Like other common law jurisdictions, perhaps even more so than most, Australian government responses to COVID-19 involved extraordinary and wide-ranging interferences with rights and freedoms.
Litigants often invoked the common law principle of legality when challenging COVID-19 restrictions. That is the presumption that fundamental common law rights, freedoms, immunities and principles should not be regarded as abrogated or curtailed without ‘irresistible clearness’. The principle is particularly significant in Australia, in the absence of a national bill of rights and only three jurisdictions – the Australian Capital Territory, Victoria and Queensland – having enacted one.
This blog post surveys the Australian jurisprudence arising from COVID-19 pandemic litigation. It identifies the key themes and challenges for the principle of legality from the litigation. Which rights and freedoms have been raised? How have the courts responded to principle of legality arguments? Can it still be said that proportionality considerations have no role to play under the principle in Australia, where emergency powers are granted to the executive for times of the unknown?
Common law rights and freedoms
The fundamental common law rights and freedoms which were raised and clearly interfered with in the COVID-19 pandemic litigation were:
- The right to freedom of movement, in challenges to ‘lockdown’ restrictions and so-called ‘vaccine mandates’: Kassam v Hazzard; Dunn v Director of Public Health. This common law right can be contrasted with the Australian Constitution (Constitution), which the High Court of Australia confirmed in pandemic litigation does not include an implied freedom of movement.
- The right of a citizen to depart from and re-enter Australia, regarding controversial Commonwealth border control measures: Newman v Minister for Health and Aged Care (the India ‘Travel Pause’ case) and LibertyWorks Inc v Commonwealth (the ‘Overseas Travel Ban’ case). Neither of those cases confirmed whether there was an equivalent implied freedom under the Constitution.
- The right to freedom of religion, arising from lockdown restrictions on religious gatherings in person: Athavle v New South Wales. This can be contrasted with s 116 of the Constitution ‘for prohibiting the free exercise of any religion’. But s 116 does not apply to the states and as the Federal Court said, its ‘focus is on the purpose of the law and not its effect’ ().
Other fundamental common law rights raised by litigants were rejected. In Kassam, Bell P noted that the right to bodily integrity ‘“underscores the principles of assault” in both civil law (the tort of battery) and criminal law’ (). Vaccine mandates did not to infringe the right to bodily integrity. Consent remained voluntary even under threat of loss of employment (see also Knowles v Commonwealth; cf Falconer v Commissioner of Police [No 4]).
This can potentially be contrasted with human rights under Australian bills of rights, particularly the right not to be subjected to medical treatment without free consent. Indeed under New Zealand’s bill of rights, vaccine mandates have been found to interfere with the equivalent human right – a concession consistently made by its Government. Ongoing vaccine mandate challenges in Queensland might provide further clarification.
Certain ‘rights’ raised pursuant to the principle of legality in Kassam were rejected for not being recognised at common law in Australia. This included the rights to work and privacy. These were, at most, ‘rights’ in an aspirational or rhetorical sense ().
One theme from the pandemic litigation is reaffirmation that constitutional rights and freedoms are narrower in range or scope than common law rights (eg. freedom of movement, freedom of religion), which are in turn generally narrower than human rights (potentially the right against non-consensual medical treatment, right to privacy). Moreover, the courts have still yet to seriously grapple in a principled way with how, and why, they identify certain rights as ‘fundamental’ under common law.
Minimisation of the principle of legality
Another theme I have recently discussed is the principle of legality’s minimisation. The principle reached its high point under Chief Justice French of the High Court of Australia. Subsequently, there has been a retreat during Chief Justice Kiefel’s term.
This can be seen at the levels of the judiciary below. In Kassam, Bell P provided the lead judgment, distilling the principle of legality into the following points:
- It was ‘important to keep the principle of legality in perspective and it must be applied with care’ ();
- The principle ‘will have little if any role to play in a context where the objects or purpose of an Act contemplate the curtailment of particular rights’ ();
- It was only ‘occasionally useful’, ‘context-dependent’ and ‘adjunct to the … judicial task and responsibility of giving effect to legislative intention’ ();
- The principle may not apply ‘if the interference with fundamental rights … is slight or indirect or temporary’ (); and
- It ‘should not operate to preclude measures … as part of a response to the risk to public health’ .
Ultimately, only the fundamental common law freedom of movement was found to be directly infringed, but this ‘is expressly what s 7 of the Public Health Act contemplates’: (). The principle of legality was therefore rebutted.
I am not aware of any instance in which the principle of legality has been successfully raised to invalidate COVID-19 restrictions in Australia. That is not to say the principle was always well argued; often it was not. But it forms part of a broader trend in common law jurisdictions during COVID-19, such as in the United Kingdom.
Inherent tension with purpose
The cases also illustrate an inherent tension between a purposive approach to interpreting emergency powers and the principle of legality. The former involves adopting an expansive construction to give effect to broadly drafted provisions, which form part of legislative schemes enacted for protecting public health – such as preventing and managing the spread of infectious disease.
Moreover, as the Federal Court said in Newman, at the time of legislating: ‘The precise nature of future threats could not be known. … Parliament should be taken to have intended to provide a broad power to facilitate appropriate responses, including novel responses, to future and unknown threats’ ().
By contrast, the principle of legality often involves adopting a narrow construction to broadly drafted provisions to protect fundamental common law rights and freedoms. How can the tension be reconciled? Typically, what has occurred is the principle is treated as rebutted, either by express terms or necessary implication (cf LibertyWorks Inc which avoided addressing this issue). Fundamental common law rights and freedoms are accepted as having a minimal role to play during times of emergency – from a rights perspective, this default position is seemingly unpalatable.
Role of proportionality?
The final point I make in this post is the possibility of incorporating proportionality considerations into the principle of legality – an area of heavy contestation in Australia (contrast the United Kingdom). The orthodox position is that such considerations have no role to play: ‘The principle of legality does not require one to look at whether the intended end justifies the proposed means’. This is for separation of powers reasons.
In New Zealand, the courts are beginning to grapple with this issue in light of the pandemic litigation. The High Court has observed it is ‘a legitimate question’ whether the principle of legality ‘has a greater reach’ than under New Zealand’s bill of rights, ‘and ignores whether the rights it upholds are reasonable or justified’ (). However, the Court said, ‘giving it that effect would impinge on the coherence and consistency of the law’ ().
In Australia, members of the High Court have recently attempted to develop more nuance to the principle of legality’s application. It is of variable force and assistance: Lee v NSW Crime Commission (); Probuild Constructions v Shade Systems (). ‘[T]he more legislation impairs rights’: BMW Australia Ltd v Brewster (); and ‘the more that the rights are “fundamental” or “important”’: Mann v Paterson Constructions Pty Ltd (), ‘the less likely it is that Parliament would have intended that effect, and the clearer the words that are required to achieve it’: BVD17 v Minister for Immigration and Border Protection ().
Such guiding principles are not entirely novel. I previously argued that proportionality-type considerations have not been completely excluded from the principle of legality’s application. That is particularly so where the extent of the interference is at issue. This is once again illustrated in the pandemic litigation.
To be clear, I am not suggesting that Australian courts in pandemic litigation have engaged in fulsome proportionality testing. But in the tables below, I have drawn the courts’ interpretive reasoning from LibertyWorks Inc and Kassam, mapping them onto the proportionality test. Such an exercise makes more transparent what is latent in the courts’ reasoning on rights. It gives rise to real doubt over whether the principle of legality can truly operate without some consideration of proportionality – between purpose on the one hand, and rights and freedoms on the other hand.
Table 1: LibertyWorks Inc v Commonwealth
|Nature of right or freedom||The right is not absolute ().|
|Importance of purpose/‘legitimacy’||Statutory purpose of s 477(1) of Biosecurity Act 2015 (Cth) was to prevent or control entry and spread of disease into Australia or overseas (). ‘Enable a fast and effective response’ to emergency of ‘scale and significance’ (–).|
|Nature and extent of limitation||May be accepted that restricting international travel was ‘harsh’ ().|
|Rational connection/‘suitability’||The ‘principal’ or ‘most effective’ way of achieving purpose was to restrict international travel ().|
|Less restrictive means/‘necessity’||Would otherwise ‘emasculate’ the emergency power and ‘frustrate’ the intention of the emergency powers (); and be ‘unlikely to achieve statutory purpose’ ().|
‘adequacy in balance’
|Restrictions allowed ‘to protect public health’. Proportionality addressed in s 477(4) of Biosecurity Act ().*|
Table 2: Kassam v Hazzard
|Nature of right or freedom||Force ‘correlative to and vary with the strength or fundamental nature of the right(s) involved’ (; ). Only right to freedom of movement interfered with. Certain other rights ‘aspirational or ‘rhetorical’ ().|
|Importance of purpose/‘legitimacy’||‘[I]mportance’ of the subject matter and purpose of Public Health Act 2010 (NSW), and paramountcy principle in s 3(2): (, ).|
|Nature and extent of limitation||Interferences are ‘temporary’, for so-called rights ‘indirect’ or ‘incidentally’ impacted, and ‘subject to exceptions’ (, , , ).|
|Rational connection/‘suitability’||Orders were ‘designed to restrict the freedom of movement in furtherance of’ the paramountcy principle (); ‘primarily directed to restricting movement’ (); ‘is expressly what s 7 of the Public Health Act contemplates’ (, ).|
|Less restrictive means/‘necessity’||Not addressed.|
‘adequacy in balance’
|‘[S]hould not operate to preclude measures which did impair those rights … as part of a response to the risk to public health’ (). ‘[N]o narrow construction should be afforded … given [the Act’s] subject matter and the nature of the risk it is designed to address’ ().|
Bruce Chen is a Senior Lecturer at Deakin Law School and Alfred Deakin Postdoctoral Research Fellow, Deakin University. His research focuses on statutory interpretation, bills of human rights, and issues of public law generally. This blog post is based on a recent presentation to the Centre for Comparative Constitutional Studies.
 See Dan Meagher, ‘On the Wane? The Principle of Legality in the High Court of Australia’ (2021) 32(1) Public Law Review 61.
 See Dan Meagher and Matthew Groves (eds), The Principle of Legality in Australia and New Zealand (Federation Press, 2017).
 See further Hanna Wilberg, ‘Interpreting Pandemic Powers: Qualifications to the Principle of Legality’ (2020) 31(4) Public Law Review 370.
* But note the Federal Court did not engage in a balancing analysis for itself.