Pranitha Sivalingam
The COVID-19 pandemic has presented significant challenges to governments around the world as they balance the protection of public safety and health with upholding our fundamental human rights. In March 2020, the Australian Federal Health Minister was granted sweeping powers under the Biosecurity Act 2020 to make any decisions deemed necessary without the consent of Parliament – even if it is in conflict with existing legislation. Due to the rapid response needed and the unfamiliarity of the pandemic, there was little opportunity to scrutinise the exercise of these powers.
It is now over 18 months since the pandemic began and more than 34 000 Australians remain stranded overseas, while the number of international arrivals has recently been halved. To those Australians who remain stuck overseas, the necessity and proportionality of the government’s restrictions are being questioned.
Human rights protections in Australia
Australia professes a reputation for upholding human rights and freedom, but it is the only democratic country in the world without a national Bill of Rights or Human Rights Charter. Although we claim support for international human rights standards set out in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights these are not always directly enforceable in Australian law. Our Constitution guarantees very minimal rights and only some rights are protected through legislation at the Federal level.
Victoria, Queensland and the ACT all have a Human Rights Charter or Act and this has been useful as it places human rights protection at the forefront of government decision-making. Additionally, it provides people with a mechanism to challenge certain alleged breaches of these rights. Without a federal Human Rights Charter, the burden falls upon the Parliament to safeguard our human rights when making legislation and there is not always a straight forward mechanism to challenge a violation of these rights.
Safeguarding public health has shown to be a challenge during the pandemic and many restrictions that have been introduced also impact other human rights. The Health Minister’s new powers are vast and many decisions are being made by the National Cabinet – not the Parliament –impacting the democratic process. This has made the transparency of the decision-making process and identifying who is responsible for these decisions increasingly difficult.
Border closure and India travel ban
Since the pandemic begun, many Australian residents have been unable to return as a result of the border closure and a government cap on overseas arrivals. This has resulted in expensive airfares, cancelled flights and many other difficulties for those who are desperate to come home.
In May 2021, the Australian Government placed a ban on flights arriving from India for a period of two weeks. Australian citizens and residents were left stranded without notice in an environment where the risk was growing exponentially. They were threatened with fines and jailtime if they sought to return.
In July 2021, as another major outbreak occurred and Greater Sydney went into lockdown, the cap for international arrivals was halved.
Australians do have a right to return home. The International Covenant on Civil and Political Rights states that “no one shall be arbitrarily deprived of the right to enter his own country”. As such, it is essential that any deprivation of this liberty be necessary and proportionate and other less restrictive measures are not available.
However, less restrictive measures do exist. McAdam and Saul argue that the Federal Government is not doing enough to facilitate the safe return of as many Australians as possible. The government would have been able to alleviate resource constraints had they established more purpose-built quarantine facilities. Instead of reactionary bans and threatening citizens with jail time, these national quarantine facilities could have been utilised to safely evacuate people who are in a country experiencing mass outbreaks.
Redress?
This restriction on Australians returning home this deep into a pandemic no longer appears to be the most proportionate or necessary measure. It is unfortunate that those overseas have to bear the brunt of the government’s botched vaccine roll-out and inability to establish an effective way to repatriate Australians abroad. But what is more unfortunate is that there is limited means of redress. Without a Human Rights Charter, it is difficult to understand what our rights are in times like these, let alone have a framework to determine whether they are proportionate and necessary.
In Victoria, where there is a Charter of Human Rights, there was an explicit reference to it when COVID restrictions were announced. Victorians were able to challenge their curfew against the Charter and have an assessment as to how it curtailed their liberties and whether it was necessary.
The absence of such a Charter at the federal level is very apparent in these times. Not only would having a mechanism like a Charter increase accountability of the government, but also agencies and departments, including the police, aged care services, prisons and hospitals.
As many Australian cities go through another round of lockdowns, with millions of people stuck at home unable to work and many still waiting for a vaccine, it is imperative that the individual rights of Australians here and abroad are protected as well as our communities. Without an Australian Charter of Human Rights, that’s something that’s difficult to ensure.
Pranitha Sivalingam is in her penultimate year of a Bachelor of International Studies/Bachelor of Laws and took part in an internship with the Australian Human Rights Institute in Term 2, 2021.