The Guardian • Issue #1961

Federal court upholds India travel ban

In a judgment handed down on the 10th May, the Federal Court of Australia (FCA) upheld the federal government’s India travel ban. The ban came into force on the 3rd May, making it a crime, punishable by five years in prison and/or $66,000 in fines for a person to enter Australia within fourteen days of travelling to India. It took effect as an emergency declaration made by the Health Minister under section 477 of the Commonwealth Biosecurity Act. It will be lifted on the 15th of May.

The ban is controversial due to its blanket nature – it applied to both citizens and non-citizens alike – and claims that it was not racially motivated – no similar ban was implemented for the US or any country in Western Europe during their coronavirus surges. This left the federal government in the unique position of being called both too discriminatory and not discriminatory enough.

Gary Newman, a 73-year-old Australian man, stranded in Bangalore, filed an urgent claim in the FCA on the 6th May, challenging the ban on the grounds that the Minister had exceeded his power under the Biosecurity Act, or alternatively, that the sections of the Act which empowered him to make such a declaration were inconsistent with the Constitution. The Court reached a conclusion about the first question and upheld the ban but left the broader constitutional issue to be decided at a later date.

There is a presumption that when Parliament passes legislation, it does not intend to take away from rights that citizens and residents of Australia enjoy under the common law. The legislature is entitled to change the common law by passing Acts that are inconsistent with the rules of the unwritten common law. Still, if Parliament intends to take away common law rights, it must do so by clear language in the statute. This is known as the principle of legality. It is important because, as a country without a bill of rights, most rights that Australians enjoy are derived not from the written text of the Constitution but from the unwritten common law.

Either party did not dispute the right of citizens of Australia to enter Australia. The High Court has in previous cases acknowledged that such a right likely exists under common law. Counsel for Newman alleged that the Biosecurity Act did not contain a clear enough statement of Parliament’s intention to take away this right of entry into the country. Therefore that Act did not empower the Minister to impose a ban that excluded citizens of Australia from the country.

Justice Thawley found that this intention was clear from the provisions of the Act – essentially, that it would make no sense for Parliament to pass such an Act if that did not intend for it to be able to temporarily impinge on common law rights in the interests of national security. The Act required that the ban be “no more restrictive or intrusive than is required in the circumstances.” Justice Thawley found that the ban was appropriate given the nature of the COVID crisis in India and its potential impact on Australia.

A date is yet to be set for the hearing of the second question, on whether the ban was unconstitutional. Newman alleges that the ban was beyond the scope of Section 51 of the Constitution, which enumerates the areas which Parliament may pass laws with respect to. He alleges that section 477 does not fall within any of the areas listed in section 51 and therefore that it is invalid as law of the Parliament. Moreover, he argues that the ban infringed on the implied freedom of Australians to enter Australia under the Constitution. These are important questions that directly impact Australians’ rights to travel in a COVID-stricken world, and we should watch the proceedings of this case with great interest.

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