India travel ban faces court challenge

The Morrison government’s controversial decision to prevent people that have been in India from entering Australia will be challenged in the Federal Court. 

Medical supplies being loaded at Sydney airport and bound for India.

The Morrison government’s controversial decision to prevent people who have been in India from entering Australia will be challenged in the Federal Court. 

Melbourne man Gary Newman, 73, who is stranded in Bangalore, has formally filed a lawsuit against Health Minister Greg Hunt’s emergency determination, which prevents people who have been in India in the past 14 days from entering Australia.

The Morrison government has invoked the Biosecurity Act to stop travellers who have been in India, which is being overwhelmed by coronavirus cases, from coming to Australia, with those that flout the rules facing potential penalties of five years in jail or $66,000 in fines.

Mr Newman is challenging the travel ban on four grounds, ­including two arguing Mr Hunt improperly exercised his powers.

Mr Newman also contends the ban is an over-reaction to the public health risk in circumstances where less intrusive measures were available, and that it is unconstitutional.

At an urgent hearing on Wednesday, Mr Newman’s barrister, Christopher Ward SC, said his ­client desperately wished to ­return to Australia. 

“His return is currently prevented by reason of the determination made by the Minister for Health and Aged Care dated the 30th of April 2021,” Mr Ward said. “The claim seeks a number of grounds of relief … two of them could broadly be characterised as questions on statutory interpretation and the third is a ground ­related to questions of proportionality and reason.”

Judge Stephen Burley ordered the proceedings be expedited and said a hearing date for the first two of Mr Newman’s arguments would be set in the next 24 to 48 hours.

Scott Morrison has insisted the emergency determination is a “proportionate” response to a rapid surge in COVID-19 cases in India, while Mr Hunt said on Monday it was his “strong, clear and absolute belief” the decision was legally valid.

Court documents, obtained by The Australian, allege Mr Hunt failed to consider the risk of COVID-19 spreading in prisons if people defying the ban were ­jailed, and if a less “restrictive or intrusive” path was available.

Marque Lawyers managing partner Michael Bradley said his client was challenging the emergency declaration on “administrative law and constitutional grounds”. “We say on a number of bases it’s an invalid exercise of power and should be declared void,” he said.

It is understood the 73-year-old Melbourne retiree travelled to India to visit friends in March last year, just before COVID-19 hit, and intended to stay about six months.

He is believed to have been booked on a November flight to Australia, where he has family, but the flight was cancelled.

Asked why he was launching a legal challenge now given Mr Newman had been in India since November, Mr Bradley defended his client.

“I think you are missing the point,” he told the ABC on Wednesday. “His situation is he would like to come back but obviously he’s prevented by law at the ­moment.

“This decision that the government has made, the minister’s ­declaration is invalid. It’s not ­effective in law and it sets an ­extraordinary and appalling precedent, and that needs to be challenged. So that’s the purpose of the case.”

Mr Bradley said his client was “high risk” due to his age.

Immigration Minister Alex Hawke told Sky News on Wednesday the ban was “fully consistent” with international human rights law.

“The government has to act for the public health and safety to protect Australia from threats,” he said.