Beware a legal lockout of Australian citizens

Australians should be wary about government using the law to block citizens’ legal right to re-entry, even during a pandemic, argues Mark Brindal

Photo: Dean Lewins/AAP

Photo: Dean Lewins/AAP

Menzies must be turning in his grave to see his successor, Scott Morrison, selectively excluding Australian citizens from exercising their lawful and normally guaranteed rights of re-entry to their own country.

After all, he once said “We took the name ‘Liberal’ because we were determined to be a progressive party, believing in the individual, his rights, and his enterprise, and rejecting the socialist panacea”. He was a strong believer in the primacy of the individual and that it was individual enterprise upon which Australia would become strong.

I have always been proud to be Australian. I believe that we are one of the luckiest countries on this planet. I believe that what makes this country great is the Anzac tradition of mateship and a fair go for all. Aspects of our response to COVID have changed that.

While Australian governments have handled many aspects of the pandemic well, there are other aspects which I believe they have handled shamefully.

Countries like Canada looked to the welfare of those who found themselves trapped there when international borders closed. Australia took a much more introverted approach. International students, in particular, who have long been a source of rivers of gold both for the University sector and the economy generally, were largely abandoned and forced to fend for themselves. Assisting them would have been an act of human decency.

Government indifference to their welfare will cost this country much more than would ever have been expended. According to Peter Hurley in an article recently republished in InDaily the Australian economy is likely to lose $20 billion. The damage to our economy and our international reputation will be measured for decades.

Other countries made a concerted effort to repatriate their citizens, sometimes utilising their air forces to do so. In contrast, the Australian government not only slammed our borders shut with little warning, it effectively, from almost the first day, denied many of our citizens the right to return home.

There were planes if you could get them but, limited as flights were, as limited as passengers per aircraft were, costs were extraordinary and returnees were faced, latterly, with quarantine costs on arrival.

Coming home was beyond the capacity of many ordinary Aussies. It was an economic lockout. A ban by any other name, with few but the wealthy exempt.

Now, for the greater safety of the majority, we are going ban expatriates by law. Many Australians support the initiative. However, when any elected government deliberately chooses to protect one group of its citizens while knowingly endangering another group, the lessons of history teach us that any thinking person should become very wary indeed.

Lacking an American style Bill of Rights, and with scant definition in either the Constitution Act or other legislative instruments, the Commonwealth Solicitor-General before the High Court has already argued that it would be within the power of the Commonwealth to restrict Australian citizens from re-entry into Australia, if the parliament so determined. In other words, there is no protection of that fundamental right that I think most of us would agree citizens inherently possess—that is, to live in their country of citizenship.

However, is a signatory to the United Nations Declaration of Human Rights. It has accepted legal obligations under that document.  Australia has committed to article 13, which states’, “(2) Everyone has the right to leave any country, including his own, and to return to his country.” Article 7 is also applicable: “All are equal before the law and are entitled without any discrimination to equal protection of the law. “

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The UN Human Rights Committee has stated that in no case may a person be arbitrarily deprived of the right to enter his or her own country, and that there are few, if any, circumstances in which deprivation of the right to enter a person’s own country could be considered reasonable.

The committee has, admittedly, qualified that right, “Countries may take measures derogating from certain of their obligations under the Covenant, including the right to freedom of movement ‘ to ensure national security, public order, public health or morals or the rights and freedoms of others.” However, that statement further circumscribed; “restrictions should not only serve the permissible purposes; they must also be necessary and proportionate to protect them and must be the least intrusive means of achieving the desired result.”

While the government will argue the necessity of its measures as a means of ensuring public health, it is certainly worth considering whether knowingly putting the health, and indeed the lives, of some Australian citizens at risk, is necessary, proportionate or the least intrusive means of keeping Australia safe.

While hotel quarantine has not been without its failures, it has generally been effective. Additionally, learning from past mistakes, we are constantly improving its efficiency and rendering it more fail-safe.

Despite investing hundreds of millions of dollars in myriad strategies, almost two years into the pandemic we have failed to construct a single facility which could provide a safe haven for repatriated Australians, quarantining and housing them before re-entry into the general community.

We can construct what we are told are first-class facilities for illegal immigrants in very short order, yet we appear to lack the political will to make any effort to protect our own.

No one wants the COVID outbreak we have witnessed in so many countries overseas. However, there is something very un-Australian about a government that seeks to keep the majority of us healthy while locking other members of our family out.

There has to be a better way. We elect governments to find it.

I ask Mr Morrison: How would you feel if was your mum was trapped in India, simply because you lack the ingenuity and motivation to get her safely home?

Mark Brindal is a former SA Liberal MP and minister.

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