Australia’s federal court rejects urgent bid to overturn India travel ban

The federal court has rejected an urgent bid to overturn the India travel ban, meaning 9,500 Australians stranded there will not be able to return until after it is repealed on Friday.

On Monday Justice Thomas Thawley dismissed the first two grounds seeking to overturn the ban after hearing the first half of the challenge brought by 73-year-old Gary Newman, an Australian man stranded in Bangalore since March 2020.

The first two grounds argued that the health minister, Greg Hunt, failed to ensure the ban was “no more restrictive or intrusive than is required”; and that the Biosecurity Act was not clear enough to override Australians’ common law right to enter their country.

Related: ‘A step too far’: Liberal senator James Paterson speaks out against India travel ban

Newman has also argued the ban is not “reasonably proportionate” and that it infringes an implied constitutional right of citizens and permanent residents to enter Australia.

Earlier on Monday, Newman’s counsel, Christopher Ward, suggested these two grounds may be moot if the ban is not extended beyond 15 May.

Thawley sided with Hunt, whose counsel argued the Biosecurity Act was intended to have “paramount force” in the case of emergencies, operating as a “commonwealth legislative bulldozer” that overrides state laws and common law rights.

Thawley found that Hunt had relied on the advice of the chief medical officer, Paul Kelly; was satisfied of what he needed to be to meet the safeguards of the act; and that the determination contained appropriate limitations.

The judge accepted that Australians have a common law right to enter Australia, but said that preventing them from doing so was a “necessary incident” of the scheme in the legislation to prevent an infectious disease, such as Covid-19, from entering Australia.

He said it was “unlikely” parliament would have intended to give the minister power to stop movements within Australia but not to stop the disease entering Australia via human carriers.

“It is hardly surprising the legislature would want to provide a broad power,” he said. “The precise nature of future threats could not be known, [and may require] novel responses to future and unknown threats.”

In addition to Kelly’s advice, Hunt relied on departmental submissions and two pieces of advice from the solicitor general dated 14 March and 26 November 2020, which Ward noted predated the ban by “many months”.

In media interviews last week, Kelly had suggested he hadn’t given advice about the criminal penalties for the travel ban. Ward attempted to enter these into evidence to demonstrate there had not been “proper consideration” of the criminalisation of Australians notwithstanding that the penalties were noted in Kelly’s written advice.

Related: More than 170 unaccompanied children among Australians stranded in India

Thawley rejected this evidence, agreeing with Hunt’s counsel, Craig Lenehan, that only the material before the decision-maker was relevant.

The judge also rejected the submission that Hunt had not considered the penalties, citing the fact he had circled “noted” on the ministerial submission in relation to the chief medical officer’s advice, and the penalties were also mentioned in Hunt’s media release announcing the ban.

Ward argued that the travel ban was “the most restrictive and intrusive that could have been adopted”.

The lawyer said there was a “glaring omission” and “complete failure” to consider alternatives, including whether the ban on commercial flights imposed four days before the ban on individuals was sufficient due to its “immediate and chilling practical effect on the flow of Covid-positive people from India to this country”.

Thawley disagreed, noting Kelly had observed people continued to come to Australia via transit countries after the ban on commercial flights.

Lenehan submitted that the human rights restrictions on the minister’s powers are limited to those contained in the act, and the common law rights of citizens had always yielded to quarantine laws.

Thawley noted the act “does expressly contemplate that it can do things that infringe fundamental human rights”, including that it allows a ban on exiting Australia if recommended by the World Health Organisation.

Earlier, Ward had argued that “departure is different to return” because the latter is protected by international law. The act does not explicitly mention banning Australians from returning home, he submitted.

But the judge suggested it was “nonsensical” to suggest the act allowed a ban on leaving Australia to prevent Australians spreading disease overseas but could not also be directed towards preventing people entering Australia.

Once the validity of controls on movement is accepted, there is “no difference” in the scheme of the act as to whether that ban can be imposed on aliens or citizens, he said.

Related: ‘Disowned’: family says pleas for help ignored as Australian man dies of Covid-19 in India

Ward asked that the ban as it applies to citizens be disapplied, accepting that this would see the law applied only to aliens.

Earlier on Monday, the influential Liberal senator James Paterson warned that Australia has crossed an “enormous threshold” by criminalising its citizens returning from India, coming out against the travel ban.

Of the 9,500 Australians in India, 950 are classed as vulnerable and 173 are unaccompanied minors. At least one Australian man has died in India since the ban was enacted.

When the travel ban expires on Friday, repatriation flights will resume at the rate of one a week for the rest of May, to be supplemented by three assisted commercial flights into New South Wales, Queensland and Victoria.

Before the ban, there were eight repatriation flights scheduled for May, meaning that fewer Australians will return home from India than was planned before the pause.