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Guo, Min --- "Human rights take flight: Border bans during COVID-19" [2021] PrecedentAULA 46; (2021) 165 Precedent 44

HUMAN RIGHTS TAKE FLIGHT

BORDER BANS DURING COVID-19

By Min Guo

Very few things, if any, have upended the modern world in the way that the coronavirus pandemic has. The resulting upheaval has brought changes to all aspects of daily life, from personal habits to work routines.

The majority of us have been able to take this upended existence in our stride; we understand that, in times of crisis, there must be a balancing act between personal liberties and the protection of public health. It is easy to see why washing our hands more frequently and minimising time in public spaces are good things to do.

But when there is no apparent sense of proportionality and an inherent tension with assumed liberties, it is much harder to understand other restrictions that have been imposed by the Government. Banning visa holders (that is, people with a legitimate right of entry into Australia) from entering or returning to the country is one example. Banning citizens from returning home altogether is another, especially when one might rightly assume that the ability of a citizen to return home is a natural right.^[1] The same may be said for citizens and the assumed right they have to leave the country.

This article examines the China travel ban, the India travel ban and the ban on Australian citizens leaving the country, and highlights how existing notions of constitutionality, proportionality and political accountability have not adequately checked the intrusion on individual liberties, not even in the form of providing any coherent normative justification for such intrusion – leaving a situation which does not promote confidence in government, at a time when we need it the most. Human rights legislation, as already exists in several Australian states and territories, would help fill this vacuum.

PERSPECTIVES IN THE TIME OF COVID-19

There is a perennial debate about whether we need a national human rights charter or bill of rights. Certainly, the sky did not fall in when similar charters were enacted in the ACT, Victoria and Queensland.^[2] But the conversation about national rights protection has made only slow progress.

This might be due to an assumed adequacy of the existing system. After all, we all know that there are constitutional limitations on executive and legislative power in Australia. This means that, theoretically, the Commonwealth should not be able to get away with doing as it pleases: the courts or Parliament or both will provide some form of check and balance on government. Federal legislation also occasionally recognises the concept of proportionality as a device coming to the defence of individual rights against the exercise of executive power.^[3] Then there is a ‘soft’ limitation on power that arises from the need for political accountability, tied to an orthodox understanding of our system of government.^[4]

One might be forgiven for thinking that these matters are enough to protect against excesses of executive power. Often, they are.

However, they have not worked during the pandemic. By one circumstance or another, Commonwealth action in response to the pandemic has not been adequately checked by these mechanisms, if at all. They have left lingering questions about the lawfulness of and justification for the Commonwealth’s actions, which undermine public confidence. That is why it is a perfect time to revisit the debate for national human rights protection.

BANNED FROM ENTERING AUSTRALIA

China travel ban

The China travel ban was a product of executive fiat; Parliament had no role. At the start of 2020, the Commonwealth simply publicly declared by press conference that all non-permanent visa holders who had been in China would be banned from entering Australia.^[5] Its implementation was achieved through a combination of cancelling visas and threatening to do so.^[6]

There were few exemptions. Importantly, it did not seem to matter that a person might have only been, say, in remote western China, or might have spent only a few hours in the country while transiting through mainland China. The Commonwealth simply declared that anyone who had been in China would be banned from returning to Australia despite holding a visa, the very purpose of which is to entitle the holder to enter or return.

Whether there was proportionality to such a blanket ban is highly disputable. But, at least according to orthodox Australian interpretations of federal administrative law, notions of proportionality have little role to play in any challenge to the cancellation of a person’s visa: Australian courts are yet to embrace proportionality in federal administrative law.^[7] Alternative arguments about reasonableness are also typically met with deference to the executive, expressed as an aversion to ‘merits review’ and a belief that courts should not interfere with exercises of executive discretion.^[8] So it would have been difficult for a reasonableness argument to have succeeded.^[9]

No court challenge of the China travel ban appears to have gone to judgment – if one was ever brought at all.

The medical basis for the travel ban decision also remains unclear; the deliberations of the relevant decision-makers have not been made public. It also did not help that, when the ban was announced, on a per capita basis China had substantially fewer infections than other countries that were not subject to a similar ban. These are hardly circumstances that promote public confidence in government decision-making.

In short, it seems that the Commonwealth was able to maintain the China travel ban because there was no legal challenge. There may yet come a day on which the ban will be challenged, because the consequences of visa cancellations can be far-reaching and the time for them to crystallise may not yet have arrived.^[10] But in the meantime, as a consequence of pure executive action announced in a press conference, thousands of people with the right to return to Australia were denied the ability to exercise that right.

Can it be said that the Commonwealth adhered to the rule of law just because its ban was unchallenged? What of the fact that the ban seems to be out of reach of any challenge based on proportionality? Is it appropriate that the Commonwealth could impose a ban that appeared to be discriminatory without publicly releasing the advice that supported it? The legal positivist would reason that there is nothing wrong with such a ban, and that it is neither here nor there that any underlying advice has not been published. By this reasoning, because it is within the Commonwealth’s power to cancel visas, the ban was and is valid until a court finds otherwise.^[11] But that is small comfort if you were a Chinese international student or partner visa applicant who had gone home for the Christmas holidays and found yourself unable to return to your Australian studies, partner or belongings; small comfort if you had to forfeit your tuition fees, partner visa application, or the lease for your accommodation and your home’s contents.

India travel ban

The India travel ban is an even more striking example of how individual liberties have not been saved by proportionality, constitutionality or even just-in-time political accountability. By executive fiat, the Commonwealth declared what might have seemed unthinkable to the layperson: not only permanent residents but also Australian citizens would be banned from attempting to return to Australia, to escape the ravages of the COVID-19 wave hitting India. The ban was implemented under broad-ranging provisions in the Biosecurity Act 2015 (Cth) (Biosecurity Act). Some in the Government’s own ranks went on the record expressing concerns.^[12] Many also questioned the ban on the basis that the US and the UK had endured COVID-19 waves with far greater per capita infection rates, yet sanctions on return were not announced in respect of those countries.^[13] The Prime Minister denied that the ban was racist.^[14]

Unlike the China travel ban, the India travel ban was challenged in court. But the challenge failed: the Federal Court held that the ban was proportionate as was expressly required by the Biosecurity Act, and noted that the ban was imposed for 14 days only.^[15] (This is in contrast to the China travel ban which, as noted above, was not pursuant to any exercise of executive power constrained by a legislative proportionality requirement.) Small comfort for the Indian Australians who, during those 14 days, wanted to return home but were threatened with jail if they attempted to do so – and died from the virus.^[16]

The challenge to the India travel ban contemplated arguments that the ban was unconstitutional.^[17] But the Court never reached those arguments; the proceeding was discontinued after the initial ruling, as the travel ban had expired. Unanswered questions remain: whether the ban offended an implied constitutional right of citizens to return home (a right assumed even by the layperson); and whether any legislative head of power can in fact authorise the imposition of such a ban.

Obiter suggests that Australians do have a constitutional right to return home.^[18] It is unfortunate that the ban’s constitutional validity was never tested.

The lingering constitutional doubts over the ban are unsatisfactory. This, of course, is not a criticism of the Court that found the ban to be lawful in the sense that it was proportionate. Rather, it highlights that the theoretical ability to mount a constitutional challenge is of no comfort if circumstances mean that it cannot actually be followed through. And it highlights that there has not been any actual proof of constitutionality.

Political accountability did not function as any form of backstop either – or, at least, not in time. Some of the underlying medical advice for the ban was produced in the proceedings.^[19] It revealed that there were limited exemptions to the ban, such as those ‘travelling on official government business on an Australian official ... passport’, despite the fact that there is no reason to suppose that such persons were less likely to be infectious than any other Australians in India.^[20] However, and importantly, the medical evidence that was tendered in Court did not answer criticisms that despite higher rates of infection, the US and the UK had not been the subject of similar bans. It is easy to imagine that a positivist would have rationalised the outcome as a simple application of orthodox administrative law. But just because that is the way it is, does not mean it should be so.

BANNED FROM LEAVING AUSTRALIA

Another defining feature of the Commonwealth’s response to the pandemic is its strict ban on citizens leaving the country. No other democratic country in the world has done the same.

This ban has also been implemented under the Biosecurity Act, by executive action.^[21] Whether the ban is proportionate, as is the express legislative requirement, does not appear to have ever been tested in court.^[22] Exemptions are available, but the effective management of exemptions is a live issue at the time of writing, to be examined by the Australian National Audit Office.^[23]

The Australian Border Force has issued an ‘operation directive’ which prescribes further details of how the travel ban is implemented. It is concerning that this ‘operation directive’ has no apparent legislative basis.^[24] The latest iteration of this ‘operation directive’, at the time of writing, imposes almost blanket restrictions on Australians travelling to India or Papua New Guinea. In particular, in the case of Papua New Guinea, this is even if the person is travelling to care for a terminally ill family member and has no immediate plans to return to Australia in the foreseeable future.^[25]

Once again, obvious questions of proportionality arise. Once again, it appears that this is a case of making calculated decisions about whether anyone will bring a court challenge. Once again, the restrictions have not been justified by the public release of any underlying medical advice. These again hardly promote public confidence in government, right when we need it the most.

WHERE TO FROM HERE?

Human rights legislation in the ACT, Victoria and Queensland gives express recognition to freedom of movement, including the right to enter and leave those jurisdictions.^[26] It also puts positive duties on government to act consistently with those rights,^[27] fostering a culture in which rights are actively considered rather than relegated to being an afterthought. This is not to say that any of these statutes have elevated freedom of movement or any other right into an absolute right – they have not.^[28] But they have allowed effective pandemic responses to be implemented in those jurisdictions without being at the expense of absolute incursions on the right to leave and return home. They have provided a coherent structure for explaining why and how rights need to be balanced with public health objectives.^[29]

In contrast, there is a vacuum at the federal level. Proportionality is either unavailable as a general bulwark against the erosion of individual liberties, or when it is statutorily available, the consequences may nonetheless be disproportionate for individuals. Liberties may also not be protected constitutionally. All that is left is political accountability at the ballot box, but that is meaningless for non-citizens whose visa rights have been infringed, and too late for those citizens who have died.

The limited scrutiny afforded by these systems holds up poorly against structured human rights legislation. In times when trust in government is needed the most, if rights need to give way to other priorities, then this should at least be explainable in a way that promotes confidence in government, rather undermines it.

Min Guo is a Victorian barrister who practices in commercial and public law, including migration and citizenship law. PHONE (03) 9225 8365 EMAIL min@guo.com.au.

^[1] International law recognises such a right: see for example International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICCPR), art 12(4); Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) (Declaration of HRs), art 13(2).

^[2] Human Rights Act 2004 (ACT) (ACT Act); Charter of Human Rights and Responsibilities Act 2006 (Vic) (Vic Act); Human Rights Act 2019 (Qld) (Qld Act).

^[3] See for example Biosecurity Act 2015 (Cth) (Biosecurity Act), s477(4).

^[4] See for example Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [61]; North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569, [135]; Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373, [59]–[61].

^[5] Prime Minister of Australia, ‘Press Conference – Sydney, NSW’ (Transcript, 1 February 2020) <https://www.pm.gov.au/media/press-conference-sydney-nsw-3>.

^[6] No instrument under the Biosecurity Act, above note 3 appears to ever have been made to implement the ban.

^[7] The High Court has suggested that there may be a role for proportionality to play in administrative law (as distinct from constitutional law), but the suggestion is still in its infancy. See McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178, [3] (French CJ, Kiefel, Bell and Keane JJ). Various state supreme courts have applied proportionality in review of administrative decisions, but that is in the context of specific human rights legislation mandating proportionality as a consideration.

^[8] See for example Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (Li), [66]. However, the same scenario may be found by some to be reasonable, and yet not by others: see for example BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420, [18]–[23].

^[9] There is some suggestion that proportionality and reasonableness may overlap, but again, the extent to which they may is unresolved in Australian law. See Li, above note 8, [30], [73]–[74].

^[10] This is because a person whose visa is cancelled may be disqualified from applying for another visa for a set period of time: Migration Regulations 1994 (Cth), sch 4, cl 4013. The ban may apply, but is of course only of practical consequence if and when the person seeks to apply for another visa within that time.

^[11] Migration Act 1958 (Cth), s116(1)(e).

^[12] P Karp, ‘“A step too far”: Liberal senator James Paterson speaks out against India travel ban’, The Guardian (online), 10 May 2021, <https://www.theguardian.com/australia-news/2021/may/10/a-step-too-far-liberal-senator-james-paterson-speaks-out-against-india-travel-ban>.

^[13] J Nicholas and E Visontay, ‘Comparing US and UK Covid case numbers suggests Australia’s India flight ban based on “fear factor”’, The Guardian (online), 29 April 2021, <https://www.theguardian.com/world/2021/apr/29/comparing-us-and-uk-case-numbers-suggests-australias-india-flight-ban-based-on-fear-factor>.

^[14] T Stayner and M Truu, ‘Scott Morrison has denied the controversial India travel ban is racist amid mounting backlash’, SBS News (online), 3 May 2021, <https://www.sbs.com.au/news/scott-morrison-has-denied-the-controversial-india-travel-ban-is-racist-amid-mounting-backlash>.

^[15] Newman v Minister for Health and Aged Care [2021] FCA 517 (Newman), [61].

^[16] SBS News, ‘“A significant loss”: A 47-year-old Sydney man has died from COVID-19 in India’, SBS News (online), 18 May 2021, <https://www.sbs.com.au/news/a-significant-loss-a-47-year-old-sydney-man-has-died-from-covid-19-in-india>.

^[17] Newman, above note 15, [3]–[4].

^[18] Air Caledonie International v The Commonwealth [1988] HCA 61; (1988) 165 CLR 462, 469. International law also recognises a right for citizens to return to their home countries: see for example ICCPR, above note 1, art 12(4); Declaration of HRs, above note 1, art 13(2).

^[19] Newman, above note 15, [38] and [55].

^[20] Ibid, [38].

^[21] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth).

^[22] See Biosecurity Act, above note 3, s477(4). The argument was not pursued in Baker v Commissioner of the Australian Border Force [2020] FCA 836.

^[23] For the performance audit of the Australian National Audit Office (ANAO), see ANAO, International Travel Restrictions during COVID-19 (November 2021) <https://www.anao.gov.au/work/performance-audit/international-travel-restrictions-during-covid-19>.

^[24] Department of Home Affairs, Outward Travel Restrictions Operation Directive v8, <https://www.homeaffairs.gov.au/covid-19/Documents/outward-travel-restrictions-operation-directive.pdf>.

^[25] K Silva, ‘Australians desperate to go to India blocked by COVID-19 travel ban’, ABC News (online), 14 May 2021,<https://www.abc.net.au/news/2021-05-14/australians-desperate-to-get-to-india-blocked-by-travel-ban/100138392>.

^[26] ACT Act, above note 2, s13; Vic Act, above note 2, s12; Qld Act, above note 2, s19.

^[27] ACT Act, above note 2, s40B; Vic Act, above note 2, s38; Qld Act, above note 2, s58.

^[28] ACT Act, above note 2, ss30–1; Vic Act, above note 2, ss31–2; Qld Act, above note 2, ss43 and 48.

^[29] In Loielo v Giles [2020] VSC 722, where the plaintiff claimed that Victoria’s curfew unlawfully restricted her right to freedom of movement, the Court explained that was not so, using the disciplined analysis required by the Vic Act, above note 2.