The Prime Minister’s Indian flight ban could face a legal challenge as soon as Wednesday as Scott Morrison faces a growing backlash from inside and outside parliament.
Among those Australians who could become criminals if they return now are cricketers Steve Smith, David Warner and Pat Cummins, who have become stranded in India after the indefinite suspension of the IPL tournament late on Tuesday.
Cricket Australia has said players will stay there until the flight ban expires on May 15.
The Australians stranded in India include Michael Hussey, who is reported to have tested positive for COVID.
He has been working as batting coach for the Chennai Super Kings. Bowling coach L Balaji and another team staff member tested positive earlier.
Federal Court becomes the focus
The legal challenge to the ban is expected to be lodged in the Federal Court as early as Wednesday, as Mr Morrison tries to fend off opposition from the cross benches and some of his own backbenchers.
Federation of Ethnic Communities of Australia CEO Mohammad Al-Khafaji called the ban “un-Australian” and told the ABC it raised questions about the value of Australian citizenship
“We didn’t bring in this measure when the outbreak from the US, UK or China happened,” he said.
“We’re talking about Australian citizens wanting to come back to their country and we’re threatening them with a prison sentence and a hefty fine.
“This is un-Australian.”
However, Mr Morrison stood firm on Tuesday, saying Australia could not risk a third wave coming from India, where nearly 20 million cases and 220,000 deaths have been registered in the world’s worst COVID outbreak.
He said the latest figures on positive cases in passengers coming out of India demanded the government pause flights.
“The pandemic is raging,” he said.
“My government will take the steps necessary and the actions necessary to protect Australians so we can also bring more Australians home safely.”
Crossbench protest and legal challenge
Eight crossbenchers wrote to Mr Morrison on Tuesday asking him to revoke the biosecurity pause, urgently repatriate Australians in India starting with the most vulnerable and set up a dedicated surge capacity quarantine facility.
Immigration Minister Alex Hawke will sit down with Indian community leaders on Wednesday to discuss the flight pause and the government’s use of biosecurity measures that also include potential fines and jail for breaches.
A legal challenge is also expected from lawyers such as renowned human rights lawyer Geoffrey Robertson QC, who has described the ban as unconstitutional and made under a “dictatorial power” not approved by Parliament.
“Australian citizens shouldn’t be put in prison for a crime that has not been debated in and approved by Parliament,” Mr Robertson told the Sydney Morning Herald on Tuesday.
“The constitution provides for a democracy and it is implicit in it that citizens should not be prosecuted without parliamentary approval for exercising their right to return home,” he said.
Cricketers stranded as IPL called off
Steve Smith and other Australian cricketers isolating in India are stranded after the IPL was suspended amid a widening coronavirus outbreak.
But nationals of other countries playing in the Indian Premier League will begin returning home from Wednesday, a senior Indian cricket board official reportedly has told Reuters.
Several top international cricketers are scrambling to return home after the Twenty20 tournament was suspended indefinitely on Tuesday.
The 11-strong British contingent faces a mandatory 10-day quarantine period when they return home.
But Smith and about 40 Australians at the tournament cannot return to Australia until at least May 15 because of the ban.
Cricket Australia and the players union, the Australian Cricketers’ Association, have said they won’t seek exemptions from the government ban.
The competition was called off indefinitely after a fourth franchise from the lucrative Twenty20 tournament reported a positive COVID-19 test.
The captain of Smith’s Delhi Capitals – coached by Australian great Ricky Ponting – has tested positive.
Delhi skipper Amit Mishra’s positive test has forced Smith, his Australian teammate Marcus Stoinis and compatriots Ponting and bowling coach James Hopes into isolation.
Australians David Warner and Mitchell Marsh will also be isolated after the wicketkeeper at their franchise, the Sunrisers Hyderabad, tested positive.
Fellow countrymen Pat Cummins, Ben Cutting and assistant coach David Hussey, all at the Kolkata Knight Riders, had already been isolating after two players at their outfit tested positive.