Babet & Anor v Commonwealth of Australia; Palmer v Commonwealth of Australia

In *Babet & Anor v Commonwealth of Australia; Palmer v Commonwealth of Australia*, the High Court of Australia considered challenges brought by two separate groups of applicants against the validity of the *Biosecurity (Human Biosecurity Response Zone) Determination (No. 1) 2022* (Cth) and the *Biosecurity (Human Biosecurity Response Zone) Determination (No. 2) 2022* (Cth). These determinations, made under the *Biosecurity Act 2015* (Cth), established response zones in relation to COVID-19. The applicants contended that the determinations were invalid for reasons including that they were not made in accordance with the requirements of the *Biosecurity Act* and that they infringed upon constitutional rights.

The central legal issues before the High Court were whether the Minister for Health and Aged Care had the power to make the impugned determinations, and if so, whether the exercise of that power was vitiated by a failure to comply with the *Biosecurity Act* or by constitutional invalidity. Specifically, the Court was required to determine if the Minister's satisfaction that the circumstances constituted a listed human biosecurity emergency was a condition precedent to the making of the determinations, and if the determinations themselves were validly made in the absence of such a satisfaction. Furthermore, the Court had to consider whether the determinations impermissibly infringed upon implied constitutional rights, such as the implied freedom of political communication.

The High Court unanimously dismissed the applications. Their Honours held that the *Biosecurity Act 2015* conferred broad powers on the Minister to make determinations in response to listed human biosecurity emergencies. The Court found that the Minister's satisfaction that the circumstances constituted a listed human biosecurity emergency was a prerequisite for the exercise of the power to make a determination, but that this satisfaction was not a justiciable condition precedent in the manner argued by the applicants. The Court also rejected the argument that the determinations infringed upon the implied freedom of political communication, finding that the restrictions imposed were reasonably appropriate and adapted to the legitimate purpose of preventing the introduction, or spread, of infectious diseases. The applications were therefore dismissed.