Australia’s India travel ban: does the health justification stack up and is the move legal?
"COVID live updates: Brisbane goes into lockdown as schools close following four new cases of community transmission "IMPT. all countries - Get guards out of corridors at quarantine hotels and get fresh air and CCTV in – experts""
The extreme use of a power most people didn’t know existed has generated a storm of criticism. We look at how it came about – and what happens next
The India travel ban is made under section 477 of the Biosecurity Act, which gives health minister Greg Hunt extraordinary powers in the event of ‘a human biosecurity emergency period’. Photograph: Luis Ascui/EPA
Paul Karp @Paul_Karp
Mon 3 May 2021 19.15 AEST Last modified on Mon 3 May 2021 19.47 AEST
At the weekend, the federal health minister, Greg Hunt, announced the government would bar people – including citizens and permanent residents – from coming to Australia from India.
The decision prompted a storm of criticism, including from the Australian Human Rights Commission, as Australians came to grips with an extreme use of a power most didn’t know existed.
So how did the ban come about, is it justified by medical advice, and could it be challenged legally?
What is the India travel ban?
On 27 April, the Australian government announced it was suspending all travel from India until 15 May, due to the increase in Covid cases in hotel quarantine from people arriving from India.
Despite the ban, a flight from Doha arrived in Australia later in the week carrying passengers who had transited through Qatar from India, including cricketers Adam Zampa and Kane Richardson.
Following a national security committee of cabinet meeting, on Friday the government alerted national cabinet to its plan and then, at 11.50pm, made a determination to close the loophole.
Passengers arrive in Sydney off a Qatar Airways flight on 1 May. Photograph: James D Morgan/Getty Images
What does the determination do?
The determination states that a person cannot fly to Australia if they have been in India in the previous 14 days.
There are a few exemptions for health workers, crew, freight workers, diplomats and defence force personnel. The determination expires on 15 May but is not disallowable before then.
How can they do that?
The determination is made under section 477 of the Biosecurity Act, which gives the federal health minister, Greg Hunt, extraordinary powers in the event of “a human biosecurity emergency period”.
Determinations are subject to a range of safeguards. They must be effective, appropriate and adapted to achieve their purpose; no more restrictive or intrusive than is required in the circumstances; and apply only as long as necessary.
What are the penalties?
Section 479 of the Biosecurity Act contains maximum penalties of five years imprisonment or $66,600, or both, for breaching a determination.
On Monday, Hunt noted the act passed in 2015 with bipartisan support, and the penalties are contained in the act not his determination.
What is the medical case for the ban?
[...]
Epidemiologists have questioned the ban, noting that India has fewer coronavirus cases per capita than either the United States or the United Kingdom during their respective Covid peaks.
[...]
Hunt told reporters on Monday that the number of people in hotel quarantine from India with Covid had increased from 14 in February, to 38 in March, to 210 in April.
“In Howard Springs alone we saw a seven-fold increase in cases,” he said. “Across the country, we saw a 1,500% increase in cases.”
Is the ban legal?
There are two ways the travel ban could be challenged: first, on the basis the determination is unlawful because it breaches safeguards in section 477 of the Biosecurity Act; or secondly, that it is unconstitutional.
Both Melbourne University’s Prof Cheryl Saunders and Sydney University’s Prof Anne Twomey agree the former is the better argument.
Saunders said a plaintiff could argue the ban was disproportionate and therefore failed the test of being “no more restrictive or intrusive than is required in the circumstances”.
One criticism of the Morrison government on this is that they have had a year to set up adequate federal quarantine facilities to bring overseas Australians home, and that efforts there have been inadequate.
As with most everything we seldom are able to get the full story.
Who is responsible for quarantine in Australia?
7.30/Laura Tingle
Posted Tuesday 19 January 2021 at 5:36pm, updated Tuesday 19 January 2021 at 7:47pm
VIDEO 6:20 Why are the states and territories, and not the Commonwealth, running hotel quarantine?(Laura Tingle)
Human quarantine has been a big issue in Australia since the days when visiting ships could bring infectious diseases into the colonies.
In fact, quarantine was the only health power given to the new Federation in 1901 and has been used to deal with threats ranging from smallpox to the ravages of the Spanish Flu in 1919.
Fast forward to the beginning of the COVID-19 pandemic last year and the decision in March to require all overseas arrivals to quarantine for 14 days.
The states and territories agreed to run hotel quarantine as part of their broader responsibility for public health, despite it being a federal role under the constitution.
The states also agreed to fund most of it.
You might find that surprising given the usual fights over money. But the states give a number of reasons why they were happy with this arrangement.
Quarantine in Australia is usually the responsibility of the Commonwealth. (AAP: Richard Wainwright)
They needed Canberra to use its Centrelink systems to distribute income support to casual workers who might be holding down multiple jobs and, as a result, may be spreading the virus.
There was also a lack of confidence in Canberra's capacity to run the quarantine system. States point to the fact that one of the biggest crises was in the federally-regulated aged care sector.
Finally, it was not just international borders that had to be considered but interstate ones.
From the Federal Government's perspective, it has been saved a lot of money and been kept clear of any political fallout from systemic failures in hotel quarantine.
But according to Shadow Health Minister Chris Bowen, "quarantine is open and shut a Commonwealth responsibility".
"It's good that the states took their share of getting the job done, but ultimately it's the Prime Minister and the Federal Government who are constitutionally responsible for quarantine," Mr Bowen told 7.30.
"We've had outbreaks from quarantine in four separate states."
Could Commonwealth quarantine be expanded?
The Howard Springs quarantine facility in the Northern Territory. (ABC News: Jane Bardon)
There have already been a number of inquiries into Australia's quarantine system.
The Halton review of Australia's hotel quarantine arrangements found using hotels for quarantine was essentially the best option when it was set up.
But it suggested a national quarantine facility also be established and kept at the ready in case of a sudden surge in incoming cases as travel takes off again.
The Federal Government has been sending people brought back to Australia on repatriation flights to Howard Springs, a disused workers' camp in the Northern Territory.
The Federal Government said in a statement that Howard Springs will soon be able to handle 850 arrivals a fortnight.
And there are plans to send more to sites in Canberra and Tasmania.
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