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After restricting who can return to Australia and who can travel overseas, the government is now scrambling to tidy up the legalities around a confusing and ad hoc system of applying for exemptions. By Karen Middleton.

Travel restrictions clouded by legal uncertainty

Australian Border Force commissioner Michael Outram.
Credit: AAP Image / Mick Tsikas

The federal government has quietly amended the law governing its ban on Australians travelling overseas, fixing wording that may have put tens of thousands of decisions under a legal cloud.

The changes redefine who can make the exemption decisions, inserting specific legal cover for the person who says he has been making them until now – the Australian Border Force (ABF) commissioner, Michael Outram.

The government has also removed a reference to the date and time the travel ban began.

While more than 51,000 Australian citizens and permanent residents have been granted exemptions to leave the country since March, almost 18,000 people have had their applications refused.

Under the March 25 determination restricting outbound travel, Outram has been overseeing – and in some cases directly making – the decisions on travel applications.

“The ultimate delegate for this is me,” Outram told the senate’s Covid-19 committee last month. “… But I am getting assistance from delegates in the Department of Home Affairs and the Australian Border Force in relation to managing the inbound and outbound exemptions processes.”

However, although Outram was ultimately responsible for six months of decisions, the legislation did not specifically authorise him to make these decisions until last week.

The government’s original legislation said exemption decisions would be made by an Australian Public Service (APS) officer in the ABF. The commissioner is not an APS officer. He is a statutory office-holder appointed by the governor-general under the Australian Border Force Act.

Similarly, while staff in the Department of Home Affairs are employed under the APS Act, they are not in the ABF.

Although other Border Force officers are in the Australian Public Service and were themselves authorised decision-makers under the March 25 legislation, several legal experts have told The Saturday Paper that if they were delegated by the commissioner their decisions could also be tainted because he lacked legal authority to do so.

The legal change, made last week, adds Outram’s position specifically and removes the reference to the APS.

An ABF spokesman said only officers who were members of the APS had exercised the power to grant exemptions.

“This is distinct from, but consistent with, the ABF Commissioner’s responsibilities for the administration of the exemption decision-making process,” the written response said. “… The inclusion of the ABF Commissioner by specific reference reflects, and is consistent with, the Commissioner’s authority and role in relation to the outwards travel exemptions process.”

The response did not address that the commissioner himself is not an APS member. It said the amendment was made to increase the pool of officers able to make decisions and to include officers from Home Affairs.

It said that prior to September 17, “all decision makers were in the ABF”, despite Outram suggesting previously that others were assisting.

Migration lawyer Karyn Anderson, a managing partner at Clothier Anderson, says that while the pandemic necessitates swift legal responses, last week’s changes underline the need for great care when making law.

“The messy way in which the outbound restrictions have been implemented shows how lax the government is on detail and how reliant they are on people doing the right thing and not questioning the lawfulness, authority and proportionality of the measures,” Anderson says.

Several other lawyers have told The Saturday Paper that the previous wording may cast legal doubt over some decisions among the 135,000 exemption applications that have been considered.

They say that does not necessarily guarantee any legal remedy for those affected and that it is extremely difficult to claim damages for a wrongful administrative act.

Should last week’s changes prompt a legal challenge, it is likely the government would simply make any relevant decisions again, this time with more legal cover.

University of Canberra administrative law professor Murray Raff says many outbound applications relate to urgent travel for specific events, also lessening opportunities for remedy.

“In the context of legal challenges to Covid-19 public health decisions ... there is a clear practical complication in seeking legal redress, in that issues tend to be short-lived and immediate and the wheels of justice grind slowly,” Raff says. “So, it’s almost impossible to pursue justice through classical legal applications within a practical time frame, with the consequence that citizens caught in unfair situations are compelled to work out practical compromise solutions. ”

The Saturday Paper queried the legal changes this week, after the government made them via a regulation registered on September 17 and taking effect the next day.

The other legal clean-up in last week’s amendments relates to the travel ban’s commencement time, described in the original legislation as “after 12 pm, 25 March 2020”.

The ABF has told The Saturday Paper that the change was administrative and “simplifies the language” in the legislation. But lawyers say removing the reference that refers specifically to the exit ban could allow the government to argue the ban existed separately from no particular time.

There has been confusion over the start time for the ban, with an ABF spokesperson saying it began at noon on March 25 and Michael Outram telling the senate Covid-19 committee it began at midnight that day. The Department of Home Affairs told that committee it began “from February”.

When Prime Minister Scott Morrison announced the ban on March 24, he avoided specifying a time. “The direction is being worked on overnight,” he said, “and as soon as that direction is signed off by the Health minister, it will come into force then and that will happen tomorrow.”

In June a Melbourne ultra-Orthodox Jewish couple, Esther and Charles Baker, challenged the ban in the Federal Court. The couple’s application to attend their son’s wedding in the United States had been rejected twice. They had applied for a compassionate-grounds exemption, citing religious, cultural and family-unity considerations, but the commissioner refused.

The court also dismissed their case, in which they challenged the decision-making process but not the legal authority of the decision-maker. Outram was the respondent.

Professor Raff says legal mistakes must always be rectified. He says it is “unacceptable” to leave an error in law simply because nobody is likely to challenge it. “It would not be ethical or principled, to say the least, to leave an error in the legislation.”

The ABF denies the changes were made to address anomalies or that there has been any inconsistency between the legislation and the practice of deciding on exemptions.

As it was amending the law on outbound exemption decisions last week, the government was also clarifying the basis of Outram’s decisions on inbound travel-ban exemption applications.

Appearing before the Covid-19 committee on August 18, Outram had agreed to provide the guidelines on which he and other decision-makers were basing their rulings when foreign citizens holding or applying for Australian visas sought exemptions from arrival restrictions.

“I don’t have the exact dates when guidelines have been provided,” Outram said, answering questions from Greens senator Nick McKim. “… There may be different iterations of the guidelines.”

But when the Department of Home Affairs provided the guidelines late last week, it confirmed they were finalised the day before – on September 17 – also more than six months after the inbound travel ban commenced and on the same day the outbound amendments were registered.

The spokesman for the ABF said that before the guidelines were drafted the commissioner decided the inward requests case by case, “based on specific criteria and categories endorsed by government”.

Last month, Outram told the committee the exemptions system was under review. It is unclear if that prompted both the amendment to the outbound legislation and the sudden drafting of inbound guidelines.

“It’s not good enough, in my view,” Nick McKim told The Saturday Paper this week. “Up until last week … it seems as if decisions were being made without any guidelines whatsoever.”

Like other parliamentarians, McKim says his office is fielding dozens of requests for help from visa-holders unable to get into Australia, some of whom had been living in Australia before the pandemic and had left to assist relatives.

McKim says the guidelines are “totally deficient” in dealing with separated families and couples and that people are being refused with little explanation. “The whole thing has been completely ad hoc and far too opaque, and the consistent feedback that I’ve received … is that they simply don’t understand why they have been rejected.”

The ABF’s workload in assessing both inbound and outbound requests is massive. As of this week, it has received 126,000 entry requests from non-Australians, approving almost 20,000 and refusing 12,300, with the rest either qualifying for automatic exemptions, withdrawn or unable to be processed due to lack of information.

Clothier Anderson’s Karyn Anderson is representing clients contesting adverse decisions, both inbound and outbound.

“It is clearly being done on the run and without consideration of the lawfulness or proportionality of the restrictions or the consequences for individuals,” Anderson says.

Visa applicants trying to enter Australia for legitimate reasons were being sent in circles.

“It’s totally ad hoc and for those stuck offshore, what are the knock-on effects for their visas? The focus is yet again on keeping people out, not facilitating safe entry, including, for the first time, restricting Australian citizens and permanent residents.”

Anderson says the new guidelines help make some of the basis for decisions clearer but there are still questions of fairness and transparency. “You’ve got to keep applying five or six times and take it to your local member,” she says. “It’s whoever screams the loudest.” 

This article was first published in the print edition of The Saturday Paper on Sep 26, 2020 as "In a holding pattern".

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Karen Middleton is The Saturday Paper’s chief political correspondent.