Is Australia’s India travel ban legal? A citizenship law expert explains and a critique of the ban

The lack of a charter with mobility rights compared to Canada:

There is a growing public and political outcry over the federal government’s sudden decision to ban Australians from coming home from India.

But as everyone from Indian community leaders to human rights leaders, famous cricketers and Coalition MPs calls on the government to rethink the policy, is it legal? Is a High Court challenge an option?

What is citizenship?

In terms of common law, citizenship is a relationship between an individual and their nation, where each owes fundamental obligations to the other. In broad terms, the citizen’s job is to be loyal to the nation. The nation’s job is to protect its citizens.

Last year, a record number of people pledged allegiance to Australia and became citizens. The largest group of new citizens were Indian migrants, with over 38,000 becoming Australians in 2019-20.

Now, under the Australian government’s tough new travel ban, 9,000 Australians remain stranded in India, which is currently battling a deadly COVID-19 second wave and oxygen and vaccine shortages.

Some were granted permission to travel to India to see dying relatives or attend funerals. Others travelled there pre-pandemicand have since been unable to return to Australia.

Despite having done nothing wrong, these Australians have been left unprotected by a government that has failed to hold up its end of the citizenship bargain.

How does the travel ban work?

The ban makes it unlawful for anyone, including Australian citizens, to enter Australia if they have been in India in the past 14 days. It was made under sweeping powers conferred on federal Health Minister Greg Hunt by the 2015 Biosecurity Act.

Section 477 of the act allows Hunt to issue “determinations” imposing any “requirement” that he deems necessary to control the entry or spread of COVID-19. These determinations cannot be disallowed by parliament. Thanks to a provision aptly known as a “Henry VIII clause”, they also override any other federal, state or territory law.

If a person breaches the travel ban, for instance by transiting through a third country, the Biosecurity Act states they may face criminal penalties of five years imprisonment, a $66,000 fine, or both (even if Prime Minister Scott Morrison says jail time is unlikely).

Hunt says the ban is a “temporary pause”. It will lapse on May 15. However, if he deems it necessary, he could use his broad powers to reintroduce it, or impose similar restrictions.

As political pressure builds to remove the ban early, the government says it is “constantly” reviewing it.

Is the ban legal?

Another basic principle of citizenship is citizens may freely return to their countries. Under common law, this stems from the Magna Carta. It is also an important principle of international law, enshrined in the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.

In March, two Australians stranded in the United States took their case to the United Nations Human Rights Committee. They argued government policies blocking their return contravene international law.

The committee has not reached a decision, but in April it asked Australia to ensure their prompt return, noting they faced “irreparable harm”.

What about our domestic law?

Whether the ban is legal under Australian domestic law is a different question. Although the Department of Home Affairs says Australian citizens can “apply for an Australian passport and re-enter Australia freely”, there is no codified right of return under Australian law. This sets us apart from many countries that have a bill of rights, and include this right.

A High Court challenge is an option, but there is no clear path to success.

The High Court has said little on the subject. A 1908 case suggests citizens may have a common law right to return to Australia, provided this has not been taken away by parliamentary law. The Biosecurity Act of course thoroughly displaces any such right.

Due to the deep links between citizenship and the right of return, it has been suggested citizens may have an implied constitutional right to enter Australia. There is no case law on this yet — just a single, vaguely worded sentence in a 1988 High Court case — and there are good reasons why it might be a difficult case to argue in Australia.

Implied rights must be derived from the text and structure of Australia’s Constitution, which says nothing about Australian citizenship, and little about the relationship between the government and the people, besides providing for democratic elections.

Does it breach the Biosecurity Act?

Another argument might be the travel ban is unlawful on the grounds Hunt failed to comply with the conditions for making a determination under section 477 of the Biosecurity Act.

These conditions require him to be satisfied, before imposing the ban, that it was “likely to be effective” in stopping the spread of COVID-19, “appropriate and adapted” to this purpose, and “no more restrictive or intrusive” than the circumstances required.

Importantly, it is Hunt personally who must be satisfied of these conditions. This means if he reached that conclusion on reasonable grounds, he has not broken the law, even if a different approach might have been available.

Yesterday, Chief Medical Officer Paul Kelly’s advice to Hunt in advance of the travel ban was released. Kelly’s advice emphasises the significant risk quarantine leakage poses to the Australian community and says a travel ban on arrivals from India until 15 May would be effective, proportionate and limited to what is necessary.

In light of this, it seems likely that a court would see the determination as a reasonable exercise of Hunt’s power.

Beyond the law, what about moral arguments?

But, legality aside, let’s return to the idea that Australia has a fundamental responsibility to protect its citizens. In February 2020, Hunt acknowledged this, pointing to two related national priorities: to contain the virus and protect citizens at home, and protect and support Australians abroad.

There may be circumstances in which these priorities conflict with each other. But it is hard to see the conflict in this situation. Quarantine and effective contact tracing have seen those within Australia substantially protected against COVID-19. We have not needed blanket bans on returns from the US, the United Kingdom or other countries that have experienced virus surges.

Kelly’s advice points to potential strain on quarantine, and Morrison has said the ban ensures that “our quarantine system can remain strong”. But the federal government could protect more people in Australia and abroad (not to mention ease pressure on countries experiencing COVID-19 strain), if it worked to bring citizens home while devoting more resources towards strengthening the quarantine system.

Yet the government has resisted this, despite a clear constitutional power over quarantine, the recommendations of public health experts and a national review.

Meanwhile, 9,000 Australians in India are anxiously waiting for a change to the law, which would at least legally permit them to try and return home.

Source: Is Australia’s India travel ban legal? A citizenship law expert explains

Strong commentary by Tim Soutphommasane, former Australian race discrimination commissioner, arguing against the ban:

It has come to this: a government pulling up the drawbridge on its own citizens trying to make it home. Last week’s announcement of a ban on return flights from India marks a drastic escalation of “fortress Australia”.

Yes, it isn’t the first time during the pandemic that Australia’s borders have been closed to people arriving from certain countries deemed high risk. This happened, for example, with China in February 2020.

But this new measure goes beyond a temporary closure of borders. It also involves harsh criminal penalties imposed on people seeking to return from India, including fines and even imprisonment.

There’s something seriously wrong about this. Citizenship is meant to guarantee its bearers certain rights and liberties. The right to vote. The right to expression. The right to live without interference. The right to enter one’s country.

Clearly, we can’t take our basic rights and liberties for granted. It’s no exaggeration to say that this policy undermines the very status of citizenship. The principles of democratic liberalism are under assault.

After all, citizenship means little if you can’t exercise your right to return to Australia in a time of need. Liberal democracy is diminished when your government doesn’t protect you when you’re in present or impending danger.

On every Australian passport, there is a page that bears a request of other governments and people that they “allow the bearer, an Australian Citizen, to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may stand in need”. Those words now ring hollow. How can we expect people abroad to do that, if our own government won’t do the same to its citizens?

Equal citizenship

Closer to home, this move inserts some doubts as to whether all citizens can presume they enjoy equal citizenship.

It hasn’t escaped many of us that there have been different standards of treatment given to citizens and residents returning to Australia during this pandemic. Last year, when Covid was rampaging through the United States, the United Kingdom and Europe, the government took no step to close our borders to those places, let alone impose criminal penalties on those arriving from there.

The government says it has introduced this policy based on medical advice. Yet, according to the commonwealth chief medical health officer, Paul Kelly, “no advice was given” in relation to the imposition of fines or jail terms for those seeking to circumvent the India travel ban. Moreover, numerous leading public health experts have questioned why a ban has been introduced.

It wouldn’t be the first time an Australian government has engaged in cynical racial dog whistling. As the Australian Human Rights Commission has stated, the government “must show that these measures are not discriminatory and the only suitable way of dealing with the threat to public health”. Because right now they do look discriminatory. And they are far from the only way to deal with any public health threat.

Here’s how we should be dealing with things. There remain about 35,000 Australians stranded overseas, including about9,000in India. We – and by we I mean the government that acts in our name – must act urgently to bring these Australians home, wherever they are. The way to do that is obvious: charter flights to bring them back, and create dedicated quarantine facilities across the country to make sure it happens safely.

How breathtaking it is that this hasn’t yet happened. We are more than one year into the pandemic. There has been plenty of time to think this through, make plans and deliver.

A choice between two Australias

Then again, you can understand why government hasn’t done this. This pandemic has confronted us with a choice between two Australias: between being an open, confident, internationalist country and being a closed, fearful, parochial nation. Increasingly, it seems as though people are choosing the latter.

There has been a strange acceptance of, maybe even enthusiasm for, a retreat into a hermit nation. Our politicians know all too well that closing borders and imposing lockdowns seem to bring some solid electoral payoffs: just ask Annastacia Palaszczuk and Mark McGowan.

For too many people, including those who may like to consider themselves progressive, border closures have become a fetish. It was weird enough that the pandemic was generating a competition among some premiers to close borders to other states. Now we’ve got to the point where we’re happy to have our national borders closed off to our own people and fellow citizens. At least some of them, anyway.

Covid has confirmed some timeless political truths. Amid threat, fear is a formidable beast to counter. And in tough times, minorities very rarely fare well. Covid has generated a significant rise in anti-Asian racism. Consider too, the disproportionate impact the pandemic has had on migrants and international students.

But now the government is taking things into dangerous territory. Citizenship has been the bedrock of Australia’s multiculturalism: whatever background you’re from, you can be assured formal membership of the community. This latest move signals that, in the eyes of government, some of us are more Australian than others.

Tim Soutphommasane is a political theorist and professor at the University of Sydney. He was Australia’s race discrimination commissioner from 2013 to 2018

Source: Criminalising citizens returning from India signals some are more Australian than others

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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