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Following the prime minister’s ban on Australian citizens returning from India, Fran Bailey has called the decision abhorrent and an indictment on the government. By Karen Middleton.

Exclusive: Howard minister slams ban on India returnees

Former Howard government minister Fran Bailey.
Credit: Nine / Paul Jones

Fran Bailey, a former Howard government minister, has blasted Prime Minister Scott Morrison for locking Australians in India out of their own country, calling it “abhorrent”, “unconscionable” and “an indictment on the government”.

“I’m disgusted, absolutely disgusted by this decision,” Bailey says of the government’s declaration that there would be a temporary pause on travellers from India entering Australian territory from 12.01am on Monday, May 3.

“It in no way reflects Liberal philosophy or ideology. It’s an attempt at a quick-fix solution because our quarantine system is not up to par.”

A former Liberal Tourism minister, Bailey accuses the government of having “trashed” citizens’ rights.

Health Minister Greg Hunt announced the measure in a press release, issued in the early hours of May 1.

The declaration threatens five years’ jail or a $66,000 fine, or both, for anyone, including Australian citizens, entering Australia within 14 days of being in India. It is due to expire on May 15.

It was prompted by the Covid-19 crisis engulfing that country and the potential infection risk posed by the return of 9000 Australians currently there, 900 of whom are considered vulnerable.

Such a restriction has never before been placed on Australian citizens.

Citizenship is generally understood to afford Australians an implied – though not explicit – constitutional right of return.

Made under the Biosecurity Act, the decision is linked to a regulation early last year that declared a Covid-19 pandemic and gave the government emergency powers to restrict people’s movements.

But the act contains a tough test: such a measure must be “appropriate”, “likely to be effective” and must apply “only as long as is necessary”. Both the measure itself and how it is applied must also be “no more restrictive or intrusive than is required in the circumstances”.

Fran Bailey suggests the declaration – which is exempt from parliamentary scrutiny – is a morally questionable overreach.

Lawyers go further.

Australia’s foremost citizenship law expert, University of Canberra professor Kim Rubenstein, suggests Hunt may have exceeded both statutory law and the constitution.

“I think there are very strong arguments that the determination is unlawful,” Rubenstein says. “We will now see what the Federal Court thinks.”

The court is hearing an urgent challenge lodged on Wednesday by 73-year-old Melbourne man Gary Newman, stranded in India since March last year. Newman’s application alleges Hunt failed to properly consider if the act’s requirements were all met.

It says the minister could not have assessed the measure against the criteria because he didn’t consider alternatives.

Newman’s case cites the advice letter from the chief medical officer, Professor Paul Kelly, on which Hunt says he relied.

The letter was to assist the minister to make the specific decision he made under section 477 of the act. Kelly confirmed this on Sky News on Monday.

“The advice we provided was what we were asked for, which was related to that particular section of the act,” he said.

Newman’s application notes that Kelly’s letter confirms the move is unprecedented, proposes no alternative and is silent on the appropriateness of penalties.

He argues less restrictive options were available. He also says the minister did not consider the implications for the health of Australia’s prison population if infected people were jailed for breaking the new law.

The government shut off direct flights from India on April 27. Two days later, Australian cricketers in the Indian Premier League (IPL), Adam Zampa and Kane Richardson, returned home via Qatar, exposing an apparently unanticipated loophole. The criminal penalties came the next day.

This week, the IPL was suspended after some players tested positive. Cricket Australia is now flying uninfected Australian participants to a third country, to wait out the 14 days.

One who had already left, batsman turned commentator Michael Slater, launched a social media salvo from the Maldives, saying the prime minister had “blood on his hands” and had abandoned his citizens.

Agriculture Minister David Littleproud said Slater was “acting like a spoilt prat” and Australians needed to take some personal responsibility for their circumstances.

The government argues the ban was needed because of how widespread and fast-moving Covid-19 is in India.

The Saturday Paper has been told the government was also frustrated that it can’t trace accurately enough where travellers have been.

Under international treaties, the government accesses passengers’ itineraries but only for single-ticket, unbroken journeys to Australia. If someone has a stopover and books a separate ticket for the final sector, their previous destinations are not automatically visible to authorities.

The Saturday Paper understands state and territory chief health officers backed some kind of action to restrict arrivals from India, though not specifically this measure.

Critics say the move reflects a failure to adequately prepare Australia’s quarantine system for inevitable surges, which have been anticipated for more than a year.

Former senior health bureaucrat Jane Halton recommended surge capacity in her quarantine review report last October.

She said the existing 850-person capacity of the national facility at Howard Springs, outside Darwin, should be expanded to take 3000 people. Passengers on repatriation flights are quarantined there.

The government is still finalising an agreed expansion, but only to 2000. It is understood to be actively considering a proposed new facility in Victoria.

Paul Kelly said governments had agreed “very early on” that Australia’s quarantine arrangements could handle only an average rate of 2 per cent of its total capacity being positive cases, with action needed beyond that.

“And in Howard Springs at the moment it’s over 15 per cent,” Kelly told Sky News on Monday. “Over 70 per cent of them are people who’ve arrived back from India.”

There have been 14 hotel quarantine breaches since October, almost all involving variant strains, Kelly said.

The sudden ban has angered Indian Australians, some of whom accused the government of discrimination.

Morrison rejects that assertion, insisting the situation in India is much worse than in other countries.

The president of the Federation of Indian Associations of New South Wales, Dr Yadu Singh, tells The Saturday Paper the move was “clumsy” and “not smart”.

“The language, the timing, the tone and the purpose of the announcement by Health Minister Greg Hunt was not a good look,” Singh says. “The optics were really bad. Many people, including [me], understood the need for the temporary pause in the flights from India. But criminalising the arrivals of Australian citizens to their own homes did not go down well. Doing it without any explanation … made it much worse.”

Singh does not believe it was racially motivated, however. “I’m refusing to call it racist,” he says. “But it was not done with care and compassion and that was the problem.”

Hundreds of Indian community representatives attended an online meeting with Immigration Minister Alex Hawke on April 30, but were not warned about the coming criminal penalties, legislated hours later.

At another online meeting on Wednesday, Hawke said the secrecy was to stop people sneaking onto flights to beat the ban.

Prime Minister Morrison has foreshadowed repatriation flights when the ban is lifted. He played down the penalties, saying they likely won’t be used.

“It was a practical decision, made on health grounds. It is temporary, it is until the 15th of May,” Morrison said on Tuesday. “… The pandemic is raging. And so my government will take the steps necessary and the actions necessary to protect Australians so we can also bring more Australians home safely.”

Legal critics note penalties are there for a reason and were highlighted prominently in both Hunt’s announcement and Kelly’s advice.

Within the Coalition, responses are mixed. Victorian Liberal Russell Broadbent backs the decision. “Of course we’re concerned for Australian citizens when in trouble overseas,” he says. “Our first response has to be to get them back as soon as possible. Except we’re in a war – a war with Covid … While we understand the principles, we have to live with the realities of the decisions they have to make.”

Others are more alarmed. Queensland Nationals senator Matt Canavan says he worries the virus “has destroyed not just our freedoms but sometimes our sense of humanity to each other”.

Sydney-based MP Dave Sharma, who has Indian heritage, called it “an extreme measure”. “It is causing significant hardship to the Australian Indian community,” he told The Sydney Morning Herald.

Fran Bailey suggests they are right to be angry. “He can dress it up in any language he likes,” Bailey says. “But the reality is that he is saying to all of those thousands of Australians who are trapped in India, ‘You’re on your own. You can’t count on your government now.’ ”

She says it is an important issue that goes to the heart of Australian citizenship.

“And what does Australian citizenship mean?” she asks. “I think that Morrison has just trashed those rights.”

Speaking earlier this week, Morrison said: “I respectfully disagree with the critics on this one.”

But critics, including Kim Rubenstein, warn the decision sets a dangerous precedent. “I think that’s why people are rallying around at the moment because it is such a startling and unusual step in a democratic framework to positively stop your citizens from returning,” she says. “It is really unprecedented. And I think that that’s the worry – that once you allow it to happen in one situation, what does it then do to the strength of your understanding of those democratic protections?”

Bailey is also worried. “Because they’ve taken this extraordinary step, you can’t help but wonder: what else are they prepared to do?”

This article was first published in the print edition of The Saturday Paper on May 8, 2021 as "Howard minister slams Morrison ban".

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Karen Middleton is The Saturday Paper’s chief political correspondent.