Locked down and locked in (First published on www.traveller.com.au)
Remember the words at the end of the Eagles’ Hotel California? “You can check out any time you like but you can never leave”. Feels a bit like Australia at the moment.
As part of its response to the pandemic, the Australian government has made it tough for its citizens and permanent residents to leave. Not only are all incoming travellers required to enter hotel quarantine for 14 days, with a possible exception if you happen to be a media mogul returning from Aspen in your private jet or Dannii Minogue, the government has clamped down on your right to travel overseas.
The legal framework for the government’s restrictions on overseas travel is the Biosecurity Determination 2020[https://www.legislation.gov.au/Details/F2020L00306]
Under this legislation, Australian citizens and permanent residents have been prevented from leaving Australia since March 25 except for a few special categories, for example international aircrew, or for those who have been granted an exemption by Australian Border Force.
Exemptions allowing an Australian citizen or permanent resident permission to depart will only be granted “in exceptional circumstances… demonstrated by the Australian citizen, permanent resident or operator providing a compelling reason for needing to leave Australian territory.”
In regulating the departure of all its citizens, including dual citizens, the Australian government has adopted a uniquely stringent posture. The USA, the UK all other European, Asian, African and South American countries allow their citizens to depart at will. Unless they are subject to a legal restraint such as criminal charges, and those restraints would have nothing to do with the pandemic, they’re free to go, no questions asked. Some countries did impose a temporary ban that prevented their citizens from travelling beyond their borders, such as Lithuania, but those restrictions have lapsed.
How hard is it to get permission to leave?
Anyone with Australian citizenship or who is a permanent resident and wants to leave Australia must submit a written application to the Department of Home Affairs. Although an exemption applies to “a person ordinarily resident in a country other than Australia”, many in that category have experienced delays and frustration in obtaining an exemption in order to leave Australia and travel back to their home country.[https://www.smh.com.au/national/held-against-our-will-dutch-citizens-struggle-to-leave-australia-20200710-p55azh.html]
Feedback suggests that getting permission to leave can be difficult even when there is a clear case for compassion – for example a dual citizen wanting to leave Australia to care for an aged parent overseas. An article published on the Executive Traveller website explaining who is exempt from Australia’s international travel ban has attracted 850 posts, mostly from those affected by the travel restrictions.
The right to travel
The Australian government does not want its citizens contracting COVID-19 while they’re overseas. But does that justify the restriction on the freedom of Australian citizens to travel?
Not according to Dr Kate Ogg, senior lecturer at the ANU College of Law, Australian National University.
“It is arguable that the Australian government’s restrictions on travelling overseas are in violation of Australia’s human rights obligations. Australia has ratified the International Covenant on Civil and Political Rights (ICCPR), article 12(3) of which provides that ‘everyone shall be free to leave any country, including his [or her] own’. Pursuant to this right, a person can leave their own country for any reason whatsoever. The right to leave one’s own country is not an absolute right. The government can place restrictions on Australian citizens’ and permanent residents’ right to leave for a number of reasons including the protection of public health.”
That would seem to give the Australian government an out. However, as Dr Ogg continues, “The measures put in place must be the least intrusive possible to protect public health. The Australian government’s role is certainly to advise Australian citizens about the risks of international travel and urge Australians to avoid all inessential international travel. The Australian government’s ban on international travel, which is only subject to a few very specific exceptions, may be a violation of the right to leave because it is not the least intrusive possible method to protect public health. It could both prevent the spread of COVID-19 by, for example, testing all travellers before departure and quarantining all returning travellers (a policy already in place).”
The Department of Home Affairs says in a release titled ‘Leaving Australia’, “Australia has strict border measures in place to protect the health of the Australian community.” That includes the protection of Australians travelling overseas. But that’s hardly a consistent approach. Nor does it want them riding scooters without a helmet or taking prohibited substances, yet it does not prevent them from leaving Australia to avoid the possibility they might infringe foreign drug laws or injure themselves.
Dr Ogg prefers the example of New Zealand, which has set the benchmark for successfully dealing with the pandemic, yet does not prevent its citizens from travelling overseas although it advises them against it. “The New Zealand government is correct in urging New Zealanders to avoid international travel and making them aware of the health risks to themselves and others,” says Dr Ogg. “However, banning international travel, when there are methods that would allow for overseas travel and address the spread of COVID-19, is most likely a violation of the right to leave in the ICCPR.”
The government has recently announced that returning travellers will be charged for their stay in quarantine. That’s around $3000 for two weeks’ worth of board and lodging for a single traveller, confined in a hotel room not of their choice. That’s a severe disincentive for anyone thinking of travelling overseas. So why does the Australian government consider it necessary to prevent us from doing so? While travellers have returned from overseas infected with COVID-19, that’s what the quarantine safety net is for. Only if the Australian government does not have faith in its ability to detect and prevent returning travellers who are infected with coronavirus from spreading COVID-19 throughout the community does this ban make sense.
The ban on overseas travel looks like an overabundance of care. If we’re prepared to assume the risk involved in overseas travel, undergo quarantine when we return and pay for it, that’s up to us. Maybe it’s time for the nanny state to unlock the gate, and allow us to make our own decision about whether to travel overseas.