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Fenced in: The story of Australia’s travel ban

In its fight to curb the spread of the coronavirus and to protect its citizens and permanent residents from the pandemic threat, the Australian government has quite literally locked us in. But is this right? Is it even legal?

Fenced in: The story of Australia’s travel ban
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  • Maja Garaca Djurdjevic
  • October 08, 2020
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As the coronavirus hit Australia’s shores in March, PM 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.

While the Biosecurity Act requires 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 twice, making the likelihood high that Australia will remain shut to the rest of the world well into 2021.

So, while people across the world are allowed to depart their countries at will, Australian citizens and permanent residents need to ask permission from government and must have “a compelling reason for needing to leave Australian territory”.

But international travel is not the only thing off the cards for Aussies.

As the coronavirus situation evolved and infections continued to rise, interstate travel too almost completely vanished.

Putting a pin in the hopes of a trans-Tasman travel bubble between Australia and New Zealand opening by year’s end and the dampeners on hopes of visiting family abroad until a vaccine is found, the PM also recently declared interstate family gatherings over Christmas highly unlikely. 

So, while Aussies face the prospect of living in their own local bubble for an indefinite period of time, the World Health Organisation (WHO) has not been alone in cautioning governments on the impact of fierce restrictions, noting that they could “have negative social and economic effects on the affected countries.”

Pauline Wright, the president of the Law Council of Australia tells Public Accountant that while the peak legal body saw merit in the government’s initial response, it has now been superseded by some seriously intrusive measures into people’s rights and liberties. 

“The powers of our governments are pretty broad under that legislation. Once there has been a determination that there is a biosecurity hazard in place, like there has been, they can invoke those powers under those pieces of legislation to pretty much do whatever they want,” Ms Wright explains.

This, she clarified, is something available to both the federal and state governments under the Biosecurity Act and an array of emergency health laws.

Government’s extraordinary reach

“It’s pretty extraordinary,” says Ms Wright.

“They can require restrictions of behaviour, you can be required to give information, your personal particulars, undergo risk minimisation interventions like decontamination or medical treatment if required, accept isolation from the community or quarantine, which we’ve seen happening already, and of course they can decide, state to state, and territory to territory, to close their borders for however long they see fit.”

Essentially, both the federal and state governments can invoke these powers for as long as they deem an emergency situation present.

This could mean that while there is no real indication that a vaccine or an effective medical treatment will be available in the near future, the current state of lockdown could continue for an extended period of time.

The Law Council deems this a major concern.

“From the start, we said that we absolutely supported the government and the governments across Australia, their right to and indeed obligation to keep Australians safe and to stop the spread of this pandemic,” Ms Wright says.

“But what we did say was that any measures that they introduced that would affect people’s day-to-day rights and liberties should be curtailed and limited only to the time of the crisis and that they should be proportionate to the threat of the crisis.”

She explains that there is a real social compact between the government and the people in these circumstances.

“When the executive government makes a declaration like this and makes directives to implement it, it’s really there only because the people are going to put up with it,” Ms Wright says.

“If you start seeing the measures prolonged beyond the crisis and if we start seeing measures that are out of proportion with the threat at that given time, people are not going to put up with that.”

Freedom of movement – A human right

But while the Australian government doesn’t want Aussies travelling abroad and returning home infected, does that justify the restrictions on the freedom of movement?

Dr Kate Ogg, senior lecturer at the ANU College of Law, Australian National University, explains that according to the International Covenant on Civil and Political Rights (ICCPR), ratified by Australia, it is the right of a person to leave any country, including their own.

And, while the Biosecurity Act does give the federal government the right to close the country’s borders to protect public health, the measures put in place must be the least intrusive possible.

“There is a strong argument that Australia’s ban on citizens and permanent residents leaving the country is a breach of human rights. Australia has ratified the International Covenant on Civil and Political Rights. Article 12(2) provides that everyone shall be free to leave any country, including their own,” Dr Ogg explains.

Pursuant to article 12(3) of the ICCPR, Australia can place restrictions on this right if they are necessary to protect a number of important objectives including public health.

However, the UN Human Rights Committee (the body charged with overseeing states’ implementation of the ICCPR) has said that “it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary [and] they must be the least intrusive instrument among those which might achieve the desired result”.

“This means that for Australia to be compliant with the right to leave in the ICCPR, these restrictions must be necessary to prevent or reduce the spread of COVID-19 and the least intrusive method of achieving this goal,” Dr Ogg says. 

“Banning Australian citizens from leaving the country, subject to a few exceptions, is not the least intrusive method of preventing or reducing the spread of COVID-19.”

But Australia’s non- compliance with the ICCPR extends beyond its perceived failure to prove its actions are the “least intrusive”.

As confirmed to Public Accountant by the UN Human Rights Committee, Australia has failed to give notice of derogations under Article 4 of the ICCPR. 

Namely, in April this year, the UN Human Rights Committee issued a statement in response to the firm action taken by countries, including Australia, to curtail the impact of the coronavirus pandemic.

The UN said that while countries may deviate from some of the obligations set out by the Covenant to “protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction”, they must, first and foremost, give notice of their derogations.

And according to the data available in the United Nations Treaty Collection (UNTC), it appears that only 13 states have notified the Human Rights Committee of derogations to the ICCPR. Australia is not on this list. 

This would suggest that Australia has breached the notice requirements, and has in substance derogated from its obligations.

According to the UN notices of derogation must do more than simply notify the fact of derogation. They must explain and justify the derogation.

And for a derogation to article 12 (freedom of movement) to be justified it must be “limited in duration, geographical coverage and material scope”.

The UN explains that: “Derogating measures may deviate from the obligations set out by the Covenant only to the extent strictly required by the exigencies of the public health situation. Their predominant objective must be the restoration of a state of normalcy, where full respect for the Covenant can again be secured.

“Where possible, and in view of the need to protect the life and health of others, states parties should replace COVID-19-related measures that prohibit activities relevant to the enjoyment of rights under the Covenant with less restrictive measures that allow such activities to be conducted, while subjecting them as necessary to public health requirements, such as physical distancing.”

In particular, the Human Rights Committee makes clear that “states parties should not derogate from Covenant rights … when they can attain their public health or other public policy objectives through invoking the possibility to restrict certain rights”.

For example, restrictions on the rights to freedom of movement (Article 12), freedom of expression (Article 19), and peaceful assembly (Article 21) should comply with the limitation clauses set out in those ICCPR articles, without relying on a derogation from those articles.

Alternative paths

While Dr Ogg understands that the government is legitimately concerned about Australians leaving, catching COVID-19 while overseas and then returning to Australia while infectious, she believes there are other ways to address these concerns.

“This can be addressed by requiring all people entering the country to quarantine (a policy already in place). Another legitimate concern is that a person infected with COVID-19 may, if allowed to leave Australia, spread the disease to others on the same flight and on arrival in the country. This can be remedied by less intrusive measures such as requiring all travellers to be tested before departure,” Dr Ogg says.

And while Australia’s ban on leaving the country does allow for exceptions for ‘compelling reasons’, it does not provide any guidance on what is considered a compelling reason. 

“The UN Human Rights Committee states that ‘laws authorising the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution’,” Dr Ogg notes. 

“This is another reason why Australia’s travel ban is most probably in breach of the right to leave in the ICCPR. The law does not provide precise criteria and it appears that those applying the exemptions do have unfettered discretion as to when and whom this exemption applies.”

She explains that the reason why the UN Human Rights Committee takes a strict approach to the freedom of movement is because it’s often the foundation for the realisation of other rights.

“Without the ability to move freely, people are, for example, restricted in their ability to reunite with their family, pursue education and exercise aspects of their religious beliefs,” Dr Ogg states.

Dangers of complacency

So, what can Australians do?

Ms Wright explains that Australians need to be alert to what is happening to their rights, and not be complacent.

“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” Ms Wright says.

Ultimately, she notes that the government needs to explore bringing in more nuanced regulations that keep us safe, but allow reasonable travel.

“That’s really what people are going to be asking for as time goes on, both within Australia and travel overseas,” says Ms Wright.

“At the moment, imposing blanket bans is a sledgehammer approach.”

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