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Expert says the Morrison government’s ‘draconian’ India travel ban could face legal challenges

A legal expert says the Morrison government’s new crackdown on returning Australians in India is potentially “discriminatory” and may constitute a breach of the law. Health Minister Greg Hunt last week announced a “temporary pause” on travelers who have visited India within 14 days of their intended arrival date in Australia. Failing to comply with the emergency determination under section 477 of the Biosecurity Act, which came into effect at 12.01am Monday, could attract a $66,600 fine or a five-year jail term.

No such measure has been applied by the government to any other international COVID-19 hotspot so far. Greg Barns, national spokesman for the Australian Lawyers Alliance, described the measures as “draconian”. “The measures do not take into account the individual circumstances of people who are returning from India – whether they’ve had COVID-19, how long they were in India,” he told SBS News.

“What Section 477 of the Biosecurity Act says is that, before the health minister makes an announcement like this, he or she has to be satisfied that it is the least restrictive and most proportionate measure that can be used.” The section states that the health minister must be satisfied “that the requirement is no more restrictive or intrusive than is required in the circumstances. Mr. Barns said there was arguably.

Scope for impacted travelers to challenge the measures on legal grounds. In such an instance, he said the onus would be on the government to supply evidence to demonstrate that these measures were the least restrictive under the circumstances. Given the paucity of information, and the failure of the government to educate the community about this aspect of the Biosecurity Act, I think it is challengeable,” he said.

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