No right to travel

“Australians need to grapple with the idea that the government doesn’t have to ‘get them back’ if they travel overseas (even if it wants to). And under Australian law, we don’t have a ‘right’ to leave the country.”

Travel is not a right or entitlement for Australians or anyone else for that matter. Nor does an Australian have a legal “right” to a passport or to consular assistance when overseas. Australian passports are granted at the discretion of the Crown.

Article 12 of the International Covenant on Civil and Political Rights says that says that:
“12.1 Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
“12.2 Everyone shall be free to leave any country, including his own.
“12.3 The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
“12.4 No one shall be arbitrarily deprived of the right to enter his own country.”

Professor Susan Harris Rimmer explains in The Conversation that Australia ratified the covenant in 1980, but there is no Commonwealth legislation enshrining the right of freedom of movement. In particular, legitimate public health concerns overrule any apparent right of movement.

In March, the Morrison government advised Australians overseas to return home. Hundreds of thousands have done so. But more than 18,000 who wish to return are still stuck overseas — some in desperate straits.

Especially concerning from a rights perspective is the inability of Australians to leave. There are bans on people leaving Australia during the coronavirus pandemic, with a few exemptions. But there is no actual “right” under domestic law to leave Australia. Professor Rimmer reports that between March 25 and August 16, Australian Border Force received 104,785 travel exemption requests, of which only 34,379 were granted.
For citizens, travel must be:
— part of the response to the COVID-19 outbreak, including the provision of aid;
— essential for the conduct of critical industries and business;
— to receive urgent medical treatment that is not available in Australia;
— on urgent and unavoidable personal business;
— on compassionate or humanitarian grounds; and/or
— in the national interest.

Some of this is quite deliberately vague. I am not complaining. We need to suck it up. But it is hard.