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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This legislative instrument requires passengers on a relevant international
flight not to enter Australian territory at a landing
place if the person has
been in India within 14 days of the day the flight was scheduled to
commence
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Portfolio
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Health
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Authorising legislation
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Last day to disallow
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This legislative instrument is exempt from disallowance (see subsection
477(2) of the Biosecurity Act 2015)
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Rights
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Life; health; freedom of movement; equality and non-discrimination
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1.6 This determination makes it a requirement for a person who is an international air passenger not to enter Australia if they have been in India within 14 days before the day the flight was scheduled to commence. The following persons are exempt from this requirement: aircraft crew; aircraft maintenance crew; freight workers; those travelling on an Australian official or diplomatic passport (and their immediate family members); and members of an Australian Medical Assistance Team.[2] This requirement commenced on 3 May 2021 and the determination is repealed at the start of 15 May 2021.
1.7 The determination is made under section 477(1) of the Biosecurity Act 2015, which provides that during a human biosecurity emergency period, the Minister for Health may determine emergency requirements, or give directions, that they are satisfied are necessary to prevent or control the entry, emergence, establishment or spread of disease in Australian territory. Failure to comply with such a direction is a criminal offence punishable by up to five years' imprisonment, or 300 penalty units ($66,600).[3]
1.8 The explanatory statement states that the determination reflects the latest health advice that there is a high likelihood of COVID-19 cases arriving in Australia via a person travelling from India, and this measure is designed to maintain the integrity of Australia's quarantine system and allow the system to recover capacity, which is critical to prevent and manage the spread of COVID-19.[4] As such, if the determination assists in preventing and managing the spread of COVID-19 it is likely to promote and protect the rights to life and health for persons in Australia. The right to life requires the State to take positive measures to protect life.[5] The United Nations (UN) Human Rights Committee has stated that the duty to protect life implies that States parties should take appropriate measures to address the conditions in society that may give rise to direct threats to life, including life threatening diseases.[6]
1.9 The right to health is the right to enjoy the highest attainable standard of physical and mental health.[7] Article 12(2) of the International Covenant on Economic, Social and Cultural Rights requires that States parties shall take steps to prevent, treat and control epidemic diseases.[8] The UN Committee on Economic, Social and Cultural Rights has stated that the control of diseases refers to efforts to:
make available relevant technologies, using and improving epidemiological surveillance and data collection on a disaggregated basis, the implementation or enhancement of immunization programmes and other strategies of infectious disease control.[9]
1.10 While the measure may promote the rights to life and health for persons in Australia, banning persons from entering Australia, including Australian citizens and permanent residents, also engages and may limit a number of other human rights, particularly the rights to freedom of movement and equality and non-discrimination. The right to freedom of movement includes the right to enter, remain in, or return to one's own country.[10] The UN Human Rights Committee has stated that the right of a person to enter his or her own country 'recognizes the special relationship of a person to that country'.[11] The reference to a person's 'own country' is not restricted to countries with which the person has the formal status of citizenship. It includes a country to which a person has very strong ties, such as long-standing residence and close personal and family ties.[12] The right to freedom of movement is not absolute: limitations can be placed on the right provided certain standards are met. However, the UN Human Rights Committee has stated in relation to the right to enter one's own country:
In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.[13]
1.11 In addition, the measure also appears to engage the right to equality and non-discrimination.[14] This right provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.[15] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).[16] Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate', exclusively or disproportionately affects people with a particular protected attribute, such as race or nationality.[17] In this case it appears that banning persons from entering Australia if they have been in India in the past 14 days is likely to disproportionately affect persons of Indian descent. Where a measure impacts on a particular group disproportionately it establishes prima facie that there may be indirect discrimination.[18] Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[19]
1.12 As this determination is exempt from disallowance by the Parliament, it is not required to be accompanied by a statement of compatibility with human rights.[20] As such, no assessment of the compatibility of this measure with the rights to freedom of movement or equality and non-discrimination has been provided.
1.13 It is apparent from the explanatory statement that the measure seeks to achieve a legitimate objective, namely that of protecting the quarantine and health resources needed to prevent and control the entry, and the emergence, establishment or spread of COVID-19 in Australia.[21] It would also appear that banning travellers from a country identified to be of high risk because of the high number of COVID-19 positive case numbers is likely to be rationally connected (that is, effective to achieve) the stated objective.
1.14 The key question is whether the measure is proportionate to the objective sought to be achieved. In this respect, it is necessary to consider whether the measure: is sufficiently circumscribed; whether the measure is accompanied by sufficient safeguards; whether there is sufficient flexibility to treat different cases differently; and whether any less rights restrictive alternatives could achieve the same stated objective. The time limited nature of the measure (noting it is repealed 12 days after its entry into force), assists with its proportionality. However, it is noted that it is not clear whether additional determinations extending this timeframe will be made. In addition, although it may be time-limited, it is noted that there are extremely limited exceptions to the application of this direction (namely, for flight or ground aircraft crew and official travellers). The imposition of such a blanket policy without regard to individual circumstances may not be a proportionate means to achieve the stated aims. In addition, it is not clear that there is no less rights restrictive alternatives available, noting the existing methods designed to prevent and control the entry of COVID-19 in Australia, namely hotel quarantine arrangements.
1.15 Noting the UN Human Rights Committee's comment that there are few, if any, circumstances in which the deprivation of the right to enter one's own country could be reasonable, further information is required to assess the compatibility of this measure with the rights to freedom of movement and equality and non-discrimination, in particular:
(a) whether banning travellers from India is reasonable and proportionate to the objective sought to be achieved;
(b) whether persons of Indian descent will be disproportionately affected by this ban, and if so, is this differential treatment based on reasonable and objective criteria;
(c) whether there is any less rights restrictive way to achieve the stated aims of preventing and controlling the entry, emergence, establishment or spread of COVID-19 into Australia. In particular, whether there are quarantine facilities available that could effectively manage any risk posed by travellers returning from high risk countries; and
(d) why there does not appear to be any procedure whereby an individual can apply for an exemption from the direction (such as, for example, where pre-existing health conditions may mean that remaining in India during this time might pose a threat to a person’s rights to health or life).
1.16 The committee notes that this determination makes it a temporary requirement for a person who is an international air passenger not to enter Australia if they have been in India within 14 days before the day the flight was scheduled to commence.
1.17 The committee considers this determination, which is designed to prevent the entry and spread of COVID-19, promotes the rights to life and health for persons in Australia, noting that the right to life requires that Australia takes positive measures to protect life, and the right to health requires that Australia takes steps to prevent, treat and control epidemic diseases.
1.18 However, the committee notes that this determination may also limit a number of other human rights, including the right to freedom of movement, which includes a right to enter one's own country, and the right to equality and non-discrimination, noting the potential disproportionate impact on Indian-Australians.
1.19 In light of the unprecedented nature of the COVID-19 pandemic and the necessity for States to confront the threat of widespread contagion with emergency and temporary measures, the committee acknowledges that such measures may, in certain circumstances, restrict human rights. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
1.20 The committee notes that this determination was not accompanied by a statement of compatibility (as this is not required as a matter of law).[22] As such, there has been no assessment of the impact of the determination on human rights, and in particular whether the travel ban is proportionate to achieve the stated aims. The committee reiterates[23] that given the potential impact on human rights of legislative instruments dealing with the COVID-19 pandemic, the committee considers it would be appropriate for all such legislative instruments to be accompanied by a detailed statement of compatibility.
1.21 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this determination, and as such seeks the minister's advice as to the matters set out at paragraph [1.15].
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 [F2021l00533], Report 6 of 2021; [2021] AUPJCHR 55.
[2] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021, section 7.
[3] Biosecurity Act 2015, section 479. Note, penalty units are $222, see Crimes Act 1914, section 4AA.
[4] Explanatory statement, p. 1.
[5] International Covenant on Civil and Political Rights, article 6.
[6] See United Nations Human Rights Committee, General Comment No. 36, Article 6 (Right to Life) (2019), [26].
[7] International Covenant on Economic, Social and Cultural Rights, article 12(1).
[8] International Covenant on Economic, Social and Cultural Rights, article 12(2)(c).
[9] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) (2000) [16].
[10] International Covenant on Civil and Political Rights, article 12(4).
[11] UN Human Rights Committee, CCPR General Comment No. 27: Article 12 (Freedom of movement) (1999) [19].
[12] Nystrom v Australia, UN Human Rights Committee Communication No.1557/2007 (2011).
[13] UN Human Rights Committee, CCPR General Comment No. 27: Article 12 (Freedom of movement) (1999) [21].
[14] Articles 2 and 26 of the International Covenant on Civil and Political Rights.
[15] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.
[16] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[17] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.
[18] D.H. and Others v the Czech Republic, European Court of Human Rights (Grand Chamber), Application no. 57325/00 (2007) [49]; Hoogendijk v the Netherlands, European Court of Human Rights, Application no. 58641/00 (2005).
[19] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].
[20] Human Rights (Parliamentary Scrutiny) Act 2011, section 9.
[21] Explanatory statement, p. 1.
[22] The Human Rights (Parliamentary Scrutiny) Act 2011, section 9, provides that only legislative instruments subject to disallowance under the Legislation Act 2003 require a statement of compatibility. This determination is not subject to disallowance, and as such, there is no legal requirement for a statement of compatibility.
[23] The committee first stated this in Parliamentary Joint Committee on Human Rights, Report 5 of 2020: Human rights scrutiny of COVID-19 legislation, 29 April 2020. The committee also wrote to all ministers advising them of the importance of having a detailed statement of compatibility with human rights for all COVID-19 related legislation in April 2020 (see media statement of 15 April 2020, available on the committee's website).
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