India travel ban unconstitutional, made under ‘dictatorial power’: Geoffrey Robertson

Renowned human rights lawyer Geoffrey Robertson QC says the ban on Australians returning from India because of COVID-19 is unconstitutional and made under a “dictatorial power” not approved by Parliament.

Mr Robertson said the powers under the Biosecurity Act – which Health Minister Greg Hunt enacted to ban travel, and jail or fine those who are in breach – undermined the rule of law.

Human rights lawyer Geoffrey Robertson, QC, has represented Julian Assange, among others. Credit:Julian Andrews

“Australian citizens shouldn’t be put in prison for a crime that has not been debated in and approved by Parliament,” Mr Robertson said.

“The constitution provides for a democracy and it is implicit in it that citizens should not be prosecuted without parliamentary approval for exercising their right to return home.”

The Biosecurity Act says there must be a “severe and immediate threat” to the nation before its powers can be used.

“That is not the case,” Mr Robertson said.

A crematorium in Delhi on Thursday where multiple funeral pyres were burning for victims of COVID-19.Credit:Getty Images

“It is sensible to stop tourist and commercial flights from a hotspot like India, but for Australians in peril, any decent government would arrange for rescue missions and would put them in quarantine and not in prison.”

Mr Robertson likened the use of the Biosecurity Act to ban Australians returning from India to exercising “dictatorial power”.

A number of law firms, including the Human Rights Law Centre, say they are exploring a legal challenge to the ban either on constitutional grounds or on the basis the Health Minister’s decision was wrong.

Mr Hunt announced late on Friday night that, in a decision based on medical advice, flights from India would be paused until May 15 given the country’s worsening COVID situation.

The country’s daily case numbers reached global record levels last week. Daily recorded numbers of new cases topped 400,000.

Mr Hunt enacted powers under the Biosecurity Act to issue fines of up to $66,000 and five years’ jail for anyone caught circumventing the ban.

Prime Minister Scott Morrison said the government was making decisions in Australia’s best interests.

“This is a temporary arrangement, it’s been put in place to ensure that we do not get a third wave here in Australia and that our quarantine system can remain strong,” he said on 2GB radio.

Human Rights Law Centre executive director Hugh de Kretser called on the government to abandon the ban.



“Many Australians are in difficulty overseas as the pandemic continues and have been prevented from getting home by the flight limits already imposed by the Australian government,” Mr de Kretser said. “The Australian government should support them, not abandon and criminalise them at the worst possible time.”

He confirmed the centre was exploring a legal challenge.

Because Australia has no charter of human rights, any domestic legal challenge would either be made on constitutional grounds before the High Court, or on administrative law grounds before the Federal Court, law experts Professor Anne Twomey and Professor George Williams both suggested.

A constitutional challenge could argue that it is unconstitutional to punish Australians in a law that hasn’t been passed by Parliament, or that citizens have an implied right to return home.

Mr Robertson, in quarantine in Sydney after flying from the UK on a speaking tour, acted pro bono for two test cases of Australians stranded in the United States.

He said because Australia does not have a human rights charter, the legal team had to go to the United Nations Human Rights Committee to argue it breached international law.

In the case of the two Australians, two men separately stuck in the US, both had been vaccinated and were prepared to pay for quarantine, but were prevented from coming home.

The UN committee issued an interim request that the men should be able to return home and called on the government to justify its policy of excluding its citizens.

“It would be easier to challenge if we had a charter of rights, but we had to go to the UN to establish that Australians have a right to return to their native land,” Mr Robertson said.

Marque Lawyers managing partner Michael Bradley said he was “actively exploring” a legal case and was considering arguing that the minister had overreached on administrative law grounds.

The act, Mr Bradley said, gave the minister the power to do “pretty much anything”, but it must be appropriate and not excessive.

“It’s not a licence to go overboard,” he said, adding there were other ways of managing Australians in India rather than making it a crime for them to come home.

“This is an extraordinary precedent and if the government is right, that it can do this, then of course it can do it again and that fundamentally changes what we all think and understand attaches to our citizenship.”

At least 36,000 Australians are stuck abroad who cannot come home because of strict quarantine limits on how many people can enter the country per week.

At least 9000 of those are in India and more than 600 are classified as vulnerable.

Mr Morrison said direct flights were halted because of a sevenfold increase in cases in quarantine at the Howard Springs quarantine facility in the Northern Territory.

About 15 outbreaks were started from cases in hotel quarantine, including an outbreak in Western Australia over the weekend.

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