s 92 of the Australian Constitution, guaranteeing freedom
of intercourse among the States.
49
CONSTITUTIONAL ISSUES
The old Act is presumably supported by, among other possible heads, the Commonwealth’s express
power with respect to quarantine found in s 51(ix) of the Australian Constitution. Clause 24(3) of the
new law makes clear the reliance on this head, as well as other heads, for validity. It does not appear
40
Biosecurity Bill 2014 (Cth), cl 71(2).
41
Biosecurity Bill 2014 (Cth), cl 73 (the clause sets out other circumstances in which the assessment will lapse).
42
Biosecurity Bill 2014 (Cth), cl 7; to the Administrative Appeals Tribunal under cl 78 or the Administrative Decisions (Judicial
Review) Act 1977 (Cth) under cl 80.
43
Biosecurity Bill 2014 (Cth), cl 78.
44
In the case of the Administrative Appeals Tribunal proceedings, cl 79 of the Biosecurity Bill 2014 (Cth), and in respect of the
Administrative Decisions (Judicial Review) Act 1977 (Cth) proceedings, cl 81; there is also provision for biosecurity emergency
orders to be made, but these relate to animal or plant health or damage to the environment, rather than individuals, so these will
not be elaborated upon here.
45
X7 v Australian Crime Commission (2013) 248 CLR 92 at 117 (French CJ and Crennan J); for a contrary view, see Gray A,
“Constitutionally Heeding the Right to Silence in Australia” (2013) 39(1) Mon LR 157.
46
Biosecurity Bill 2014 (Cth), cl 68.
47
Biosecurity Bill 2014 (Cth), cl 87.
48
Biosecurity Bill 2014 (Cth), cl 477(3)(b).
49
Clause 28 of the Biosecurity Bill 2014 (Cth) states that the powers conferred by the Act are not intended to operate in such a
way as to contravene s 92 of the Australian Constitution, relevantly providing that intercourse among the States shall be
absolutely free. Requirements that a person not travel from one State to another without government approval have been
declared invalid as inconsistent with s 92 (Gratwick v Johnson (1945) 70 CLR 1), although the approach used in that case is no
longer used in s 92 cases. Though the court has found that the protection s 92 provides to intercourse is stronger than it gives
to trade and commerce (Cole v Whitfield (1988) 165 CLR 360 at 393 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and
Gaudron JJ)), subsequently it has validated laws infringing upon freedom of intercourse among States, provided they are
proportionate to the attainment of a legitimate objective: AMS v AIF (1999) 199 CLR 160 at 179 (Gleeson CJ, McHugh and
Gummow JJ); APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 353 (Gleeson CJ and Heydon J).
The Australian quarantine and biosecurity legislation: Constitutionality and critique
(2015) 22 JLM 788 793
that the constitutional validity of the old Act was confirmed by the High Court,
50
notwithstanding that
it was on the statute books for more than a century. It has been rarely discussed in the literature.
51
Powers exercised under the old Act are subject to judicial review under the Administrative Decisions
(Judicial Review) Act 1977 (Cth).
52
On constitutional issues, the High Court has considered executive
detention in other contexts (for example, with respect to aliens), and has considered systems of
preventive detention with respect to sex offenders, providing some sources of learning with respect to
the High Court’s position in analogous circumstances.
Several features of the old Act are noteworthy and are discussed in more depth below. They
include the broad powers given to the relevant Minister and public servants with respect to biosecurity
issues; for example, the broad terms in which the power of an authorised officer to detain a person for
reasons of biosecurity is expressed; the lack of judicial involvement in the decision to detain a person
for the purposes of biosecurity; and the limited judicial involvement while a person is detained.
53
The
lack of a maximum time for which a person may be detained is also noteworthy. In contrast to the old
Act, the new legislation includes the express provision for judicial review of decisions made under the
legislation.
54
The apparent insensitivity of the old legislation to the human rights of the person
detained, and the possible consequences of detention, is evident. In this respect also, the new law is a
vast improvement.
THE POWER OF THE EXECUTIVE TO DETAIN AN INDIVIDUAL
The law seeks to reconcile conflicting principles. On the one hand, it has acknowledged that detention
by the state of an individual against their will is a very serious matter, given the importance that liberal
democracies typically place on personal freedom. Fundamental principles such as the rule of law and
separation of powers are at play. Bitter historical experience highlights the dangers of arbitrary,
unbridled power, with the fundamental principles seeking to ensure that powers cannot be exercised in
such a way against an individual. The principle of separation of powers evolved as another means by
which the dangers of such absolute power were minimised. Within the dichotomy between legislative,
executive and judicial power, as a general rule the power to detain an individual against their will was
seen as belonging within the realm of judicial power. Obviously, such principles would conflict with
law reposing power within the state to detain an individual for an unlimited time for quarantine
purposes.
On the other hand, some exceptions to the general rules described above have been long accepted;
in some cases, it is considered appropriate that the state have the power to detain an individual against
their will. Even if this is accepted, it has proven difficult to articulate the occasions on which this is or
50
There are brief references to the Commonwealth’s quarantine power in Attorney-General (Vic) v Commonwealth (1945) 71
CLR 237 at 257 (Latham CJ), 280 (Williams J) but the case did not concern an interpretation of s 51(ix) and the court did not
consider the validity of the Quarantine Act 1908 (Cth). In Ex Parte Nelson (No 1) (1928) 42 CLR 209 at 223, Isaacs J noted the
“complete assumption of unfettered legislative power” in quarantine legislation, but it was State legislation rather than
Commonwealth legislation, and the case was not decided on that basis.
51
Some examples include: Reynolds C, “Quarantine in Times of Emergency: The Scope of s 51(ix) of the Constitution” (2004)
12 JLM 166; Bennett B, Carney T and Bailey R, “Emergency Powers and Pandemics: Federalism and the Management of
Public Health Emergencies in Australia” (2012) 31(2) U Tas LR 37; Pelkas C, “State Interference With Liberty: The Scope and
Accountability of Australian Powers to Detain During an Epidemic” (2010) 12 FLJ 41; Guy S and Hocking B, “Times of
Pestilence: Would a Bill of Rights Assist Australian Citizens who are Quarantined in the Event of an Avian Influenza (Bird Flu)
Epidemic?” (2006) 17(3) CICJ 451; McSherry, n 4; more generally, Gordon JS, “Imprisonment and the Separation of Judicial
Power: A Defence of a Categorical Immunity from Non-Criminal Detention” (2012) 36 MULR 41; McDonald S, “Involuntary
Detention and the Separation of Judicial Power” (2007) 35 FL Rev 25.
52
Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368; Serana (WA) Pty Ltd v
Mignaccu-Randazzo SM [2014] FCA 120.
53
Guy and Hocking, n 51 at 459: “it is arguable that orders for detention are indeed punitive in character; they deprive people
of their liberty, and in this respect, should only be made or given by the judiciary”; Blackstone W, Commentaries on the Laws
of England, Book 4 at [298]: “the confinement of the person, in any wise, is an imprisonment”; McSherry, n 4 at 277: “only
courts should be able to order the involuntary detention of a person with an infectious disease.”
54
Pelkas, n 51 at 60: “The Quarantine Act 1908 (Cth) has no provision for appeal or review of the exercise of powers to detain,
beyond the ability to request independent medical assessment in non-emergency situations.”
Gray
(2015) 22 JLM 788794
should be permissible, and whether there is a general principle that succinctly describes the
circumstances in which a state power to detain a person involuntarily will be legally acceptable. Some
have expressly discouraged the natural wish to do so.
55
Notorious cases of executive detention have
occurred in Australia’s past,
56
although there is ongoing argument regarding whether such decisions
remain good law in Australia.
57
The importance of this issue justifies a detailed look at past case law.
The High Court considered these issues at some length in Chu Kheng Lim v Minister for Local
Government and Ethnic Affairs.
58
At issue there were provisions of the Migration Act 1958 (Cth)
relevantly providing for compulsory detention for a person who arrived in Australia without valid
entry documents, until any claim to remain in Australia (for instance, due to refugee status) was
assessed. The Act expressly limited the duration during which those affected could be detained.
Section 54R specifically prohibited a court from ordering the release of “designated persons” detained
in this manner, a group which included the applicants. While the High Court found the mandatory
detention scheme generally valid pursuant to the Commonwealth’s aliens power, a majority
invalidated s 54R as being contrary to the requirements of Ch III of the Constitution and an
unacceptable direction to the court in relation to the exercise of its constitutional jurisdiction. In the
course of so deciding, members of the High Court mused on the nature of the Commonwealth’s power
to order the detention of individuals generally, in terms directly relevant to the current context. Two
particular issues were of interest here – the extent to which a head of power, or the executive power,
includes the power to detain an individual, and the extent to which the Commonwealth Executive’s
power to detain an individual is circumscribed by Ch III.
All members of the court agreed that the provisions were supported by the aliens power. A law
providing for detention of an individual in order to assess their claim to remain in Australia was
sufficiently connected with s 51(xix) of the Constitution. Brennan, Deane and Dawson JJ stated such
detention was reasonably capable of being seen as necessary for the purposes of deportation or to
allow claims for a permit to be assessed, which was itself part of the aliens power.
59
Regarding the question of compatibility with Ch III, the resolution was more opaque. There is a
suggestion, with respect, of some confusing conflation of the issues of whether the law was within a
head of power, and whether the law was compatible with Ch III of the Constitution.
60
Logically, they
are separate issues. A law may be supported by a head of power but be in breach of Ch III
requirements and vice versa. It is preferable to treat as separate issues whether, on the one hand, a law
is supported by a head of power and, on the other, whether it is in breach of separation of powers
principles. Such conflation is most apparent, for instance, in the joint reasons. There Brennan, Deane
55
See Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 12 where Gleeson CJ suggested it might be
undesirable to attempt to exhaustively quantify the circumstances in which executive detention was constitutionally permissible.
56
Lloyd v Wallach (1915) 20 CLR 299; Ex Parte Walsh [1942] ALR 359.
57
A lively debate occurred on this issue between McHugh and Kirby JJ in Al-Kateb v Godwin (2004) 219 CLR 562 at 588-589
and 620-622 respectively. A recent attempt to resurrect executive detention in Queensland (Criminal Law Amendment (Public
Interest Declarations) Amendment Act 2013 (Qld)) was declared constitutionally invalid by the Queensland Court of Appeal in
Attorney-General (Qld) v Lawrence (2013) 284 FLR 21. No attempt to appeal this decision was made.
58
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1.
59
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 33; Mason CJ agreed the law was
supported by s 51(xix) (at 10), as did Toohey J (at 45-47), Gaudron J (at 57) and McHugh J (at 64-65).
60
This suggestion appears, more obliquely, in the judgment of Hayne J in Al-Kateb v Godwin (2004) 219 CLR 562. Hayne J
(with whom Heydon J agreed) noted how the joint reasons in Lim considered in the context of Ch III whether detention was
reasonably considered capable of being seen as necessary for purposes of deportation or to assess an entry application. He then
said: “to ask whether the law is limited to what is reasonably capable of being seen as necessary for particular purposes may be
thought to be a test more apposite to the identification of whether the law is a law with respect to aliens” (at 647). He also said:
“I do not consider that the Chapter III question … can be answered by asking whether the law in question is appropriate and
adapted or reasonably necessary … for the purpose of processing and removal of an unlawful non-citizen. Those are questions
which it is useful to ask in considering a law’s connection with a particular head of power” (at 648).
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and Dawson JJ stated that detention beyond that which was necessary for the above purposes (that is,
the same purposes discussed in the context of validity under s 51(xix)) would be seen as punitive and
contrary to the requirements of Ch III.
61
They articulated the general rule that the involuntary detention of a citizen in custody by the state
was penal or punitive, and was an incident of the exclusively judicial function of judging and
punishing criminal guilt.
62
However, they acknowledged exceptions to this general rule, including
police arrest and detention in custody pending trial, Parliament’s power to punish contempt, the power
of military tribunals to enforce military disciplinary rules, and detention due to mental illness and
infectious disease. They observed with respect to the last two examples that they could “legitimately
be seen as non-punitive in character and as not necessarily involving the exercise of judicial power”.
63
The joint reasons stated that the conferral upon the executive of an “unexaminable power” to imprison
a citizen would breach the separation of powers principle.
64
The attempt here to direct in unqualified
terms that a court shall not order the release from custody of a person imprisoned by the Executive
was contrary to Ch III requirements.
65
In other respects, however, the legislation was valid. In
particular, the joint reasons took into account that the period of detention was limited to 273 days, and
that it could be brought to an end at any time by the person subject to detention asking to be removed
from Australia.
66
Gaudron J expressed agreement with the joint reasons on the Ch III issue.
67
The remaining justices dissented in the result on Ch III and the direction to the court not to
release certain individuals on the basis the legislation could be read down so as to be valid.
68
Notwithstanding this, some of their general remarks on Ch III issues regarding executive detention are
noteworthy. Mason CJ confirmed Parliament had limited authority to detain an alien for certain
purposes, consistent with Ch III.
69
In addressing the Ch III issue, McHugh J, like the joint reasons,
61
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 33: “The two sections will be valid
laws if the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the
purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand,
if the detention which those sections require and authorise is not so limited, the authority which they purportedly confer upon
the executive cannot properly be seen as an incident of the executive power to exclude, admit or deport an alien. In that event,
they will be of a punitive nature and contravene Chapter III’s insistence that the judicial power of the Commonwealth is vested
exclusively in the courts which it designates” (Gaudron J agreed at 58 and McHugh J at 65); see also Re Woolley; Ex parte
Applicants M276/2003 (2004) 225 CLR 1 at 55 (Gummow J). This reasoning is said to be fallacious because there is no
necessary link between laws that have a punitive purpose (those contrary to Ch III, if the power is exercised by the Executive),
and laws that are not supported by a head of power. A law may have a punitive purpose but clearly be within a head of power.
It is erroneous, with respect, to suggest otherwise. This point is made in a different way by Hayne J in Al-Kateb v Godwin
(2004) 219 CLR 562 at 648.
62
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 (Gaudron J agreed at 53).
63
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 28 (Gaudron J agreed at 53),
although Gaudron J suggested the exceptions noted in the joint reasons may not be an exhaustive list (at 55); she reiterated that
point in Kruger v Commonwealth (1997) 190 CLR 1 at 162; Hayne J made the same point in Al-Kateb v Godwin (2004) 219
CLR 562 at 648, as did Gummow and Kirby JJ in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 613 and 634
respectively.
64
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 29 (Gaudron J agreed at 53).
65
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 36 (Gaudron J agreed at 53).
66
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 34 (Brennan, Deane and
Dawson JJ).
67
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 53; most of Gaudron J’s reasoning
related to the scope of s 51(xix) and the extent to which the head of power acted as a limit on the kinds of involuntary detention
that were constitutionally permissible. However, Gaudron J’s reasoning and that of the joint reasons should not be seen in
binary terms; she expressed agreement with the joint reasons regarding their statements on Ch III and its application to the facts.
In Al-Kateb v Godwin (2004) 219 CLR 562 at 610, Gummow J agreed that there could be situations where detention purported
to be based on a legislative head of power was not in fact supported by the head of power and was therefore invalid for that
reason.
68
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 12 (Mason CJ), 50 (Toohey J), 68
(McHugh J).
69
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 10.
Gray
(2015) 22 JLM 788796
discussed at some length the purpose of the detention. Here he was satisfied that detention was for
non-punitive purposes, such that no breach of Ch III requirements had occurred.
70
He was conscious
of the possibly long period of detention involved, but countered this with the large number of
claimants and the time it would reasonably take to process them. He also expressly took into account
that those detained under the regime could at any time put in writing their wish to be removed from
Australia, and in such a case, the government was duty bound to ensure this happened.
71
Three essential lessons can be taken from the Lim decision for present purposes. The first is that,
in assessing whether a detention law is supported by a relevant head of power, the government would
need to show the reasonable necessity for the detention, in relation to the power. While the
government was able to do so in the Lim case, this was partly because detention was for an expressly
limited time and because the person detained could request immediate removal from Australia. The
position may be otherwise if detention were to go on for an extended period, or if voluntary removal
from detention was not an option, in terms of finding that the detention is sufficiently connected with
the relevant head of power. The second is that executive detention can also raise Ch III questions;
specifically where it is accompanied by express prohibitions on courts releasing those detained
(Brennan, Deane and Dawson JJ), or if it is in substance punitive rather than non-punitive (Brennan,
Deane and Dawson JJ, together with Gaudron and McHugh JJ). The question of the duration of the
detention, and perhaps the question of voluntary removal, is also relevant here. However, there is a
danger of conflating the issues of whether the law is with respect to a head of power, and whether a
law offends the requirements of Ch III, questions which are logically distinct. The third is that relevant
decisions by members of the Executive must all be subject to judicial review. The High Court has not
been pleased with legislative attempts to shield the exercise of executive power from (meaningful)
judicial review.
72
In the current context, the old Act does not expressly refer to judicial review of
decisions made pursuant to the Act, one way or the other. The new law expressly makes provision for
administrative law review of some decisions made under the new law.
73
A variation to the mandatory detention migration scheme challenged in Lim was further
considered in Al-Kateb v Godwin.
74
Again, it involved a person who had arrived in Australia without
relevant travel documentation, and who had unsuccessfully applied for a visa to remain in the country.
Al-Kateb applied to the government to be removed from Australia. Section 198(1) of the Migration
Act 1958 (Cth) required an officer to remove as soon as practicable an unlawful non-citizen who asked
to be so removed. The difficulty was that Al-Kateb was stateless. He filed an application for habeas
corpus. A single judge had found that the Minister had made reasonable efforts to remove Al-Kateb
from Australia, but in the foreseeable future there was no reasonable prospect of removal. By a
majority of 4-3, the High Court found the fact there was currently no reasonable prospect of removal
did not render Al-Kateb’s continued detention unlawful.
75
It did not change the non-punitive nature of
his detention, such as might trigger Ch III unconstitutionality.
76
While much of the discussion in Al-Kateb focused on issues of statutory interpretation, the
principle of legality and the relevance of international law to Australian constitutional law (matters not
directly relevant to the current discussion), several passages in the judgments are useful for current
70
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 71.
71
Chu Kheng Lim v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 71-72.
72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Bateman W,
“The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum Provision of
Judicial Review” (2011) 39 FL Rev 463; Kirk J, “The Entrenched Minimum Provision of Judicial Review” (2004) 12 AJ Admin
L 64; McDonald L, “The Entrenched Minimum Provision of Judicial Review and the Rule of Law” (2010) 21 PLR 14.
73
Biosecurity Bill 2014 (Cth), cll 75, 76 (in relation to isolation and traveller movement restrictions); see also cll 574, 578.
74
Al-Kateb v Godwin (2004) 219 CLR 562.
75
McHugh, Hayne, Callinan and Heydon JJ; Gleeson CJ, Gummow and Kirby JJ dissenting.
76
References to the purpose of the detention appear in the judgments of McHugh J (at 584), Hayne J (at 650) (with whom
Heydon J agreed), and Callinan J (at 659), as well as in the dissenting judgments of Gleeson CJ (at 576), Gummow J (at 610)
and Kirby J (at 627).
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discussion. For example, Gleeson CJ expressed concern with the possibility that a person could be
subject to indefinite administrative detention, regardless of circumstances, whether they were a danger
to the community, or whether they might abscond. He said that such an outcome was not to be dealt
with by implication
77
and would have interpreted the legislation to not authorise continued detention
where relocation was not a realistic possibility.
McHugh J expressed tolerance for administrative detention, but only while its purpose was purely
protective.
78
If it could be shown that detention had a punitive purpose, it could not lawfully occur
through administrative/executive means. Even a law with a purely protective purpose would infringe
Ch III if it prevented the court from “determining a matter that is a condition precedent to authorising
detention”.
79
Gummow J (dissenting) also found that administrative detention might be acceptable, but
the power was not at large and did not extend to detention for any purpose selected by Parliament. The
detention law would have to be sufficiently connected with a head of power.
80
He added that often it
was not easy to distinguish between a punitive and non-punitive purpose, suggesting that such a focus
was “apt to mislead”.
81
Kirby J (dissenting) also indicated some tolerance for administrative detention,
but noted that “such a power of detention can turn into punishment in a comparatively short time”.
82
This would be fatal to validity, given general agreement that punishment is an exclusively judicial
function.
83
In Re Woolley, he added that the purpose of the law was not the only thing to be considered
in assessing constitutionality; the objective effects of the law and its practical operation were also to
be taken into account.
84
The relevance of the duration of detention to questions of constitutionality was also raised in Re
Woolley.
85
There the legislation did not prescribe maximum periods for which a person subject to the
Migration Act could be detained, in contrast to the form of the legislation when it was challenged in
Lim. Members of the court in Re Woolley demonstrated sympathy to an argument regarding possible
incompatibility between indefinite detention and Ch III. McHugh J dealt with this issue by construing
77
Al-Kateb v Godwin (2004) 219 CLR 562 at 577-578.
78
He adopted the same position in Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 26. Callinan J took a
narrow view of the purpose test in Re Woolley, stating it was only where the Executive “formally and unequivocally abandoned”
the notion that a person was being detained to determine their eligibility to stay in Australia that the purpose would no longer
be such (at 85).
79
Al-Kateb v Godwin (2004) 219 CLR 562 at 584; Hayne J agreed here that the purpose of the detention was non-punitive
(at 650).
80
Al-Kateb v Godwin (2004) 219 CLR 562 at 610.
81
Al-Kateb v Godwin (2004) 219 CLR 562 at 612.
82
Al-Kateb v Godwin (2004) 219 CLR 562 at 617; Kirby J (dissenting) made the same point in Fardon v Attorney-General
(Qld) (2004) 223 CLR 575 at 632: “if (deprivation of liberty) is to extend for more than a very short interval, such as properly
may be entrusted to officials in the Executive Government, it requires the authority of a judicial order”; and less sharply in Re
Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 66; Hayne J rejected the suggestion that the mere effluxion of
time could turn non-punitive detention into punitive detention, but this seemed to be because the applicant here, and others in a
similar situation, had come to Australia without permission (at 651); he also did so in Re Woolley (at 77); see also McDonald,
n 51 at 59: “If detention was for a non-punitive purpose, it could not become punitive simply because of the elapse of a certain
period of time.”
83
In Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27, Brennan, Deane and Dawson JJ referred to Ch III as
“exclusively” entrusting to courts the adjudgment and punishment of criminal guilt; Reyes v The Queen [2002] UKPC 11 at [47]
(Lord Bingham, for the Council); Nicholas v The Queen (1998) 193 CLR 173 at 186 (Brennan CJ), 220 (McHugh J), 231
(Gummow J)
84
Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 66 (Kirby J); see also Gordon, n 51 at 67: “the
constitutionality of legislative or executive action must turn upon the effect or impact of that action rather than the intent or
purpose of the actor.”
85
Lynch and Reilly suggest that one factor in assessing the validity of executive detention regimes is whether they are limited
in duration: Lynch A and Reilly A, “The Constitutional Validity of Terrorism Orders of Control and Preventive Detention”
(2007) 10 FJLR 105 at 136. McSherry concluded that it was essential that legislation providing for executive detention contain
time limits: McSherry, n 4 at 277; compare McDonald, n 51 at 59: “it is difficult to see how the 273 day limitation period (in
Lim) could affect the constitutional validity of the section … if detention was for a non-punitive purpose, it could not become
punitive simply because of the elapse of a certain period of time.”
Gray
(2015) 22 JLM 788798
the Act to require that visa application processes had to be completed within a reasonable time.
86
Gummow J said that the Act did contain temporal limitations on detention, because it allowed a person
detained to request immediate removal (as in Lim), and it only permitted detention where there was a
reasonable prospect of removal.
87
One interpretation of this finding is that Gummow J may have
looked at the legislation differently in terms of constitutionality if there had been no such temporal
limitations to detention.
There is some debate regarding whether questions of proportionality are relevant in assessing
whether the challenged legislation is within a head of power, and whether it is contrary to Ch III (for
instance, that it has a punitive purpose). In relation to the heads of power, there has been some use of
the concept of proportionality, as well as some criticism, and the orthodox view is that proportionality,
if relevant at all to consideration of heads of power,
88
is of relevance to so-called “purposive” heads of
power, such as the defence power and the external affairs power,
89
rather than the “topic” heads of
power, although the Constitution itself does not suggest different interpretative techniques according to
whether a power is considered purposive or non-purposive in nature
90
and some justices appear to
support the use of proportionality in relation to “topic” powers.
91
There are examples of the use of
proportionality in relation to limits on power,
92
for example in s 92 jurisprudence,
93
and in relation to
implied freedoms.
94
It is argued that proportionality can be relevant in assessing whether a law is
compatible with the requirements of Ch III.
95
For example, a law providing for executive detention
may be said to be for a non-punitive purpose. However, if it is considered to be disproportionate to the
achievement of such purpose, it may be considered to be in fact a punitive law, and thus offensive to
86
Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 38.
87
Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 52.
88
Leask v Commonwealth (1996) 187 CLR 579 at 594-595, where Brennan CJ agreed with the view of Dawson J in the same
case that proportionality was not relevant in assessing whether a law was one within a head of power, with respect to
non-purposive powers (at 605-606), Gummow J agreed (at 626) and Toohey J did not favour its use (at 615).
89
Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 88 ALJR 690 at 697-698 (French CJ, Hayne,
Crennan, Kiefel, Bell and Keane JJ); in relation to s 51(xxix), see Commonwealth v Tasmania (1983) 158 CLR 1 at 259-260
(Deane J); Richardson v Forestry Commission (1988) 164 CLR 261 at 311 (Deane J), 346 (Gaudron J); in relation to s 51(vi),
see Thomas v Mowbray (2007) 233 CLR 307 at 359 (Gummow and Crennan JJ) (with whom Gleeson CJ agreed), 384 (Kirby J),
453 (Hayne J). In Victoria v Commonwealth (1996) 187 CLR 416 at 488, Brennan CJ, Toohey, Gaudron, McHugh and
Gummow JJ found that the concept of “reasonable proportionality” would not always be helpful in determining whether a law
was within a head of power (or, at least, the external affairs power or a purposive power); Cunliffe v Commonwealth (1994) 182
CLR 272 at 321-322 (Brennan J), 355 (Dawson J); Nationwide News v Wills (1992) 177 CLR 1 at 89 (Dawson J).
90
Leask v Commonwealth (1996) 187 CLR 579 at 635, Kirby J reflected unfavourably on the suggestion that interpretative
techniques should differ according to whether the power was considered purposive or non-purposive.
91
Cunliffe v Commonwealth (1994) 182 CLR 272 at 296-297 (Mason CJ); Nationwide News v Wills (1992) 177 CLR 1 at 29
(Mason CJ), 94 (Gaudron J); Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 286 (Deane and
Gaudron JJ), 295 (McHugh J). In Davis v Commonwealth (1988) 166 CLR 79 at 100, Mason CJ, Deane and Gaudron JJ did not
use the word “proportionality” but they applied a “reasonably appropriate and adapted” test often equated to proportionality. In
Leask v Commonwealth (1996) 187 CLR 579 at 616, Gaudron J said proportionality was relevant in assessing whether a law
was with respect to a head of power, and in whatever context purpose was relevant; McHugh J thought that proportionality
could be useful in deciding whether sufficient connection existed between a law and a head of power (at 616); Kirby J also
thought it a useful concept (at 635).
92
Leask v Commonwealth (1996) 187 CLR 579 at 595 (Brennan CJ); Cunliffe v Commonwealth (1994) 182 CLR 272 at 376
(Toohey J).
93
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 472 (Mason CJ Brennan Deane Dawson and Toohey JJ).
94
Nationwide News v Wills (1992) 177 CLR 1; Lange v Australian Broadcasting Corp (1997) 189 CLR 520; Roach v Electoral
Commissioner (2007) 233 CLR 162 at 199 (Gummow, Kirby and Crennan JJ); Rowe v Electoral Commissioner (2010) 243 CLR
1 at 20 (French CJ) and an extensive discussion by Kiefel J (at 131-145); Tajjour v New South Wales (2014) 88 ALJR 860
at 875-876 (French CJ), 888 (Crennan, Kiefel and Bell JJ), 893 (Gageler J); Kiefel S, “Proportionality: A Rule of Reason”
(2012) 23 PLR 85; Michaelson C, “Reforming Australia’s National Security Laws: The Case for a Proportionality-Based
Approach” (2010) 29(1) U Tas LR 31.
95
McDonald, n 51 at 44-50; “because of the nature of the Chapter III limitation, the relevant question is whether the law is for
a non-punitive object or purpose. That question must be answered by applying a test of proportionality” (McDonald, n 51 at 45);
Zines L, The High Court and the Constitution (5th ed, Federation Press, 2008) p 289; Gordon, n 51 at 73-74.
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Ch III. Proportionality might be thought useful here in assessing whether a law has a punitive or
non-punitive purpose, given it is relevant to the interpretation of purposive powers, which similarly
involves consideration of means and ends. Others disagree that proportionality is relevant to Ch III
considerations.
96
SUMMARY OF EXISTING LAW: EXECUTIVE DETENTION
The High Court has understandably been very cautious in its discussion regarding the circumstances in
which executive detention is constitutionally permissible. It has indicated that in some circumstances
such a practice is constitutionally permissible. However, the power is limited in various ways. First,
the federal government would need to show how such detention was sufficiently connected to a head
of power in order to be valid; otherwise the law would be bad as not being supported by a head of
power. Secondly, and acknowledging that to some extent the arguments have overlapped in the High
Court (but that they should not have done so), the purpose of the executive detention must be
legitimate and non-punitive in nature, in order that the requirements of Ch III are not infringed, given
that only Ch III courts may impose punitive detention. Different views have been expressed regarding
how the purpose test is to be applied. At one end, some have said that the government’s assurances
that detention is for non-punitive purposes must be taken at face value; at the other, some have said
that the practical effects and operation of the legislation must be taken into account. There is some
difficulty with a purpose approach since detention will often have more than one purpose.
Proportionality may also be relevant, at least in the context of Ch III, and some would say in relation
to the determination whether the law is sufficiently connected with a head of power.
Relevant to this discussion is also the question of how long individuals have been detained under
the legislation. Some judges have indicated that executive detention for an extended period may
become constitutionally problematic, acknowledging the uncertainty of exactly where the line is,
either because the detention then becomes punitive or because the detention might cease to be
sufficiently connected with the head of power that originally authorised it. To some extent, possible
constitutional objections to executive detention can be assuaged by statutory interpretation; for
instance, some judges seek to respond to the temporal issue by reading in requirements of
“reasonableness” or by otherwise interpreting the legislation so that it does not authorise what might
be considered effectively indefinite detention. In the immigration context, other judges have addressed
possible concerns with long-term detention by noting that some of those under detention could end it
at any time by requesting to be removed from Australia, or that a long time is needed due to the large
number of individuals to whom the detention provisions applied.
COMPARATIVE ANALYSIS: UNITED STATES
Constitutional issues
The position in the United States is of some relevance in assessing the validity of aspects of the old
and new Australian legislation. The United States has a larger volume of case law regarding
quarantine issues, given the use of quarantine was much more prevalent in the 19th century than now.
It is sensible to consider how equivalent jurisdictions have balanced the legitimate objective of public
health and safety, on the one hand, with individual due process rights, on the other, provided relevant
differences are borne in mind.
Regarding the level of government constitutionally responsible for quarantine issues in the United
States, it is noteworthy that, unlike the Australian Constitution, the United States Constitution does not
specifically provide Congress with power to deal with quarantine issues. While the ability of the States
to legislate with respect to quarantine has long been clear as an aspect of their police power,
97
federal
regulation in this space was relatively slow in coming. It was only in 1878 that Congress created a
Division of Quarantine, with a National Board of Health being created a year later. This body was
96
Al-Kateb v Godwin (2004) 219 CLR 562 at 648 (Hayne J) (with whom Heydon J agreed); Re Woolley; Ex parte Applicants
M276/2003 (2004) 225 CLR 1 at 32 (McHugh J).
97
Gibbons v Ogden 22 US 1 (1824).
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(2015) 22 JLM 788800
mainly concerned with movement of goods and people from overseas to the United States. In 1890,
Congress passed its first quarantine legislation, providing the Secretary of the Treasury with
quarantine-type powers, and in 1944, passed the Public Health Service Act, relying on the commerce
clause. These applied both to international and domestic quarantine issues. Currently, Title 42 of the
United States Code
98
gives the Center for Disease Control power to detain individuals reasonably
suspected of carrying a communicable disease.
The Supreme Court of the United States has not considered many cases involving use of
quarantine pursuant to the commerce clause.
99
However, it has indicated that governments can, in
pursuit of legitimate public health objectives, quarantine individuals:
In every well-ordered society charged with the duty of conserving the safety of its members, the rights
of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected
to such restraint, to be enforced by reasonable regulations, as the safety of the general public may
demand. An American citizen arriving at an American port on a vessel in which … there had been cases
of yellow fever or … cholera, although apparently free from disease himself, may yet … be held in
quarantine against his will … until it be ascertained … that the danger of the spread of the disease …
has disappeared.
100
At the same time, they have indicated that such power is not without limits and demonstrated
concern with the potential of such a power to curtail fundamental rights, and indicated limits on such
a power:
An acknowledged power of a local community to protect itself against an epidemic threatening the
safety of all, might be exercised in particular circumstances … in such an arbitrary, unreasonable
manner or might go so far beyond what was reasonably required for the safety of the public, as to
authorise or compel the courts to interfere for the protection of such persons.
101
The Supreme Court, in other contexts, has expressed constitutional concern with potentially
indefinite detention at the hands of the Executive, on the basis of a lack of due process.
102
It has
required that someone detained involuntarily be given details of the factual basis for their detention
and an opportunity to rebut the government’s allegations.
103
This has meant, for example, that courts have on occasion restricted the broad quarantine power
to cases where it had been shown that a person had been infected with or exposed to a contagious
disease or a reasonable belief to that effect;
104
the mere possibility that the person had was not
98
42 USC §§ 264-270 (2000).
99
The Supreme Court has not specifically considered the validity of the Public Health Service Act pursuant to the commerce
clause. The commerce clause has been held to apply to three types of law: (a) use of the channels of interstate commerce;
(b) activity relating to instrumentalities of interstate commerce or persons and things in interstate commerce; and (c) activities
that substantially affect interstate commerce: United States v Lopez 514 US 549 (1995). While it is believed Congress could
regulate quarantine under either category (b) or (c), recently a narrow majority of the Supreme Court found the commerce
clause did not extend to regulating inactivity, at least to some extent: National Federation of Independent Business v Sebelius
567 US _ (2012). This has led some commentators to speculate that federal quarantine law may be vulnerable to constitutional
challenge, on the basis that quarantining those suspected of harbouring an infectious disease regulates inactivity: Jaikumar A,
“Red Flags in Federal Quarantine: The Questionable Constitutionality of Federal Quarantine After NFIB v Sebelius” (2014) 114
Colum L Rev 677 at 705: “it is difficult to imagine a more inactive endeavour than the contraction or communication of an
infectious disease.”
100
Jacobson v Massachusetts 197 US 11 at 29 (1905).
101
Jacobson v Massachusetts 197 US 11 at 28 (1905); the court emphasised that quarantine had to be reasonable regarding
those to whom it applied, and the conditions of quarantine.
102
Zadvydas v Davis 533 US 678 at 680 (2001) (Breyer J, for Stevens O’Connor Souter and Ginsburg JJ).
103
Hamdi v Rumseld 542 US 507 at 533 (2004) (O’Connor J, for Rehnquist CJ Kennedy and Breyer JJ; Souter and Ginsburg JJ
concurred in the judgment).
104
Re Halko 246 Cal Rptr 661 (Ct App, 1966).
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sufficient.
105
Racially targeted measures unreflective of particular medical risks within that race have
been struck out as arbitrary and discriminatory.
106
Courts have also on occasion been concerned that
quarantine facilities meet minimum levels of hygiene and comfort.
107
Some are critical that courts
have been too deferential to executive justification for quarantine measures, and not sufficiently
protective of the fundamental human rights at stake.
108
Model State Emergency Health Powers Act
The Model State Emergency Health Powers Act is a set of model laws that has been adopted by the
vast majority of States in the United States,
109
and is considered to represent a good balance between
the legitimate State objective of public safety and the human rights of those who may be subject to
intrusive measures in the name of such objective.
Section 401 permits a State Governor to declare that a state of public health emergency exists,
where a “public health emergency” has occurred. The Model Act defines a public health emergency as
an occurrence of imminent threat of an illness or health condition believed to be caused by
bioterrorism, a novel or previously controlled infectious agent or biological toxin, where it poses a
high probability of a large number of deaths or serious or long-term disabilities amongst the affected
population, or widespread exposure to an infectious or toxic agent posing a significant risk of
substantial future harm to a large number of people.
During such an emergency, the public health authority may detain individuals involuntarily. It
uses the terms “isolation” and “quarantine”, the former referring to those infected or reasonably
believed to be infected with a contagious disease, and the latter referring to those who are or may have
been exposed to a contagious disease but who do not show relevant symptoms. For ease of future
reference, the term “detain” is used here to mean both isolation and quarantine. The Act sets out
conditions upon which an individual can be detained.
110
Both must be the least restrictive means
necessary to prevent the spread of a contagious disease and may include confinement in the person’s
home or other premises. Isolated individuals must be contained separately from quarantined
individuals. The health status of individuals detained must be monitored regularly. If a quarantined
individual becomes infected or is reasonably considered to be infected with a contagious disease, they
must be promptly moved to isolation. Detained individuals must be immediately released when they
pose no substantial risk of transmitting disease to others. During detention, they must be provided
adequate food, clothing, shelter, means of communication, medication and medical care. Premises
used for detention must be kept in a safe and hygienic manner, designed to minimise the risk of
transmission of infection. Cultural and religious beliefs of those detained must be respected as far as
possible.
Involuntary detention can occur through two routes. First, the public health authority may
temporarily detain an individual through written directive under s 605(a) if delay in imposing
105
Re Smith 40 NE 497 at 498 (NY, 1895); in contrast, other courts have found that mere suspicion that a person has been
infected is sufficient to warrant quarantine, and that assessment by public health officials was entitled to judicial deference:
United States ex rel Siegel v Shinnick 219 F Supp 789 at 791 (EDNY, 1963).
106
Wong Wai v Williamson 103 F 1 (ND Cal, 1900); Jew Ho v Williamson 103 F 10 (ND Cal, 1900).
107
Kirk v Wyman 65 SE 387 (SC, 1909).
108
Campbell G, “The Global H1N1 Pandemic, Quarantine Law, and the Due Process Conflict” (2011) 12 San Diego Int’l LJ
497 at 499: “courts have historically ignored the rights of individuals placed under quarantine and have interpreted quarantine
laws as a broad and almost unrestricted grant of governmental authority to impose health regulations”; Jones Merritt criticises
courts for not insisting upon other, less restrictive options than isolation, when these are reasonably available and appropriate to
respond to the particular risk, and where this has been utilised in other contexts involving involuntary civil detention, particular
in the mental health area: Jones Merritt D, “Communicable Disease and Constitutional Law: Controlling Aids” (1986) 61
NYUL Rev 739 at 778-779.
109
Houle and Houle state that 44 States have adopted the model legislation in whole or in part: Houle P and Houle S, “When
Push Comes to Shove: Mandatory Immunization in Times of Pandemic-Type Emergencies” (2012) 30 Buff Pub Interest LJ 99
at 118.
110
Model State Emergency Health Powers Act, § 604(b).
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(2015) 22 JLM 788802
detention would significantly jeopardise the authority’s ability to prevent or limit transmission of a
contagious disease. Within 10 days of the issuance of this directive, the public health authority must
file a petition for a court order authorising continued detention. If temporary detention is not sought
(where a slight delay in detention would not jeopardise the authority’s ability to prevent or limit
transmission), the public health authority can apply to a court for a detention order, based on
compliance with the above conditions for detention and other particulars. Those affected by the
application will be given notice of it within 24 hours. A court must hear the application within five
days of its issuance. In either case, the court will grant the petition if detention is considered
reasonably necessary to prevent or limit the transmission of a contagious disease.
111
A court order
authorising detention can be for a maximum period of 30 days.
112
An individual detained under the
Act may apply to the court for an order of release; this application must be determined within 48 hours
of filing.
113
The court shall appoint counsel at State expense to represent those who are to be, or are,
detained pursuant to the Act.
114
Some of these features are found in the various Australian State and
Territory legislation to which reference is made below.
115
CRITIQUE OF THE AUSTRALIAN LEGISLATION: CONSTITUTIONAL AND PUBLIC
POLICY ASPECTS
In the section that follows, the article offers some observations regarding: (i) the extent to which
aspects of the old and new Australian legislation might be challenged on constitutional grounds; and
(ii) the extent to which the new law might be an improvement on the old Act. It is trite to observe that
these two issues are completely separate; of course, the fact that the old Act does not reflect best
practice is irrelevant to the question of whether it is constitutionally valid. It is also noted that
decisions and actions are and have been subject to judicial review.
116
There is no suggestion that the
old Act seeks to preclude this from occurring, and as indicated above, it would be otiose for
Parliament to attempt to do so in any event.
The first issue is the head of power that could be argued to support both the old and new
legislation. Presumably, the main head of power upon which the Commonwealth would rely would be
the quarantine power in s 51(ix), though other possibilities present themselves.
117
It also seems likely
that the High Court would find that at least most provisions in the old and new legislation are
sufficiently connected with respect to the quarantine power in s 51(ix). But there are aspects of the old
and new legislation that seemingly provide broader powers. First, s 12A of the old Act and s 446 of
the new law gives the Minister so-called emergency powers to take whatever measures they think are
desirable or necessary to deal with the risk posed by an infectious disease. The broad, apparently
almost
118
limitless, nature of this power is concerning. However, the provision is not insufficiently
connected with the quarantine head of power so as to bring its constitutionality under question as a
111
Model State Emergency Health Powers Act, § 605(b)(5).
112
Model State Emergency Health Powers Act, § 605(b)(5)(i).
113
Model State Emergency Health Powers Act, § 605(b)(6)(c)(1).
114
Model State Emergency Health Powers Act, § 605(c)(3)(e)(1).
115
Most notably, the Public Health and Wellbeing Act 2008 (Vic), s 9 (expressing principles of proportionality and non-arbitrary
exercise of powers), s 112 (reflecting the least invasive principle), s 117 (setting out detailed criteria for the making of a
detention order), s 118 (limiting the period of detention), s 121 and s 122 (express provision for review of decisions and in a
timely manner); see also the Public Health Act 2005 (Qld), s 129 detention order made by a court, and the South Australian
Public Health Act 2011 (SA), s 7 principle of proportionality, s 13 non-discrimination principle and ss 77-78 court involvement
in detention orders.
116
Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368; Serana (WA) Pty Ltd v
Mignaccu-Randazzo SM [2014] FCA 120.
117
For instance, Australian Constitution, s 51(xxix) external affairs, s 51(vi) defence, s 51(i) overseas and interstate trade and
commerce, and s 51(xx) corporations.
118
Clauses 447 and 448 of the Biosecurity Bill 2014 (Cth) impose some restrictions that do not have equivalents in the old
legislation.
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law with no supporting head of power. While the court often tolerates very broad discretions being
given to Ministers, specific action taken by the Minister may be subject to challenge if no clear
connection between it and quarantine is evident.
Another possible concern in relation to a head of power argument relates to who and what are
subject to biosecurity measures. Clearly in this space the link between quarantine and the detention
must be clear. There is some concern with the old Act on this. Section 18 sets out persons and goods
subject to quarantine. It includes in s 18(1)(f) “every person who is ordered into quarantine by a
quarantine officer”. This seems to suggest that literally any person can be ordered into quarantine,
raising the unwelcome spectre of arbitrariness. This impression is also gained by a reading of s 35 of
the old Act, which apparently also deals with who and what can be ordered into quarantine. It includes
a person who, in the opinion of the quarantine officer, is likely to be infected with a quarantinable
disease or a source of infection with a quarantinable disease. It might be argued that a power to be
exercised by a quarantine officer to detain a person who in their (subjective, perhaps uninformed) view
is suffering a quarantinable disease or source of infection is such a broad power as not to be
sufficiently connected with the quarantine head of power, although it is true that the court has not
insisted on a particularly strong connection between the head of power and the legislation. This might
also raise arguments on administrative law grounds, as discussed below.
These concerns exist to a lesser extent in the new law. Clause 60 authorises a biosecurity officer to
make a control order if they are satisfied the person has at least one symptom of a listed human
disease or has come into contact with someone who does. With respect, this power is very broad. It is
not conditioned upon the satisfaction being reasonable. The control order can have serious
consequences for the individual concerned, including isolation. While this is of some concern, again it
is unlikely to lead to unconstitutionality, for the reasons expressed above.
The final concern regarding head of power is the fact that detention for the purposes of
biosecurity is apparently not limited in duration. No provision in the old Act specifically entitled a
person to be released once it has been determined that they do not have an infectious disease or do not
pose a risk of transmitting an infectious disease. The Act did not require that suspicions regarding a
person’s infection status be determined as soon as is practically possible. It is surely arguable, in
relation to the head of power, that detention of a person under the quarantine legislation after a time at
which it has been determined that they are not carrying an infectious disease and/or are not at risk of
transmitting an infectious disease to others would no longer be supported by the s 51(ix) head of
power or the others mentioned above, and so would be constitutionally invalid and the writ of habeas
corpus open. The spectre of arbitrariness is again raised. The new law is an improvement in this
regard, with cl 61(1)(h) requiring that a biosecurity control order, including isolation, be for a
maximum three-month period. Further, cl 34(2)(d) and (e) condition the power, and the manner in
which it is exercised, on the requirement that it be no more restrictive or intrusive than is necessary in
the circumstances.
Regarding the Ch III issue, it is practically impossible to argue that executive detention for the
purposes of quarantine or biosecurity is constitutionally impermissible, given that members of the
court in Lim and elsewhere have expressly acknowledged its validity. However, it is in sharp contrast
to the American Model Act, and some of the legislation in Australian States, where a court must be
involved in the decision to detain involuntarily. Grudgingly accepting its constitutional validity in
Australia, it remains clear that it impinges on one of the most fundamental human rights, that of
liberty, and so such power must be strictly circumscribed. It is also noteworthy that detention for this
purpose would be truly involuntary, in contrast to schemes considered in other cases. One of the
reasons given in those cases for validating executive detention regimes was that it was not truly
involuntary detention because the person detained could in that context volunteer to be removed from
the country. This “escape mechanism” is not applicable in the current context.
If the admittedly contentious notion of purpose is used in assessing whether the measure is
consistent with Ch III, it might be argued that while detention for a short time to determine whether a
person is in fact suffering from an infectious disease or is at risk of transmitting one can be shown to
be for a legitimate, non-punitive purpose, this has limits. If detention went on for a period beyond
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(2015) 22 JLM 788804
what was considered reasonably necessary to determine a person’s infectious status, to treat them or to
ensure they were not a risk to others, it seems some judges would be prepared to find that the
detention was punitive in nature. In turn, this would raise Ch III difficulties, given the power had been
exercised by a member of the Executive. It is not entirely clear where the boundary marker is between
the period of detention that would be considered non-punitive and acceptable constitutionally and
where it would be considered to be punitive and unacceptable. However, the quarantine surveillance
periods set out in the Quarantine Regulations 2000
119
may provide some guidance as to the outer
limits of detention that might be acceptable, as might relevant international standards.
Regarding administrative law arguments, the High Court has expressed concern with provisions
that purport to deny a court the ability to review the legality of an action by a member of the
Executive. In the context of privative clauses in both federal and State laws purporting to remove
judicial review by federal and State courts respectively, the High Court has found invalidity on the
basis that such legislative attempts to remove the courts’ ability to review executive actions for
jurisdictional error are contrary to the requirements of Ch III.
120
In Kirk v Industrial Court (NSW), the
High Court said that if States were to remove from the State Supreme Court the power to review a
decision of, for example, the State Industrial Court, it would “create islands of power immune from
supervision and restraint” and remove an essential, defining characteristic of a Ch III court.
121
In view of the extremely open-ended power given to quarantine officers under the old Act to, in
effect, detain whomever they please, without the need to show a reasonable belief that the person is
suffering from a quarantinable disease, has come into contact with someone who has, or is otherwise
infectious, it could be argued that the court has effectively no role in “supervising and restraining” the
exercise of such a power. There are no limits to the power: quarantine officers themselves are the
determinants of the bounds of their own power. A comment made in the unanimous decision in
Plaintiff M61/2010E v Commonwealth is relevant. There the court, in dismissing a challenge, said “the
repository of the power given by s 46A does not determine the limits of the power”.
122
Under the old
Act, it could be viewed the repository of the power does in effect determine its limits, given that the
enlivenment of their power is conditioned solely on their personal opinion, which does not need to be
shown to be reasonable and/or supported by appropriate expert opinion.
123
The new law is an improvement here, but is by no means perfect. Under cl 60, a biodiversity
officer can make a control order, which has serious consequences for the person involved, based on
their opinion that a person is suffering one symptom of a listed human disease. While this subjective
assessment can be reviewed by the Director, the review only occurs if the Director is “reasonably
satisfied” the individual does not consent to the biodiversity officer’s direction. In many cases, a
person subject to such an order may not realise they do not have to consent. Thus, in practice, key
aspects of the new legislation may continue to operate on the subjective view of one officer.
Some support for this argument can be garnered from the joint reasons in Plaintiff S157/2002 v
Commonwealth.
124
The context there involved invalidating a privative clause purporting to remove the
ability of a court to review particular decisions. The joint reasons noted that “parliament cannot confer
on a non-judicial body the power to conclusively determine the limits of its own jurisdiction”.
125
The
following passage then appears:
119
See Quarantine Regulations 2000 (Cth), reg 42.
120
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
121
Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 581 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
122
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 347 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel
and Bell JJ).
123
Bateman, n 72 at 504 makes a similar point: “a statute which confers a power which is not conditioned by sufficient
jurisdictional limitations will authorise the arbitrary exercise of power and will thus undermine a primary function of the
entrenched jurisdiction to review for jurisdictional error and is invalid.”
124
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
125
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 512 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
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(t)he Commonwealth suggested that the Parliament might validly delegate to the Minister the power to
exercise a totally open-ended discretion as to what aliens can and what aliens cannot come to and stay
in Australia, subject only to this Court deciding any dispute as to the “constitutional fact” of alien
status. Alternatively, it was put that the Act might validly be redrawn to say, in effect, “there are some
non-binding guidelines which should be applied”, with the guidelines being the balance of the statute.
Other variations were canvassed. The inclusion in the Act of such provisions to the effect that,
notwithstanding anything contained in the specific provisions of that statute, the Minister was
empowered to make any decision respecting visas, provided it was with respect to aliens, might well be
ineffective.
126
The joint reasons explained that although wide delegations of power are acceptable, there are
limits. They then referred to comments of Latham CJ in Commonwealth v Grunseit
127
to the effect that
“legislation determines the content of a law as a rule of conduct or a declaration as to power, right or
duty”. The joint reasons seem to be suggesting that a delegation of power that is without limit may not
be a law because it does not have sufficient content.
128
This interpretation is made because after citing
the comment of Latham CJ above, they conclude that the provisions canvassed by the Commonwealth
would “lack the hallmark of legislative power identified by Latham CJ”.
129
Some acknowledgment that unfettered executive discretion might effectively preclude judicial
review appears in the judgment of Lord Wilberforce in Secretary of State for Education and Science v
Tameside Metropolitan Borough Council.
130
Speaking of a power conditioned upon the satisfaction of
a Minister as to a certain state of affairs,
131
Lord Wilberforce acknowledged that “at first sight” such a
clause might seem to exclude judicial review. He said such clauses may in fact preclude judicial
review on “what is or what has become a matter of pure judgment”. However, he sought to distinguish
this from other matters where the exercise of discretion is conditioned on the existence of some facts.
He said in such cases judicial review was more readily applicable; the court could inquire as to
whether those facts existed and had been taken into account, and whether the decision-maker’s
judgment was based on a proper self-direction as to those facts and not based on irrelevant grounds.
To the extent that the above passage reflects Australian law, it is interesting to apply it to the
decision-maker’s power in the quarantine case. On the continuum which Lord Wilberforce drew, with
pure judgment at one end, and exercise of discretion based on the existence of facts at the other, the
quarantine officer’s powers in s 18 and s 35 of the old Act, and the biosecurity officer’s powers in
cl 60 of the new law, seem to be close to the “pure judgment” end. The quarantine officer need not be
satisfied of any “facts” in the true sense of the word; they must simply believe that the person to be
detained is infectious or has a symptom. This cannot reasonably be considered to be a “fact”; logically,
a belief is distinct from a fact. It is submitted that Lord Wilberforce’s judgment tends to suggest the
effective unreviewability of the quarantine officer’s decisions under s 18 and s 35 of the old Act. And
as already mentioned, the High Court will not (constitutionally) accept that executive decisions are
unreviewable by a court.
However, members of the High Court have indicated that even where broad discretionary power
has been reposed in a member of the Executive, conditioned on nothing more than subjective opinion,
judicial review is still possible. In an early case, Latham CJ stated the fact that discretion was cast in
broad terms did not prevent judicial review, for instance, if the decision-maker “misunderstood” the
nature of the opinion they were required to form, or whether they really had formed the required
opinion, or whether it was tainted by irrelevant considerations or through a misconstruction of the
126
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 512.
127
Commonwealth v Grunseit (1943) 67 CLR 58 at 82 (Latham CJ).
128
McDonald, n 72 at 19-20.
129
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513.
130
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014.
131
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1047; this
passage was referred to with evident approval by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v
SZMDS (2010) 240 CLR 612 at 620.
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(2015) 22 JLM 788806
relevant legislation.
132
He also suggested that if the decision-maker’s opinion was shown to be
“arbitrary, capricious or irrational” or lacking in bona fides, the relevant opinion would not be
considered by a court to have been formed.
133
Subsequently, it was held that such a discretion may be
constained by the context, scope and purpose of the Act.
134
In Minister for Immigration and
Citizenship v SZMDS,
135
Gummow ACJ and Kiefel J considered a Canadian precedent focusing on a
decision made contrary to the overwhelming weight of evidence or upon the drawing of inferences not
properly open. They then concluded:
A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise
jurisdiction. There has been a purported exercise of public power in the absence of the necessary
jurisdictional fact.
136
It is possible to deduce from these words that the High Court might view a decision of a
quarantine officer that a person ought be detained under the legislation as challengeable if there was
evidence that the decision was an unreasonable one, not based on evidence.
137
However, the use by
the High Court of the phrase “jurisdictional fact” in the above extract poses difficulties. It is
linguistically challenging to argue that the forming of an opinion is a “jurisdictional fact”.
There are obvious implications for the rule of law of executive discretion that is so wide that
questions are raised as to whether it is effectively reviewable by a court, which raises questions as to
the true status of the rule of law in Australian constitutional law.
138
Lord Bingham noted the potential
for open-ended discretion to threaten the rule of law,
139
and insisted that the rule of law envisaged that
members of the Executive would exercise powers conferred upon them reasonably, in good faith, and
for the purposes for which they were conferred.
140
It is beyond the scope of this article to consider that
question in detail.
132
The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432; Re Patterson; Ex Parte Taylor
(2001) 207 CLR 391 at 419-420 (Gaudron J), 453-455 (Gummow and Hayne JJ).
133
The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432.
134
The Queen v Australian Broadcasting Tribunal; Ex Parte 2HD Pty Ltd (1979) 144 CLR 45 at 50 (Stephen, Mason, Murphy,
Aickin and Wilson JJ)
135
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
136
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 621.
137
See also Enfield City Corp v Development Assessment Commission (1999) 198 CLR 135 at 150 where Gleeson CJ,
Gummow, Kirby and Hayne JJ opined in dicta that where a decision-maker’s jurisdiction was conditioned on their satisfaction
of a particular state of affairs, the existence of the opinion or satisfaction would have to be shown to be a reasonable one
(Gaudron J agreed at 158); Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 558
(Gummow, Hayne, Heydon and Kiefel JJ).
138
Referring to Australian constitutional arrangements, Dixon J famously noted that, “it is government under the Constitution
and that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as for
example, in separating the judicial power from other functions of government, others of which are simply assumed. Among those
I think that it may fairly be said that the rule of law forms an assumption”: Australian Communist Party v Commonwealth
(1951) 83 CLR 1 at 193; in Kartinyeri v Commonwealth (1998) 195 CLR 337 at 381, Gummow and Hayne JJ noted the
occasion was “yet to arise” for all that may follow from this comment of Dixon J; the relevance of the rule of law to the
Australian Constitution was also noted in APLA Ltd v Legal Services Commissioner (2005) 224 CLR 322 at 351 (Gleeson CJ
and Heydon J), 441 (Kirby J); South Australia v Totani (2010) 242 CLR 1 at 42 (French CJ), 62 (Gummow J), 155 (Crennan
and Bell JJ); McDonald, n 72; Beaton-Wells C, “Restoring the Rule of Law – Plaintiff S157/2002 v Commonwealth” (2003) 10
AJ Admin L 125; Spencer T, “An Australian Rule of Law” (2014) 21 AJ Admin L 98.
139
Lord Bingham, “The Rule of Law” (2007) 66 CLJ 67 at 72: “the broader and more loosely-textured a discretion is, whether
conferred on an official or a judge, the greater the scope for subjectivity and hence arbitrariness, which is the antithesis of the
rule of law … discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification.”
140
Bingham, n 139 at 78, stating that the core of the rule of law was that “ministers and public officers at all levels must exercise
the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred”; this is similar,
but not identical to, grounds for review in the Administrative Decisions (Judicial Review) Act 1977 (Cth), for example, s 5(1)(e)
ground of review relating to improper purpose, defined in s 5(2) to include exercise of power for purposes other than those for
which the power was conferred (s 5(2)(c)), bad faith (s 5(2)(d), and a decision that was so unreasonable that no reasonable
decision-maker could have made it (s 5(2)(g)); obviously this final ground of review is narrower than a requirement that a
decision be reasonable, which Lord Hoffmann stated to be one of the requirements of the rule of law.
The Australian quarantine and biosecurity legislation: Constitutionality and critique
(2015) 22 JLM 788 807
Realistically, it is expected that rather than declare the relevant sections of the new Australian law
invalid because they are too broad, the High Court is likely to read in the kinds of limitations
discussed above; for instance, that the power must be exercised consistently with the purpose of the
law, must be reasonably open on the evidence, must not be arbitrary or capricious etc, and decisions
must be subject to review under the normal grounds in s 5 of the Administrative Decisions (Judicial
Review) Act 1977 (Cth), together with the principle of legality. However, a bold court might find that
such an overbroad discretion is not really a law along the lines of the judgment of Latham CJ in
Grunseit, is invalid because it is a non-fact-based judgment and so effectively unreviewable as per
Lord Wilberforce’s comments and/or is contrary to the rule of law. Recent constitutional law reflects a
division between those judges prepared to construe legislation narrowly so that it is constitutional,
141
and judges who believe it is not possible to do so and the law is invalid.
142
In this case, the former
scenario is more probable.
PUBLIC POLICY AND LAW REFORM
Some brief comments may now be made as to the extent to which the new law is a policy
improvement on the old Act. Further, comparisons with the American Model Act, as well as aspects of
State regimes around Australia, are also a source of learning.
In principle, any demonstration of sensitivity towards the impact of the exercise of powers such as
these on the human rights of those affected is very welcome. In that light, cl 34(2) and (3) of the new
law, requiring that the power or measure, and the manner in which it is to be exercised or imposed, is
to be no more restrictive or intrusive than is required in the circumstances, is a very positive law
reform. These provisions accord with the express acknowledgment that involuntary detention must be
the least invasive means of responding to a public health emergency in the Model Act and (to some
extent) the Victorian legislation.
143
These provisions are appropriately sensitive to the fundamental
nature of the right to liberty and the gravity of powers that would interfere with it.
Secondly, the fact that the Model Act specifically provides that as soon as the person detained
ceases to be a threat to public health must be released, is welcome and desirable, again reflecting
appropriate sensitivity to the impact on human rights of deprivation of a person’s liberty for any
length of time. Also welcome in this light is concern with the welfare of those detained, evidenced by
express reference to minimum standards of hygiene and care for those detained and appropriate
cultural and religious sensitivity where relevant. Such concern is virtually non-existent in the old
Commonwealth Act, and spasmodic in the various Australian State legislation and new Common-
wealth law.
The Model Act, and the Queensland
144
legislation, provides for the involvement of a court in
determining the involuntary detention of an individual, rather than (or in addition to)
145
by a member
of the Executive. This is considered to be a major improvement on the old and new Commonwealth
legislation where executive detention without express provision for judicial review or oversight is
contemplated.
146
The Model Act provides for a maximum period of detention of 30 days, similar to
141
Tajjour v New South Wales (2014) 88 ALJR 860 at 899 (Gageler J) (dissenting in the result); Gypsy Jokers Motorcycle Club
Inc v Commissioner of Police (2008) 234 CLR 532 at 561 (Gummow, Hayne, Heydon and Kiefel JJ).
142
Tajjour v New South Wales (2014) 88 ALJR 860 at 879-880 (French CJ, who believed it was not consistent with the text of
the Act to read it down in the suggested manner) (dissenting in the result); Gypsy Jokers Motorcycle Club Inc v Commissioner
of Police (2008) 234 CLR 532 at 572 (Kirby J).
143
Section 112 of the Public Health and Wellbeing Act 2008 (Vic) reflects a general sentiment that in choosing between equally
effective public health responses, the one least invasive of human rights should be chosen; see also Public Health Act 1997
(ACT), s 113(e).
144
Public Health Act 2005 (Qld), s 129.
145
Public Health Act 2005 (Qld), s 113 contemplates detention by the Executive.
146
McSherry, n 4 at 278.
Gray
(2015) 22 JLM 788808
the South Australian provision,
147
again a very desirable limit. The old Commonwealth position
contains no maximum time period, and the new law permits a control order, which can include
isolation of up to three months.
148
The Model Act also provides for very timely hearing of habeas
corpus applications; there is no equivalent in the old Commonwealth Act; there are some in the new
law.
149
Provision for publicly funded legal representation for those who are or may be detained in the
Model Act is also welcome. Express provision for timely review of public health orders by an
administrative officer
150
and/or a court,
151
as provided in Victorian legislation, is welcome.
A particularly laudable aspect of the Victorian legislation is the provision setting out the power of
the Chief Health Officer to make a public health order.
152
It requires that Officer to have regard to
several explicit factors in determining whether or not to make the order.
153
If an order is to be made,
it must be in writing, specify the disease which the person affected is believed to have, why it is
considered that the person has the disease or been exposed to it, specifying the period during which
the order has effect, explain the person’s right to seek review of the decision, and a suggestion that
they obtain legal advice. Clause 61 of the new Commonwealth law adopts a similar approach.
The contrast with the old Commonwealth Act is striking. The Act gives a quarantine officer power
to order a person to be quarantined based merely on a reasonable suspicion that the person is infected
with a quarantinable disease.
154
The Act does not contain further guidance to the officer or the public
in terms of the kinds of factors to which the decision-maker is to have regard in determining whether
they have a “reasonable suspicion”. It entitles them, but does not require them, to obtain expert
medical opinion prior to doing so.
155
The legislation does not provide for written notice of the
quarantine to be given to the person concerned, much less detail regarding the disease they are
believed to have or why the officer believes they have been infected with it.
156
The legislation does
not explain any right of the individual to review the quarantine decision, beyond contemplating that
the person has a right to have an independent medical assessment carried out (though the quarantine
officer is generally not required to inform the person of this right)
157
or to obtain legal advice. As
discussed above, the legislation does not require the quarantine officer to indicate to the person
detained the time duration of the detention.
It is also suggested that legislation in this area take explicit account of natural justice principles.
These principles probably apply anyway, in the absence of clear legislative intention to exclude
147
South Australian Public Health Act 2011 (SA), s 77; an extension beyond this period must be expeditiously reviewed by a
court; the maximum period of executive detention for public health reasons in Queensland is 24 hours (Public Health Act 2005
(Qld), s 115) (detention beyond this period would need to be ordered by a court under s 129); the maximum period of executive
detention for public health reasons in Tasmania is 24 hours (48 hours if the person is being medically examined) (detention
beyond this period (up to six months) must be ordered by a court (Public Health Act 1997 (Tas), ss 42, 44); the maximum
period in Victoria is six months (Public Health and Wellbeing Act 2008 (Vic), s 117). It is not time limited in New South Wales;
the only reference to time in the Australian Capital Territory sections is a requirement that the Executive who has authorised
detention review it within 48 hours (Public Health Act 1997 (ACT), ss 113, 115). In the Northern Territory, detention can be
authorised by police for up to 48 hours and by a public health officer beyond that period (where contamination relates to
terrorism (Terrorism (Emergency Powers) Act 2003 (NT), ss 24, 25 respectively).
148
An executive quarantine power is not constrained in terms of time periods in the Health Act 1911 (WA), s 251.
149
For example, Biosecurity Bill 2014 (Cth), cl 78 with respect to Administrative Appeals Tribunal appeals.
150
Public Health and Wellbeing Act 2008 (Vic), s 121.
151
Public Health and Wellbeing Act 2008 (Vic), s 122; South Australian Public Health Act 2011 (SA), s 78.
152
Public Health and Wellbeing Act 2008 (Vic), s 117; South Australian Public Health Act 2011 (SA), s 77.
153
Public Health and Wellbeing Act 2008 (Vic), s 117(2).
154
Quarantine Act 1908 (Cth), s 18(1)(ba).
155
In contrast, s 5 of the Public Health and Wellbeing Act 2008 (Vic) exhorts an evidence-based approach to decision-making
under the Act.
156
The person affected would have a right to reasons pursuant to s 13 of the Administrative Decisions (Judicial Review) Act
1977 (Cth).
157
Unless the circumstances in s 35(1A) of the Quarantine Act 1908 (Cth) exist.
The Australian quarantine and biosecurity legislation: Constitutionality and critique
(2015) 22 JLM 788 809
them
158
given the relevant powers are applied against individuals
159
and have serious implications for
the person’s rights. At least in most cases, it is suggested that prior to any action being taken against
an individual, the individual should have the right to be informed of any specific allegations against
them or reasons why it is proposed to place them in quarantine, and to give them an opportunity to
refute the allegations or reasons. It is understood that in some emergency cases, this may not be
feasible in the quarantine context,
160
but it is suggested that the Act should reflect appropriate
sensitivity to procedural fairness. Kiefel J (while a member of the Federal Court) expressed concern
that procedural fairness should be accorded to those liable to be affected by decisions made under the
quarantine legislation and noted that the quarantine officer in that particular case could have afforded
an affected individual the opportunity to make arguments against a proposed quarantine order.
161
Notably, the new law does not expressly provide for natural justice.
CONCLUSION
This article has considered constitutional question marks surrounding the old and new quarantine and
biosecurity legislation in Australia. While courts have validated the limited use of executive detention
regimes in the past, they have been alive to human rights concerns with, and possible abuse of, such a
power. In this light, there is concern with the broad power in both the old and new legislation
conferred upon quarantine officials to order detention, the lack of involvement by a court in such a
process in both the old and new legislation, and the lack of express time limits for detention in the old
Act. These raise constitutional issues such as whether the Commonwealth legislation is supported by
the quarantine head of power, and whether the detention it authorises is a breach of the requirements
of Ch III of the Australian Constitution. Broad, unfettered administrative discretion is also of concern
to administrative lawyers. It has been concluded that while there are some constitutional and
administrative law concerns with the legislation, the court is likely to respond to these concerns by
narrowly reading the legislation and by imposing limits of reasonableness, proper purpose and good
faith to ensure compliance with the rule of law.
The new law is a vast improvement over the old Act. In particular, it shows greater sensitivity
towards the human rights of those affected by the exercise of powers under it than the old Act. There
is concern with a lack of judicial involvement in the decision to detain an individual, and the fact that
many individuals subject to a control order may not understand their right to refuse consent to it, and
the lack of express natural justice rights. However, the new law permits internal review of a decision
regarding a control order and provides for greater express judicial review of decisions made under the
law.
158
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 352 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel
and Bell JJ); Annetts v McCann (1990) 170 CLR 596 at 598 (Mason CJ, Deane and McHugh JJ); Saeed v Minister for
Immigration and Citizenship (2010) 241 CLR 252 at 258-259 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Kioa v
West (1985) 159 CLR 550 at 584 (Mason J); Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at 56-57
(Gleeson CJ).
159
Kioa v West (1985) 159 CLR 550 at 619-620 (Brennan J). Brennan J said it would be an “exceptional case” where powers
had been given to a decision-maker in their absolute discretion without the need to take account of individual interests via a
hearing (at 620-621).
160
Pacific Century Production Pty Ltd v Watson [2001] FCA 1139 at [36] (Kiefel J) (appeal to the Full Federal Court
dismissed); Pacific Century Production Pty Ltd v Watson (2001) 113 FCR 466 at 475 (Whitlam J), 476-477 (Dowsett J), 478
(Stone J). Members of the High Court have indicated that requirements of natural justice could be dispensed with where
otherwise the purpose of giving the power to the decision-maker would be defeated: Kioa v West (1985) 159 CLR 550 at 586
(Mason J), 615 (Brennan J), or in cases of “practical necessity” (Deane J at 633); principles of natural justice were held not to
be applicable in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; Groves M, “Exclusion of
the Rules of Natural Justice” (2013) 39(2) Mon LR 285.
161
Pacific Century Production Pty Ltd v Watson [2001] FCA 1139 at [32]-[35] (Kiefel J) (appeal to the Full Federal Court
dismissed).
Gray
(2015) 22 JLM 788810
  • Ex parte Hetton Bellbird Collieries Ltd
    • Connell King
    King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432.
  • Restoring the Rule of Law – Plaintiff S157
    • N Mcdonald
    McDonald, n 72; Beaton-Wells C, " Restoring the Rule of Law – Plaintiff S157/2002 v Commonwealth " (2003) 10
  • 159 CLR 550 at 619-620 (Brennan J) Brennan J said it would be an " exceptional case " where powers had been given to a decision-maker in their absolute discretion without the need to take account of individual interests via a hearing
    • West Kioa
    Kioa v West (1985) 159 CLR 550 at 619-620 (Brennan J). Brennan J said it would be an " exceptional case " where powers had been given to a decision-maker in their absolute discretion without the need to take account of individual interests via a hearing (at 620-621).
  • 88 ALJR 860 at 899 (Gageler J) (dissenting in the result); Gypsy Jokers Motorcycle Club Inc v Commissioner of Police
    • Tajjour V New South
    • Wales
    Tajjour v New South Wales (2014) 88 ALJR 860 at 899 (Gageler J) (dissenting in the result); Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 561 (Gummow, Hayne, Heydon and Kiefel JJ).
    • Taylor Ex Parte
    Ex Parte Taylor (2001) 207 CLR 391 at 419-420 (Gaudron J), 453-455 (Gummow and Hayne JJ).
    • South Australia V Totani
    South Australia v Totani (2010) 242 CLR 1 at 42 (French CJ), 62 (Gummow J), 155 (Crennan and Bell JJ);
  • An Australian Rule of Law
    • T Spencer
    Spencer T, "An Australian Rule of Law" (2014) 21 AJ Admin L 98.
  • CLR 550 at 619-620 (Brennan J). Brennan J said it would be an
    • West Kioa V
    Kioa v West (1985) 159 CLR 550 at 619-620 (Brennan J). Brennan J said it would be an "exceptional case" where powers
  • Exclusion of the Rules of Natural Justice
    • M Groves
    Groves M, "Exclusion of the Rules of Natural Justice" (2013) 39(2) Mon LR 285.
  • Article
    This article analyses and considers the implications of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, handed down on 4 February 2003. In its decision the Court upheld the constitutional validity of amendments made to the Migration Act 1958 (Cth) in late 2001, the objective of which was to reduce, as far as is legally possible, the scope for judicial supervision of decisions under the Act. While concluding that the amendments are valid, the Court nevertheless construed them in a manner that has the potential to undermine seriously the achievement of that objective.