An Australian legal professional is preparing a case against the federal government over Australia’s international travel ban.

On 25 March 2020, a ban on leaving Australia was put in place by federal Health Minister Greg Hunt as an “emergency requirement” under the Biosecurity Act, considered the first time Australia has had such a ban, which was made on the advice of the Australian Health Protection Principal Committee.

The measure, which remains in place and has been extended to 17 December this year, came in response to the threat of the COVID-19 pandemic to human health, with most Australians now required to apply for an exemption to leave the country, providing a “compelling reason” to qualify as such.

In announcing the extension to Australia’s international travel ban last Thursday, Minister Hunt said in a statement: “The Australian Health Protection Principal Committee has advised that the international and domestic COVID-19 situation continues to pose an unacceptable public health risk.

“The extension of the emergency period is an appropriate response to that risk.

“The human biosecurity emergency declaration ensures the government has the powers to take any necessary measures to prevent and control COVID-19 and protect the health of all Australians.”

Tony Taouk is a lawyer and notary public at Magna Carta Lawyers who is researching ways to sue the Commonwealth government and challenge the legality of Australia’s international travel ban.

“So far, my research indicates that challenging the travel ban solely on the basis of international law would likely fail due to a lack of domestic grounds on which to base a legal challenge. Surprisingly, there is no Australian law which enshrines freedom of movement),” Taouk said.

“However, it could be argued that the Health Minister’s decision is more restrictive or intrusive than is required in the circumstances and therefore is invalid.  I am focusing on this point of attack and hope to finalise my pleadings soon. The most likely forum will be the Federal Court of Australia.”

Taouk believes Australia’s lack of a Bill of Rights, like the United States, has allowed politicians to take “advantage of a deficiency in our laws”.

“Nevertheless, it is arguable the Health Minister exceeded his ministerial powers by imposing a blanket ban on outward and inward international travel instead of taking measures to reduce the spread of the virus by travellers, such as testing on arrival, quarantine of arrivals et cetera,” he said.

“His actions are clearly draconian and are more intrusive than is necessary in the circumstances, as illustrated by the fact that most countries have opened up and are taking these measures.

“I believe a challenge on this basis could be successful.”

Other academics say Australians do not have a constitutional right to leave the country.

“The government legally made the determination under the Biosecurity Act, which gives the health minister power to put in place ‘any requirement’ they believe is necessary to prevent or control the entry or spread of the virus into Australia,” University of Technology Sydney Senior Lecturer Anthea Vogl wrote in The Conversation.

“International law recognises the right to leave any country, including your own, but there is no equivalent constitutional protection in Australia. In other words, Australians don’t have a constitutional right to leave Australia.

“Strict exit bans for citizens are generally associated with authoritarian states, like North Korea and the former USSR. But the Health Department has said the ban is needed because of the burden returning residents place on quarantine arrangements, the health system and testing regimes.

“The government has also argued it is ‘impossible’ to only ban travel to specific places, due to the fast-moving nature of the pandemic in different countries.”

Speaking on the ABC’s Q+A during the ‘Border Wars’ panel, Australian National University Honorary Professor Kim Rubenstein – who brought a copy of the constitution to the show ­– said the pandemic “has really amplified some of the structural problems that we have in our constitution”.

She said there was no reference in Australia’s constitution to Australian citizenship or citizenship rights. The legal framework for the international border closure, she said, is based on the Biosecurity Act, with decision-making powers delegated back to Australian Border Force.

“The policy may not be clear enough or transparent enough for people to be able to follow in a way that is consistent,” she said.

For those attempting to return to Australia, the problem is as frustrating as attempting to leave the country or more.

Thousands of Australians have their stories of being trapped outside the country on RemoveTheCap.com, a website established by Pieter den Heten, a Dutch-Australian stuck couch surfing in Amsterdam without a job, who founded it to show how widespread the issue is.

Since 22 January, Australia has reported at least 26,465 cases of COVID-19 and 791 lives lost. In the last 24 hours from Wednesday, Australia has reported 93 new cases, according to the latest Department of Health data.

Featured image source: iStock/NiseriN