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Australian man in India challenges travel ban in Federal Court

written by Adam Thorn | May 5, 2021
Qantas Boeing 787-9 VH-ZND arriving at Alice Springs. (Victor Pody)
Qantas Boeing 787-9 VH-ZND arriving at Alice Springs. (Victor Pody)

A 73-year-old Australian man currently in India has launched a legal challenge to the government’s decision to make it a crime for residents from the COVID-stricken country to return home.

Lawyers acting on behalf of Gary Newman argued in the Federal Court on Wednesday that the ban is both unconstitutional and breaks the crucial Biosecurity Act underpinning Australia’s quarantine response.

Last week, the federal government paused all flights from India, halting eight repatriations, and then made it a formal crime for anyone to attempt the trip, punishable with a $66,000 fine.

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Newman’s barrister Christopher Ward and Marque Lawyers managing partner Michael Bradley asked the court to first deal with their non-constitutional arguments, relating to how the Biosecurity Act is interpreted.

That law requires the government to say any actions taken are “appropriate and adapted to achieve the purpose” for which it is intended.

Newman’s legal team argued the entry ban from India went too far and was too restrictive.

The constitutional argument, meanwhile, is that there is “no head of power, nor any implied source of power” in the Constitution that would enable it.

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Justice Stephen Burley agreed to expedite the proceedings but said the court should deal with the statutory interpretation questions first. The hearing will take place shortly and likely last a day.

The move to stop repatriating ex-pats in India was a blow to the more than 9,000 in the country who are registered with the Department of Foreign Affairs and Trade as wanting to return – with 650 of those classed as vulnerable.

The ban most notably affected two government-supplemented Qantas flights, QF112, which were due to depart from Chennai and Delhi to Darwin on 4 and 5 May. It will also affect commercial flights transiting through Doha, Singapore, Dubai and Kuala Lumpur.

Prime Minister Scott Morrison insisted last week that the ban would be temporary.

“These are Australians and Australian residents who need our help and we intend to make sure we are able to restore flights, particularly the repatriation flights, and that those repatriating flights focus on the most vulnerable,” PM Morrison said.

“We don’t think the answer is to forsake those Australians in India and just shut them off, as some seem to suggest. That’s not what my government is going to do.”

When the flights do resume, all passengers will be required to return both a negative COVID nasal swab and a negative rapid antigen test before departure.

That stricter protocol follows WA Premier McGowan questioning how returned travellers from India are arriving COVID-positive despite seemingly having returned a negative result before departure.

“If the test is not accurate or a bit dodgy that is impinging the integrity of the system,” he said.

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