Update on the India ban case: we lost! Longer version: the Federal Court yesterday heard part of our challenge to Greg Hunt's declaration under the Biosecurity Act, the non-constitutional arguments. The judge found against us and dismissed those parts of our case.

We argued that Hunt over-reached his powers by ignoring relevant considerations, particularly the fact that flights from India had already been stopped so why this extra unprecedented and draconian measure against citizens was needed was a mystery. The judge said no.

We also argued that the ban operates outside Australia, because it makes it a crime to board a plane to fly home; the judge disagreed with that interpretation.

Finally we argued that there is a common law right for all citizens to return home, which can't be overridden by legislation except with explicit words, and that the Biosecurity Act doesn't achieve that. The judge said no, it implicitly overrides all common law rights.

The Minister's barrister argued that his power is a "bulldozer", running over all other rights, meaning he can do almost anything in a public health emergency like COVID. The judge agreed.

The effect is that there is no limit to the Health Minister's powers, and his decisions are not reviewable by parliament. Also not really reviewable by the courts. It's carte blanche.

If our constitutional arguments are right, they would overrule the effect of yesterday's decisions. No decision has been made yet whether to pursue the case further.

It's also unknown whether the government will in the future decide to prevent citizens from returning home; on the law as at today, it can.

One good thing from the case: the Commonwealth conceded, and the judge agreed, that Australian citizens do have a common law right to return home. However, it's effectively extinguishable at the Health Minister's discretion. So, not that much of a right.