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A Melbourne man is challenging the validity of a federal government decision which has made it a crime for Australian citizens to travel home from India.
Key points:
- Gary Newman has been stuck in India since March 2020
- His lawyers are arguing the travel ban is unconstitutional
- The government has said it believes it has a "sound legal basis" for the ban
Gary Newman, 73, travelled to India to visit friends in March last year and has been stuck there ever since.
Lawyer Michael Bradley and barrister Chris Ward SC lodged Mr Newman's challenge in the Federal Court in Sydney before Justice Stephen Burley this afternoon.
They are arguing Health Minister Greg Hunt's emergency declaration under the Biosecurity Act is invalid on constitutional grounds.
Firstly, Mr Newman's lawyers argue the Commonwealth is acting outside its powers.
Secondly, it will be argued that the minister's declaration is in breach of an implied freedom to return home.
Mr Newman is currently in Bangalore, in India's southern state of Karnataka.
Mr Bradley and Mr Ward are both acting pro bono for Mr Newman.
In a statement earlier this week, a government spokesperson said it would not release its legal advice.
"We are confident in the sound legal basis of this determination," they said.
The ban — which has been described as a "temporary pause" on travel by the government — came into effect on Monday and will last until May 15.
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Under the restrictions, which have been criticised as punitive and immoral, anyone who has been in India within 14 days could face up to five years in prison and a fine of up to $66,000 if they come to Australia.
Following fierce condemnation from Indian Australians, human rights groups and media commentators, Prime Minister Scott Morrison yesterday said the likelihood of people being prosecuted for breaching the ban was "pretty much zero" and "very remote".
Government ministers have rejected accusations the ban is racist, arguing the decision to use the emergency powers was based on expert medical advice.
Mr Morrison has previously insisted the pause is "proportionate" and necessary to avoid a third wave of COVID-19 in Australia, due to the high number of returning travellers from India carrying the virus.