International Travel Ban Illegal?

[MEL_Traveller]

LibertyWorks decision is now published: LibertyWorks Inc v Commonwealth of Australia [2021] FCAFC 90 (dismissed)

 

[mviy]

That's a shame. I think they said they would appeal if they lost? If they appeal, I wonder how that will go.

 

[OZDUCK]

That's a shame. I think they said they would appeal if they lost? If they appear, I wonder how that will go.

Some lawyers will get richer and nothing else.

 

[Mattg]

Indeed a shame that this case was dismissed, but it's not the only legal avenue.

This case was arguing that the Biosecurity Act didn't give the government the power to ban overseas travel to this extent. There have also been challenges to the legality of this based on the International Covenant on Civil and Political Rights, which was not within the scope of this case.

 

[MEL_Traveller]

Indeed a shame that this case was dismissed, but it's not the only legal avenue.

This case was arguing that the Biosecurity Act didn't give the government the power to ban overseas travel to this extent. There have also been challenges to the legality of this based on the International Covenant on Civil and Political Rights, which was not within the scope of this case.

I think what LibertyWorks were arguing is that the ban couldn't apply to a class of people as a whole, it could only be applied to (named) individuals.

There wasn't a challenge to the actual 'rules' under the declaration, just to whom they applied.

Personally I think they argued the wrong thing and should have challenged the 'absolutely necessary' element, which a ban on departures might be on shaky ground.... particularly as there is no automatic right of return for Aussies (the government can't argue both ways!)

 

[N860CR]

There was never really any doubt about the outcome. Anybody who has worked with any level of government in Australia knows that the entire system is corrupt and rotten to the core. You’ll never win in a fight against the government.

 

[MEL_Traveller]

There was never really any doubt about the outcome. Anybody who has worked with any level of government in Australia knows that the entire system is corrupt and rotten to the core. You’ll never win in a fight against the government.

Of course the government loses cases or has to change position - look at robodebt for example.

Challenges are a useful check and balance, but not necessarily a good thing if they happen too frequently. People want certainty in laws and decision making so the basis for making laws and decisions is usually well researched to make sure they are compliant.

 

[N860CR]

Of course the government loses cases or has to change position - look at robodebt for example.

Robodebt had significant traction from the otherside of politics.

The international border is an issue neither side will touch. So I can assure you, the courts will side with the status-quo

 

[Chalkie]

Indeed a shame that this case was dismissed, but it's not the only legal avenue.

This case was arguing that the Biosecurity Act didn't give the government the power to ban overseas travel to this extent. There have also been challenges to the legality of this based on the International Covenant on Civil and Political Rights, which was not within the scope of this case.

The outcome in the Full Federal Court is entirely unsurprising.

Any challenges based on the ICCPR will also likely fail. While Australia is a signatory to that treaty and has ratified it, the ICCPR has not been incorporated into Australia's domestic law. The ICCPR has no force under Australian law.

 

[MEL_Traveller]

Robodebt had significant traction from the otherside of politics.

The international border is an issue neither side will touch. So I can assure you, the courts will side with the status-quo

It’s inaccurate to say the courts side with anything. They are disinterested.

They did not favour the Cth on the WA border closures.

 

[N860CR]

It’s inaccurate to say the courts side with anything. They are disinterested.

They did not favour the Cth on the WA border closures.

Sorry, but it’s not. I’d be happy to be proven wrong.

The case against WA was brought by Clive Palmer, not the commonwealth. The court sided with the government.

 

[mviy]

When the Feds learnt that polling showed that a principled stand against state border closures was unpopular with voters, they quickly decided to no longer support moves to challenge them.

 

[drron]

However if the Federal court and High court supported the State border bans when the numbers of Covid cases outside any one State were so much lower than the numbers outside our countrie's borders I can't see them overturning the travel bans for OS travel as much as I would like it to be so.

 

[MEL_Traveller]

When the Feds learnt that polling showed that a principled stand against state border closures was unpopular with voters, they quickly decided to no longer support moves to challenge them.

That might be the case. But the judges, who would have been aware of the Cth's opposition to border closures, didn't find in favour of Mr Palmer.

 

[mviy]

Hopefully the press runs more stories like this: ‘Frustration’ over no end to border closures

At least it would provide attention to the issue

 

[jakeseven7]

Hopefully the press runs more stories like this: ‘Frustration’ over no end to border closures

At least it would provide attention to the issue

As tens of thousands get vaccinated every day and the vulnerable are almost covered now you will certainly see this

 

[mviy]

This article suggests further legal challenges to the ban could come:

Australians trying to leave the country could have a constitutional challenge, legal expert says

Legal experts are questioning measures forcing travellers to get exemptions to leave the country, and Australia's other responses to the pandemic could increase the chances of a legal challenge.

www.abc.net.au

 

[MEL_Traveller]

This article suggests further legal challenges to the ban could come:

Australians trying to leave the country could have a constitutional challenge, legal expert says

Legal experts are questioning measures forcing travellers to get exemptions to leave the country, and Australia's other responses to the pandemic could increase the chances of a legal challenge.

www.abc.net.au

The government would be keen to prevent any serious challenges to this... for example by granting an exemption and therefore removing your need to take action.

I think the LibertyWorks cause was the wrong approach. If I understand correctly, they didn't argue the legitimacy of the orders - for example that a blanket ban on departures was the least intrusive way to manage the pandemic - they challenged whether the minister could make a general ban rather than only against a [named] individual.

I suspect with the government releasing their 'road map' - we'll see the blanket ban on departures eased with the ability for fully vaccinated to home quarantine. So they'll prolly extend the current ban in September and possibly December.

 

[mviy]

I think the easing for home quarantine will only be for amber countries at first at least and those will be a limited number of countries. So if seeking to travel to a country that is not amber or back from a red country it'll be just as difficult to return as it is now.

Ideally for a legal action to be successful hey'd need a number of people taking part in the litigation to make it difficult for the government to end it by granting exemptions to them all.

 

[Chalkie]

This article suggests further legal challenges to the ban could come:

Australians trying to leave the country could have a constitutional challenge, legal expert says

Legal experts are questioning measures forcing travellers to get exemptions to leave the country, and Australia's other responses to the pandemic could increase the chances of a legal challenge.

www.abc.net.au

And those challenges are very unlikely to succeed.

The trend of case outcomes in constitutional cases in the High Court over the last 50 years is to expand federal power, and to find ways to make federal government actions constitutional and lawful. The High Court says that is because that's what the Constitution says. Notwithstanding what those quoted in the article say, against the balance of High Court case law, the federal government is on strong footing with its powers under the Constitution in the following placita of section 51 to keep the exit restrictions in place for as long as it wants:

(ix) quarantine
(xxvii) immigration and emigration [my emphasis]
(xx_ix) matters incidental to the execution of any power vested by this Constitution in the Parliament

In the context of a public health emergency / global pandemic, the High Court is not going to second-guess parliamentary or executive decisions. I also think section 51(xxvii) provides a stand alone basis for the constitutionality of the exit restrictions in the express words "and emigration". The suggestion that "emigration" means a permanent departure is not likely to be viewed with favour by the High Court, as the meaning of "immigration" has been extended to include temporary entry to Australia. By parity of reasoning, emigration would include temporary departure.

Challenges based on things not incorporated into Australian domestic law such as UN conventions will go absolutely nowhere.

I realise that the exit restrictions are frustrating. I am personally affected by them too. But legal challenges are likely to be a waste of time and money. Australia being a happy-go-lucky, freedom-living place is a myth. The reality is that Australia is highly and tightly (over) regulated and (over) legislated, with federal (which includes the High Court) courts which take an expansive view of, and defer to, federal government power.