Before the challenge to the India travel ban, there was the Libertyworks challenge to the outbound travel ban which is being heard by the full federal court today.
Rather than argue that the outbound travel ban is disproportionate, the challenge is narrowly focused on whether health minister Greg Hunt can impose a blanket rule rather than using the Biosecurity Act’s provisions that allow restrictions on individuals, subject to higher safeguards.
Counsel for Libertyworks told the federal court the Act that parliament had made a “deliberate and conscious choice” that “even in the context of a biosecurity emergency … if one wanted to subject someone to a restriction infringing on their rights, those measures could only be done through a human biosecurity control order”. And that is not how the travel ban was enacted.
The hearing hearkened back to simpler times, when the Act passed in 2015 and the biosecurity emergencies everyone was worried about were things like foot and mouth disease but not Covid-19.
At one point, the explanatory memorandum was read including the prediction that the “the human health provisions contained in the bill will also be seldom used”, prompting justice Anna Katzmann to quip drily “ha-ha”. The joke is on all of us, in hindsight.
The solicitor general, Stephen Donaghue, argued that before the health minister can start making blanket determinations the governor-general must first declare a human biosecurity emergency, a “severe and immediate threat” of a “nationally significant scale”.
Donaghue warned if Libertyworks’ interpretation of the law is right, “all sorts of things” can’t be done to a group of people without individual orders, including contact tracing or prescribing people from visiting aged care centres. Protective measures would be “eviscerated”, he said.
“[The plaintiff’s construction] destroys the efficacy of emergency powers when it is important to be able to break glass [in case of emergency], to override other laws to respond to the magnitude of the threat.
The hearing continues after lunch.
at 11.18pm EDT
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at 10.59pm EDT
Competition tsar Rod Sims has rejected a proposal from Qantas and Japan Airlines to expand their existing code-sharing deal into what they call a “joint business agreement”, saying the hook-up would undermine competition as international travel recovers from the pandemic.
The two airlines had asked the Australian Competition and Consumer Commission for permission to coordinate flights between Australia and Japan for three years, with Qantas telling the watchdog in a submission that the deal was “critical to sustainably restoring air links across a wide range of routes between Australasia and Japan”.
They needed permission because the arrangement would breach competition laws.
On the proposal Sims said”
The ACCC can only authorise these agreements if the public benefits from the coordination outweigh the harm to competition…
At this stage we do not consider that Qantas and Japan Airlines’ proposal passes that test.
He said the deal might have had short-term benefits but “would appear to undermine competition significantly by reducing the prospect of a strong return to competition on the Melbourne – Tokyo and Sydney – Tokyo routes when international travel resumes”
Protecting competition in the airline industry is critical to ensuring recovery in the tourism sector, once international travel restrictions ease…
Granting this authorisation would seem to eliminate any prospect of Qantas and Japan Airlines competing for passengers travelling between Australia and Japan, as they did before the COVID-19 pandemic. This elimination of competition would benefit the airlines at the expense of consumers.