Kim Rubenstein
Stranded citizens an international disgrace

On Tuesday, Prime Minister Scott Morrison announced a pause on direct passenger flights between India and Australia, with consideration of further flights to be made by May 15. Australians stranded in India, who make up almost a third of those now stuck overseas for more than a year, now have no way to return home.

No other democratic country has placed such extreme measures on its citizens. Israel tried to limit incoming travellers to 3000 a day, but this was blocked by the nation’s top court. In March 2021, the Israeli Supreme Court also found unconstitutional regulations requiring the approval of an exceptions committee for anyone leaving the country who wasn’t vaccinated or who had not recovered from Covid-19.

All of the stranded Australians must wonder where they fit within this week’s announcement of “new measures to protect Australians from the increased risk of the Covid-19 outbreak in India”. If their Australian citizenship doesn’t guarantee them a right to a safe return to Australia what, then, is the point of it?

Their despairing relatives, friends and loved ones within Australia are also asking this question, as is another category of Australians – again thousands of them – trapped in Australia by the border ban that restricts their freedom to leave the country. Even if granted a permit to travel overseas, many fear they will be unable to return home on their Australian passports.

Those very passports place a high standard on other countries, stating that “The Governor-General of the Commonwealth of Australia … requests all those whom it may concern to 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.” But what the Australian government asks of others, it fails to deliver to its own citizens.

The Australian government may not have intended this heartless outcome we now face. But by closing off flights from India, and resisting alternatives to the caps system that it has devised with the state governments, it is deliberately restricting Australians returning home. These citizens watch in disbelief from India, considering their options given the flight ban, as do those stuck in other countries as they are bumped from flights to Australia by non-citizens with permits, by celebrities and by others who can afford the exorbitant travel and quarantine costs.

As part of the then National COVID-19 Coordination Commission, Jane Halton delivered a report on quarantine measures to the government in October 2020. It included a recommendation to consider a national facility for quarantine for emergency situations, evacuations or urgent scalability. All risks that will remain long after Covid-19 is subdued. If it were to accept this recommendation, the government could facilitate Australians’ safe return without jeopardising the health of those living here.

In the face of the border ban and arrivals cap, two Australians still stranded overseas – Jason George and Alex Marshall – have made an application to the United Nations Human Rights Committee, based on their rights under the International Covenant on Civil and Political Rights and Australia’s accession to the Optional Protocol. The pair claim Australia has breached their right to return to their own country, a right set out in section 12(4) of the International Covenant on Civil and Political Rights, which came into force in Australia more than 40 years ago, in 1980.

On April 15, the committee issued an interim order requesting the Australian government facilitate and ensure the complainants’ prompt return to Australia while the case is pending before the committee. That request does not imply that a decision has been reached on the substance of the matter under consideration, but it does speak to the seriousness of any breach. Indeed, the website of the Attorney-General’s Department states if public servants are working on legislation, policy or programs that deliberately or indirectly affect these rights, they must ask whether that restriction is justified. And, most importantly, “Is it necessary and proportionate to protect the purpose for which it is imposed?” Is it “the least intrusive means of achieving the desired result?”

That is the question national cabinet should have asked itself more than a year ago when first placing caps on the numbers arriving back in Australia. Seemingly without pause, the government has now placed an absolute ban on flights from India – effectively preventing large numbers of Australians from returning home. The question gathers in intensity as it confronts public servants advising the prime minister, attorney-general and indeed all state premiers. With the UN Human Rights Committee currently assessing these very issues, it is beyond perplexing why more wasn’t done earlier to bring stranded Australians home. And why more isn’t being done now under clear quarantine powers of the federal government, concurrently held by the states, to prevent this festering international embarrassment.

Perhaps more could have been done without international resort if those stranded could tackle their plight in an Australian court. However, this mechanism for challenging the lawfulness of the government’s restriction of their rights of entry was effectively closed to them. Alone among Western democracies, Australia does not have a bill or charter of rights. Nor does it have any explicit citizenship rights protection.

I provided a memorandum of advice for Jason George and Alex Marshall to submit as part of their applications to the Human Rights Committee. In it, I explain that there are effectively no domestic remedies to pursue in a timely manner without such explicit protection. So, the requirement that the citizens seeking relief before the UN committee first exhaust their remedies within Australia wasn’t really an option.

While I believe the constitution should be interpreted to contain an implied right of citizens to live in their country of citizenship – only constrained by necessary and proportionate measures – it would take more than three years to litigate such a matter through our Federal Court system. What is more, our system doesn’t have the same interim measure steps as the UN Human Rights Committee to request the government bring the affected citizens home while the matter is litigated.

On the question of Australians in this country restricted from going overseas, there are steps that can be taken within Australia itself. These citizens could challenge these restrictions in the Federal Court as unlawful under the Biosecurity Act 2015.

That act states any biosecurity official making a decision to exercise a power under certain provisions of this act must first consider whether “the power is … appropriate and adapted for its purpose and is no more restrictive or intrusive than is required”. These words in the Australian legislation mirror the same words that the UN Human Rights Committee will consider.

But many Australians in the country still fear their ability to return if they go overseas, which is why the UN matter is important. And it emphasises a key question Australians should be asking themselves: How responsive have their representatives been to the stresses placed on them in being trapped in or out of Australia in the past year?

In 2016, the Australian Bureau of Statistics recorded that nearly half of all Australians were either born overseas or had at least one parent who was born overseas. More than a quarter – 28 per cent – of Australia’s population were first-generation Australians. All those Australian families have been adversely affected by the disproportionate impact of the travel bans imposed to contain the pandemic.

They naturally want to protect Australia from Covid-19, but there are less restrictive ways of doing so. Many of those 49 per cent of Australians are dual citizens.

There are too many people affected by the border ban and arrivals cap, too many Australians still stranded overseas, for the government to ignore this issue until the pandemic is under control.

There have been many proposals made for the timely and safe return of Australians – the government should heed them. 

This article was first published in the print edition of The Saturday Paper on May 1, 2021 as "Stranded citizens an international disgrace".

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Kim Rubenstein is a professor and co-director of the 50/50 by 2030 Foundation at the University of Canberra.

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