The Federal Court has dealt a major blow to a legal challenge to the Morrison government’s temporary ban on citizens entering Australia from India, with a judge dismissing the first round of the case.
Lawyers for Gary Newman, a 73-year-old Australian man stranded in Bangalore, filed an urgent application in the Federal Court last Wednesday, seeking to overturn an emergency declaration made by Health Minister Greg Hunt on April 30 under the Biosecurity Act.
Health Minister Greg Hunt imposed new travel restrictions on April 30.Credit:Alex Ellinghausen
The declaration took effect last Monday and makes it a crime, punishable by a maximum $66,000 fine, five years’ jail, or both, for people including citizens and permanent residents who have been in India in the past 14 days to enter Australia.
The temporary ban, aimed at mitigating the public health risk posed by a surge of COVID-19 cases in India, will be lifted on May 15. It is not yet clear if it could be reintroduced.
New Zealand also imposed a two-week suspension on flights from India from April 11 to 28, with criminal sanctions available if necessary.
The case was split into two, with the court dealing first with an argument that government was acting outside the powers conferred on it by the Biosecurity Act.
Separate and more complex arguments about whether the ban fell foul of the Commonwealth Constitution, including whether it acted as an impermissible fetter on an implied freedom of citizens to enter Australia, were hived off to be dealt with at a later date if required.
Sydney barrister Christopher Ward, SC, acting for Mr Newman, told the court on Monday the ban purported to abrogate a common law right of citizens to re-enter their country of citizenship but the law did not set out clearly the government’s power to take such a step.
Justice Thomas Thawley, who presided over the case, said it was “not in contest” that there was a common law right on the part of Australian citizens to enter Australia.
He said this right had been recognised in dicta in the High Court, meaning it was not a binding part of a previous decision but offered significant guidance to courts.
Dr Ward said this right of re-entry was subject to the “principle of legality”, which requires Parliament to use clear language to restrict fundamental common law rights. He said the “clearest possible words” would be required, and the Biosecurity Act did not include words of that kind.
But Craig Lenehan, SC, acting for the Commonwealth, said “the rights that are raised were intended to be impinged upon by the Parliament” and the Biosecurity Act’s provisions functioned as a “legislative bulldozer”, overriding other legal rights.
The right of re-entry was “swept away” by a section of the law which said an emergency declaration would apply “despite any provision of any other Australian law”.
In a decision late on Monday, Justice Thawley agreed with the Commonwealth and said the law was drafted with an appreciation that biosecurity emergencies might take a wide variety of forms and the precise nature of future threats could not be known. Parliament should be taken to be conferring a broad power, he said.
The Biosecurity Act also required the Health Minister to be satisfied that emergency measures are “no more restrictive or intrusive than is required in the circumstances”. Mr Newman’s lawyers argued Mr Hunt failed to meet this requirement, but Justice Thawley found otherwise.
He noted that the determination included carve-outs, including for emergency medical flights.
A hearing date for the next phase of the case, involving the constitutional arguments, has yet to be set. It is not yet clear if the court could hear those arguments after the ban lifts on Friday.
Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.
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2021-05-10 07:37:53Z
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