Still Call Australia Home? The Right to Abode and the India Travel Ban

The temporary travel ban between India and Australia has caused a flurry of debate. On 30 April 2021 by the Australian Minister for Health and Aged Care made a Biosecurity Determination of a “temporary pause” on passengers entering Australian territory that had been in India within 14 days of the person’s day of departure.[1]

The travel ban started at 12.01 am on 3 May 2021 and will be automatically repealed at the start of 15 May 2021. [2]

This article will look at the specifics of the Determination, public criticism of the policy and the possible outcome of legal challenges to this legislative instrument.

What are the consequences of breaching the travel ban?

If a person breaches the travel ban, the Biosecurity Act 2015 states that they may have to pay a civil penalty unit of 300 penalty units ($66,600.00), five years’ imprisonment, or both.[3]

Is there any exemption?

Only people identified in section 7 of the Biosecurity Determination are exempted from the travel ban.

a) a Member of the crew of an aircraft or vessel;

b) a worker associated with the safety or maintenance of an aircraft or vessel;

c) a person engaged in the day-to-day conduct of inbound and outbound freight;

d) a person (including a member of the Australian Defence Force) who is travelling on official government business on an Australian official or diplomatic passport;

e) a person who is an immediate family member of a person mentioned in paragraph(d);

f) a diplomatic, consular, or other foreign official accredited to Australia;

g) a person:

i) who is an immediate family member of a person mentioned in paragraph(f); and

ii) who holds a Subclass 995 (Diplomatic (Temporary)) visa;

h) a member of an Australian Medical Assistance Team (AUSMAT).

Passengers of flights facilitated by the Australian Government and passenger of emergency medical evacuation flights are exempted under section 4 (c) and (d) of the Determination.

What is the legal basis of the Determination?

Subsection 477(1) of the Biosecurity Act 2015 allows the Minister of Health to make determinations during a human biosecurity emergency period if he satisfied are necessary:

a) To prevent or control the entry of the declaration listed human disease (“Disease”) into Australian territory; or

b) To prevent the establishment or spread of the Disease into Australian territory; or

c) If the World Health Organization (WHO) makes a recommendation to the Health Minister.

On 18 March 2020, the Governor-General classified COVID-19 as a listed human disease and declared a human biosecurity emergency. 

What is the purpose of the Determination?

The COVID-19 situation in India is catastrophic. from 3 January 2020 to 6 May 2021; there have been 21, 077, 410 confirmed cases of COVID-19 with 230,168 deaths.[4] On Thursday, 22 April 2021, India reported the world’s highest daily rise record of $314,000 new COVID-19 cases.[5]

The Determination reflects the above health crisis and the high likelihood of COVID-19 cases arriving in Australia via people travelling from India.[6] About 9,000 Australians stuck in India, as stated by High Commissioner Barry O’Farrell.[7]

According to the Explanatory Statement of the Determination, the travel ban aims to protect and maintain the integrity of the Australia’s quarantine system and health resources, which allow Australia to control the entry, emergence, establishment and spread of COVID-19 in the territory.

Can the travel ban be extended?

On 15 May 2021, the Government will reconsider the travel ban and repeal it if the Chief Medical Officer (CMO) advises so.[8] The CMO will consider the epidemiology in India and the possible impact on Australia’s quarantine system.[9]

Public Criticism

As a piece of public policy, there are a number of criticisms that the Determination now faces. Foremost is whether the Determination is consistent with the previous responses to outbreaks in China, Italy, United States, the UK, and other European countries, where rates of infection were similarly prevalent. Former race discrimination commissioner, Tim Soutphommasane said that “there was an inconsistency in the government’s policy, that he hoped was not related to race”.[10]

Likewise, there is significant debate on whether the penalties under Determination meets the public interest test of being proportionate and the least restrictive method of ensuring public health throughout the outbreak.

With this in mind, it is unlikely that the Determination for the current India travel ban will continue in its current form past the repeal date of the instrument on 15 May 2021.

Federal Court Challenge

On 4 May 2021, Lawyers for Gary Newman, one of 9,000 Australians banned from returning to Australia from India, made an urgent application to the Federal Court in Sydney to review the Determination.[11]

Lawyers for Gary Newman have argued the Federal Government has acted outside the powers granted by the Biosecurity Act 2015, in breach of the citizenship right to enter to their own country, and further, in breach of the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights.[12] Justice Burley has ordered the proceedings to be expedited.

Kim Rubenstein, Australia’s foremost expert on Citizenship law, has suggested that the Determination does contravene the right to return to one’s country of Citizenship under the ICCPR[13]. Given Australia is a signatory to the ICCPR, this may allow enables Australians to make complaints to the Human Rights committee. Notwithstanding this avenue of recourse, Australian courts have been reluctant to find that rights under international law (including the ICCPR) are enforceable domestically.

In March 2021, a similar case was brought, when two Australians stranded in the United States brought a complaint to the United Nations Human Rights Committee due to Australian policies allegedly contravening international law. Although, there is not a decision yet, in April, the organization said Australia should “ensure their prompt return”, noting they faced “irreparable harm”.[14]

A recent case, which examined whether the Senator Xenophon was a “British Overseas Citizen” (BOC), turned on whether or not this status conferred a ‘right to abode’ in the United Kingdom. By failing to hold such a right, the status of BOC could not correctly be characterised a nationality or citizenship status as to enter the UK, Sen. Xenophon would be required to pass the requirements of UK immigration controls. In reaching this conclusion, the court affirmed that ‘the right of abode is one of the main characteristics of a national under international law.’ Given the significance placed on this characteristic, this provides strong authority for the principle that any abrogation of the right to enter one’s country is an abrogation of one’s citizenship.

Should this Gary Newman’s case proceed, it may answer questions of the extent to which the courts are willing for a ‘right to enter’ or a ‘right to abode’ to be considered a right inherent in citizenship, the extent to which these rights under international law are enforceable domestically (should the court wish to explore this aspect), and lastly the extent to which the laws may proportionately abrogate from these rights.

This article was written by Simon Mason & Marisol Tobon

[1] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 s 6.

[2] Ibid s 4(b), s 5.

[3] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 s 6; Biosecurity Act 2015 s 479.

[4] World Health Organization (WHO (COVID-19) Homepage May 2021) <https://covid19.who.int/region/searo/country/in>.

[5] Ibid.

[6] Explanatory Statement of Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause),Determination 2021.

[7] The Australian (Homepage April28, 2021) < https://www.theaustralian.com.au/news/there-are-9000-australians-waiting-to-come-home-from-india/video/c31e335de9380015914ae504baab8b6f>.

[8] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021, Section 6.

[9] Ministers- Department of Health (Homepage May 1, 2021) <https://www.health.gov.au/ministers/the-hon-greg-hunt-mp/media/travel-arrangements-to-be-strengthened-for-people-who-have-been-in-india>.

[10] Jacob Kagi, ‘Critics blast federal government’s ‘immortal and un-Australian’ ban on citizens returning from India’ ABC news (Homepage May 2, 2021) <https://www.abc.net.au/news/2021-05-02/india-return-policy-labelled-immoral-and-un-australian/100109898>.

[11] Michaela Whitbourn, ‘Australian man in India files urgent court challenge to travel ban’ The Sidney Morning Herald (Homepage May 5, 2021) <https://www.smh.com.au/national/australian-man-in-india-files-urgent-court-challenge-to-travel-ban-20210505-p57p5z.html>.

[12] Ibid.

[13] Professor Kim Rubenstein, The essence of liberalism is under challenge from Australia’s India travel ban <https://www.smh.com.au/national/the-essence-of-liberalism-under-challenge-20210502-p57o5a.html>

[14], Daniel Hurst, ‘UN urges Australia to act quickly to bring stranded Australians home’ The Guardian (Homepage April 16, 2021) < https://www.theguardian.com/australia-news/2021/apr/16/un-urges-australia-to-act-quickly-to-bring-stranded-australians-home>.

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