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18 months in and still firmly closed: The ongoing story of Australia’s travel ban

Eighteen months on and Australians remain locked in or rather locked out (depending on where you find yourself while reading this). Public Accountant takes another deep dive into the government’s firm travel ban and its legalities
Back in March 2020, as a new virus enveloped the world and spread to Australia, Prime Minister Scott Morrison called upon the Biosecurity Act and declared the country closed to all non-citizens and non-residents. Vowing to act “on the best available information to keep Australians safe”, the PM essentially banned all travel in and out of Australia, bar for a handful of special circumstances.

18 months in and still firmly closed: The ongoing story of Australia’s travel ban
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Eighteen months on, and what everyone thought would be a measure to keep Aussies safe has in fact resulted in thousands of citizens being stranded overseas. Thousands more residing in Australia have had any and all contact with family members abroad reduced to technology and, as can be expected, the psychological impacts have been vast, yet seldomly discussed.

What happened in March 2020?

The Biosecurity Act called into power in March last year allowed the federal government to seal off Australia to the rest of the world. But, while the act allows for such action, it also states that the human biosecurity emergency period last no longer than the health minister considers necessary to prevent or control the entry, emergence, establishment or spread of COVID-19, or in any case, not longer than three months.

This period has now been extended countless times, making the likelihood high that Australia will remain shut to the rest of the world well into 2022.

So, while our peers across the world attend international sporting matches and travel at will, Australian citizens and permanent residents need to ask permission from government to depart the country and must have a compelling reason to do so.

The legalities around what constitutes a “compelling reason” remain murky. And while the federal government did realise the much-promised trans-Tasman bubble between Australian and New Zealand, a new delta COVID strain has recently seen state borders shut, with the likelihood now high that most won’t reopen before Christmas.

As such, Aussies once again face the prospect of living in their own local bubble for an indefinite period of time, despite all rational advice from the World Health Organisation (WHO) and human rights lawyers at home.

Last year, when we spoke to Pauline Wright, the then president of the Law Council of Australia and the now president of the Council for Civil Liberties, she stated that the powers our governments have been enabled under the Biosecurity Act are “pretty extraordinary”.

Twelve months on, and Ms Wright is still struggling to come to terms with what has followed.

While the federal and state governments can legally invoke these powers for as long as they deem an emergency situation present, the outright ban on travel is something most didn’t expect to run well into 2021 and beyond. Even less anticipated was the current truth that Australians wouldn’t even be able to more freely within the country.

Outlasting the crisis

“Border closures are a restriction of some of our most fundamental rights,” Ms Wright tells Public Accountant.

“As a consequence of that, the law requires that any restrictions that the government places on us in that regard have to be necessary, proportionate and justified and they should also be temporary. They shouldn’t outlast the crisis.”

What this means is that the government has to show that the restrictions are necessary to achieve a legitimate purpose and that there are no less restrictive means to achieve the said purpose.

However, since March 2020, the government has only moved to stem the number of Australians allowed back into the country each week, effectively stranding over 30,000 citizens abroad.

Moreover, the number of permitted entrants is still very much dictated by the number of hotel quarantine spots, while a person’s shot at returning home rests on how much they’re willing to pay for a commercial airplane ticket.

All these hurdles, the government says, are there to fulfil the said purpose – to protect Australians from COVID.

“In our view, in August 2021, if they wanted to achieve that purpose, they should have been constructing effective quarantine premises so that people could come and go from Australia and now proof of vaccination and COVID testing is available as a less restrictive method of achieving that same purpose,” Ms Wright argues.

“In the view of the Council of Civil Liberties these international travel restrictions in and out of Australia with their opaque and seemingly arbitrary processes, allowing the rich and powerful but not the ordinary citizen to travel internationally don’t satisfy that legitimate purpose test.”

The Council of Civil Liberties is concerned for the ordinary people, many of whom have legitimate reasons for wanting to leave Australia – for instance dual citizenship holders – but many of whom have been barred from doing so.

“They now have to get a permit to leave even if they’re in Australia temporarily, they can’t go back to their expat lives even if they’re double vaccinated. So that doesn’t satisfy those tests. It ascends those fundamental principles,” Ms Wright says.

What about our human rights?

Similarly, Dr Kate Ogg, senior lecturer at the ANU College of Law, reiterated for Public Accountant that Australian travel restrictions remain well in breach of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party.

“When this all started, there may have been some legitimate arguments from the government such as that we had to shut down the borders for a period of time to allow quarantine facilities to be developed or built, and also when the original exemptions policy was put in place it might have had to be put in quickly so it wasn’t as transparent as would be expected for a liberal democracy,” Dr Ogg says.

“But now that 18 months have passed, we’ve had time to put in place better quarantine measures, more quarantine facilities to get more Australians back. We’ve had time to develop a much more rigorous and robust exemption process where there are proper reasons given and avenues for review.”

As for questions surrounding quarantine, Dr Ogg points to a few irregularities. Namely, government employees are not only allowed to return to Australia from posts overseas on compassionate grounds, but are also allowed to quarantine in the comforts of home.

“If it can be done for our public servants and our celebrities, surely we have to think about it,” she says.

Dr Ogg stresses that even in light of the COVID delta variant, there are still strong human rights arguments against the blanket ban on travel, especially since the system of international relations is premised on the idea of citizenship.

“Each person gets certain rights and freedoms through that citizenship. It is their country of citizenship that guarantees them education, a welfare policy, health care. So, by not allowing people to return then I think, in particular, we’re tattering that lifeline,” Dr Ogg explains.

The inverse, not allowing people to leave, is just as concerning, she notes.

“We still have parents separated from children. I think that’s abominable. The longer this goes on, from a human rights perspective, the more it is expected of our government to manage this in a way that balances human rights,” Dr Ogg says.

“I don’t think they’ve made a big enough effort to balance that.”

Arbitrary terms and definitions

Backtracking to the textual legalities, Ms Wright explains that terms and definitions in the biosecurity determination are quite vague and allow for a very broad discretion, meaning that the proof required from a person making an application to exit Australia are very murky.

“These are Australian citizens,” she reminds.

“It is very dismaying that the government is acting in a way that is unprecedented in the rest of the democratic world.”

This, Ms Wright confirms, underscores the need for a federal charter of rights – something many democratic countries have had in place for generations.

Earlier this year, after confirming for the Public Accountant mid-2020 that Australia had not given notice of derogations under Article 4 of the ICCRP, which allows countries to briefly derogate from the covenant, the UN Human Rights Committee made a direct request to the Australian government to “facilitate and ensure” the prompt return of two of its citizens after they were barred from doing so for about a year by arbitrary caps on travel.

The pair reached out to the UN via human rights lawyer Geoffrey Robertson QC, who argued on their behalf that Australia has breached international law by preventing them from returning home.

Celebrating the successful ruling, human rights group Amnesty Australia said at the time that stranded Australians are at risk of becoming “forgotten”.

“The Australian government should be ashamed that it had to take the United Nations to tell them to act on this,” campaigner Joel Mackay said.

Unfortunately, not much has changed since.

Asked how Aussies could possibly remedy this unjust situation, Ms Wright advises those that feel wronged by the country’s border policy to connect promptly with their federal members.

“Individuals are well in their right to write to the United Nations if they feel that Australia has failed in its duties under the ICCPR. It’s a question on whether the UN would do anything about that, unless it were a big petition. So, there are ways that people can make their views known, and we would encourage them to do that,” she says.

“Talk to them and write to them and make your feelings known, because that is who has the power in Australia. The Australian government is known for ignoring anything the UN says. They’re signatories to covenants but they don’t adopt them into Australian law.”

What this essentially means is that if Australians want the law changed, they have to put pressure on their elective representatives, she adds.
Last year, Ms Wright tells Public Accountant that in these times, “it is really important for us to be protecting our right to protest, our right to free speech and all of those important things that Australians have been historically a little bit blasé and complacent about”.

So, where do we stand today?

According to Ms Wright, that initial sense of togetherness seen in Australia at the onset of COVID has now well and truly vanished.

“In the early days there was a real sense of ‘we’re in this together’, but that’s completely broken down now along party political lines and that’s been really, really distressing. That’s why we’re feeling like we’re a collective of nation states instead of one unified nation,” she says.

The legal veteran said that while the pandemic has outlasted what most had imagined, the perceivably temporary measures many had agreed to abide by are wearing thin.

“That’s why we’re seeing some civil unrest, because the temporary nature of these extreme infringements on our rights and freedoms has been put to the test. People are starting to feel uncomfortable, particularly when they feel the leadership is not working. Their confidence is being eroded,” Ms Wright says.

Now that Australia is inching closer to that 80 per cent vaccination target, can the people trust in the Prime Minister that certain freedoms will finally be restored?

Ms Wright sure hopes that the PM will stick to his promises.

“As soon as our vaccination levels across the nation are high enough, then present restriction on our freedom of movement should be removed,” she concludes.


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