India travel ban upheld in Federal Court

The Federal Court has rejected part of an urgent case put forward by a Melbourne man stranded in Covid-stricken Bangalore.

Federal Health Minister Greg Hunt. Picture: NCA NewsWire / Luis Enrique Ascui

The Federal Court has quashed a bid to overturn the Morrison government’s travel ban from India, rejecting part of an urgent case put forward by a Melbourne man stranded in COVID-stricken ­Bangalore.

Judge Tom Thawley dismissed the first round of claims on Monday after an urgent half-day hearing when he refused to overturn an emergency declaration made by Health Minister Greg Hunt that prevents Australians in India from returning home. The restrictions are due to expire this weekend.

Justice Thawley agreed Australian citizens had a fundamental common law right to enter Australia but confirmed this could be ­“abrogated by valid legislation”.

“Having the power to restrict the movement of persons across borders is a necessary incident of a power to prevent the entry of a human disease in Australia,” he said.

The measure, which began on May 3 and was designed to stop people travelling from India to Australia, carries the threat of criminal sanctions, including five years in jail or $66,000 in fines for those who try to flout the rules.

The case was split in two, with Justice Thawley focusing on the government’s use of the Biosecurity Act during Monday’s hearing.

He rejected the first two grounds, including claims that Mr Hunt failed to ensure the ban was “no more restrictive or intrusive” than required and another suggesting the Biosecurity Act was not clear enough to override a common law right for Australians to return home.

The other grounds, including whether the ban was unconstitutional, are yet to be heard but may be moot if the ban is not ­extended beyond May 15.

Justice Thawley said it was “tolerably clear” from Chief Medical Officer Paul Kelly’s advice to the government that he thought Australian quarantine would benefit by “taking additional measures of preventing entry”.

He said the Biosecurity Act, which gives the health minister the power to make emergency declarations, was deliberately drafted broadly to protect Australians from health risks.

Gary Newman, 73, who has been stranded in Bangalore for more than a year, last week filed the lawsuit against Mr Hunt’s emergency determination as the government faced mounting pressure over its decision to invoke criminal sanctions.

Mr Newman contended the ban was an overreaction to the public health risk in circumstances when less intrusive measures were available. His legal representative, Christopher Ward SC, said there was “an existing fundamental common law right of re-entry and abode” and the government had conducted “no analysis whatsoever of the chilling effect” of criminalising the return of Australians from India.

“In our submission, section 477.1 (of the Biosecurity Act) grants the minister undoubtedly broad, sweeping powers to respond to biosecurity emergency,” he said. “But it does not grant the Minister broad sweeping powers to abrogate fundamental common law rights.”

Mr Hunt’s counsel, Craig Lenehan SC, argued the Biosecurity Act contained a “commonwealth legis­lative bulldozer” that gives the government very broad emergency powers to override common law rights such as re-entering the country. He told the court that right was “swept away” by section 477 of the Biosecurity Act with the law expressing in “crystal clear terms” a critical intervention to prevent and manage the spread of COVID-19 in Australia.