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'Unconstitutional': Lawyer set to challenge government on Australia's border closure

Lawyer Tony Taouk (L) plans to challenge the federal government's closure of Australia's border. Source: Supplied/AAP

Sydney-based lawyer Tony Taouk believes it's 'unconstitutional' to keep Australia's international border closed, so he's planning to test its legality.

It’s been almost 200 days since the federal government announced the closure of Australia's international border to curb the spread of coronavirus. 

In March, a ban on leaving Australia was put in place by Health Minister Greg Hunt as an “emergency requirement” under the Biosecurity Act, which remains in place and has been extended to December 17. 

In the time since the closure, a debate has raged among state leaders centered around the reopening of state borders before Christmas

While the federal government took part in these negotiations, Prime Minister Scott Morrison has yet to make a formal announcement regarding the reopening of the country’s international border. 

Health Minister Greg Hunt and Prime Minister Scott Morrison talk to reporters.
Health Minister Greg Hunt and Prime Minister Scott Morrison talk to reporters.
AAP

In August, Mr Morrison said: “I would welcome if by Christmas it were possible, but I think it’s unlikely that we [will be] able to move back to a restriction-free society [by then]." 

“I doubt that is going to happen, and I doubt the medical situation will enable it," he added. 

It comes amid a sharp downturn in foreign workers which has seen the agricultural sector struggle to find temporary workers. 

Agriculture Minister David Littleproud on Tuesday called for jobless Australians to "have a crack" at picking fruit and vegetables. 

Two of the country’s largest export industries, tourism, and education, are both heavily dependent on international travel, while there remain thousands of citizens and permanent residents stuck overseas trying to return home. 

‘Unconstitutional’ 

Lebanese-Australian lawyer Tony Taouk said he intends on suing the Australian government for the closure of the country’s border, which he argues is "unconstitutional". 

He told SBS Arabic24 that his case, which he intends to file in the Federal Court of Australia, will be built on the legal grounds of the International Covenant on Civil and Political Rights, a multilateral treaty adopted by the United Nations in 1966. 

He said the covenant safeguards the right to freedom of movement, which he believes is “as sacred as freedom of speech or the press”. 

He affirmed that despite signing the treaty in 1972 and ratifying it in 1980, Australia has never adopted it into domestic law. 

He also believes Australia’s lack of a Bill of Rights, like the US, has allowed politicians to take “advantage of a deficiency in our laws”. 

"Australia is the only democratic nation that restricts its citizens’ movements,” he said. "The minister of health has overstepped his authority and a blanket travel ban is wrong. The borders must be opened with conditions. 

"Waiting to eliminate the virus completely is the wrong approach because we will never be able to eradicate the virus completely." 

Mr Taouk said he has no backers in his effort to bring the case to court and insists it will not be a class-action lawsuit. 

Instead, he said he is “passionate” about the law and the constitution and wishes only to allow Australians the freedom of movement.

Australia persists 

Initially, Australia wasn't the only nation to close its borders when the pandemic hit in early 2020. 

However, several nations have since eased border restrictions and gradually allowed some degree of conditional travel. 

Some even encouraged tourism and launched campaigns to put potential tourists at ease, showcasing their stringent hygiene and COVID safe protocols. 

Even Italy, one of the country's worst affected during the first wave of infections in Europe, reopened its borders on June 3.

Italy opened regional and international borders on June 3 in a bid to boost tourism.
Italy opened regional and international borders on June 3 in a bid to boost tourism.
LaPresse

Turkey followed suit on June 10, followed by Poland on June 13. 

The list includes Cyprus, Croatia and several other European countries, many of whom reopened their borders subject to certain conditions and even tests to be met. 

In Australia, entry, and exit from the country continues to rely on trying to secure flights back for citizens and permanent residents, while exemptions and permits must be attained in many circumstances.

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