International Travel Ban Illegal?

[Chalkie]

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?

The Minister can make as many declarations as they want. Whether they are valid is another question. Executive declarations have a long history of being challenged as ultra vires, and those challenges can succeed. The executive likes to take the easy path, which is to govern by executive declaration, rather than be subject to the scrutiny of parliament. Judicial review checks the exercise of the executive power in that way.

But as I explained in my first post, I harbour considerable doubt as to whether a challenge would succeed. The courts typically give governments latitude during public health emergencies.

 

[oz_mark]

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.

Certainly can't see it getting anywhere near a court. It would be an extraordinarily bad look for the government to pursue anyone.

 

[jakeseven7]

Certainly can't see it getting anywhere near a court. It would be an extraordinarily bad look for the government to pursue anyone.

Yup I think many are just clutching at straws

 

[mviy]

The India Travel Ban is being challenged in court

Indian travel ban headed to court as Australian man files challenge to rules

An Australian man lodges a Federal Court challenge to the government's ban on travel from India, arguing it is illegal on constitutional grounds.

www.abc.net.au

Looks like it is court case NSD388/2021

 

[Chalkie]

The India Travel Ban is being challenged in court

Indian travel ban headed to court as Australian man files challenge to rules

An Australian man lodges a Federal Court challenge to the government's ban on travel from India, arguing it is illegal on constitutional grounds.

www.abc.net.au

Looks like it is court case NSD388/2021

Of the two bases for challenge reported, the "implied freedom to return home" has the lower prospect of success, IMO. There's just nothing to hang one's hat on there, constitutionally speaking.

That the ministerial determination was beyond power (ultra vires) strikes me as having more legs. There's a more respectable case to argue that a ministerial determination which criminalised an act (a citizen re-entering Australia) that is otherwise neither criminal conduct nor the subject of any restriction in the statute that controls entry of persons into Australia (the Migration Act places no restrictions on citizens entering Australia, whereas it does place restrictions on non-citizens) without parliamentary scrutiny is an overreach of executive power.

 

[Seat0B]

For the last year Australians have been barred from going overseas — today that rule will be challenged in court

Philine Matzner was denied the chance to see her father before he died, because of the COVID-19 overseas travel ban. Today the Federal Court will hear a challenge that claims the ban is invalid.

www.abc.net.au

Court case about outbound travel ban is on today in the Federal Court. It will clearly take some time before there is a result.

Some interesting stats in the article, although the numbers don;t quite add up. 305,000 applications to leave of which 74,000 were denied, suggesting that 231,000 were approved. However the article reports that 144,000 people actually left in the 12 months to April. It does note that many have made multiple applications, so perhaps that accounts for the discrepancy in the numbers.

 

[mviy]

It'll be interesting to see what orders are made today as to what the next steps will be with that case.

Well for one thing you have to specify the port of departure. Last year with the situation in VIC, I put in applications to depart from Melbourne and from Sydney, thinking if I can't leave from MEL, maybe I could go from SYD. Both were denied.

If someone gets approval to travel it is possible their plans could change. Some presumably will have decided not to travel even after getting approval though one would have thought that would be a low number.

 

[mviy]

No orders published yet from the LibertyWorks case hearing today.

The India travel ban case is scheduled to be heard by web conference on Monday 10th May at 12pm.

 

[Seat0B]

Stopping Australians from travelling overseas violates fundamental rights, Federal Court hears

The federal court hears the government's ban on citizens travelling overseas infringes on the fundamental rights of Australians in a challenge brought by a conservative think tank.

www.abc.net.au

Outlines the arguments made by both sides. Decision reserved.

 

[mviy]

I think the India case has a stronger chance of succeeding but probably still will fail

The government I presume will probably try and get the India case dismissed (they may not succeed on that) as they'll have announced resumption of repatriation flights starting May 15, and argue that the complete ban was a temporary measure used in extraordinary circumstances and that they hope to never have to repeat it.

 

[Pushka]

It'll be interesting to see what orders are made today as to what the next steps will be with that case.

Well for one thing you have to specify the port of departure. Last year with the situation in VIC, I put in applications to depart from Melbourne and from Sydney, thinking if I can't leave from MEL, maybe I could go from SYD. Both were denied.

If someone gets approval to travel it is possible their plans could change. Some presumably will have decided not to travel even after getting approval though one would have thought that would be a low number.

The approval email states that you simply need to exit by a certain date and there is no need to exit by any particular airport, even though that is asked at the time of application. It states approval to exit is held in a central data bank which is checked on departure. This info is current as of this week.

Many people get approval but don't proceed. The approval simply lapses.

People put in multiple applications. First when refused, try again. And again. And again. Sometimes, a later one will be accepted because a different person has reviewed it.

 

[Seat0B]

The approval email states that you simply need to exit by a certain date and there is no need to exit by any particular airport, even though that is asked at the time of application. It states approval to exit is held in a central data bank which is checked on departure. This info is current as of this week.

Many people get approval but don't proceed. The approval simply lapses.

People put in multiple applications. First when refused, try again. And again. And again. Sometimes, a later one will be accepted because a different person has reviewed it.

Pretty arbitrary really isn't it.

 

[Pushka]

Pretty arbitrary really isn't it.

The message - just keep trying if you meet the criteria. Keep it simple but provide lots of compelling evidence for whatever the situation is. And they like to see evidence of sufficient funds should plans go astray.

 

[Myrna]

Can't call Australia home!

Maybe this has already been posted in another thread?

https://twitter.com/x/status/1390229855451684866

Comedian’s brutal takedown song

 

[Flashback]

Can't call Australia home!

Maybe this has already been posted in another thread?

https://twitter.com/x/status/1390229855451684866

Comedian’s brutal takedown song

Yep

Predictions of when international flights may resume/bans lifted

Not that long ago they said they wouldn't likely have a vaccine. Yet look at what the UK has done. Let's just wait and see before calling it quits for travel. It is worse than reading sensationalist media headlines in this thread.

www.australianfrequentflyer.com.au

 

[mviy]

LibertyWorks are saying that they are confident that in a black and white reading of the law that they have a solid case. They have also said that if they lose they intend to appeal to the High Court.

Outbound travel ‘in no way endangers Australians left behind’

LibertyWorks President Andrew Cooper says it’s “entirely cruel” to prevent Australians – millions of which are born overseas – from returning to their origin country or seeing family as the group challenges the outgoing travel ban in Federal Court. “Eight million Australians are born overseas...

www.skynews.com.au

 

[drron]

And if the Government loses they will also appeal to the High Court i would imagine.So the High Court will decide if it accepts the appeal.might be a while before a final decision.

 

[jakeseven7]

And if the Government loses they will also appeal to the High Court i would imagine.So the High Court will decide if it accepts the appeal.might be a while before a final decision.

Exactly. Yawn, this won’t go anywhere anyway.

 

[mviy]

It will be interesting to hear if any news comes out today from today's hearing regarding the India Travel Ban. I guess it's likely that they will take some time to consider whether to make a judgment or dismiss the case as moot (as the travel ban is ending shortly).

 

[OZDUCK]

It will be interesting to hear if any news comes out today from today's hearing regarding the India Travel Ban. I guess it's likely that they will take some time to consider whether to make a judgment or dismiss the case as moot (as the travel ban is ending shortly).

'Part' of case rejected in first ruling.

Federal Court dismisses part of a challenge to the Australian Government's India travel ban

The Federal Court throws out part of a challenge to a temporary ban on passengers travelling from India where COVID-19 infection rates have been escalating.

www.abc.net.au