News Stranded Australian launches Federal Court challenge to India travel ban
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Stranded Australian launches Federal Court challenge to India travel ban

The government has threatened to jail Australian citizens returning from COVID-hit India. Photo: Getty/TND
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The government’s travel ban on India was appealed in the Federal Court on Wednesday afternoon, with a stranded Australian lodging a formal court challenge against Health Minister Greg Hunt.

The case was lodged by 73-year-old Australian man Gary Newman, who travelled to India in early 2020 and has been stuck in Bangalore, unable to return home.

He is challenging the federal government’s decision to pause flights from COVID-stricken India.

Health Minister Greg Hunt. Photo: AAP

The Morrison government has invoked the Biosecurity Act to stop travellers returning from India, or face potential penalties of five years jail or $66,000 fines if they do.

News of Wednesday’s urgent court application broke just as Mr Hunt was giving a press conference. He declined to comment on it, referring only to previous statements where he said the government maintained its travel restrictions were legal.

The Federal Court held a brief directions hearing on Wednesday afternoon. Lawyers representing Mr Newman said they would challenge the travel on four grounds – two relating to interpretation of the Act, one to “proportionality” of the order, and a fourth ground being constitutional.

The lawyers did not elaborate on their specific arguments.

Justice Stephen Burley said the court would set a formal hearing date within 24-48 hours, with arguments expected to take a day.

Mr Newman is represented by Marque Lawyers, the law firm that previously represented the woman who accused federal minister Christian Porter of a 1988 rape.

Marque’s managing partner, Michael Bradley, told the ABC on Wednesday that the India ban set “an extraordinary and appalling precedent”.

Mr Bradley claimed Mr Hunt “hasn’t exercised his discretion properly” in applying the Biosecurity Act, and should have considered “less intrusive, less restrictive measures that could achieve the same purpose” as the travel restrictions.

Marque has been critical of the travel ban on Twitter.

“We are the only country preventing our own citizens from coming home and making it an offence to try,” read one tweet on May 1.

In another on the same day, in reference to the emergency declaration that criminalises travel from India, Marque tweeted “in our opinion it’s invalid”.

The firm also responded to deputy Prime Minister Michael McCormack, who said on Wednesday morning that “nobody” would be jailed under the India ban.

“It’s not the government that decides who is prosecuted or imprisoned. That is up to the police and the courts. They are talking rubbish,” Marque tweeted.

Legal experts have raised concerns over the India travel ban for several days.

“I think there is a serious question about its lawfulness under the Biosecurity Act,” citizenship expert Professor Kim Rubenstein told the ABC on Sunday.

Professor Rubenstein said the Act required orders to be “no more restrictive than is necessary in the circumstances”.

“There are very serious questions here about whether this is no more restrictive in the circumstances, particularly when there is the presumption that citizens have a right of return,” she said.

Lawyer Greg Barns claimed it was “an abuse of criminal law”.

-more to come