India travel ban: citizenship comes a distant second place

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On April 15 this year, the Geneva-based UN Human Rights Committee ruled on the case of two petitioners of FreeAndOpenAustralia.org (formerly StrandedAussies.org) that the Morrison government had to ‘facilitate and ensure their prompt return to Australia.’

Main image: Police and hotel quarantine workers wearing PPE at the entrance of the Intercontinental Hotel quarantine (Asanka Ratnayake/Getty Images)

The petitioners had been represented by foremost defender of human rights Geoffrey Robertson QC. The central argument to the UNHRC: that Australia was in breach of Articles 12(4) and 2(3) of the International Covenant on Civil and Political Rights. Article 12(4) enumerates the principle that no one shall be arbitrarily deprived of the right to enter his own country; the second provides for ‘effective’ remedies to be granted to those whose rights and freedoms have breached under the ICCPR. The petitioners also freely admitted that they had no issue with quarantining for 14 days on returning to Australia.

The decision was coolly received in Australia. A measure of how seriously the Morrison government has treated it can be gathered by the temporary ban on flights from India as part of a Biosecurity Determination. India is currently facing a crisis of staggering proportions, with daily rates of COVID-19 infections soaring over 400,000.

Using measures available to it under the Biosecurity Act 2015, the government has also threated imposing fines up to $66,000 and potential prison sentences up to 5 years. ‘We have taken drastic action to keep Australians safe,’ explained the Treasurer Josh Frydenberg after the announcement. According to a statement from Health Minister Greg Hunt, it was ‘critical the integrity of the Australian public health and quarantine systems is protected and the number of COVID-19 cases in quarantine is reduced to a manageable level.’

The ban has been described as everything from being disproportionate to being unduly discriminatory. Former race discrimination commissioner Tim Soutphommasane observed that no such ‘differential treatment’ was ‘extended to countries such as the United States, the UK, and any other European country even though the rates of infection were very high and the danger of its arrivals from those countries was very high.’ Conservative commentator Andrew Bolt was convinced that the ban had an overpowering smell of ‘racism’.

Internationally, the ban has not gone unnoticed. UNHRC spokesperson Rupert Colville expressed ‘serious concerns about whether the biosecurity determination and the severe penalties which can be imposed on its breach — meets Australia’s human rights obligations.’

While the ban is unique in its severity, it is not divorced from broader tendencies as to how citizenship has been appraised during pandemic times. Public health and safety have been prioritised over the standard liberties associated with citizenship. The movement of citizens during the COVID-19 crisis have been restricted by stay-at-home orders, directives and curfews, in some cases leading to riots. Health surveillance (temperature checks, medical histories, monitoring movements via apps) has become acceptable, doing much to compromise privacy.

 

'The conclusion is bleak: citizenship comes a distant second to the politicising dictates of public health and safety.'

 

Various impediments have been imposed by states in terms of mandatory quarantine, or demonstrating proof of vaccination. The US Centres of Disease Control and Prevention requires all passengers, including US citizens and legal permanent residents, to present a negative COVID-19 test, taken within three calendar days of departure or proof of recovery from the virus within the previous 90 days. Airlines are instructed to ‘deny boarding passengers who do not provide documentation of a negative test or recovery.’

US citizens are also treated differently depending on where they have travelled from. Despite maintaining control over COVID-19 infections, China is deemed a threat: US citizens who have spent the previous 14 days in the country ‘may be subject up to 14 days of quarantine.’

For all this, Australia remains unique in restricting and capping numbers of returning citizens, and now, criminalising any circumvention of the biosecurity determination regarding India. This is aided by the fact that there is no inherent right of return in Australian law. The High Court did remark in 1988 regarding a case concerning the imposition of an immigration clearance fee that a citizen has ‘under the law, the right to re-enter the country, without need of any Executive fiat or “clearance”, for so long as he retained his citizenship’. But the constitution remains stonily silent on the very existence of citizenship. Australia’s singular opposition to a Charter of Human Rights leaves citizens few options. Citizenship remains the fragile creation of statute law, ever at the mercy of parliamentary and executive discretion.

Gary Newman, stranded in Bangalore, India, has attempted to test the waters, filing an action in the Federal Court challenging the validity of Hunt’s determination. Chris Ward, representing Newman, submitted that the bar to return conflicted with a well-established common law right. Nor had the Biosecurity Act set clearly set out ‘in the clearest possible words’ the government’s power to impinge upon that right of return. ‘Difficult decisions and difficult choices in times of crisis must still be governed by the rule of law.’

Craig Lenehan, representing the Commonwealth, countered by suggesting that the Biosecurity Act was a ‘legislative bulldozer’ that needed no specific range of matters ‘to be taken into account for an emergency power directed to the national interest’. The rights alleged by Newman was ‘intended to be impinged upon by the Parliament.’

Judge Thomas Thawley was in agreement with the Commonwealth. The common law right of return had been effectively abrogated. ‘It’s hardly surprising the Parliament would provide a broad power to meet such threats. Even at the cost of some rights.’ Nor had Newman’s lawyers shown that Hunt’s declaration was unnecessarily restrictive or intrusive under the Act given the medical advice ‘that further relief would come to the Australian quarantine system by taking the measure.’

Two arguments, to be heard at a later date, keep the issue alive. One makes the case that such bans were not within the scope of Parliament’s intention in passing the Act. The other argues that the ban impermissibly fettered an implied constitutional right to enter Australia.

A proportionate, reasonable response that would pass muster under the ICCPR would be an expansion of quarantine process and increasing arrival caps. The Commonwealth has generally refused to do, preferring a more strapped hotel quarantine model that is uneven in its policing. Since November, there have been 17 COVID-19 leaks occasioned by poor security, inadequate supply of personal protective equipment and a refusal to appreciate the dangers of airborne transmission.

Under considerable pressure regarding its response to the India crisis, the government is now expanding the Howard Springs facility in the Northern Territory. It is regarded by epidemiologists as ideal: a stone’s throw away from a functioning hospital and equipped with single-storey cabins with outdoor veranda space. Critically, air conditioning systems are segregated. In time, more such facilities may have to be built, supplemented by the use of such detention facilities as those on Christmas Island.

To date, the Commonwealth has left quarantine, which remains its constitutional responsibility, to the states. This has had the effect of politicising the exercise of citizenship as a selfish matter. State premiers who have gone to the polls have been rewarded for their stewardship in responding to the pandemic, deploying a mixture of severe lockdowns and imposing inter-state travel restrictions. Returning Australian citizens have been periodically demonised as frivolous travellers and an epidemiological threat. A News.com.au poll of 18,302 voters had an approval rating of the India travel ban, fanged by the threat of jail and heavy fines, of 70 per cent. The conclusion is bleak: citizenship comes a distant second to the politicising dictates of public health and safety.

 

 

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Main image: Police and hotel quarantine workers wearing PPE at the entrance of the Intercontinental Hotel quarantine (Asanka Ratnayake/Getty Images)

Topic tags: Binoy Kampmark, COVID-19, Australia, India, right of return, Biosecurity Act 2015

 

 

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Thanks for the article Dr Kampmark but I don't accept "the bleak conclusion" as the only possible conclusion; the Newspoll 70% purely represents approval of the travel ban - those persons polled might have the preferences for any number of reasons, maybe the fangs appealing to some and the liklihood of increased public protection with reduced international travel from an identified hotspot satisfies others. We (everybody) are learning the idiosyncrasies of the pandemic and limitations of our responses, our understanding of quarantine and regional variants has improved since we didn't shut boarders to the UK or USA; a huge swathe of the Australian public have been adversely affected by the relatively small, localized outbreaks here, I don't doubt it's easy to sell a restrictive, punitive immigration control to people who have already spent months in isolation, lost their income or their ambivalence to risk-taking. Are persons to be judged as harsh purely because they elect to distance themselves and family from the risk of infection until they understand the situation better? Public sentiment varies internationally, it troubles me that irrespective Japan anticipate a forthcoming wave the AOC are bustling off our Olympians to play games while just on the other side of China desperate citizens can't get home.
ray | 11 May 2021


Patriotism is bringing your dead and wounded home from the battlefield (especially when you let them go out there). It comes from the analogy of citizenship to a common baptism, and, of course, in the West, the concept of baptism is special because it takes its meaning from the Christianity that is at the wellspring of European culture. Atomised individuals are vulnerable to guilt and neurosis because, created in the image and likeness of God, they are designed to fall into guilt and neurosis if they deprive themselves of some semblance of the intra-Trinitarian trust that being in the image and likeness of God entails.
roy chen yee | 12 May 2021


Ray. The AOC is not alone. There are not many, if any, productive crops planted in the top paddock of sports admin in this country!!
john frawley | 12 May 2021


You raise a number of questions in your article, Binoy. The federal government's stance reminds me of the response the Attorney-General, appropriately named Sir Abraham Haphazard, gave to Mr Harding in 'Barchester Towers' when the latter asked whether he had the moral right to be Warden of Hiram's Hospital. The former answered that Mr Harding was legally in the right. When someone like Andrew Bolt mentions a whiff of racism, I sit up. Persons of Indian origin have distinguished themselves wherever they have gone, disproportionate to their numbers. They are the wealthiest migrant group per head in the United States. In Britain they hold very important political office. I think the Coalition, particularly Messrs Morrison and Hunt, need to tread very carefully here. The Indian community is not given to violent protest, but they might protest silently at the ballot box at the next federal election. 'Scotty from Marketing' needs to get onto this, as Greg Hunt sometimes comes across as being somewhat inane and tone deaf to the constituency.
Edward Fido | 12 May 2021


Edward Fido. It is true that persons of Indian origin have distinguished themselves in countries to which they have migrated. Perhaps for many of them the reason they have done well in other countries may be that they have escaped the most racist system in the world which discriminated against its own citizens depending on the circumstances of birth. One of the most disturbing things I encountered when working in England was the refusal of higher caste Indian doctors to fulfil sometimes life saving requests on behalf of a patient from an Indian fellow doctor of lower caste. However, I have never experienced this in Australian citizen Indian doctors. Perhaps we are not as racist in this country as some [not you Edward] seem hellbent of proclaiming around the world.
john frawley | 13 May 2021


Discriminatory citizenship has been building before the pandemic gave it broad licence. We have only to track Minister Dutton’s responses to Federal and High court decisions regarding the relegation of valid citizenship applications to bottom drawers in order to deny refugees who had qualified for permanency and fulfilled the requirements for citizenship. High Court orders in 2016 were ignored and people still wait for the formal right to call Australia home. We are a long way from the days of joyful “multiculturalism” There has been too much silence as the Anglo- centric politicians have steadily eroded our dream of a kinder more inclusive more adult Australia. We can’t blame the pandemic- the rot set in in from Howard days and has become toxic mould in our nation.
Pamela Curr | 15 May 2021


Why no such accusation of denying citizenship rights when there was a travel ban between NZ and Austalia for m,ore than six months? Do only Australians citizens in Indian get such an outcry of having to suffer a two week ban? Where is the equity of your outrage?
Phil | 15 May 2021


Phil. Don't you get it yet? When we don't allow white Anglo-Saxon origin Australian citizens to return from the UK, USA or NZ because of a very dangerous viral pandemic, we are a caring responsible people. When we don't allow darker skinned non-Anglo-Saxon origin Australian citizens to return for the very same reasons, we are racists. Get it???
john frawley | 16 May 2021


“Get it???” Well, Frawley my man, there’s a very good reason, founded in political incorrectness of the highest order, ie., cultural chauvinism and non-equality, why there should be a general principle that no Australian should be stranded overseas. And that is the principle of not having to explain to God why you let some hue-skinned Australian Christian missionary to India, Pakistan, Iran, China, wherever, languish under the tender mercies of anti-Christians as a known object of abandonment. In doing the cultural chauvinist and non-equal thing of looking out for Australian Christian missionaries to hue-skinned lands, we establish, fortuitously (or maybe not so fortuitously), a general principle of care for any Australian overseas.
roy chen yee | 17 May 2021


The rigidity of caste, as practiced by some, not all persons of Indian origin, John Frawley, is frightening. Caste and casteism are outlawed in the Indian Constitution, but, of course, things in real life are somewhat different. It's a bit like racism, most Australians are not racist, but, in certain circumstances problems may arise. It's interesting what you say about high caste POIO doctors in England compared with the same in Australia. Australia is, as you know, far less hierarchical than England, where the class system keeps most people out of certain fields, although the old school tie can do the same thing here. It's just that Australians won't be put down. Sadly, caste is encapsulated in the Laws of Manu, which is regarded as revealed knowledge. Many Hindu social reformers, some influenced by Islam and/or Christianity, have tried to overcome the evils of casteism as practiced by some. Racism in the USA is also hard to abolish. It is ingrained in behaviour. You have to be very careful walking into some Afro-American areas, because you will be challenged, as they don't know you or what you might be up to. Modi's rise is interesting, as he is not a Brahmin. He is more anti-Islam than casteist, but heaven knows what some of his followers do.
Edward Fido | 17 May 2021


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