By Dr Heli Askola
The recent travel ban on arrivals from India to Australia has been all over the news this week. There has been debate over whether the pausing of flights until 15 May 2021, and the potential use of the Biosecurity Act 2015 to fine those who return to Australia from India, is lawful or unconstitutional. Some have been concerned that these measures undermine the legitimacy of the liberal state. There has also been discussion about whether Australia is unique among democratic nations to adopt such severe targeted measures, leaving its own citizens out in the cold (it’s not, as New Zealand implemented a similar pause in April).
Australia’s obligations under international human rights law
This post examines these measures against international human rights law. Australia has ratified a number of human rights treaties which impose obligations to respect and protect the rights guaranteed in them. The two most relevant treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
The ICCPR states in Article 12(4) that ‘no one shall be arbitrarily deprived of the right to enter his own country’. Articles 2 and 26 further prohibit any discrimination on the basis of, for instance, race and national origin. Similarly, ICERD requires States to ‘guarantee the right of everyone, without distinction… to leave any country, including one’s own, and to return to one’s country’ in Article 5, and prohibits discrimination based on ‘race, colour, descent, or national or ethnic origin’ (Article 1).
The body overseeing the ICCPR, the United Nations Human Rights Committee, has further clarified that ‘the right of a person to enter his or her own country recognizes the special relationship of a person to that country’. The Committee has further emphasised, in relation to the prohibition of arbitrary interference with Article 12(4), that ‘even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances’. Most importantly, the Committee has emphasised that ‘there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable’ (emphasis added). The Committee overseeing the CERD has further underlined States have an obligation to ensure that Article 5 is ‘neither in purpose nor effect’ limited in ways that are incompatible with Article 1 of the Convention.
The India travel ban
Is it therefore reasonable to prevent citizens from returning to the country to keep Australia effectively Covid-free at this stage of the global pandemic? Some would say so, given the global number of deaths the SARS-CoV-2 virus has caused since early 2020. A less alarmist and more evidence-based view would however recognise that Australia has largely managed to suppress the virus over the last year, and that the population has in fact been tremendously compliant with quite extraordinary restrictions that have been imposed on individual liberty to maintain this situation.
Despite minor outbreaks from hotel quarantine, Australia has in fact been generally successful in tracking cases and suppressing outbreaks, and certainly has the capacity and resources (not to mention the obligation) to put in place effective mechanisms to respond to the pandemic, based on, for example, lessons learnt from the Victorian outbreak. We are therefore, comparatively speaking, very well-placed to manage any risk posed by returning citizens, and ought to recognise that responsibility. Further, it is certainly the case that Australia’s current capacity to protect its citizens in India from the risks of Covid-19 is better than India’s at present.
As regards Australia’s compliance with international human rights law, it is important to highlight that very little evidence has been provided to indicate that the federal government has even considered whether it is acting reasonably in imposing these drastic limitations, or that it has observed its obligation to consider the effects, not just the stated purpose of the restrictions. Unsurprisingly, some have suspected that the measures, in particular the pause on accepting arrivals, are racially motivated, given the lack of clarity as to why India has been singled out. It is incumbent on the federal government to explain its reasoning, including the role of human rights considerations in shaping its assessment of possible policy alternatives.
However, apart from saying the measures were adopted to ‘protect Australia from a third wave’, the government has failed properly to justify the policy. For instance, the medical case for invoking the Biosecurity Act simply highlights the number of cases of Covid-19 recorded globally and in India, and claims that ‘quarantine leakage’ constitutes ‘a significant risk to the Australian community’. Though the advice then goes on to remark that the potential consequences for Australians left in India include ‘the risk of serious illness without access to health care, the potential for Australians to be stranded in a transit country, and in a worst-case scenario, deaths’, the advice simply suggests these extremely serious risks can be ‘mitigated through having the restriction only temporarily in place’.
Statements like this brush away the potentially life-threatening consequences to Australians in India, and fall far short of providing a sufficiently detailed analysis of why the measures would be reasonable and not discriminatory. They certainly do little to justify any deaths that may result from the pause. Instead, the explanations suggest that the federal government is willing to sacrifice overseas Australians to their fate, because it refuses to tolerate any risk from Covid-19 inside Australia. Of course, the federal government is here taking its lead from the states and territories, whose premiers have manifested a similar tendency to opt for sudden and harsh measures to appear decisive in the face of the virus, such as snap border closures, lockdowns over one case and cutting places in the quarantine program as soon as a minimal outbreak is detected.
Preventing Australians from leaving and returning home
The criticisms that can be made about the India travel ban can also be made about the ban on leaving Australia and existing hotel quarantine caps, which have for over a year limited the actual ability of Australians to leave and return home. The possibility of penalising incoming passengers is also not new. The hotel quarantine caps are ostensibly based on the quarantine capacity of the states and territories, but are again set with very little evidence of the actual resources dedicated to managing quarantine, and the policy has resulted in thousands of Australians being stranded outside the country for more than a year. Among these are some extremely vulnerable and sick people, whose ability to return is prevented by inflated ticket prices and lack of quarantine places.
In effect therefore, Australia has already taken the extraordinary step of banning people from entering the country, just on the basis of wealth, as opposed to race and national origin, as with the India travel ban. The justification for either measure, under human rights law, is questionable, given no attempt has been made to explain why, at this stage of the pandemic, such sweeping measures are necessary and reasonable. Not only have we now developed vaccines against the virus, but we also know much more than we did a year ago about who is most at risk of the virus, what works to prevent infection, and how to deal with local outbreaks. For months, hotel quarantine has been criticised as potentially ‘costly overkill’. The National Review of Hotel Quarantine, commissioned by the federal government, has also recommended consideration of less restrictive and expensive measures, such as home quarantine.
Accountability for border restrictions
The UN Human Rights Committee has already called on Australia to facilitate the return of two Australians as an interim measure under the Optional Protocol of the ICCPR in response to their claims that Australia is violating Article 12(4) of the Covenant by not allowing them to return home. Given the absence of a national-level charter of rights under Australian law, the Committee is the closest we presently have to a human rights oversight body that can assess whether these border restrictions are compatible with our existing international legal obligations (note that a domestic legal challenge would have to be brought on constitutional or administrative grounds, rather than on the basis of international human rights law).
Notwithstanding the fact that international human rights obligations lack ‘teeth’ under domestic law, they draw much needed attention to the rights of individuals whose very lives are at stake a result of Australia’s border restrictions. International human rights law was created in the aftermath of the Second World War with the aim of recognising that all human beings are ‘equal in dignity and rights’, and should never be treated purely as a means to an end. The Covid-19 pandemic has shown the willingness of governments to reduce human beings to vectors of disease, who are ordered to stop doing ‘unnecessary’ things like attending funerals of loved ones.
Human rights law makes the bold claim that all humans are equally valuable and hold basic rights, including the right to enter one’s country. Any limitations must be absolutely necessary and justified on the basis of evidence, and not discriminate. In this instance, the evidence is missing, the justification is questionable and the human costs are disproportionately borne by those with Indian background, and more generally by the nearly half (49%) of Australians who were born overseas or have at least one overseas-born parent.
Dr Heli Askola is Associate Professor at the Faculty of Law, Monash University, and an academic member of the Castan Centre for Human Rights Law.