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Legal challenges loom after Australian government bans citizens returning from India

The Guardian logo The Guardian 3/05/2021 Nino Bucci and Paul Karp
Photograph: Wallace Woon/EPA © Provided by The Guardian Photograph: Wallace Woon/EPA

Lawyers expect that a legal case challenging the India travel ban could be filed within days, despite the federal health minister, Greg Hunt, saying it was his “absolute belief” the measure was lawful.

Hunt announced a potential five-year jail term and $66,000 fine late on Friday, in a dramatic escalation of the flight bans implemented a week earlier.

Marque Lawyers’ managing principal, Michael Bradley, told Guardian Australia his firm was “actively looking into” a legal challenge and he considered the prospect of a court case over the India travel ban “pretty likely”.

Related: Australia’s medical chief Paul Kelly says he gave no health advice to jail India arrivals

Bradley said Marque had been approached by an Indian Australia family with the parents currently in Australia and grandparents who had taken their three-year-old grandchild to India for a visit in February 2020 before Australia insisted citizens and permanent residents return home in March 2020. They are now unable to return.

a group of people standing next to a brick wall: Lawyers say challenges to the government’s ban on Australians returning from India could be filed within days. © Photograph: Wallace Woon/EPA Lawyers say challenges to the government’s ban on Australians returning from India could be filed within days.

Bradley said the fact the determination expires on 15 May and could be revoked adds a degree of urgency.

The Grata Fund, which supports public interest litigation, has also been contacted about mounting a legal challenge to the ban.


Video: Harsh penalties on Aussies returning from India 'invoked under Biosecurity Act' (Sky News Australia)

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“There is an enormous amount of distress about the Morrison government’s India travel ban in our community,” Isabelle Reinecke, the fund’s founder and executive director, said.

“We’ve received a lot of inquiries about potential legal challenges over the weekend, which we’re working through now.”

Hugh de Kretser, the executive director of the Human Rights Law Centre, said the centre had also been contacted directly by people in India interested in a case.

The fact the ban could expire before a legal case is mounted – and certainly before any case is finalised – was not necessarily a reason to abandon a challenge, he said.

Aside from potential challenges on administrative and constitutional grounds, there is the prospect that the ban could fail because it breaches Australia’s obligations under international law.

Related: My Australian husband is stuck in India. All I want is to know he can come home | Narita Nagin

“We’re obviously concerned about the precedent of imposing potential jail terms on a citizen for coming home,” De Kretser said.

“That has ... a direct impact on people that are affected now, [but] what you want is to make sure governments can’t use that blunt and harmful tool in the future as well as making sure governments are doing the right thing by their citizens now.”

Another senior lawyer who spoke to Guardian Australia declined to comment because he expected to be engaged to act in an impending case.

Hunt sought to reassure Australians on Monday that the determination to make it an offence for anyone to enter Australia within two weeks of being in India is legal, saying it was “our strong, clear, absolute belief” that it was.

“One of the things here is that we have been very measured. There are many orders which have been put in place, in particular under the Biosecurity Act,” he said.

“The strong, clear view is that there has been no doubt in any of the commonwealth advice about this measure or other measures.”

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