The Australian Federal Court rejected the first part of a challenge to the travel ban to India imposed by the Australian government on Monday.
The travel ban to and from India was introduced last week by Health Minister Greg Hunt in response to the developing COVID-19 crisis in the country. Anyone found guilty under the determination faces up to five years in prison, a fine of $ 66,600, or both.
In making the decision, Hunt said that it was based on the “high proportion of overseas travelers in quarantine in Australia who contracted COVID-19 infection in India”. Recently, a number of outbreaks have arisen as a result of quarantine “leaks” from hotels, forcing states to temporarily impose increased COVID-19 restrictions.
However, Greg Newman, an Australian citizen trapped in India, asked the Federal Court to overturn the ban on the grounds that it was unreasonable and too restrictive for vulnerable Australians wishing to return home. Reference was also made to the fact that travel restrictions were not imposed in the UK or the US when infection rates were at similar heights.
Under Australian Biosafety Act, the Minister of Health is empowered to impose unilateral emergency requirements during times of emergency. In particular, these determinations are not subject to parliamentary annulment mechanisms.
Determinations must, however, comply with a number of legislative prerequisites. These include the fact that the Minister must be “satisfied” that any decision is “probably effective”, “appropriate” and “not more restrictive or intrusive than necessary”.
The Minister of Health introduced the ban from May 3 of chief physician’s opinion, who saw it as an “effective and proportionate measure to maintain the integrity of the Australian quarantine system”.
Lawyers for Newman suggested that the opinion of the chief medical officer was poorly taken into account by the Minister of Health, who made his decision in the absence of sufficient elements as to whether the ban was appropriate and suited to its presumed objective. In this regard, they noted that “there are less restrictive and expensive means to manage the risk to public health”.
While accepting that the ban marks the “first time that such a determination has been used to prevent Australian citizens and permanent residents from entering Australia,” Justice Thawley was unwilling to accept that the Minister of Health acted outside the decision-making freedom granted to him. Thawley concluded that the advice of the Chief Medical Officer had been duly taken into account and that the limitations of the determination were sufficient safeguards.
In another argument, Newman’s attorney argued that the ban impermissibly violates the inalienable common law right of citizens to return home from abroad.
However, Thawley again rejected the position, agreeing with Hunt that the intention of parliament was for determinations of this nature to act with “primordial force” in case of emergency. In this way, he agreed that such determinations act as a “legislative bulldozer of the Commonwealth”, repealing all common law norms.
Newman’s lawyers are still considering raising another set of arguments, largely on constitutional grounds, against the imposition of the ban. After nationwide scrutiny, the government announced that India’s travel ban would not be extended beyond May 15. It is not yet known whether Newman has standing to challenge the decision after that date.