The frustrations felt by Australians unable to travel internationally, as well as the lack of meaningful enforcement options with respect to the right to leave, lend weight to calls for Australia to adopt a Bill of Rights at the federal level, writes Dr Kate Ogg.
Australia has banned most of its citizens and permanent residents from travelling internationally, with an exception for those with “compelling reasons” for needing to leave. There was little protest in mainstream media against this travel ban when it was first announced in March 2020. However, as the pandemic has dragged on, many news outlets have drawn attention to how the outward travel ban is tearing families apart.
Australia’s outward travel ban may be in violation of Australia’s obligations under the 1966 International Covenant on Civil and Political Rights (ICCPR). Australia ratified the ICCPR in 1980. Therefore, Australia is legally bound to uphold the rights in this treaty with respect to anyone on Australia’s territory or subject to Australia’s jurisdiction.
Article 12 of the ICCPR outlines the right to freedom of movement. An aspect of freedom of movement is the right to leave any country, including one’s own (article 12). Pursuant to article 12(3), Australia can place restrictions on freedom of movement if they are necessary to protect a number of stated objectives, including public health. However, the UN Human Rights Committee (HRC), the body charged with overseeing states’ implementation of the ICCPR, has said that “it is not sufficient that the restrictions serve the permissible purposes”. The restrictions “must be appropriate to achieve their protective function; they must be the least intrusive instrument [among] those which might achieve the desired result; and they must be proportionate to the interest to be protected”.
It is beyond question that the outward travel ban has been put in place to protect public health. However, for Australia to be compliant with the right to leave in the ICCPR, the travel ban must be necessary to prevent or reduce the spread of COVID-19 and also be the least intrusive method of achieving this goal. Banning Australian citizens and permanent residents from leaving the country, subject to only a few exceptions, is not the least intrusive method of preventing or reducing the spread of COVID-19. The Australian government is legitimately concerned about Australians leaving the country, contracting COVID-19 while overseas and then returning to Australia while infectious. This can be addressed by requiring all people entering the country to quarantine (a policy already in place). Another important concern is that a person infected with COVID-19 may, if allowed to leave Australia, spread the disease to others on the same flight and on arrival in the foreign country. This can be remedied by less intrusive measures such as requiring all travellers to be tested before departure.
Another reason why Australia’s outward travel ban may be in breach of the right to leave one’s own country is because there is little guidance on what are the “compelling reasons” that warrant an exemption. The HRC states that “laws [authorising] the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution”. The Minister’s Determination does not provide precise criteria and media reports indicate that those applying the exemptions have unfettered discretion as to when this exemption applies.
Australia has not declared a state of emergency in respect of COVID-19. While Victoria has declared a state of emergency, the outward travel ban has been introduced at the federal level. Further, article 50 of the ICCPR provides that its provisions “shall extend to all parts of federal states without any limitations or exceptions” (Australia initially entered a reservation to article 50 but later withdrew it). If Australia declares a state of emergency, article 4 of the ICCPR provides that if there is a public emergency that threatens the life of the nation, which has been officially proclaimed, then a state can derogate from some of its ICCPR obligations but only to the extent “strictly required by the exigencies of the situation”. The measures must not be discriminatory or inconsistent with other international law obligations. While article 12 is an obligation from which states can derogate, the HRC has stated that the permitted exceptions outlined in article 12(3) are “generally sufficient during such situations and no derogation from the provisions in question would be justified by the exigencies of the situation”.
The reason why the HRC takes a strict approach to freedom of movement is because it is often the foundation for the realisation of other rights. Without the ability to move freely, people are, for example, restricted in their ability to reunite with their family, pursue education, exercise aspects of their religious beliefs and seek asylum. The HRC highlights that freedom of movement interacts with many of the other rights in the ICCPR and “is an indispensable condition for the free development of a person”.
While there are strong arguments that the outward travel ban is in violation of the right to leave one’s own country in the ICCPR, it will be hard to bring a domestic legal challenge on these grounds. This is because this right, as well as many of the rights in the ICCPR, has not been brought into domestic Australian law.
Any person who believes their ICCPR rights have been violated by the outward travel ban may bring a complaint against Australia to the HRC. While there is a requirement to exhaust all domestic remedies before bringing such a complaint, the HRC has stated that this does not apply when a domestic challenge would inevitably fail due to, for example, lack of domestic grounds on which to base a legal challenge. This would most probably be the case with any complaint against Australia related to the right to leave one’s own country because, as noted above, this right is not protected in domestic law. Nevertheless, Australia’s position is that the HRC’s views are not binding. Accordingly, it is unlikely that a complaint to the HRC will prompt Australia to end its outward travel ban.
Dr Kate Ogg is a senior lecturer with the Australian National University’s College of Law. Dr Ogg undertakes interdisciplinary research in the areas of refugee law, human rights, litigation, access to justice and feminist legal history.