COVID Travel Bans, Citizenship and the Constitution: Do Australian Citizens Have a Constitutional Right of Abode?

AuthorPriam Rangiah
Published date01 December 2022
Date01 December 2022
Subject MatterARTICLES
Federal Law Review
2022, Vol. 50(4) 558580
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/0067205X221107456‌lr
COVID Travel Bans, Citizenship and
the Constitution: Do Australian
Citizens Have a Constitutional Right
of Abode?
Priam Rangiah*
The words the peopleof the States and of the Commonwealth appear throughout the Con-
stitution, yet they have received little judicial attention. It remains unclear who constitutes the
peopleand what rights or freedoms membership of the peopleentails. This essay explores these
uncertainties, suggesting that the peoplehave an implied constitutional freedom to enter and
remain in Australia without licence from the executive. Recognition of such an implied consti-
tutional freedom would have important implications in the COVID-19 era for the validity of travel
bans and restrictions, which exclude citizens from entering Australia on public health grounds.
Received 7 April 2021
In April 2021, the Australian Government banned travel from India to Australia due to concerns
about the spread of COVID-19.
The ban left some 9000 Australian citizens stranded in India,
sparking widespread public outrage and debate.
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.
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
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
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 ustralia-india-cov id-travel-ban/>;
Michelle Grattan, Hum an Rights Commission Expr esses Deep Concernsat Ban on Returnees from India,The
Conversation(online), 3 May 2021<htt ps://theconversati ts-commission-expr esses-deep-concern s-
at-ban-on-returnee s-from-india-16016 6>; Paul Karp, Austra lias India Travel Ban: Does the Healt h Justif‌ication Stack
up and is the Move Legal?Th e Guardian (online),3 May 2019 <https:/ / alia-news/2021/
may/03/australias- india-travel-ban -does-the-health-j ustif‌ication-stack- up-and-is-the-mov e-legal>.
3. Newman v Minister for Health and Aged Care [2021]FCA 517 (Newman).
dismissed the administrative law aspects of Newmans challenge in expedited proceedings, the ban
was lifted before this important constitutional question could be answered.
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.
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.
the common law right to enter Australia may be abrogated by Parliament with clear legislative
That is precisely what happened in Newmans 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.
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),
a case concerning the validity of
legislation imposing a fee for immigration clearancein 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 clearancefrom the executive.
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
and Nettle J in Love v Commonwealth (Love).
Similarly, in Love, Edelman J
commented that citizens, as members of the Australian political community, have an absolute and
unqualif‌ied rightnot to be deported or denied re-entry to Australia.
Edelman J did not articulate
the source of this absolute and unqualif‌iedright, 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 Australias India Travel Ban Legal? A Citizenship
Law Expert Explains,The Conversation (online), 4 May 2021 <
5. Newman (n 3) [69][76];Re Canavan (2017) 263 CLR 284, 328; Minister for Immigration, Multicultural Affairs and
Citizenship v SZRHU (2013)215 FCR 35, [101][117].
6. Potter v Minahan (1908)7 CLR 277, 289 (Griff‌iths CJ). See also 2934 (Barton J), 3045(OConnor 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, 3878 [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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