Australian Challenges Legality Of India COVID Travel Ban

Amid an escalating row about a ban on Australians returning from India, one man is taking the Australian Government to court, arguing the travel ban is an invalid exercise of power and should be declared void. It comes as the Australian Government is experiencing increasing heat over a world-first move – threatening to jail its own citizens if they try to come home from India.

The Australian Government is being taken to court over its India travel ban. Photo: Vincenzo Pace/Simple Flying

Threat of five years jail for citizens trying to get home

There are around 9,000 Australians still stranded in India, including 900 deemed vulnerable. Children are included in the latter group.

Gary Newman, a 73-year-old Melbourne man, presently stranded in Bangalore, is heading to Australia’s Federal Court to challenge the late April emergency determination made under Australia’s Biosecurity Act. That determination made it illegal for Australian citizens to attempt to come home if in India. Punishments include an AU$66,000 fine and/or five years imprisonment.

Mr Newman traveled to India early last year before travel bans were put into place. Canceled flights have thwarted his previous attempts to get back to Australia. Canceled flights have been the bane of many passengers trying to get home over the last year.

The sanctions are not new. What’s caused outrage is the threat to use them. There’s also considerable disquiet over the erosion of citizenship rights. Some people now question what value is an Australian Passport if you cannot use it to come home? The Henley Passport Index recently ranked the Australian passport the 9th most useful in the world in terms of ease of travel.

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The government says ban in place to protect Australians

Since Air India suspended its regular commercial flights to Sydney and Melbourne early in 2020, Qantas has operated a series of repatriation flights from India in conjunction with the Australian Government. After more than one year, you could ask why 9,000 odd Australians were still stuck in India. The answer lies in Australia’s quarantine system. It has proved effective, but its management, split between Federal and State Governments, has been dysfunctional.

The constitutionality of a proposed law criminalizing the return of Australian citizens from particular specified countries is deeply questionable,” said Gary Newman’s Sydney-based lawyer, Dr Christopher Ward SC.

The Australian Government argues the ban is only in place until mid-May. Australia’s Immigration Minister, Alex Hawke says;

“The government has to act for the public health and safety to protect Australia from threats.”

Others argue it should not be beyond the wit of the Australian Government to do that and get its citizens out of India.

The Australian Government’s inaction is highlighted by Cricket Australia managing to extract their 38 players and officials from the now-canceled IPL competition in India. They are off to either Sri Lanka or The Maldives. Some cricketers, a far more cosseted group than your bog-standard stranded traveler, have publicly criticized senior Australian politicians for the travel ban.

One rule for most, exemptions for others

Meanwhile, while some Australians remain locked out and most Australians remain locked in, one Australian is enjoying London. Senior Australian Government Minister Senator Marise Payne, now nicely vaccinated, jetted off to the UK in a RAAF VIP plane for a G7 meeting earlier this week. Unlike the hoi polloi, she won’t have to do quarantine in a hotel room. Minister Payne will get to relax at home for the duration.

Some suggest there’s now a better use for taxpayer-funded VIP planes. Others point to the Qantas Dreamliner that just flew emergency supplies up to India. That plane could have got 250 odd Australians out. But it all comes back to the quarantine choke points.

The Federal Court is expediting Gary Newman’s case against the Australian Government, with the matter likely to begin later this week. But even if Mr Newman makes his case and wins, getting a flight home is easier said than done, as the last year attests.

Under fire, the Australian Government looks likely to start running two repatriation flights to India each week from mid-May, when the travel ban will lift. Figuring airlifting approximately 500 people per week, it will take 18 weeks to clear the backlog, assuming there are no further disruptions.