• CMI Legal

India Travel Ban Raised Questions about Australian Citizenship

When the second wave of COVID-19 hit India in full force on 27th April, the Australian Government decided to stop all direct flights from India to Australia. And when concern arose that people were able to travel to Australia from India by transiting in a third country, Health Minister Greg Hunt published a “determination” to impose a temporary travel ban to Australia on any person who had been in India in the past 14 days.

Photograph by Sritam Das

Any person who breached such imposition may face up to $66,600 in fine or five years’ imprisonment, or both.

The travel ban was imposed under the emergency powers conferred by the Biosecurity Act 2015 (Cth) on the Federal Health Minister, the same emergency powers used to justify the nationwide lockdown in early 2020. The travel ban was the first time that Australia would criminalise citizens for re-entering their home country, arguably breaching the Common Law right of return. This raised the question of whether the Federal Parliament can constitutionally allow a Minister to impose such a ban and if so, whether the Biosecurity Act met the necessary requirements to justify the Minister’s action.

Although there was no time to fully consider the questions above, the travel ban did give rise to a Federal Court challenge in Newman v Minister for Health and Aged Care [2021] FCA 517, in which Justice Thawley dismissed (in part). The case involved 73-year-old Gary Newman, an Australian who had been in India since March 2020.

Newman’s challenge raised three questions for the Court to consider:

  1. Was the imposition of travel ban on Australians returning home within the scope of the emergency powers conferred by the Biosecurity Act on Minister Hunt?

  2. Was there a constitutional head of power supporting the provisions of the Biosecurity Act which conferred the aforementioned powers?

  3. Was it constitutional for Parliament to authorise a Minister to ban citizens from re-entering Australia in these circumstances?

Thawley J dismissed Newman’s various arguments, essentially answering the first question with a “yes”. With Newman’s challenge on 5th May and the travel ban due to be lifted on 14th, there was insufficient time to litigate Newman’s second and third points.

Constitutional lawyer Dr Sangeetha Pillai concludes that Newman’s case demonstrates that without a bill of rights, fundamental rights attached to Australian citizenship can be easily displaced by statute. Should a bill of rights be present, questions regarding citizens’ right of entry/return could have been considered alongside administrative law questions.