International Travel Ban Illegal?

Incorrect. They can easily delay constitutional related matters. Google is your friend.

For example, with the constitutional issues around parliamentary eligibility, cases were referred to the HC between August and September 2017, and the court made its finding in October 2017.
 
One wonders if there‘ll be a legal challenge to the ban on Australians coming back from India. Jailing people for the crime of returning to their country is an extreme measure.

They might try... but I dunno the basis. The decision is not arbitrary, so probably not going against our international obligations, and it is certainly necessary to keep the virus out, so the BioSecurity declarations are likely reasonable.

If any of those wanting to come back can show they are fully vaccinated and have a negative PCR test and maybe a negative rapid test at the airport... maybe they could argue there are no grounds to deny them entry. I suppose the Aussie government could implement a travel permit system to allow those to come here if you can tick all of the above boxes.
 
One wonders if there‘ll be a legal challenge to the ban on Australians coming back from India. Jailing people for the crime of returning to their country is an extreme measure.
This is just wrong at any level. What is the value of citizenship if they can lock you out of your country or lock you up if you make it here. You are a citizen in good times and bad.
 
It's certainly hard to imagine the government charging anyone under this extension to the biosecurity act (I believe it also applies to anyone who exits the country via the NZ loophole). What it has done is outrage many people (like myself) - just one more stupid politically based approach to handling our border during this crisis. I mean many criminals don't get 5 years in jail for their crimes - no matter how / why one enters Australia you will go into hotel quarantine (except through a failure in one of the state's own quarantine system). Now if you managed to sneak in without going through normal border control (e.g. via private sail boat to a remote coast - well then I'm sure existing legislation could deal with this.
 
It's certainly hard to imagine the government charging anyone under this extension to the biosecurity act (I believe it also applies to anyone who exits the country via the NZ loophole). What it has done is outrage many people (like myself) - just one more stupid politically based approach to handling our border during this crisis. I mean many criminals don't get 5 years in jail for their crimes - no matter how / why one enters Australia you will go into hotel quarantine (except through a failure in one of the state's own quarantine system). Now if you managed to sneak in without going through normal border control (e.g. via private sail boat to a remote coast - well then I'm sure existing legislation could deal with this.

I don't see this as being a citizenship issue?

Who are these rules going to affect? Non-stop flights have been stopped. So it's not going to catch someone 'inadvertently' coming home who wasn't aware of the ban.

It's going to apply to people who deliberately try to get around the rules by booking flights via third countries and providing false information to the airlines about where they have come from, or are going to.

Is it reasonable that someone leaving from a high risk country boards a flight at say DOH or SIN and mixes with people who have originated in a low risk country?

If this is about the rights of citizens... don't the citizens from low risk countries have a right to a safe as well?

Whether or not the ban should be in place at all is a separate issue.
 
Hopefully this is the shake-up the Australian public need to start revolting against the closed borders. I've said it before and I'll say it again..... our AFFer views tends to be different to the general public and I've had many arguments with very good friends who are polar opposite in their views to mine about border closures.......
 
As @JPo said earlier in the thread the LibertyWorks case has its next hearing this Thursday.

It will be interesting to hear if anything comes out of that.
 
As much as it pains me to say it, I personally can't see the High Court striking down the provisions of the Biosecurity Act 2015 (Cth) and ministerial determinations that brought all of this about in a constitutional challenge. There are no express constitutional rights associated with citizenship in the Australian Constitution (the word "citizen" is not even used in the Constitution, instead "subjects of the Queen" appears when necessary to refer to Australian persons), and the High Court nowadays is not prone to find implied constitutional rights as it did in the 1990s in Lange and Nationwide News.

The Australian Citizenship Act 2007 (Cth) confers no substantive rights of citizenship. Any benefit of citizenship is conferred by individual statute, for example, the ability of citizens to vote is found in the Commonwealth Electoral Act 1918 (Cth), the ability of citizens to obtain a passport is conferred by the Australian Passports Act 2005 (Cth) and the ability of Australians to leave and re-enter Australia is a negative right arising from the absence of any prohibition on exit and re-entry, or the requirement for permission to depart and return, in the Migration Act 1958 (Cth) (and that negative right can be trumped by another law in accordance with the general principle that all law is subject to other law, which is the case with the ministerial determinations made under the Biosecurity Act that impede the ability of Australians to leave and re-enter Australia).

The international law principle of "right of return" (which appears in the Universal Declaration of Human Rights (to which Australia is a signatory) and the International Covenant on Civil and Political Rights (to which Australia is a signatory, and has ratified it, but has not adopted it into domestic law)) appears to have no force in Australia. I'm not aware of any legal scholars or lawyers who dispute it is within the power of the Parliament to prevent citizens from leaving and returning to Australia.

If there's any basis for a successful challenge, it could potentially lie in challenging executive overreach. The bans are merely executive fiat, made pursuant to powers under the Biosecurity Act. As a general principle, English and Australian common law is hostile to the use of executive power as a substitute for a proper exercise of parliamentary power. The criminalising of the entry into Australia by a citizen who was in India within the last 14 days (which has happened with the making of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021) is a big deal so far as a traditional and legally conservative view of the proper use of executive power is concerned. Criminalising things and invoking the penal power of the state is traditionally not something done lightly and then only after full debate in a representative parliament. I think this ministerial determination is indefensible, but the High Court has become a bastion of protecting and expanding Commonwealth executive (and parliamentary) power*, so I think there is little hope for any challenge in the High Court.

* Which isn't really the High Court's fault, but simply reflects Australia's constitutional arrangements. Our Constitution is a bare bones framework document for governance of the Commonwealth, and that's about it. The High Court makes no secret of its very textualist and black letter law approach to constitutional interpretation. Using that approach, there's not much in the text of the Constitution for the High Court to work with.
 
Did anyone see Alan Tudge on Channel 9's Today show this morning constantly refer to the Aussie citizens and Permanent residents stuck in India as 'Indians'? I am doubtful that he would refer to Aussies stuck in the UK as Brits.
 
Thanks Chalkie. The fine and/or jail time is not however specific to those returning from India. It is the penalty, agreed by parliament, for a breach of s477 of the Biosecurity Act. If anything I would have thought that's the part least subject to challenge?
 
Nothing is going to win here legally and if there is a loophole it will be closed..... So everyone can just calm down, all of this is going to result in nothing.
 
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Thanks Chalkie. The fine and/or jail time is not however specific to those returning from India. It is the penalty, agreed by parliament, for a breach of s477 of the Biosecurity Act. If anything I would have thought that's the part least subject to challenge?

The presence of a general offence and penalty provision is neither here nor there. Many statutes have general offence and penalty provisions. That's merely a shorthand legislative drafting technique.

The offending provision is the ministerial determination, which criminalises conduct that prior to the determination was not criminal. The determination criminalises what was previously a lawful act by a citizen. I'd be including in any challenge an attack on the determination, as extinguishing by mere executive fiat the substantive (negative) right of a citizen to return to Australia. Executive declarations, generally speaking, cannot displace existing statutory rights. Under the Migration Act, Australian citizens do not need any special permission to enter Australia under any circumstances, and returning to Australia is most definitely not a crime under the Migration Act.
 
The presence of a general offence and penalty provision is neither here nor there. Many statutes have general offence and penalty provisions. That's merely a shorthand legislative drafting technique.

The offending provision is the ministerial determination, which criminalises conduct that prior to the determination was not criminal. The determination criminalises what was previously a lawful act by a citizen. I'd be including in any challenge an attack on the determination, as extinguishing by mere executive fiat the substantive (negative) right of a citizen to return to Australia. Executive declarations, generally speaking, cannot displace existing statutory rights. Under the Migration Act, Australian citizens do not need any special permission to enter Australia under any circumstances, and returning to Australia is most definitely not a crime under the Migration Act.

I’m not disagreeing that there’s a basis for challenging the determination. But I would have argued that it doesn’t meet the requirements of the Act because there are potentially other methods which are less intrusive to achieve the same result. The declarations under the biosecurity act can only be those which are absolutely necessary (or words to that effect).

The Biosecurity Act has always allowed the minister to make a declaration, which could include banning something or someone coming to australia if the risk warranted. I would have thought that by implication, the ability to make such a declaration was provided by parliament with full knowledge of the interaction of other acts? If you didn’t allow the minister to make declarations under the act, and if there was no penalty associated with breaching those declarations... what’s the purpose of the act?
 

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