Returning From India Banned Under Biosecurity Act

On 27 April 2021, the federal government announced a temporary ban on travel from COVID-ravaged India to Australia that would last until the 15^th of May 2021. In spite of the ban, a number of Australians including two well-known cricketers, returned home from India via Doha – circumventing the law – during the following week. The government then announced that it was imposing a ban on returning from India which would prevent anyone who had been in the country in the last 14 days from travelling to Australia, with fines and terms of imprisonment for contravening the ban. This announcement has caused widespread alarm and indignation as well as debate as to the legality of the new law.

How was the ban on returning from India imposed?

The ban on returning from India to Australia was imposed under an existing power conferred by the Biosecurity Act. Section 477 of the Biosecurity Act gives the health minister (currently Greg Hunt) wide-ranging powers that can be exercised in the event of a ‘human biosecurity emergency period.’

A human biosecurity emergency was declared in response to COVID-19 by the Governor-General on medical advice on 17 March 2020 and has now been extended until 17 June 2021.

Human Biosecurity Emergency Determination

On 30 April, Minister Greg Hunt passed the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021. The emergency requirement states that:

A person who is a passenger of an aircraft on a relevant international flight must not enter Australian territory at a landing place if the person had been in India within 14 days before the day the flight was scheduled to commence, unless an exemption set out in section 7 applies to the person.

The determination contains exemptions in respect of a person who is:

(a)  a member of the crew of an aircraft or vessel;

(b)  a worker associated with the safety or maintenance of an aircraft or vessel;

(c)  a person engaged in the day‑to‑day conduct of inbound and outbound freight;

(d)  a person (including a member of the Australian Defence Force) who is travelling on official government business on an Australian official or diplomatic passport;

(e)  a person who is an immediate family member of a person mentioned in paragraph (d);

(f)  a diplomatic, consular or other foreign official accredited to Australia;

(g)  a person:

(i)  who is an immediate family member of a person mentioned in paragraph (f); and

(ii)  who holds a Subclass 995 (Diplomatic (Temporary)) visa;

(h)  a member of an Australian Medical Assistance Team (AUSMAT).

Section 477 of the Biosecurity Act

Section 477 allows the minister to make such determinations as he or she considers necessary during a human biosecurity emergency to prevent or control:

• the entry of a human disease into Australia or part of Australia; or
• the emergence, establishment or spread of the disease in Australia; or
• the spread of the disease to another country; or
• to give effect to a recommendation of the World Health Organisation under Part III of the International Health Regulations (if one has been made).

During an emergency, the Health Minister has the power to determine requirements including:

• requirements about persons, goods or conveyances entering or leaving specified places;
• requirements restricting or preventing persons, goods, or conveyances from moving in or between places;
• Requirements for the evacuation of specified places.

Health minister must be satisfied of certain things

Before the health minister makes a determination under section 477, he or she must be satisfied that:

• The requirement is likely to achieve, or contribute to achieve, its purpose;
• The requirement is appropriate for achieving its purpose;
• The manner in which it is to be applied is no more restrictive or intrusive than necessary;
• The period it is to apply is no longer than necessary.

Failing to comply with emergency directions and requirements

Section 479 of the Biosecurity Act sets out the penalties that apply to a person who fails to comply with directions and requirements under the Act. These include fines of up to 300 penalty units, or imprisonment for up to five years, or both.

Responses to the ban on returning from India

The determination under the Biosecurity Act has been widely criticised including by the Australian Human Rights Commission and by epidemiologists, who have pointed out that the country has fewer cases per capita than the US and UK did during their COVID peaks. The Australian Medical Association has also reportedly demanded that the ban be reversed, calling it ‘meanspirited’ and ‘an overreach.’

The ban is due to be lifted on May 15 2021.

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