Of flights and rights

Dr Kate Ogg asks whether Australia’s outward travel ban is in breach of international human rights law.

Australia has banned most of its citizens and permanent residents from travelling internationally, with an exception for those with “compelling reasons” for needing to leave. There was little protest in mainstream media against this travel ban when it was first announced in March 2020. However, as the pandemic has dragged on, many news outlets have drawn attention to how the outward travel ban is tearing families apart.

Australia’s outward travel ban may be in violation of Australia’s obligations under the 1966 International Covenant on Civil and Political Rights (ICCPR). Australia ratified the ICCPR in 1980. Therefore, Australia is legally bound to uphold the rights in this treaty with respect to anyone on Australia’s territory or subject to Australia’s jurisdiction.

Article 12 of the ICCPR outlines the right to freedom of movement. An aspect of freedom of movement is the right to leave any country, including one’s own. Pursuant to article 12, Australia can place restrictions on freedom of movement if they are necessary to protect a number of stated objectives, including public health. However, the UN Human Rights Committee (HRC), the body charged with overseeing states’ implementation of the ICCPR, has said that “it is not sufficient that the restrictions serve the permissible purposes”. The restrictions “must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected”.

It is beyond question that the outward travel ban has been put in place to protect public health. However, for Australia to be compliant with the right to leave in the ICCPR, the travel ban must be necessary to prevent or reduce the spread of COVID-19 and also be the least intrusive method of achieving this goal. Banning Australian citizens and permanent residents from leaving the country, subject to only a few exceptions, is not the least intrusive method of preventing or reducing the spread of COVID-19.

The Australian Government is legitimately concerned about Australians leaving the country, contracting COVID-19 while overseas and then returning to Australia while infectious. This can be addressed by requiring all people entering the country to quarantine (a policy already in place). Another important concern is that a person infected with COVID-19 may, if allowed to leave Australia, spread the disease to others on the same flight and on arrival in the foreign country. This can be remedied by less intrusive measures such as requiring all travellers to be tested before departure.