Critics of the new policy say that instead of rescuing stranded Australians their government is abandoning them, in breach of its obligation under the International Covenant on Civil and Political Rights that “no one shall be arbitrarily deprived of the right to enter his [or her] own country.”
While many countries have placed restrictions on foreign arrivals during Covid, the University of Canberra’s Kim Rubenstein, Australia’s leading citizenship law expert, told POLITICO that “no other democratic country has placed such extreme measures on its citizens.” Australia’s Human Rights Commissioner, Edward Santow, emphatically told local television that “people have a right to return to their own country.”
The government’s political calculation is that the 25 million Australians already in Australia will be grateful that their government is adopting another tough measure to keep them safe from Covid. The immediate victims of the policy are the 9,000 or so Australians stranded in India, ranging from dual citizens returning to India for family funerals, to high-profile sports stars playing in India’s Premier League cricket competition.
Prime Minister Scott Morrison avoided facing reporters after the decision, leaving it to Health Minister Greg Hunt to announce that “the risk assessment that informed the decision was based on the proportion of overseas travelers in quarantine in Australia who have acquired a Covid-19 infection in India.” The Australian Broadcasting Corporation reported that 47 Covid cases had been recorded among quarantining passengers recently arrived from India last week.
Australia experienced an average of just three new Covid cases per day in April, almost all of which were identified in the country’s strict hotel quarantine system, meaning there is no community transmission of the novel coronavirus in Australia.
“Citizenship means little if you can’t use your passport to return home in a time of need. On its face, this policy undermines the value of citizenship,” Professor Tim Soutphommasane told POLITICO. Soutphommasane is a former head of the Australian Human Rights Commission. “There’s significant public concern about this policy, and its discriminatory character,” he said.
The discrimination concerns are two-fold.
First, that the policy creates a second class of citizenship: Australia’s citizens in India are less entitled to protection from Covid than citizens currently in Australia.
Second, critics argue that India’s outbreak has been treated in a racist way. Taking into account the likely undercounting of India’s Covid outbreak, India today still has a lower per capita infection and death rate than did the United States, United Kingdom and many other majority white countries at the peak of their Covid outbreaks. Arrivals into Australia from those countries were not banned, Soutphommasane noted.
By comparison, the United States is still allowing Americans and humanitarian workers to return home from India, though restrictions on others attempting to enter the U.S. from India will begin Tuesday.
While the Australian government said it would review the policy on May 15, potentially ending it, there’s little popular interest in change. “The Australian public has rewarded governments that have taken harsh measures in responding to Covid-19, as we’ve seen from the thumping return of numerous state governments during the past year,” Soutphommasane said, including the conservative Tasmanian government — the first to close its state borders in 2020 — which swept back into power in an election Saturday.
The Australian Human Rights Commission — a statutory body — said in a statement Saturday that it has “deep concerns” about the new rules and has urged that the Australian Senate conduct an investigation. “The need for such restrictions must be publicly justified. The government must show that these measures are not discriminatory and the only suitable way of dealing with the threat to public health,” the Commission said.
While Australia’s Biosecurity Act allows for emergency action by the country’s Health Minister, it requires such measures be “no more restrictive or intrusive than is required in the circumstances.” Sarah Joseph, a professor of human rights law at Griffith University, told POLITICO that a legal challenge based on excessive use of power is likely, and that this tactic gives critics their highest chance of overturning the new policy.
The United Nations Human Rights Committee last month slapped down Australia for its Covid arrival caps policy, which has limited overseas arrivals to between 3,000 and 6,000 per week, leaving around 35,000 Australians stranded overseas, despite registering with the government as wanting to return home.
The U.N. Committee ruled that the Australian government must “facilitate and ensure” the prompt return of two Australians who argued that the arrival caps were a breach of Australian international legal obligations under the International Covenant on Civil and Political Rights.
The national government operates a specialist quarantine facility for returning travelers on repatriation flights chartered by the government, in a remote town in the country’s Northern Territory. The Howard Springs facility has capacity for just 850 travelers every 14 days (the government plans to double that capacity), meaning it could take months to clear the backlog of Australians stuck overseas. If flights from India resume in coming weeks, many passengers would have to complete quarantine in regular hotels rented by the government.
No path to normal
While Australia may be winning the fight against Covid-19, it risks losing the war to return to normal life.
Australian state governments, alongside the federal government, have enacted a set of popular border closures and restrictions over the past 12 months. The left-wing government of the state of Western Australian locked out people who don’t live in the state for more than 220 days starting in April 2020 and went on to win re-election in a landslide on March 13.
Nationally, the federal government has banned nearly all departures from the country, and it has no concrete plan to open back up.
Australians and permanent residents of the country need to apply for an exemption to leave, except to travel to neighboring New Zealand. The policy traps at least 4.4 million foreign passport holders — including American citizens — and Prime Minister Scott Morrison says he is in “no hurry” to change the system.
Tourism and education have taken a big hit. Typically, before Covid hit, 10 million foreign tourists and 900,000 foreign university students would arrive in Australia each year, but nearly all are currently locked out of the country.
The state of Victoria is considering a pilot program to allow 125 international students per week to return to Australia for in-person tuition. At that rate it would take the state two decades to return its international student population to pre-Covid levels. The problem, again: lack of quarantine facilities.
Simon Westaway, executive director of the Australian Tourism Industry Council, said Australia will need to change its policies soon or risk the permanent damage to its tourism sector. The current policy of “fourteen-day quarantine completely precludes a viable tourism experience,” he said. “It just won’t commercially work, or work for individuals,” Westaway said.