The controversial India travel ban, which criminalises Australians’ return home from the COVID-stricken nation, has stood up to its first legal challenge.
But it may face a constitutional challenge in coming days.
Lawyers for a Melbourne man stuck in India had argued Health Minister Greg Hunt’s order was invalid.
Their reasons included that the minister hadn’t properly satisfied himself of relevant preconditions, such as whether it was “no more restrictive or intrusive than is required in the circumstances”.
But Federal Court Justice Tom Thawley on Monday dismissed the first two parts of the four-pronged challenge.
The Biosecurity Act allowed the minister to make an order to “prevent or control” entry or exit of a particular human disease from Australia.
“The most obvious method of achieving either result is to prevent entry or departure from Australia,” he said.
The order, made on April 30 and applying since May 3, marked the first time the Biosecurity Act had been used to prevent Australian citizens and permanent residents entering Australia.
breaking: the Federal Court has *rejected* the first and second arguments against the India travel ban, posed by Australian man Gary Newman
Justice Thawley rules that Greg Hunt *did* consider the least restrictive measures, as required under the Biosecurity Act
— Josh Butler (@JoshButler) May 10, 2021
The challenge was brought by Melbourne man Gary Newman, who is stuck in Bangalore/Bengaluru after flying there to see friends in early March 2020.
Aged 73, he was in a particularly vulnerable health demographic and wanted to return home as soon as possible, his lawyer said.
Mr Newman had argued the minister’s order, due to expire later this week, impinged upon a fundamental common law right of citizens to re-enter their country of citizenship.
“The Biosecurity Act was intended to impinge on common law rights,” Justice Thawley said.
On April 27, Prime Minister Scott Morrison announced a ban on direct flights from India.
Mr Hunt then made the April 30 order after advice from the solicitor-general and chief medical officer Paul Kelly.
The order forbids Australian citizens and permanent residents from landing in Australia from any country if they’d been in India in the fortnight before their departure.
That second ban was introduced too quickly and without analysis of the first ban’s effect, Mr Newman’s lawyers argued.
But Professor Kelly had referred to the first ban in his ministerial advice and how “flights through transit hubs continue to provide an avenue for individuals who have recently been in India to enter Australia”, the judge said.
“It is tolerably clear from the chief medical officer’s letter that further relief would come to the Australian quarantine system by taking the measure,” Justice Thawley said.