The Morrison government has warned a legal challenge to Australia’s outgoing travel ban brought by rightwing thinktank LibertyWorks, threatens to “drive a truck” through biosecurity laws.
In submissions to the federal court, the commonwealth said LibertyWorks’ argument that the health minister has no power to impose a blanket ban on all citizens leaving Australia ignored the “emergency context” of the Covid-19 pandemic.
The case is the first major challenge to Australia’s strict external border restrictions limiting people’s right to leave the country, but does not seek to overturn the cap on the number of arrivals to Australia.
Since 25 March 2020, citizens and residents require a special exemption to leave Australia, due to a determination made by health minister, Greg Hunt, after Covid-19 was declared a human biosecurity emergency.
Exemptions include travel for compassionate reasons, the national interest, medical treatment, response to the Covid-19 pandemic and general business travel.
The home affairs department told Guardian Australia that from March 2020 to 31 January, more than 113,567 Australian citizens and permanent residents have been given exemptions to depart Australia out of a total of 232,552 requests.
An employee of LibertyWorks applied for an exemption in October to travel to London, attaching an email in support explaining the purpose was “to assess potential CPAC [Conservative Political Action Conference] venues there”.
Border Force rejected the application as “not exempt from travel restrictions”. In December it explained that this was “owing to insufficient supporting information and invited [LibertyWorks] to cause a new application to be made”, the commonwealth submissions reveal. “The employee has not submitted a further application.”
The commonwealth argued the health minister has power to make determinations “to prevent or control the spread of declaration listed diseases in and outside Australia”.
It noted LibertyWorks had not challenged the “necessity” of the ban to control the spread of Covid-19 and “raises no issue about the effectiveness, appropriateness, or proportionality” of it.
LibertyWorks’ challenge is focused on the fact the determination applies to the whole population.
In its submissions, the thinktank noted the minister’s power is limited by a safeguard that a determination “must not require an individual to be subject to a biosecurity measure of a kind” that includes a biosecurity control order.
A “biosecurity control order” can restrict movement – but only for a “particular named individual”, it said.
“It follows that the health minister cannot subject a group of individuals via determination to a measure of a kind to which the chief medical officer could subject an individual via a biosecurity control order.”
The commonwealth responded that this interpretation would make it “very difficult, if not impossible” to impose an effective restriction on movement to prevent or control the spread of Covid-19.
The commonwealth submitted the safeguard in fact had the “reverse” meaning. “The overseas travel restriction imposed by the determination is not a measure that requires ‘an individual’ to be subject to a biosecurity measure of the relevant kind,” it said.
“Rather, [it] is of broad application, applying to all Australian citizens and permanent residents.”
The commonwealth warned against a reading that every biosecurity restriction which “could potentially be imposed on a particular individual … cannot be the subject of any regulation within the population at large”. That would mean a “proverbial truck is driven through the Act”, it said.
The case is set for a hearing on 28 April. Guardian Australia understands LibertyWorks will move to have the case heard by the full federal court, to reduce the chances of an appeal.
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