Australia’s Federal Court rejected the first part of a challenge to the Australian government’s India travel ban on Monday.
The ban on travel to and from India was introduced last week by Health Minister Greg Hunt in response to the developing COVID-19 crisis in the country. Any individual found guilty under the determination faces up to five years in jail, a $66,600 fine, or both.
In making the determination, Hunt said that he relied upon the “high proportion of overseas travellers in quarantine in Australia who have acquired a COVID-19 infection in India.” Recently, a number of outbreaks have arisen from hotel quarantine “leakages,” forcing states to temporarily impose increased COVID-19 restrictions.
However, Greg Newman, an Australian citizen trapped in India, applied to the Federal Court to have the ban overturned on the basis that it was unreasonable and overly restrictive on vulnerable Australians wishing to return home. Reference has also been drawn to the fact that travel restrictions were not imposed on the UK or US when infection rates were at similar heights.
Under Australian biosecurity law, the Health Minister is empowered to impose unilateral emergency requirements during emergency periods. Notably, these determinations are not subject to parliamentary disallowance mechanisms.
The determinations must, however, comply with a number of legislative preconditions. These include that the minister must be “satisfied” that any determination is “likely to be effective,” “appropriate” and “no more restrictive or intrusive than required.”
The Health Minister introduced the ban from May 3 on the advice of the Chief Medical Officer, who regarded it as an “effective and proportionate measure to maintain the integrity of Australia’s quarantine system.”
Lawyers for Newman suggested that the advice of the Chief Medical Officer was improperly considered by the Health Minister, who made his decision in the absence of sufficient material as to whether the ban was appropriate and adapted to its purported purpose. In this respect, they noted that “there were less restrictive and onerous means to manage the public health risk.”
While accepting that the ban marks the “first time such a determination has been used to prevent Australian citizens and permanent residents entering Australia,” Justice Thawley was unwilling to accept that the Health Minister acted outside the decisional freedom afforded to him. Thawley found that the advice of the Chief Medical Officer was appropriately considered and that limitations within the determination acted as sufficient safeguards.
In another line of argument, counsel for Newman submitted that the ban impermissibly contravenes the inalienable common law right of citizens to return home from overseas.
However, Thawley again rejected the position, agreeing with Hunt that the intention of the parliament was for determinations of this nature to act with “paramount force” in emergencies. In this way, he concurred that such determinations act as a “commonwealth legislative bulldozer,” abrogating any common law norms.
Newman’s lawyers are still considering whether to raise another set of arguments, largely on constitutional grounds, against the imposition of the ban. Following intense domestic scrutiny, the government has announced that the India travel ban will not be extended beyond May 15. Whether Newman has standing to contest the determination after this date remains unclear.