Lekha G
The Federal Court led by Bench of Justice Tom Thawley dismissed the first two parts of the four-pronged challenge regarding the travel ban of Australian citizens to their country from Covid stricken India.
The challenge was brought by a 73-year-old Melbourne man, Gary Newman, who was stuck in Bangalore due to the pandemic after flying over to see his friends in early March 2020.
Newman’s lawyer argued that the order issued by Health Minister, Greg Hunt was invalid on ground that the relevant preconditions, such as whether it was “No more restrictive or intrusive than is required in the circumstances.”
It was also further contended that the ban on travel through third countries was introduced too quickly devoid of analysis of the first ban’s effect.
In consideration of such contention, the Judge said that, 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.”
Further, Mr. Newman argued that as the Minister’s Order was due to expire, it violated 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.
He also further said that, “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.”
On April 27, Prime Minister Scott Morrison announced a ban on direct flights from India and further passed an order on April 30 on advice of Solicitor-General and Chief Medical Officer, Paul Kelly forbidding Australian citizens and permanent residents from landing in Australia from any country if they had been in India in the fortnight before their departure.
A fine up to 66,600 dollars or five years in prison or both was levied on persons violating the order.
The Biosecurity Act allowed the minister to make an order to “Prevent or Control” entry or exit of a particular human disease from Australia.