© GettyPrime Minister Scott Morrison
A 73-year-old Australian man stranded in Bangalore, India, has filed a legal challenge to the Morrison government's coronavirus travel ban that has made it a crime for him to return home.
Lawyers for Gary Newman filed an urgent application in the Federal Court on Wednesday, seeking to challenge an emergency declaration made by Health Minister Greg Hunt on April 30 under the Biosecurity Act.
The declaration took effect on Monday and makes it a crime, punishable by a maximum $66,000 fine, five years' jail, or both, for people including citizens and permanent residents who have been in India in the past 14 days to enter Australia. The temporary ban is due to lapse in ten days, on May 15, but it is not yet clear if it will be reintroduced.
Prime Minister Scott Morrison has insisted the measure is a "proportionate" response to a surge in COVID-19 cases in India, while Mr Hunt said on Monday it was his "strong, clear and absolute belief" that it was legally valid. But some legal experts have questioned whether the ban falls foul of the Commonwealth Constitution.
Mr Newman, who was represented in court on Wednesday by Sydney barrister Christopher Ward, SC, and Marque Lawyers managing partner Michael Bradley, is challenging the ban on multiple bases, including on constitutional grounds.
Dr Ward asked the court to deal first with non-constitutional grounds relating to the interpretation of the Biosecurity Act, which require less evidence and preparation.
Under that law, the Health Minister must be satisfied an emergency requirement is "appropriate and adapted to achieve the purpose" for which it is intended.
Lawyers for Mr Newman say Mr Hunt acted outside the power conferred by that law and failed to consider whether his determination was "no more restrictive or intrusive than is required in the circumstances ... to manage the public health risk".
The constitutional grounds include an argument that the declaration falls foul of an implied freedom of citizens to enter Australia.
Mr Newman's lawyers also argue the government acted outside its constitutional powers in making the declaration because there is "no head of power, nor any implied source of power" in the Constitution that would enable it.
At a brief hearing on Wednesday, Justice Stephen Burley agreed to expedite the proceedings and said the court should deal with the statutory interpretation questions first. A hearing date will be set shortly and the parties expect the hearing to take up to a day.
Professor Helen Irving, a constitutional law expert at Sydney Law School, said the High Court declared in a 1988 migration law case that citizens had the right to enter Australia without the need to obtain a licence or clearance from the executive government.
"Most recently, the court has identified the right of abode as an essential right under international law, one without which citizenship has no meaning," Professor Irving said.
"The right of abode cannot be enjoyed without the right to return. Like all rights, it may be subject to legitimate limitations or conditions, but it cannot be outrightly prohibited, let alone criminalised.
"Conditions may include a period of quarantine in Australia, as is currently mandatory for citizens entering from other countries. But criminalisation of citizens returning to Australia cannot be 'incidental' to regulating quarantine."
Professor Irving said the Federal Parliament had limited powers and could only pass laws on subjects listed in the Constitution, known as "heads of power", or laws necessary and incidental to those subjects provided they were not excessive.
She said possible constitutional heads of power for the emergency declaration included quarantine, but the travel ban and criminal sanctions would need to be incidentally necessary to regulating quarantine.
"The measures under the emergency requirement are both excessive and in breach of the Constitution," Professor Irving said.