On 30 April 2021, India had reported more than 300,000 new cases of COVID-19 every day for a week. After a risk assessment, the Government decided to implement a temporary pause on travellers from India entering Australian territory by air if the passenger had been in India within 14 days of the person’s intended arrival date in Australia.

The Health Minister made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (the Determination) requiring certain people not to enter Australia using human biosecurity emergency powers provided by section 477 of the Biosecurity Act 2015. The Determination commenced on 3 May 2021 (section 2) and will automatically repeal at the start of 15 May 2021 (section 5). 

The determination is a legislative instrument, but it is not disallowable by Parliament, and cannot be considered for scrutiny by the Senate Standing Committee for the Scrutiny of Delegated Legislation.

The Determination is the eighth emergency requirement made under the powers.

Which passengers may not enter Australia?

The emergency requirement is in section 6 of the Determination:

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 requirement does not distinguish between Australian citizens and non-citizens; it covers any air passenger. However, emergency medical evacuation flights and Australian Government facilitated flights are excluded from the definition of relevant international flights in section 4 of the Determination and passengers on those flights are not caught by the section 6 requirement.

The determination does not apply to people who are not passengers arriving by air—that is people entering by seagoing vessel or other means.

Exemptions

Section 7 of the Determination provides exemptions for:

• aircrew and people working with safety and maintenance of aircraft
• air freight workers
• people travelling on official government business on an Australian official or diplomatic passport, including Australian Defence Force (ADF) members, and their immediate family members
• foreign officials accredited to Australia and their immediate family members holding a temporary diplomatic visa
• members of an Australian Medical Assistance Team (AUSMAT).

No discretionary exemptions

Unlike the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020, no-one is authorised to issue individual discretionary exemptions on the basis of exceptional circumstances.

Entry if not exempt is a criminal offence

Contravening any valid biosecurity requirement, including section 6 of the Determination, is a criminal offence, punishable by a maximum of five years imprisonment and/or a $66,600 fine. The offence is not strict liability, requiring an intention to do the act that contravenes the biosecurity requirement. However, ignorance of the existence of the biosecurity requirement is not a defence.

The purpose of the temporary restriction of entry

The Explanatory Statement to the Determination notes: 

The Determination to temporarily restrict entry to Australia for people who have been in India in the last 14 days reflects the latest health advice that there is a high likelihood of COVID-19 cases arriving in Australia via a person travelling from India, or who has been in India in the last 14 days. 

India has been identified as a high risk country due to the significant increase in COVID-19 positive case numbers in travellers to Australia from India. The Determination protects the quarantine and health resources needed to prevent and control the entry, and the emergence, establishment or spread of COVID-19 into Australian territory or a part of Australian territory. The measures maintain the integrity of Australia’s quarantine system and allow the system to recover capacity, which is a critical intervention in preventing and managing the spread of COVID-19.

Section 29 of the Air Navigation Regulation 2016 permits the Government to control the scheduling of international commercial passenger flights and impose passenger arrival caps on international flights into the Commonwealth. The Government temporarily banned flights from India on 27 April 2021.

The Commonwealth can use its broad powers under the Migration Act 1958 to prevent the entry of non-citizens. The Determination is intended to prevent Australian citizens who are or have been in India from returning to Australia via third countries within 14 days of leaving India. All direct flights to and from India have been suspended. 

Controversy

The validity of the determination is contested, with Mr Gary Newman challenging the validity of the Determination in Newman v Minister for Health and Aged Care. At an initial directions hearing on 5 May, the case was expedited for urgent hearing. An additional case management hearing before Allsop CJ is scheduled for 10am on Thursday 6 May 2021.

The UN High Commissioner for Human Rights has raised ‘serious concerns’ about the compliance of the determination with Australia’s human rights obligations, particularly Article 12 of the International Covenant on Civil and Political Rights, which provides that no one shall be arbitrarily deprived of the right to enter their own country.

Legal commentators have noted the potential invalidity of the direction on statutory and constitutional grounds.