Article 12 of the International Covenant on Civil and Political Rights makes it clear “that everyone shall be free to leave any country including his own… No one shall be arbitrarily deprived of the right to enter his own country”. While international instruments, such as article 12 of the ICCPR, cannot be used to override clear and valid provisions of Australian federal law, where legislation is not clear or ambiguous, the courts may favor a construction that accords with Australia’s international law obligations.
The Australian Constitution has application however there is no direct reference to “citizenship” in the Australian Constitution. Therefore, we are left with Australian case law for answers to whether there exists a right to entry for Australians at common law.
Air Caledonie International v The Commonwealth  HCA 61; 165 CLR 462; 82 ALR 385
The Air Caledonie International judgement was concerned with the constitutional validity of what was known as the ‘immigration tax’.
The Migration Amendment Act 1987 (Cth) (Act) claimed to amend the Migration Act 1958 (Cth) and imposed a ‘fee for immigration clearance’. All persons, other than prescribed passengers, arriving in Australia by airline were required to pay a prescribed fee. By provision of the Act, airline operators were then obliged to pay the fees to the Commonwealth on behalf of all of its passengers and would collect the said fee from passengers entering Australia.
Air Caledonie International, the plaintiff in the case, submitted as follows:
a) s.34A of the Act was a tax, and was thus invalidated by virtue s. 55 of the Commonwealth Constitution; alternately
b) the imposition of the charge could not be characterised as a law under any of the designated heads of Commonwealth Parliamentary power.
The High Court found in this case that a charge for a ‘privilege’ or a ‘service’ would be a tax where the government was in fact providing a ‘right’ rather than a ‘privilege’. A charge cannot be rationalised as a fee for service where the ‘service’ is in fact the provision of a ‘right’.
The High Court said that “[t]he 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.” Important to the question I am writing about today, the Court found that the provision of immigration clearance (or entry) to an Australian citizen was a common law right rather than a government service.
There are other cases that provide guidance on the freedom of movement out and in of Australia that I hope to expand on in future publications.
The pandemic will result in various applications some of which may use common law rights, like those referred to in the Air Caledonie case, as a basis to argue against the actions undertaken by the Government during the pandemic.
While the health of Australian’s is important, any actions undertaken by the Government must be within the scope of the authority it has to do so. It seems then that the travel ban could have grounds for a challenge if tested in the courts.
Footnotes available upon request.
Written by Farhan Rehman.
Partner, RSG Lawyers and Associates.