COVID Travel Bans, Citizenship and the Constitution: Do Australian Citizens Have a Constitutional Right of Abode?
| Author | Priam Rangiah |
| DOI | http://doi.org/10.1177/0067205X221107456 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | ARTICLES |
Article
Federal Law Review
2022, Vol. 50(4) 558–580
© The Author(s) 2022
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DOI: 10.1177/0067205X221107456
journals.sagepub.com/home/flr
the Constitution: Do Australian
Citizens Have a Constitutional Right
of Abode?
Priam Rangiah*
Abstract
The words ‘the people’of the States and of the Commonwealth appear throughout the Con-
stitution, yet they have received little judicial attention. It remains unclear who constitutes ‘the
people’and what rights or freedoms membership of ‘the people’entails. This essay explores these
uncertainties, suggesting that ‘the people’have an implied constitutional freedom to enter and
remain in Australia without licence from the executive. Recognition of such an implied consti-
bans and restrictions, which exclude citizens from entering Australia on public health grounds.
Received 7 April 2021
Introduction
In April 2021, the Australian Government banned travel from India to Australia due to concerns
1
The ban left some 9000 Australian citizens stranded in India,
sparking widespread public outrage and debate.
2
One of the stranded Australian citizens, 73-year-
old Melbourne man, Gary Newman, brought proceedings in the Federal Court of Australia
challenging the ban on both administrative and constitutional grounds, including on the basis that
the ban infringed an implied constitutional right of citizens to enter Australia.
3
While Federal Court
*BA/LLB (Hons I) (University of Queensland). I am grateful to Dr Rebecca Ananian-Welsh for her invaluable feedback on
multiple drafts of this article, as well as her support and advice in the publication process. All opinions expressed in this
article are my own. The author may be contacted at pirangiah@gmail.com.
1. Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (EmergencyRequirements
—High Risk Country Travel Pause) Determination 2021 (Cth), made pursuant to s 477(1) of the Biosecurity Act 2015
(Cth).
2. See, eg, Amy Gunia, ‘Afte r Australia Banned its C itizens in India from Com ing Home, Many Ask: Who is R eally
Australian?’Time Magazine (online), 19 May 2021 <https://t ime.com/6047130/a ustralia-india-cov id-travel-ban/>;
Michelle Grattan, ‘Hum an Rights Commission Expr esses ‘Deep Concerns’at Ban on Returnees from India’,The
Conversation(online), 3 May 2021<htt ps://theconversati on.com/human-righ ts-commission-expr esses-deep-concern s-
at-ban-on-returnee s-from-india-16016 6>; Paul Karp, ‘Austra lia’s India Travel Ban: Does the Healt h Justification Stack
up and is the Move Legal?’Th e Guardian (online),3 May 2019 <https:/ /www.theguardian.com/austr alia-news/2021/
may/03/australias- india-travel-ban -does-the-health-j ustification-stack- up-and-is-the-mov e-legal>.
dismissed the administrative law aspects of Newman’s challenge in expedited proceedings, the ban
was lifted before this important constitutional question could be answered.
4
This article explores the
unanswered question of whether Australian citizens have an implied constitutional right or freedom
to enter Australia, highlighting the uncertainty and scope for further litigation in this area.
It is now uncontroversial that citizens have a common law right to enter Australia.
5
That right was
first recognised by the High Court in Potter v Minahan (‘Potter’), where Griffiths CJ recogni sed that
every human being is born ‘a member of some community, and is entitled to regard that part of the
earth occupied by that community as a place to which he may resort when he thinks fit’.
6
Critically,
the common law right to enter Australia may be abrogated by Parliament with clear legislative
intent.
7
That is precisely what happened in Newman’s case, where Thawley J held that the India
travel ban evinced a clear intention to limit the common law right of citizens to enter Australia.
8
There are, however, obiter dicta statements by the High Court which suggest that citizens might
also have a constitutional right to enter and remain in Australia, which is not subject to legislative
modification. The first such statement appears in the unanimous joint judgment of the High Court in
Air Caledonie International v Commonwealth (‘Air Caledonie’),
9
a case concerning the validity of
legislation imposing a ‘fee for immigration clearance’in respect passengers arriving in Australia on
international flights. The fee was payable whether or not the passengers were Australian citizens. In
determining that the law was prohibited by s 55 of the Constitution, the High Court stated that ‘the
right of the Australian citizen to enter the country is not qualified by any law imposing a need to
obtain a licence or “clearance”from the executive’.
10
The Court did not explain the source of this right to enter the country. However, the passage
suggests that it cannot be limited or removed by Parliament, even by clear legislative intent. In this
way, the statement in Air Caledonie seems to go beyond a mere statement that citizens have a
common law right to enter Australia that is vulnerable to legislative modification. Rather, it suggests
the existence of an implied constitutional right of abode.
This statement in Air Caledonie has been quoted with approval by members of the High Court on
several occasion, including by Gummow, Hayne and Heydon JJ in Singh v Commonwealth
(‘Singh’)
11
and Nettle J in Love v Commonwealth (‘Love’).
12
Similarly, in Love, Edelman J
commented that citizens, as members of the Australian political community, have an ‘absolute and
unqualified right’not to be deported or denied re-entry to Australia.
13
Edelman J did not articulate
the source of this ‘absolute and unqualified’right, although his Honour cited United States a uthority,
which recognises a constitutional right of abode.
4. Ibid[4]. For a detailed analysis of the decision see, Sangeetha Pillai, ‘Is Australia’s India Travel Ban Legal? A Citizenship
Law Expert Explains’,The Conversation (online), 4 May 2021 <https://theconversation.com/is-australias-india-travel-
ban-legal-a-citizenship-law-expert-explains-160178>.
5. Newman (n 3) [69]–[76];Re Canavan (2017) 263 CLR 284, 328; Minister for Immigration, Multicultural Affairs and
6. Potter v Minahan (1908)7 CLR 277, 289 (Griffiths CJ). See also 293–4 (Barton J), 304–5(O’Connor J) (‘Potter’).
7. Ibid; Newman (n 3) [76].
8. Ibid [95]–[96].
9. Ibid 469 (emphasis added).
10. Air Caledonie (n 9) 469 (emphasis added).
11. Singh v Commonwealth (2004)222 CLR 322, 387–8 [166] (‘Singh’).
12. Love v Commonwealth (2020) 270 CLR 152, 254 [273] (‘Love’). See also Re Minister for Immigration and Multicultural
and Indigenous Affairs; Ex parte Ame (2005)222 CLR 439, 454 [22] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan
and Heydon JJ), 466 [61] (Kirby J) (‘Ame’).
13. Love (n 12) 309 [440], quoting United States v Valentine 288F Supp 957, 980 (1968).
Rangiah 559
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