Federal court rejects application to overturn India travel ban
The federal court has rejected an urgent application to overturn the India travel ban, meaning 9,500 Australians stranded there will not be able to return until after it is repealed on Friday.
On Monday Justice Thomas Thawley declined to make orders overturning the ban after hearing the first half of the challenge brought by Gary Newman, 73, an Australian man stranded in Bangalore since March 2020.
Thawley rejected the first two grounds of the case: that health minister Greg Hunt failed to ensure the ban was “no more restrictive or intrusive than is required”; and the Biosecurity Act was not clear enough to override Australians’ common law right to enter their country.
Thawley sided with Hunt, whose counsel argued the Biosecurity Act was intended to have “paramount force” in the case of emergencies, operating as a “commonwealth legislative bulldozer” that overrides state laws and common law rights.
Justice Thawley found that Hunt had relied on the chief medical officer’s advice, was satisfied of what he needed to be to fit the safeguards of the act, and the determination contained appropriate limitations.
The judge accepted that Australians have a common law right to enter Australia, but said that preventing them from doing so was a “necessary incident” of the scheme in the act to prevent an infectious disease, such as Covid-19, entering Australia.
He said it was “unlikely” parliament would have intended to give the minister power to stop movements within Australia but not to stop the disease entering Australia (via human carriers).
It is hardly surprising the legislature would want to provide a broad power. The precise nature of future threats could not be known [and may require] novel responses to future and unknown threats.
Newman has also argued the ban is not “reasonably proportionate” and that it infringes an implied constitutional right of citizens and permanent residents to enter Australia, but these grounds may be moot if the ban is not extended beyond 15 May.