The controversial India travel ban, criminalising 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 30 April and applying since 3 May, marked the first time the Biosecurity Act had been used to prevent Australian citizens and permanent residents entering Australia.
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 27 April, Prime Minister Scott Morrison announced a ban on direct flights from India.
Mr Hunt then made the 30 April 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.
Monday’s decision leaves two undetermined parts of Mr Newman’s bid to have the travel ban ruled invalid.
The first argues it was not within the scope of what parliament intended when passing the act.
The last alternative argument hopes to convince the court the travel ban and the minister’s powers behind it are invalid by impermissibly burdening the implied freedom of citizens to enter Australia under the constitution or that the ban and powers exceed section 51 powers.
India’s health ministry, off a little from recent peaks. India’s tally of infections stands at 22.66 million, with 246,116 deaths.