Australia's outbound travel ban is one of the strictest coronavirus public health responses
Australia is one of the only democracies in the world that has banned its citizens from leaving the country as a public health measure during the coronavirus pandemic.
An Australian citizen or permanent resident is not permitted to travel outbound unless they apply online to Border Force and meet a set of strict exemption criteria.
The ban — which Prime Minister Scott Morrison has called "uncontroversial" — has been in place since March 25.
Earlier this month, Finance Minister Matthias Cormann confirmed the Government was taking a "cautious approach" and could not yet "foresee the timetable by which international borders will be able to open".
A Border Force spokesperson said the measures had "been successful in slowing the spread of coronavirus in Australia, and were implemented on the advice of the Australian Health Protection Principal Committee".
The idea that citizenship carries with it an inherent right to leave the country of citizenship freely has not yet been tested in Australia's law.
So is there any question over the legality of the measures? How do they compare to rules in other countries? And what happens in circumstances like if you get a job offer overseas, want to leave long term, or are a dual citizen?
Let's go over the criteria for being granted an exemption
This is the list of criteria on the Border Force website:
Your travel is as part of the response to the COVID-19 outbreak, including the provision of aid
Your travel is essential for the conduct of critical industries and business(including export and import industries)
You are travelling to receive urgent medical treatment that is not available in Australia
You are travelling on urgent and unavoidable personal business
You are travelling on compassionate or humanitarian grounds
Your travel is in the national interest
You don't need to apply for an exemption if you are:
Ordinarily a resident in a country other than Australia
An airline, maritime crew or associated safety worker
A New Zealand citizen holding a Special Category (subclass 444) visa
Engaged in the day-to-day conduct of outbound freight
Associated with essential work at Australian offshore facilities
Travelling on official government business, including members of the Australian Defence Force.
Qantas will cut at least 6,000 jobs to survive the pandemic.
The Border Force says the agency aims to finalise urgent and complete requests within one week of the proposed travel date.
"Other complete requests are typically processed within two to four weeks of receipt," the spokesperson said. More than 90,000 applications for exemptions have been made so far, and only a quarter of them have been granted.
What's the reasoning behind the ban?
Under section 477 of the Commonwealth biosecurity act, the Health Minister has the power to put in place measures necessary to prevent or control the entry of a disease and its spread into Australia, or into another country.
We all understand that returning overseas travellers are responsible for the bulk of coronavirus infections, which is why Australia has implemented a strict two-week hotel quarantine program.
But what about Australians wanting to leave?
The biosecurity act says the Minister is required to be "satisfied … that the requirement is appropriate and adapted to achieve the purpose for which it is to be determined" and "that the requirement is no more restrictive or intrusive than is required in the circumstances".
Is it constitutional? Is it legal?
Sydney University constitutional lawyer Anne Twomey said she doubted there were constitutional grounds to challenge the travel ban, but there might be an argument under administrative law about whether the Minister validly made the determination under the biosecurity act.
"The big question here, if anyone was willing to challenge it, would be whether or not the Health Minister could reasonably have been satisfied that such a widespread ban, with very few exceptions, is no more restrictive or intrusive than is required to prevent COVID-19 from spreading to another country," she said.
"The legislation does allow the Minister to exercise orders to stop people leaving Australia if it's for the purpose of preventing the spread of coronavirus in another country.
"The problem here is that this doesn't seem to be the Minister’s purpose. The purpose actually seems to be to slow the flow of citizens coming back into Australia later on."
Australia is also a signatory to the International Covenant on Civil and Political Rights (ICCPR), which provides: "Everyone shall be free to leave any country, including his own".
That presumption can be restricted for public health reasons, but it also requires authorities to implement the restrictions in the least intrusive way possible.
Professor Twomey said freedom of movement was not protected under the constitution.
She said while it was guaranteed by other laws, it could still be restricted in some circumstances, including for public health.
How does it compare to other countries?
Professor Twomey said Australia's travel ban was "rare" among equivalent democracies.
"In terms of western, liberal, democratic countries actually we are very rare in imposing this kind of restriction on people leaving the country," she said.
Let's look at the outbound policies of nations similar to ours:
New Zealand: Residents strongly advised not to travel overseas, but not banned from doing so
United Kingdom: Residents discouraged from "all but essential" travel, but not banned from doing so
Singapore: Residents not banned from travelling, but will not have their healthcare costs covered if they go abroad and come back with the virus
Canada: Residents allowed to travel, but Government urging against it
It's worth keeping in mind that most of these countries have quarantine or self-isolation requirements for people who leave then decide to return home.
What happens if you book a flight and arrive at the airport without a travel exemption?
You'll most likely be prevented from travelling and will likely lose your flight fee.
"If a traveller is not granted an exemption, they should not continue with their travel plans," a Border Force spokesperson said.
What if I have a work visa or job offer in another country — or I intend to move overseas long term?
If you’ve been offered a job overseas, or obtained a work visa, you may be granted an exemption under the "urgent and unavoidable personal business" category.
"Applicants who are seeking travel exemptions for urgent and unavoidable international personal business are encouraged to provide supporting evidence," the Border Force spokesperson said.
What if I'm a dual citizen? Can I leave Australia bound for my other country of citizenship?
University of Sydney Law School professor Helen Irving said the answer was, essentially, no.
"Under the current COVID-19 restrictions, all Australian citizens, whether dual citizens or sole citizens, have to get permission to leave," she said.
"The fact that they hold another citizenship is not directly relevant.
"The reasoning behind the restriction is the same: Australian citizens going overseas might return to Australia and spread COVID-19."
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Under international law, the ICCPR also provides: "No one shall be arbitrarily deprived of the right to enter his own country".
Professor Irving said Australia had not enshrined this principle in legislation, therefore Australian dual citizens were unlikely to have any protected right to travel to their other country of citizenship.
“This international law principle does not distinguish between sole and dual citizens,” she said.
"Australia has signed and ratified the whole ICCPR, but, for international law to have a direct effect in Australia, it must be incorporated into Australian legislation.
"There is no legislation, to my knowledge, that specifically incorporates the relevant provision, making it part of Australian law.
"But, even if there were, the citizen's right to leave or enter Australia could still be subject to restrictions, so long as these were temporary and 'proportionate' to a legitimate purpose, like protecting public health."
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Originally published: https://www.abc.net.au