Legal challenge to India travel ban
Australia's threat of jail terms and massive fines for citizens returning home from COVID-ravaged India will be challenged in the Federal Court.
Melbourne man Gary Newman, 73, who has been stuck in India since March 2020 has now lodged a legal challenge that will be heard this afternoon.
Lawyers acting for Mr Newman will argue the travel ban is invalid on constitutional grounds in a move that could overturn the laws.
Health Minister Greg Hunt's used an emergency declaration under the Biosecurity Act to invoke the ban, laws that were also used to restrict access to Aboriginal communities last year in the early stages of the COVID pandemic. Federal Court Justice Stephen Burley heard the matter at 3pm on Wednesday afternoon.
During a brief hearing this afternoon Justice Burley made orders that the matter be expedited and considered urgently and will be the subject of further hearings to be notified in the next 24 to 48 hours.
The man challenging the laws is being represented by Marque lawyers who have previously accused the PM of "talking rubbish" by suggesting it was unlikely anyone will be jailed.
"Australia is the only country in the world that has attempted to prevent, by law, its own citizens from coming home - and the legal basis for this is in the act,'' lawyer Michael Bradley said.
"I do think that there's a solid case to argue that this ban on citizens returning from India is illegal. There are three parts to the argument.
"First, (Greg) Hunt has misapplied his own power, because the blanket ban exceeds what is 'appropriate and adapted'.
"Second, that there is a right to return for Australian citizens, constrained by the power to impose restrictions only to the extent that they are necessary to protect the wider public interest. The Biosecurity Act gives the government many powers, including to enforce quarantine and even forcibly detain individuals to prevent or contain spread.
"Third, that if the Biosecurity Act does allow this ban, then it is invalid because it falls outside the powers which the constitution gives to the Commonwealth Parliament. It's not covered by the quarantine or immigration powers, so I can't really see a constitutional basis for it at all.
"It's not hard to imagine measures the government could have spent the past year putting in place for such a contingency as this: that there are 9000 Australian citizens trapped in India, and they need to be rescued. It could be done.
"Therefore, what the government has done is unlawful. Apart from being disgraceful. And racist."
Earlier, Mr Hunt defended the temporary ban as necessary to manage an influx of cases from overseas.
"It is about caseload. That's the important point to understand," he said.
"What we have seen is, of course, one in eight - more than one in eight - passengers on the most recent flights were testing positive. That's a level beyond anything that we had seen before.
"Our job is to protect Australia against a third wave, our job is to protect our health system. So we have to manage the balance and the case load which is precisely why we took the difficult temporary measures."
Sky News host Andrew Bolt has previously declared he is "ashamed of Australia" over the threat of jail terms for Indian-Australians trying to return home slamming the Prime Minister's decision as a bad call that "stinks of racism". The temporary measure is designed to allow for hotel quarantine upgrades in Australia before an influx of citizens fleeing COVID-ravaged India.
"I hate people playing the race card. But even I must now say I am ashamed of Australia, which is making it a crime for Indian Australians to come back home,'' he said.
"To me, it stinks of racism to tell the 8000 Indian Australians trying to come home that they must stay in India, in what Western Australia's Premier admitted was the 'epicentre of death and destruction'."
Chillingly, Bolt goes on to argue that the death of any Australian left trapped in India should "shame" the Prime Minister.
"The death of any Australian in India because of this ban will shame the Prime Minister and everyone cheering this despicable and irrational policy,'' he said.
Nationals Senator Matt Canavan has also broken ranks to criticise the decision.
"We should be helping Aussies in India return, not jailing them. Let's fix our quarantine system rather than leave our fellow Australians stranded,'' he said.