The Federal Court has rejected a challenge to the Commonwealth government’s extraordinary international travel ban preventing most citizens from leaving the country so that they don’t bring COVID-19 home
Libertarian group LibertyWorks argued before the full bench in early May that Health Minister Greg Hunt did not have the power to legally enforce the travel ban that has prevented thousands of Australians from attending weddings and funerals, caring for dying relatives, and meeting newborn babies.
LibertyWorks lawyer Jason Potts argued Australians had a right to leave their country under the International Covenant on Civil and Political Rights Australia had ratified.
But the three judges ruled that submission was based on the “erroneous premise that the right is absolute”.
LibertyWorks’ lawyers also argued such a biosecurity control order could only be imposed on an individual rather than an entire population.
The order could only be imposed if that individual had symptoms of a listed human disease, had been exposed to such a disease or had failed to comply with travel requirements, they argued.
The judges ruled that that interpretation of the law would frustrate Parliament’s clear intentions when lawmakers created the emergency powers in the Biosecurity Act in 2015.
“It may be accepted that the travel restrictions are harsh. It may also be accepted that they intrude upon individual rights,” the judges said in their ruling.
“But Parliament was aware of that.”
Australia is alone among developed democracies in preventing its citizens and permanent residents from leaving the country except in “exceptional circumstances” where they can demonstrate a “compelling reason”.
LibertyWorks President Andrew Cooper said he was considering an appeal to the High Court.
“We are very disappointed in the judgement today,” he said in an email.
“We continue to believe that the outbound border closure is defective in law and, perhaps more importantly, unjust on human rights grounds.
“We must remind ourselves also that often things that are legal are not necessarily just.
He had expected hundreds of thousands of Australians to fly within weeks if he had won.
“While Europe and most of the world open up their borders, only North Korea and Australia stubbornly continue with strict controls over their citizen’s ability to leave their country,” Mr Cooper said.
Critics of the emergency order argue it is harshest for the 30 per cent of Australians who were born overseas.
The government says tough border controls have played an important part in Australia’s relative success in containing COVID-19 spread.
Surveys suggest most Australians applaud their government’s drastic border controls.
The Australian published a survey last month that found 73 per cent of respondents said the international border should remain closed until at least the middle of next year.
The ABC last week reported its own survey had found 79 per cent of respondents agreed the international border should stay shut until the pandemic was under control globally.
Critics of the travel restrictions argue decisions on who can travel and why are inconsistent and lack transparency.
Esther and Charles Baker, an ultra-Orthodox Jewish couple from Australia’s second-largest city, Melbourne, were twice refused exemptions to fly to New Jersey to attend their youngest son’s wedding in June last year.
They appealed to the Federal Court, citing religious and cultural reasons among their exceptional circumstances. But a judge dismissed their case and ordered the couple to pay the government’s legal costs for their challenge.
Authorities said he was infected by a traveller in another room on his floor and that the virus was carried in the air.