Australia’s ban on overseas travel is ‘invalid’ and violates individual rights, Federal Court hears

Health Minister Greg Hunt’s restriction on Australians leaving the country is invalid and unduly impinges on individual rights, a conservative think-tank has told the Federal Court.

The “constrained and limited” powers in the Biosecurity Act that Mr Hunt used did not allow him to apply blanket bans, a lawyer for LibertyWorks said on Thursday.

Besides the recent opening of the New Zealand travel bubble, those seeking to travel overseas since March 2020 have required a special exemption from the Department of Home Affairs. 

The think-tank took the ban to the Full Federal Court after one of its employees was not granted an exemption to travel in late 2020.

Jason Potts SC said those writing and passing the Biosecurity Act had made a “deliberate and conscious choice – even in the context of an emergency” that a minister trying to subject people to certain measures could only do so through a human biosecurity order.

“That was a deliberate choice to respect people’s individual rights,” he said.

Section 477 and 478 of the act allows the health minister to require or direct people to follow certain biosecurity measures once a pandemic has been declared.

But siding with LibertyWorks’ case would scupper the ability for the federal government to order people to wear masks, do contact tracing or keep people out of aged care homes, solicitor-general Stephen Donaghue QC submitted.

“One might ask what can you do if the governor-general is satisfied of the immediate threat but can’t take any steps at the individual or population level?” he said.

He said the health minister was restricted in imposing requirements on a specific person in a way that could identify them.

But the determination restricting outbound travel “does not single out” particular people, Mr Donaghue said.

Like a legal challenge filed this week against the India travel measures, the LibertyWorks case questions whether the health minister’s determinations breach an implied constitutional freedom of movement.

But Mr Donaghue said legal authorities already accepted that freedom could be restricted to protect public health.

“Unless Your Honours don’t accept this is a public health measure, that right doesn’t really help us,” he told the bench.

Justices Anna Katzmann, Michael Wigney and Thomas Thawley have reserved their decision.

The separate challenge to the Commonwealth’s temporary ban on citizens returning from COVID-ravaged India was launched on Wednesday.

Lawyers for Bangalore-based 73-year-old Gary Newman made an urgent application on Wednesday for judicial review of the travel ban, in force since Friday.

During a brief hearing, the Federal Court agreed to expedite the case.

A hearing date no later than next Thursday will be announced once an available judge is found.

Michael Bradley, whose law firm is behind the case, told SBS News he and his client don’t think the measures imposed were proportional to the health risk posed or that the government acted within its powers.

Michael Bradley of Marque Lawyers

SBS News

There are also constitutional arguments that relate to whether the move infringes on an implied freedom Australian citizens have to be able to return home, he said.

“All of us as citizens have [this] as a sort of necessary attachment to citizenship, to be able to come home,” he said.

“That’s certainly not an unfettered or unrestricted right, but if it exists as we believe it does, then it can only be limited or infringed.”

The government says the decision was proportionate and made due to the number of positive COVID-19 cases from India detected in Australia’s quarantine facilities.

With SBS News.

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