There is growing public and political outcry over the federal government’s sudden decision to ban Australians from returning from India.
But like everyone from Indian community leaders up Human rights leader, famous cricketers and the coalition MPs are calling on the government to reconsider policy. Is that legal Is a High Court Appeal an Option?
What is Citizenship?
In terms of common lawCitizenship is a relationship between an individual and their nation in which everyone owes something basic obligations to the other. By and large, the citizen’s job is to be loyal to the nation. The nation’s job is to protect its citizens.
A record number of people last year pledged allegiance to Australia and became a citizen. The largest group of new citizens were Indian migrants with over 38,000 Become Australian in 2019-20.
Now under the Australian government tough new travel ban9,000 Australians remain stranded in India currently battling a deadly COVID-19 second wave and lack of oxygen and vaccines.
Some were given permission to travel to India see dying relatives or attend funerals. Other traveled there before the pandemic and have not been able to return to Australia since.
While these Australians did nothing wrong, they have been left unprotected by a government that failed to stop the end of the citizenship treaty.
How does the travel ban work?
The Prohibition makes it illegal Anyone, including Australian citizens, can enter Australia if they have been in India in the past 14 days. It was created under extensive powers given to Federal Health Secretary Greg Hunt by the 2015 Biosafety Act.
Section 477 of the law allows Hunt to make “regulations” that impose any “requirement” he deems necessary to control the entry or spread of COVID-19. Parliament cannot reject these statements. Thanks to a determination aptly called “Henry VIII Clause”They also take precedence over any other federal, state, or local law.
India is Australia’s largest source of new citizens today. Mick Tsikas / AAP
If a person violates the travel ban, for example through Transit through a third country, the Biosafety Act conditions You could face a five year prison sentence, a $ 66,000 fine, or both (even if Prime Minister Scott Morrison says jail time) is unlikely).
Hunt says the ban is a “temporary break”. It will expire on May 15th. However, if he deems it necessary, he could use his wide-ranging powers to reintroduce it or impose similar restrictions.
As political pressure mounts to lift the ban early, the government says it is “constantly” reviewing it.
Is the ban legal?
Another basic principle of citizenship is that citizens can freely return to their countries. According to general law, this follows from the Magna Carta. It is also an important principle of international law enshrined in the EU Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.
In March, two Australians stranded in the United States brought their case to the United Nations Human Rights Committee. They argued that the government’s policies blocking their return are against international law.
The committee didn’t make a decision, but asked Australia to do so in April Make sure they return right awayand found that she “irreparable damage”.
What about our domestic law?
Whether the ban is legal under Australian law is another question. Although the Home Office says Australian citizens can “apply for an Australian passport and return freely to Australia”. There is no codified return policy under Australian law. This is what distinguishes us from many countries that have a Bill of Rights, and includes that right.
Continue reading: The crisis in India is a terrifying example of why we need a better way to get the Australians home
A high court challenge is an option, but there is no clear path to success.
The High Court said little on the subject. A Fall 1908 suggests that citizens may have a customary right to return to Australia, unless parliamentary law repeals that. The Biosafety Act, of course, completely supersedes such a right.
Because of the close link between citizenship and the right of return, it was suggested that citizens might have one implicit constitutional law enter Australia. There is no case law on this yet – just a single, vaguely worded sentence in a 1988 High Court case – and there are good reasons why it might be difficult to argue in Australia.
Implicit rights must be derived from the Text and structure of the Australian Constitution, which says nothing about Australian citizenship and little about the relationship between government and people, other than providing for democratic elections.
Does it violate the Biosafety Act?
Another argument could be that the travel ban is illegal for hunting reasons not adhered to with the conditions for a determination according to Section 477 of the Biosafety Act.
These terms require that before the ban is imposed, he is satisfied that it is “likely to be effective” to stop the spread of COVID-19, “appropriate and appropriate” for that purpose and “not more restrictive or intrusive” than the circumstances required.
Ramana Akula, pictured here with his wife and sons, is currently stranded in India and cannot return to Australia. Delivered / AAP
The important thing is that Hunt must personally meet these conditions. That is, if he came to this conclusion for any reasonable reason, he was not breaking the law, even though a different approach might have been available.
Yesterday, Chief Medical Officer Paul Kellys Advice to Hunt before the travel ban was released. Kelly’s council emphasizes the significant risk quarantine leak for the Australian community, saying a travel ban on arrivals from India by May 15 would be effective, proportionate and limited to what is strictly necessary.
With that in mind, it seems likely that a court would view the decision as a reasonable exercise of Hunt’s power.
What about moral arguments beyond the law?
Legality aside, however, we are returning to the idea that Australia has a fundamental responsibility to protect its citizens. in the February 2020Hunt acknowledged this, pointing out two related national priorities: containing the virus and protecting citizens domestically, and protecting and assisting Australians abroad.
There may be circumstances where these priorities conflict with one another. But it’s hard to see the conflict in this situation. Through quarantine and effective contact tracing, those in Australia have been essentially protected against COVID-19. We didn’t need it Ceiling bans for returns from the United States, United Kingdom, or any other country with an increase in virus levels.
Continue reading: Unsurprisingly, Indian-Australians feel elevated. You have long been exposed to racism
Kelly’s advice points to a potential strain on the quarantine, and Morrison said the ban ensures thatOur quarantine system can stay strong”. However, the federal government could protect more people in Australia and abroad (not to mention the pressure on countries with COVID-19 strain) if it brought citizens home while devoting more resources to strengthening the quarantine system.
But the government did resisted this despite a clear constitutional power over the quarantine, the recommendations of Public Health Experts and a national review.
Meanwhile, 9,000 Australians in India are eagerly awaiting a change in the law that would at least legally allow them to return home.
Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Center for International Refugee Law, UNSW Law School, UNSW
This article is republished by The conversation under a Creative Commons license. read this original article.
