Fortress Australia: Legal Body calls for rights of appeal for Australians denied exit permission under COVID-19 international travel restrictions
Australian Lawyers for Human Rights (ALHR) has called on the Morrison Government to urgently fix its amended travel ban on Australians leaving the country so that decisions of the Australian Border Force (ABF) can be appealed to the Administrative Appeals Tribunal (AAT).
ALHR’s Democratic Freedoms Chair Valerie Heath said, “Despite reports yesterday that Minister Andrews claims Australians ordinarily resident overseas “will” be granted exemption, the fact is that Minister Hunt’s amended determination has removed the previous standing exception for Australians ordinarily resident overseas.
The Government must speak plainly about what this change really means and why it has been imposed. There is now no automatic exception applying to Australians ordinarily resident overseas. Instead, these Australians will need to individually seek an exemption on a case-by-case basis. The decision whether Australians can leave will then be in the hands of ABF bureaucrats. Australians denied permission have no right to appeal that decision. The concerns we have already raised about this amendment remain.”
Ms Heath continued, “The reality is that we have an ongoing failure by the Federal Government to provide suitable quarantine facilities for incoming travellers. The Government now wants to bully Australians who ordinarily live overseas to not come home at all, even for family emergencies such as the death or illness of a parent, lest they be trapped here and not allowed to return to their children and lives abroad. Even before this change, we have seen cases reported in the media of Australians not allowed to exit the country to attend a family crisis for pettifogging reasons and a lack of consistency, transparency, compassion and commonsense in decision-making. There is no merits appeal from these decisions because the government has not given the AAT a review jurisdiction.”
“ALHR is concerned by the human rights impacts of these measures and calls on the government to properly justify or remove the new restriction, fix the underlying lack of suitable quarantine facilities and urgently amend the Biosecurity Act 2015 (Cth) to make ABF exemption decisions immediately reviewable by the AAT,” Ms Heath said.
ALHR President Kerry Weste said, “Australia is alone among Western democracies in not having national human rights protection: we have no Federal Human Rights Act or Bill of Rights. This leaves all Australians vulnerable with no law that requires the government to assess the human rights impacts of legislation, policy or the decisions of its agencies and no clear, accessible path to review of government actions affecting people’s human rights.”
Contact: Matt Mitchell, ALHR media manager 0431 980 365.
Locked in Fortress Australia: COVID-19 Restrictions on Australian citizens and permanent residents leaving Australia
6 August 2021
Since March 25 2020, all Australian citizens and permanent residents have been subject to an overseas travel ban prohibiting overseas travel unless subject to an exception or granted an exemption. This also applies to dual citizens regardless of whether they would be travelling under the passport of another country. Yesterday, the federal government quietly changed the travel ban to make it even more restrictive by removing the previous standing exception for Australians ordinarily resident overseas.
Freedom of movement, including the right to freely enter and exit one’s own country, is a fundamental human right recognised under article 13 of the Universal Declaration of Human Rights (UDHR) and Article 12 of the International Covenant on Civil and Political Rights (ICCPR).
International human rights law recognises that even such a fundamental right may properly be subject to lawful restriction when necessary to secure the rights of others (including to life). Securing public health is one ground on which fundamental human rights may be restricted.*
If such restriction is applied, there is a legal expectation that it will be legally rational (based on evidence), appropriately adapted to the purpose and no more restrictive than required to achieve the purpose.
In making the new change, the government has admitted the outward travel ban is related to the incoming travel restriction and the government’s lack of capacity to manage returning travellers safely.
Australian Lawyers for Human Rights (ALHR) Democratic Freedoms Chair Valerie Heath said, “the ongoing failure of the Commonwealth government to build sufficient suitable quarantine facilities to facilitate the safe return of all Australians who wish to come home is increasingly unjustified as a burden on the human rights of these Australians and their families and friends.”
“The similar failure to secure early vaccine supply and the slow pace of vaccination continue to place Australians at risk: both at home and by stranding Australians overseas, often in desperate circumstances. These failures are now being used by the government to justify even harsher restrictions on Australians wishing to leave Australia. Australians who live permanently overseas now have to prove exceptional circumstances and compelling reasons to return to their families, their homes and their lives.
“No sufficient explanation has been given by the government for this new measure. The lives of Australians can now be put on hold by a decision of Australian Border Force (ABF) delivered online. There is no face-to-face hearing by an independent decision-maker. There is no merits appeal from these decisions because the government has not given the Administrative Appeals Tribunal (AAT) a review jurisdiction. Cases reported by the media of Australians being denied the right to exit the country, including to visit dying parents, show a lack of consistency, transparency and commonsense.
“ALHR is concerned by this imposition on the human rights of Australians and calls on the government to properly justify or remove the new restriction, fix the underlying lack of suitable quarantine facilities and urgently amend the Biosecurity Act 2015 (Cth) to make ABF exemption decisions immediately reviewable by the AAT,” Ms Heath said.
ALHR President Kerry Weste said, “Australia is alone among Western democracies in not having national human rights protection: we have no Federal Human Rights Act or Bill of Rights. This leaves all Australians vulnerable with no law that requires the government to assess the human rights impacts of legislation, policy or the decisions of its agencies and no clear, accessible path to review of government actions affecting people’s human rights.”
* UDHR Article 29, ICCPR 4
Contact: Matt Mitchell, ALHR media manager 0431 980 365.