The value of living within a democratic framework was driven home to me during my undergraduate years in the 1980s studying law at the University of Melbourne. I was alive to the plight of Jews applying to leave Russia to take up their right of return to Israel or enter another country with which they had a connection. I read Martin Gilbert’s 1987 biography of Natan Sharansky,the famous ‘refusenik’ who finally made it to Israel,and who much later became a member of their Parliament. In that same year I joined a letter-writing campaign to a man called Arkady Lipkin who had applied to leave Russia to join family in Australia. Having applied to leave,the Russian government then dismissed him from his job and otherwise discriminated against him.
Is the Australian government now discriminating against Australian citizens in India in singling them out for this drastic measure? The Commonwealth’sBioSecurity Act 2015 – under which the Health Minister Greg Hunt has made these determinations – has clear limitations on this power. The Act states the Minister must be satisfied of all of the following:that the measure is likely to be effective in achieving the purpose for which it is to be determinedand that the measure is appropriate and adapted to achieve the purposeand that the requirement isno more restrictive or intrusive than is required in the circumstances;and that the period during which the requirement is to apply is only as long as is necessary.
Is this complete ban likely to survive a challenge in the courts? Is it the least restrictive and intrusive way of managing this current scenario? Is imposing a fine on Australians lawful?
There are strong arguments this is unlawful,beyond being improper in a democracy. First,Australians have a right to return to their country of citizenship having signed onto the International Covenant on Civil and Political Rights and its Optional protocol which enables Australians to make complaints to its Human Rights committee.
When two Australians,Jason George and Alex Marshall made an application to the Committee about the caps on travel as a breach of that right,the Committee issued an interim order on April 15,requesting the Australian government to facilitate their return pending a final decision. This step illustrates how significant such a breach is yet Australia has effectively responded by issuing this more complete ban with fines – how is that acceptable while it is aware of this interim measure?
Beyond the international framework,domestically there are public law principles that appear to have been overridden. Has the government made transparent the case for such drastic measures? Why is it not following its established practice of assisting vulnerable Australian citizens during overseas emergencies? What is the difference to the scenario in Wuhan in early 2020,or indeed the United Kingdom when it was going through its crisis?