The ‘India travel ban’ has attracted significant media attention and has real world implications for Australian citizens within Australia and overseas. It is unsurprising the challenge to the travel ban has attracted significant media attention given the political sensitivity of the issue and the potential effect a successful challenge to the ban might have to our border restrictions.
This article explores:
- the legislative basis for the India travel ban;
- the legal challenge to the India travel ban;
- the Federal Court’s reasons for dismissing the first part of the challenge; and
- why the second part of the challenge is likely to fail.
Gary Newman is a 73 year old Australian citizen who flew to India in early March 2020 to visit friends, intending to stay for the 180 day duration of his visa. In November 2020, Mr Newman booked a return flight to Melbourne via Abu Dhabi which was later cancelled. He has remained in India since and seeks to return home to Australia.
On 30 April 2021, the Federal Government banned passengers who have been in India within the last 14 days of travel from arriving in Australia by plane until 15 May 2021.
The ban was made under, and imposed by a determination made by the Minister responsible for, the Biosecurity Act 2015 (Cth): Minister for Health and Aged Care, Greg Hunt. The Act makes failure to comply with the determination a criminal offence.
Mr Newman has commenced proceedings in the Federal Court of Australia challenging the validity of the Minister’s determination and the validity of the section of the Act under which the determination was made.
The legislative basis for the India travel ban
Section 475(1) of the Act allows the Minister to declare that a ‘human biosecurity emergency’ exists. On 18 March 2020, COVID-19 was declared a human biosecurity emergency for a period of 3 months. The emergency period has been extended from time to time.
Section 477(1) of the Act provides that during a ‘human biosecurity emergency period’, the Minister may determine any requirement that he is satisfied it is necessary to prevent or control the entry into, emergence, establishment, or spread of COVID-19 in Australia or to another country.
Sub-section (3) identifies a non-exhaustive list of requirements the Minister may determine, including, relevantly, ‘(b) requirements that restrict or prevent the movement of persons, goods or conveyances in or between specified places’.
Sub-section (4) then identifies 5 matters all of which the Minister must be satisfied before determining a requirement:
(a) that the requirement is likely to be effective in, or to contribute to, achieving the purpose for which it is to be determined;
(b) that the requirement is appropriate and adapted to achieve the purpose for which it is to be determined;
(c) that the requirement is no more restrictive or intrusive than is required in the circumstances;
(d) that the manner in which the requirement is to be applied is no more restrictive or intrusive than is required in the circumstances;
(e) that the period during which the requirement is to apply is only as long as is necessary.
By section 479 of the Act, a person must comply with a requirement determined under section 477(1) and commits an offence if they engage in conduct that contravenes that requirement.
The ‘India travel ban’ was given effect by the Minister’s determination of a requirement that persons who have been in India within the last 14 days should be prevented from flying to Australia. Clause 6 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Determination) reads:
A person who is a passenger of an aircraft on a relevant international flight must not enter Australian territory at a landing place if the person had been in India within 14 days before the day the flight was scheduled to commence … .
The note to this clause identifies that a person who fails to comply with this requirement may commit an offence. Clause 7 provides certain exceptions to clause 6 such as aircraft crew and support workers, Defence force personnel and diplomats.
The legal challenge to the India travel ban
Mr Newman challenged the Determination on 4 grounds.
- First, he argues that the Minister failed to be satisfied of all 5 matters required by section 477(4) of the Act.
- Secondly, Mr Newman challenges the Determination and sections 477 and 479 of the Act on the basis that they infringe a ‘fundamental common law right of citizens to re-enter their country of citizenship’.
- Thirdly, Mr Newman argues that the Determination was not within the scope of what was intended by Parliament when giving the Minister power to make such determinations, where less restrictive or intrusive measures were available to the Minister and no consideration was given to the potential effect on prison populations if persons were detained on suspicion of failing to comply with the Determination.
- Finally, Mr Newman has recourse to an alleged ‘implied freedom of citizens to enter Australia granted to all citizens under the Commonwealth Constitution’.
What happened: the Federal Court’s decision on 10 May 2021
On 10 May 2021, the Honourable Justice Thawley heard argument and determined Mr Newman’s first 2 grounds of challenge given the India travel ban was set to be lifted on 15 May 2021. The other 2 grounds have not been resolved.
The first argument, that the Minister was not satisfied of the statutory pre-requisites, was essentially a challenge to the Minister’s decision-making process. So long as the Minister was in fact satisfied of the 5 statutory criteria – or Mr Newman could not prove otherwise – this was always going to be difficult.
Secondly, while Australian Courts have recognised a potential implied freedom of movement in the Constitution, including obiter dicta of the High Court of Australia,1the High Court has never held such an implied freedom actually exists.2
The judicial views in support of an implied Constitutional international freedom of movement generally do so with reference to the freedom of movement between the States and territories expressly provided by clause 92 of the Constitution (the clause relied upon by Clive Palmer in his challenge to the Western Australian border control measures3). However, even this freedom has never been regarded as absolute.4 Legitimate exceptions have been recognised “to restrict a pedestrian’s use of a highway for the purpose of his crossing or to authorize the arrest of a fugitive offender from one State at the moment of his departure into another State”,5 for example.
Parliament is able to override the common law by the enactment of legislation and section 477(3) expressly permits a determination preventing movement of persons between places, and that the Act generally is concerned (among other things) with the spread of diseases into, within, and out of Australia.
Justice Thawley accepted that a right of ‘freedom of movement’ exists, but found Parliament clearly intended to infringe on the common law given the protective purpose of and broad powers to be exercised under the Act.
What will happen next?
Mr Newman’s third ground was not determined by Justice Thawley. On its face it appears to be, in effect, a re-hash of the first argument. Given Justice Thawley’s views on the purpose and breadth of the Act, this appears unlikely to succeed. Further, the Minister plainly had cognisance of the fact that criminal sanctions could be imposed for failure to comply with the Determination as it is referred to in the Chief Medical Officer’s letter of advice to the Minister and expressly noted under clause 6 of the Determination.
The fourth ground is perhaps the most significant as it involves a Constitutional challenge to section 477 of the Act and accordingly the Minister’s power to have made the Determination and to make other border control determinations in future.
Colloquially, the assertion of an implied Constitutional freedom is based on the ‘vibe’ of the Constitution. It is an alleged freedom for which there is no express provision. Support may be found in the common law right of ‘freedom of movement’, the presence of clause 92 of the Constitution in respect of freedom of intercourse between States (the subject of Clive Palmer’s unsuccessful Constitutional challenge to Western Australia’s border restrictions), and even Magna Carta.
On the other hand, the Constitution expressly provides the Commonwealth Government heads of power including ‘(i) trade and commerce with other countries’, ‘(ix) quarantine’ and, possibly, ‘(xxvii) immigration and emigration’. These, and the absence of an equivalent to clause 92 in respect of international travel,6 may weigh against the Courts finding the implied freedom to exist. In the absence of an implied freedom, they would provide Constitutional power for the enactment of the Act.
If an implied freedom of movement were found to exist, the Courts would then need to consider whether the laws effectively burden the implied freedom and if so, whether the laws are reasonably capable of being considered appropriate and adapted to effect their legitimate ends of border protection. This may involve a proportionality analysis that has divided the High Court in recent Constitutional cases.
Given the public policy behind the Act and the serious risks to public health and the Australian economy posed by biosecurity risks, including health emergencies such as that posed by COVID‑19, the broad powers given to the Minister would appear to be reasonably appropriate and adapted to those ends. The Courts are unlikely to strike down the legislation on this basis.
The Federal Government has announced that the ‘India travel ban’ will not be extended however the Constitutional challenge remains relevant and not hypothetical, as the provisions of the Act are of broader, ongoing significance.
The Determination was the eighth such determination made since March 2020, the power having previously been used to ban Australians from going overseas, to prevent the arrival of cruise ships in Australia and to prevent people visiting remote communities, among other things.
The prospect of future travel bans or other determinations that affect the freedom of movement (whether at common law or implied by the Constitution) and is very real.
For the sake of certainty, the sooner the Constitutional issue is resolved, the better