The Right to Leave One’s Country: call for urgent resolution of Australia’s violation of human rights

The International Covenant on Civil and Political Rights is embedded in the Australian Human Rights Commission Act.  Article 12 of the ICCPR articulates the right to leave and return to one’s own country, however, this right is derogable (suspendable) in the context of public health and other circumstances.  The People’s Republic of China has historically been criticized for severe human rights violations including the cultural genocide of the Uighur peoples in Xinjiang, the oppression of Tibet, forced sinicisation of Inner Mongolia, military antagonism against the Republic of China and the militarization of the South China Sea.  Notably, these significant concerns must reach a resolution to the point where PRC’s great power status is elevated to international leadership.  

Schedule 2 of the Australian Human Rights Commission Act 1986 establishes the Commonwealth of Australia as a State Party to the International Covenant on Civil and Political Rights.  Article 4(1) of the ICCPR requires an official proclamation of public emergency prior to a State Party’s invocation of the right of derogation.  Note Article 4(2) and 4(3), 6, 7, 8(1) and 8(2), 11, 15, 16, 18.  In time of public emergency as per article 4(2), articles 6, 7, 8(1) and 8(2), 11, 15, 16, 18 are non-derogable and ‘Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary‑General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.’ (Article 3(4) ICCPR).  Invocation of Article 4(3) by Australia would constitute an admission of rights derogation.

In a letter received on 18 May 2021 from the Office of Health Response and Protection:

“Thank you for your correspondence of 4 May 2021 to the Minister for Health and Aged Care, the Hon Greg Hunt MP, regarding the determination made under section 477 of the Biosecurity Act 2015. The Minister has asked me to reply. 

The original Explanatory Statement accompanying the Overseas Travel Ban, which commenced on 25 March 2020, reflected the policy position at the time that the determination would be reviewed after an initial period of four weeks to assess whether it continued to be necessary. 

The rationale for extending the Overseas Travel Ban is based on expert medical and epidemiological advice provided by the Australian Health Protection Principal Committee (AHPPC) and Commonwealth Chief Medical Officer. 

The number of new COVID-19 cases internationally continues to grow at a concerning rate, and the risk of cases being imported by Australians returning from foreign countries, remains unacceptably high. The latest medical advice from AHPPC is that overseas travel restrictions should remain in place to manage this risk. 

While our health resources are prioritising a response to the domestic situation, the easing of the outbound travel restrictions may place an additional burden on Australia’s health and quarantine systems. Australia’s Overseas Travel Ban also assists to reduce the global spread of disease, particularly to countries that may not have strong public health system capacity. Australia has important international obligations in this regard. 

The Government regularly reviews determinations made by the Health Minister under section 477 of the Biosecurity Act, including the Overseas Travel Ban, to ensure their appropriateness in terms of global and local epidemiology.”

Despite China’s historical human rights issues, China has not imposed any outbound travel restrictions on its citizens and has engaged international partners to re-establish confidence in outbound tourism.  The United States has also refused to impose outbound travel restrictions on its citizens.  While the right to leave one’s own country is derogable, Australia remains the sole country in the world to impose outbound travel restrictions on its citizens.  This is a severe human rights violation that needs immediate and urgent resolution, requiring diplomatic pressure from Australia’s geostrategic partners including the United States, New Zealand, Canada and the United Kingdom.

Australia has not proceeded to declare its Article 12(1), 12(2) and 12(4) derogation to Secretary-General of the United Nations and has thus breached Article 3(4) of the International Covenant and Civil and Political Rights by way of the Biosecurity Act1.

This situation demands urgent action from the United Nations Security Council to which the United States, China, Russia, France and the United Kingdom are permanent members of.

Reference: 1

Image: “B747-438/ER | Qantas | Wunala Dreaming | VH-OEJ | HKG” by Christian Junker | Photography is licensed under CC BY-NC-ND 2.0