Stuck in India? claim expenses from the Commonwealth

Commonwealth is liable to pay ‘reasonable expenses’

Given the emerging situation in India, the Australian Government was quick to impose a travel ban for travelers coming from India. By an order the government said “it will implement a temporary pause on travelers from India entering Australian territory if the passenger has been in India within 14 days of the person’s time of departure”. The questions is, did the government factor in paying those stuck in India?

The decision to impose a temporary travel ban followed the meeting of National Cabinet last week and came into effect at 12:01 am on Monday, 3 May 2021.

The government claimed it was based on advice about the worsening COVID-19 situation in India.  Some people in India managed to arrive in Australia by first flying to Doha, Qatar and then flying in from Doha into Australia. That essentially breached the ban although the flights did not come directly from India.

When the government was quick to empower itself under the Biosecurity Act 2015 and using Section 107 announced any breaches of the ban in place may incur a civil penalty of 300 penalty units, five years’ imprisonment, or both.

A single penalty unit is $222 since mid 2020, going up from $210. That made the punishment for any breaches to be up to 5 years jail, fine of up to $66,600 or both.

The intent of the government was clear – to keep Australia and Australians safe and scare those stuck in India to comply with the ban.

The allegation of racism in the decision is simply garbage and not worth even an iota of intellectual time.

The government, at all times, I believe mindful of its obligations under the Biosecurity Act it used to scare Australians stuck in India into compliance, that it could only use its powers proportionate to the risk it was endeavouring to avoid for Australia.

The government said at the time that the ban was temporary and “will be reconsidered on 15 May by the Government following advice from the Chief Medical Officer (CMO).

“The CMO will consider the epidemiology in India and likely impacts on Australia’s quarantine capacity, and provide a further expert assessment of the public health risk to Australia to inform a proportionate response.” 

The Government said the measure was “critical the integrity of the Australian public health and quarantine systems is protected and the number of COVID-19 cases in quarantine facilities is reduced to a manageable level.”

It was faced with two big challenges on its hands – lack or shortage of Quarantine places in Australia and the worsening COVID situation in India which has been reporting more than 350,000 new cases of COVID-19 every day for two weeks.

For Australians stuck in India, it could be as bad as death knell. Many were booked on flights to Sydney and Darwin which were cancelled.

It is not incomprehensible if they feel abandoned by their government in the hour of need. What if someone contracts COVID observing the ban and dies?

Also read: Stuck in India? You are not forgotten

The government will be held liable at least morally, socially and ethically. And depending on the individual’s circumstance perhaps even legally.

The travel ban is already under challenge in the Federal Court and an urgent hearing is being accommodated to decide the issue by the experts.

Reasonable Expenses can be claimed
Although it has been tough for many stuck in India, all is not lost for those stuck in India. Under the same Biosecurity Act, people can legally ask the Australian government to pay their reasonable expenses they incurred complying with the order.

Section 108 of the Biosecurity Act 2015 stipulates this liability. There are no ifs or buts. The law is clearly states:

108 Expenses incurred in complying with human biosecurity control orders

The Commonwealth is liable to pay for reasonable expenses incurred by an individual in complying with a biosecurity measure included in a human biosecurity control order.

Clearly, all Australians who were visiting India when the controlling order was pronounced, (excluding those who are domiciled there) should be able to make a claim. This may be more directly applicable to those who were booked on flights which had to be cancelled.

Thus, all those stuck in India, if you contemplate lodging a claim once you arrive home, keep your receipts and document your expenses. Upon arrival, do seek legal advice if you intend to lodge a claim under Section 108 of the Biosecurity Act 2015.

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