LSB September 2021 LR

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EXECUTIVE POWER This distinction drawn between the operation of a constitutional limit on the statutory power and not upon the discretionary exercise of statutory authority converges administrative and constitutional approaches to the construction of the exercise of statutory powers. Problematically, the exercise of a statutory power may need to be read down or “disapplied” instead of rendered constitutionally invalid, 15 and there is certainly room for further analysis in this area. But statute itself might pre-empt a determination on the whether the executive measures are a necessary and justified response by requiring that the executive apply a proportionality standard in making determinations. This proportionality standard then operates as a legislatively (rather than constitutionally) “significant limitation” 16 on executive powers. This is the case with s 477 of the Biosecurity Act 2015 (Cth) under which the Health Minister, Greg Hunt, made a Determination in 2021 to temporarily ban travellers returning from India entry into Australia. The ban was a response to the reported 300,000 COVID-19 infections per day in India and the magnified risks of travellers carrying the virus on their return to Australia. The requirements of s 477 include that the Minister must be satisfied the determination is effective and appropriate and adapted to its purpose, and no more restrictive or intrusive than circumstances require, and applies for only as long as necessary. This standard seeks to balance the necessity of the measures taken against the restrictions and intrusions placed on our lives. It also enables the identification of intrusion upon rights – in this instance, the right of Australian citizens to enter Australia. A legal challenge to the temporary ban being an improper exercise of power that failed to satisfy the legislative proportionality standard was dismissed by the Federal Court in May this year. 17 In Newman v Minister for Health and Aged Care Justice Thawley found, inter alia, that the Minister had properly considered the necessity and effectiveness of the ban, and that it was no more intrusive than necessary. But the case also illustrates the recurring problem of identification and protection of our rights, in this instance the right of Australian citizens to enter and reside in Australia. His Honour found that the common law right of entry to the state (a right that was conceded by the Commonwealth) had been lawfully limited, as it conformed with the broader contextual scope and purpose of the Biosecurity Act 2015 (Cth) that concerned the entry to and exit from Australia, combined with the necessity to enable rather broad powers to deal with emergencies. This interpretation then rebutted the operation of the principle of legality to restrict the power. What is left unanswered is the extent to which the right is constitutionally protected. A challenge on this ground was stood over but the short timespan of the India travel ban rendered the challenge obsolete. Under Australian law the recognition of admission to the state (often expressed as a right to return and enter) is a common law right thought to operate as a limit on the exercise of public power rather than as a freestanding right. But its boundaries and limits are yet to be properly tested. It is a right also recognised under international law arising as an incident of nationality. On a technical level it would be fascinating to examine the interplay of the right as constitutionally protected in its application to s 477 of the Biosecurity Act 2015 (Cth) and adoption of the structured proportionality test, measured against the statutory construction of the legislative proportionality standard within s 477 itself. But the imperatives of a human biosecurity emergency may still prevail. B Endnotes 1 Newman v Minister for Health and Aged Care [2021] FCA 517 (10 May 2021); LibertyWorks Inc v Commonwealth [2021] FCAFC 90 (1 June 2021). 2 Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229. 3 Gerner v Victoria [2020] HCA 48; (2020) 95 ALJR 107. 4 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, [233]. 5 Biosecurity Act 2015 (Cth) s 477. 6 In SA authority to then take the ‘necessary action’ and issue directions as required resides with the SA Commissioner of Police: Emergency Management Act 2004 (SA) ss 14 and 25 and the Emergency Management (Public Activities No 6) (COVID-19) Direction 2020 (SA). 7 Section 12 provides, ‘Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.’ 8 Gerner v Victoria [2020] HCA 48; (2020) 95 ALJR 107. 9 Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229, [21], [79] and [280]. 10 Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229. 11 Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229, [59]-[60] (Kiefel CJ and Keane J). 12 Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229, [291] (Edelman J). 13 Wotton v Queensland (2012) 246 CLR 1. 14 Palmer v Western Australia [2021] HCA 5, [154]; (2021) 95 ALJR 229, [119] (Gageler J). 15 Palmer v Western Australia [2021] HCA 5, [154]; (2021) 95 ALJR 229, [226]-[228] (Edelman J). 16 Palmer v Western Australia [2021] HCA 5, [154]; (2021) 95 ALJR 229, [154] (Gageler J). 17 Newman v Minister for Health and Aged Care [2021] FCA 517 (10 May 2021) and Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements – High Risk Country Travel Pause) Determination 2021 (Cth) 18 THE BULLETIN September 2021
WELLBEING & RESILIENCE R U Ok? U R not alone and U R not a robot… ZOE LEWIS, CHAIR, WELLBEING & RESILIENCE COMMITTEE This year on “R U Ok? Day” (9 September) you might like to consider that the answer to this question is not a simple “yes” or “no”. Nor is the answer the same across time. Some days the words of an angry or aggressive client are like water off a duck’s back. Other days they feel like quicksand in which we become stuck. Working with people who are facing some of the biggest challenges of their lives is a privilege. But we must also recognise that it is a burden too. It can drain you, leave you worried about the welfare of your client, even worried about your own safety when dealing with that person. We must have individual and workplace strategies for prevention and protection as well as mechanisms which kick in when things R not ok. We know this is important because nearly 40% of us recently reported that working in the legal profession has a negative impact on our mental wellbeing and the same percentage reported feeling unable to cope at work within the last year. 1 Why might the answer be “no”? It is certainly true that one client may be more distressed or demanding than another. And some content is more confronting than average. But most often I find that if I am struggling to manage something at work, it is more about other circumstances. Did I sleep poorly the night before? Had I already dealt with several challenging situations that day that left my reserves low? Had I been physically unwell lately and so feeling more fragile? Were there stressors at home? (Side note: The reality is that 70% of us identify non-work factors which have a significant impact on our mental wellbeing – family and caring responsibilities top the list followed by perfectionist personality traits and financial stress.) And of course, things can get into a bit of a vicious cycle: 75% of us experienced disrupted sleep due to work during the last year and poor sleep can reduce our resilience especially if it is a chronic issue. There is no shame in our humanness. Rather, it is what enables us to connect with our clients and colleagues. But until we can admit to each other that today is not an ok day, we are left to struggle on our own. If someone asks you, “R U Ok?” Remember, U R not a robot. This isn’t a “computer says no” auto-pilot moment. Sometimes the answer to the question is a resounding “no”. When things continue to be not ok day after day, and when we feel alone and as though we are a burden for not being ok… Well, that is when we are most at risk of doing something we cannot bounce back from. And this is a reality we must get better at talking about since we know that each day eight Australians die by suicide 2 . Yes, that is more than double the road toll. Research suggests that lawyers are at even higher risk than the general population. So, if you’re having a hard time U R certainly not alone. In the recent Law Society Wellbeing Survey, 17 of our peers admitted to having suicidal thoughts and nearly half admitted to having negative or depressed thoughts. If U R not OK today… • Can you find a colleague, family member or friend to talk to? • Are there some self-care activities you could step up like getting an early night or making time for a lunchtime walk? (75% of us picked exercise as one of our most effective coping strategies) • Could you delegate or reschedule some of your commitments to cut yourself some slack? If U R not OK, and that feeling has been lingering, it might be time to contact one of the many support services available to you such as: • Law Care – free and confidential counselling available through the Law Society • Your GP or psychologist • Your Employee Assistance Program (if you have one) • Lifeline (13 11 14) or Beyond Blue • The Suicide Call-back Service We must learn that this doesn’t make us weak. It doesn’t make us incapable of being good lawyers. It just means we are humans and not robots. Unfortunately, these ideas persist. A huge number of survey respondents reported varying concerns they would have about disclosing any struggles to their employer ranging from not being believed through to fear of it negatively impacting upon their career. So maybe this year, when we ask each other “R U Ok?” we can start a bigger conversation, one that continues throughout the year as life takes us on its inevitable ups and downs. If you are interested in hosting an event at your work, or want to learn more about having R U Ok? Day conversations, you can check out the R U Ok? Day website. Endnotes 1 Law Society of South Australia Individual Lawyer Wellbeing Survey 2021. 2 https://www.health.gov.au/health-topics/ mental-health-and-suicide-prevention/suicide-inaustralia September 2021 THE BULLETIN 19
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
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LSB September 2021 LR

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