India travel ban challenge suffers court blow, but potential constitutional clash to come

The authorized challenge to the federal government’s controversial India travel ban has suffered a blow as a decide threw out arguments accusing Well being Minister Greg Hunt of incorrectly wielding his emergency powers.

But there could also be a constitutional argument to come forward of the ban being lifted on Friday.

The emergency dedication making it illegal for residents and non-citizens alike to enter Australia if that they had been to India within the 14 days prior got here into pressure final Monday.

It’s being challenged within the Federal Court by Melbourne man Gary Newman, who flew to India in March 2020 to go to mates and is now stranded there because the South Asian nation bends underneath the load of a lethal COVID outbreak.

The twin Australian and UK citizen is in Bangalore and, at age 73, is in a “susceptible demographic”, his lawyer Christopher Ward SC advised the court on Monday.

He initially meant to keep the time period of his 180-day visa but his plans had been stymied by the pandemic.

A return flight he booked in November 2020 was cancelled, the court heard, and he desires to come house “as quickly as attainable”.

An affidavit filed by his solicitor Michael Bradley on Might 5 states: “(He) has not left his residence up to now 12 days as he’s petrified of contracting COVID-19 and struggling extreme sickness.”

The primary two of Mr Newman’s 4 arguments in opposition to the ban, alleging Mr Hunt had improperly used his powers underneath the Biosecurity Act, had been thrown out by Justice Thomas Thawley on Monday.

Dr Ward advised the court the ban was the “most intrusive and restrictive methodology” of controlling COVID-19 attainable.

He argued Mr Hunt had failed to take into account if the ban on direct flights from India, enacted simply days earlier, might have labored as a a lot much less restrictive technique of attaining the identical final result.

He mentioned the minister should have had proof of a “actual and critical threat” to Australia’s quarantine system offered by folks transiting via third states from India to Australia to ensure that “a choice of this magnitude, this sensitivity, this extraordinary infringement on a basic proper to be legitimate”.

“Of which there’s not a skerrick of proof. Not a jot,” Dr Ward mentioned.

However the argument was rejected by Justice Thomas Thawley, who discovered Mr Hunt had thought of if the subsequent step of banning all travellers was needed because the minister had learn a letter from chief medical officer Paul Kelly dated April 30 that referenced the flight ban.

“It’s tolerably clear that the chief medical officer thought additional aid would come to Australia’s quarantine endeavour by stopping additional entry, even for these travelling not directly via transit hubs,” the decide mentioned.

Dr Ward additionally mentioned Mr Hunt had failed to take into account the potential knock-on impact of COVID-19 spreading in prisons if flouters of the ban had been jailed.

But Justice Thawley described the hypothetical as a “unusual state of affairs” and dominated Mr Hunt didn’t have to take into account it.

Dr Ward additionally argued the Biosecurity Act didn’t, in clear phrases, grant Mr Hunt the ability to override the elemental proper of residents to return house.

“In our submission, part 477.1 grants the minister undoubtedly broad, sweeping powers to reply to biosecurity emergencies,” he mentioned.

“But it surely doesn’t grant the minister broad sweeping powers to abrogate basic widespread legislation rights.”

Craig Lenehan SC contended it did, saying a “bulldozer” impact gave the Commonwealth broad powers.

Right here, too, Justice Thawley present in favour of the Commonwealth, saying the ability was intentionally drafted broadly.

The case could now proceed to listening to Mr Newman’s third and fourth arguments, which contend respectively that the travel ban was a disproportionate response within the circumstances and that it was unconstitutional.

But, as Dr Ward acknowledged, there was a risk all of it turned moot on Friday afternoon if the federal government repealed the ban.