Federal Court dismisses bid to overturn India travel ban

• Australians stranded in India will have to sit tight until the weekend after the Federal Court quashed an urgent bid to lift the government’s travel ban
• An urgent case was brought to the Federal Court by Gary Newman, a 73-year-old Melbourne man currently stranded in Bangalore
• He is among some 9500 Australians currently stuck in India until the government’s recently-imposed travel ban is repealed on Friday, May 15
• The case was brought forward in two parts, with the first arguing that the travel ban was more restrictive than required and that the Biosecurity Act is not clear enough to override Australians’ right to come home
• The Federal Court dismissed these claims after a half-day of hearings on Monday, saying Health Minister Greg Hunts acted within his rights
• Judge Tom Thawley said Judge Thawley said the travel ban is a “necessary incident” to protect the wider community from the coronavirus
• The second part of the case was brought forward on the grounds that the travel ban was unconstitutional
• These grounds are yet to be heard in court, but they could be moot in any case if the ban is not extended beyond its current May 15 deadline

Australians stranded in India will have to sit tight until the weekend after the Federal Court quashed an urgent bid to lift the government’s travel ban.

The travel ban is repealed on Friday this week, but some 9500 Australians are currently stuck in India as COVID-19 continues to spread through the country at an alarming rate.

Gary Newman, a 73-year-old Melbourne man currently stranded in Bangalore, brought an urgent case to the Federal Court to lift the ban imposed by Federal Health Minister Greg Hunt and the Biosecurity Act.

The ban was imposed on May 3 and carries a penalty of five years’ jail time or fines of up to $66,000 for anyone who comes back to Australia from India — though in the wake of the ban Prime Minister Scott Morrison downplayed the severity of the penalties and the likelihood someone would actually incur such severe punishment if they did come back home.

Nevertheless, the court case was dismissed this week after a half-day hearing on Monday, with Judge Tom Thawley upholding the ban.

The case was brought forward in two parts, the first of which argued that the Health Minister failed to ensure the ban was “no more restrictive or inclusive than is required” and that the Biosecurity Act itself is not clear enough to override Australian citizens’ right to return home.

The Federal Court rejected these two grounds, with Judge Thawley saying Minister Hunt relied on top government medicine advice and acted within his rights under the Biosecurity Act.

He accepted that Australians have a right to enter their own country, but argued that the Biosecurity Act allows some common law rights to be overridden in the case of an emergency.

In this case, Judge Thawley said preventing people from coming into Australia from India was a “necessary incident” to protect the wider community from the coronavirus.

“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,” the judge said.

Gary Newman’s lawyers, however, argued that difficult decisions in a time of crisis must still be “governed by the rule of law”.

The Court said the Biosecurity Act was written with such broad government power — like an international border closure — in mind so as to give Australia the ability to deal with threats like a pandemic. Moreover, he said it was designed to do so “even at the cost of some rights”.

The second part of the case was brought forward on the grounds that the travel ban was unconstitutional. These grounds are yet to be heard in court but could be deemed moot if the travel ban is not extended beyond Friday, May 15.