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There will be a next time. We must do better.

On 7 December, the Victorian Ombudsman, Deborah Glass, presented her Investigation into decision-making under the Victorian Border Crossing Permit Directions to the State Parliament. It makes for confronting reading. Under Victoria’s Border Directions after 23 July, people in NSW (and later the ACT), including Victorian residents, were effectively prevented from entering the State. Their only option was to request an exemption for a number of specified reasons including ‘attending a funeral or end of life event or returning home for health, wellbeing, care or compassionate reasons or for any other reason under a general discretion’.

Between 9 July and 14 September 2021, the Department received 33,252 exemption applications, of which only 8 per cent were granted. The overwhelming majority were not specifically rejected but ‘closed for other reasons’ — often because they had ‘expired’ when the Department was not able to process them before the intended travel date had passed and the applicants were given no option but to start the entire process again.

The Ombudsman notes that ‘the vast majority of applications did not get to a decision-maker at all’, meaning that thousands of Victorians were prevented from returning home for no reason other than a bureaucratic failure to even consider their application. Those who did have their application considered were frequently rejected without any reasons being provided, leaving them stuck outside their home state with no idea of how to proceed.

These statistics are bad enough, but the specific stories are even worse. One person notes that their application was denied without even being looked at, and their father in Victoria passed away the next day on the Sunday. They were one of the 1772 applicants who were denied an exemption to attend a funeral or be with relative at the end of life. Many people lost their jobs, others were left homeless or paying double rent that they could not afford, still more were denied entry despite the need to care for relatives or animals. Many applicants were also denied access to desperately needed medical services. One notes that they had kidney infections were bleeding substantially, but couldn’t see their doctors. Another that their sister had been diagnosed with gallbladder cancer that had travelled to other parts of her body, but was still denied an exception and told the diagnosis was not serious enough. 

The overwhelming impression noted in the investigation was a lack of compassion and humanity in dealing with these applications — something that makes far more sense when it is revealed that staff responsible for categorising and prioritising applications were expected to complete an average of one every 30 seconds. As a result, insufficient attention was paid to making a careful assessment of genuine risk — by setting the default to ‘no’, people’s human rights were insufficiently prioritised.


'We would do well to start developing a more robust human rights framework for such responses — one that respects human rights, is appropriate and adapted to specific circumstances and groups, and prioritises transparent and reviewable decision-making.'


As the Ombudsman notes, ‘[i]t is difficult to understand how a double-vaccinated person who consistently tested negative to COVID-19, was willing to self-quarantine for 14 days on arrival and could comfortably drive to their destination from the NSW border on one tank of fuel (to minimise interactions) could pose such a risk to public health to justify refusing an exemption.’ She goes on to conclude, ‘[s]pecifically in relation to Victorian residents, it appeared the Department put significant resources towards keeping people out instead of providing safe ways for them to return home.’

It’s important to note here that Victoria is far from alone in its approach to borders during the pandemic. The Western Australian border, for example, has had a hard border in place for much of the past two years and restrictions are not scheduled to ease until 5 February 2022 (at this stage). In concert with state and territory governments, the federal government has also imposed significant restrictions on international arrivals (and departures) since the outbreak of the pandemic, including the highly controversial and arguably discriminatory ban on citizens returning from India, which included criminal sanctions. In September this year, the Guardian reported that over 45,000 Australians were stranded overseas and need government help to return home. Early in 2021, two stranded Australians took a complaint to the UN Human Rights Committee, arguing that their right to return had been violated by the strict border measures. Although the complaint has yet to receive a final determination, the Human Rights Committee did issue an interim communication requesting that Australia ensure the complainants’ prompt return to Australia.

Meanwhile, the Queensland border just reopened on Monday 13 December after months of locking out residents who had travelled to NSW and Victoria. Many of these people have spent long stretches of time camped near the border, just waiting for some kind of clarity around when and how they would be permitted to return home. The result has been a significant increase in complaints to the Queensland Human Rights Commission, with the human rights commissioner, Scott McDougall, noting that the government’s failure to publish any details about how the new restrictions might apply or to publish reasons for health directions, including evidence to support them, had resulted in a lack of clarity and transparency. He also noted that ‘[a] more robust human rights analysis of some of these measures would also go a long way to finding more appropriate and responsive ways of applying restrictions. When it comes to things like this they need to be balanced and proportionate, but they also can’t be applied as a blanket rule, one size fits all.’

Indeed, this has been a consistent theme throughout the pandemic — inadequate attention to human rights and a tendency to apply arbitrary or blanket, inflexible rules. This has featured most clearly in border regulations, but similar issues have arisen in relation to the right to protest and in discriminatory approaches to lockdown (such as the draconian hard lockdown of the public housing towers in Melbourne last year, and the recent inequitably differentiated lockdown rules applied in Greater Sydney, against public health advice). In the forward to her report, reflecting on the human impact of these approaches, the Victorian Ombudsman concludes by noting, ‘If there is a next time — we cannot let this happen again.’

It’s worth noting here that although the pandemic has seemingly taken us all by surprise and certainly represented a break in the norms to which we have become accustomed, it is likely to pale in comparison to the impacts of climate change. Furthermore, governments around the world are almost certain to apply similar frameworks to their ‘emergency responses’ as these impacts continue to escalate. Given this is the future into which we are heading — not to mention the fact that the pandemic itself appears to be far from over — we would do well to start developing a more robust human rights framework for such responses — one that respects human rights, is appropriate and adapted to specific circumstances and groups, and prioritises transparent and reviewable decision-making.

If we don’t, we are almost certain to revisit some of the worst features of the mess that has been 2020-2021.


Cristy ClarkDr Cristy Clark is a senior lecturer with the Faculty of Business, Government and Law at the University of Canberra. Her work focuses on the intersection of human rights, neoliberalism, activism and the environment, and particularly on the human right to water.

Main image: Albury residents and businesses prepare ahead of NSW-Victoria border reopening (Lisa Maree Williams / Stringer)

Topic tags: Cristy Clark, Victorian Ombudsman, border closures



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Existing comments

‘’after months of locking out residents’’ Citizen boat people, except that citizens aren’t boat people, and every lawful resident has the right of return, even from overseas, or Western liberal democracy isn’t any better than the Wuhan-style jurisdictionality from whence came the virus. Perhaps that’s the lesson: the virus really is a Wuhan trojan inside the constitutional system.

roy chen yee | 17 December 2021  

I think things in Comrade Dan's Victoria are getting close to the edge. Thank God Victoria still has an independent Ombudsman and not an Orwellian Ministry of Truth. Things weren't so bad in Queensland. Anastasia Palaschak has the Merkel Magic. She takes people along with her. Comrade Dan always reminds me of Bluebottle on Steroids. We need better leaders.

Edward Fido | 17 December 2021  
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‘Anastasia Palaschak….’ And you’ve been living in Queensland and reading the Weekend Australian how long? I hope we don’t get to see ‘Danyell Andrewes’ in any of your future learned submissions or we would definitely have to consider that a health alert.

Still, it should make us grateful that English-speaking Christians can unite under ‘Jesus’ unlike English-speaking Muslims who can’t seem to figure out how to commemorate their prophet in the names of their children: https://www.bbc.com//news/uk-england-45638806#:~:text=Variations%20included%20Muhammad%2C%20Mohammed%2C%20Mohammad,spelling%20appears%20on%20birth%20certificates.

What a protestantising difference an extra syllable makes.

roy chen yee | 21 December 2021  

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