The law that bans Aussies from going overseas- and the exception

The law that came into existence at lunchtime last Wednesday to stop Australians going overseas (and allows for compassionate grounds to allow them to go)  has probably the longest name of any law I can ever recall. The name of this law was not passed through the marketing section or passed pollsters first. It is the – and I am not making this up- the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas travel Ban Emergency Requirements) Determination 2020 (Cth).

The keys to the law are set out in section 5 to 7, which I set out in full.  Under section 7, the person has to demonstrate (in the mind of the officer) that there is a compelling reason to leave Australia to show exceptional circumstances, knowing that if the person leaves there isa risk that the person might transmit COVID-19 elsewhere. It is essential in my view to be extremely thorough in making an application for the exemption- as otherwise- a refusal might result in huge delays through adminsitrative processes to seek a review. It is important to treat the seriousness of such an application by leaving nothing to chance, what is sometimes called a belt and braces approach.

My firm has helped a client obtain such an approval to go to Canada for the birth of his child.

Here are the sections:

5  Persons not to travel outside Australian territory after 12 pm, 25 March 2020

             (1)  An Australian citizen or permanent resident (the person)must not leave Australian territory as a passenger on an outgoing aircraft or vessel on or after the time this instrument commences unless:

                     (a)  an exemption set out in section 6 applies to the person; or

                     (b)  an exemption is granted to the operator of the aircraft or vessel or the person by an APS employee in the Australian Border Force under section 7.

             (2)  An operator of an outgoing aircraft or vessel must not leave Australian territory on or after the time this instrument commences with any passenger who is an Australian citizen or permanent resident (the person) on board the aircraft or vessel unless:

                     (a)  an exemption set out in section 6 applies to the person; or

                     (b)  an exemption is granted to the operator or person by an APS employee in the Australian Border Force under section 7.

6  Exemptions—general

                   An exemption from the requirements of section 5 applies to the following persons:

                     (a)  a person ordinarily resident in a country other than Australia;

                     (b)  a person who is member of the crew of an aircraft or vessel (other than the outgoing aircraft or vessel) or is a worker associated with the safety or maintenance of an aircraft or vessel (other than the outgoing aircraft or vessel);

                     (c)  a person engaged in the day-to-day conduct of inbound and outbound freight;

                     (d)  a person whose travel is associated with essential work at an offshore facility;

                     (e)  a person who is travelling on official government business (including a member of the Australian Defence Force).

7  Exemptions—granted by an APS employee in the Australian Border Force

             (1)  In exceptional circumstances, an APS employee in the Australian Border Force may grant an exemption to:

                     (a)  an Australian citizen; or

                     (b)  a permanent resident; or

                     (c)  an operator of an outgoing aircraft or vessel.

             (2)  For the purposes of subsection (1), exceptional circumstances are demonstrated by the Australian citizen, permanent resident or operator providing a compelling reason for needing to leave Australian territory.

             (3)  An exemption made under subsection (1) must be in writing.

             (4)  An exemption made under subsection (1) is not a legislative instrument.