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 April 30 and applying since May 3, 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.
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.
11/05/21 Luke Costin/7News
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