‘Nobody’s going to be jailed’

A legal challenge to the federal government’s India travel ban has been filed in the Federal Court by Marque Lawyers, with an urgent application quickly heard and expedited this afternoon. According to reports, the case – Gary Newman v. Minister for Health and Aged Care – relates to a 73-year-old applicant who has been stuck in India since March 2020, and will seek to argue that the travel ban breaches both the Constitution and the requirements of the Biosecurity Act, which says that determinations must be effective, appropriate and no more restrictive than necessary. The government has today continued to walk back the threat of sanctions, while standing by them just enough to ensure that no one tries to come home. Deputy Prime Minister Michael McCormack appeared on News Breakfast, promising that “nobody’s going to be jailed” under the sanctions, because the PM said so – prompting questions regarding the separation of powers. Home Affairs Minister Karen Andrews complicated that promise slightly in her morning interviews, noting that “the best way to avoid the prospect of any fines, any sanctions, is to not get on a plane and come here”. In other words: Nobody is going to be jailed for exercising their right to come home… so long as they don’t try to exercise their right to come home. Perhaps the minister for health and aged care could tell that to the Federal Court.

Prime Minister Scott Morrison continued to downplay the backlash today, insisting that the ban – which has been widely opposed by the Indian-Australian community, and now by the office of the UN high commissioner for human rights – will not damage the relationship with our neighbour. Someone tell that to India’s opposition, which has slammed Australia’s decision as “against humanity and ethical conduct among sovereign nations who are supposed to be Quad allies”. The PM claimed that the pause “is already working” in bringing down the number of cases in quarantine at Howard Springs. Reports that the facility is now at just one third of its capacity might have something to do with that. It’s not just quarantine facilities that are rather unoccupied: as Labor Leader Anthony Albanese tweeted in response to Morrison’s announcement that the first flight carrying donated medical supplies left for India this morning, the plane will be coming back empty.

In unfortunate timing for both the federal government (with its insistence that hotel quarantine is working just fine) and The Australian (with its all-out front-page assault on Victoria’s system), New South Wales has recorded one locally acquired case of COVID-19: a Sydney man in his fifties, who has not travelled overseas in recent times and does not work in hotel quarantine, or in a border or health role. NSW Premier Gladys Berejiklian, who is very unlikely to announce any kind of lockdown at this stage, told a press conference that it’s unclear how the man contracted the virus, but that genomic sequencing is under way. Berejiklian has issued a pre-emptive warning to any governments considering shutting their borders to NSW, noting that she wouldn’t expect there to be implications, considering New Zealand recently “had more cases and we didn’t even flinch”. 

The wary Western Australian government, having recently grappled with two mini-outbreaks and one lockdown of its own, is of course already seeking advice from its chief health officer on whether to seal its border. With NSW unlikely to lock down over the mystery case, and the man having been rather active in the community in recent days, WA is probably not the only state government considering it. Though surely – surely – there won’t be any complaints from the federal government about drastic border closures this time.

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