Australian COVID-19 Travel Restrictions: Art. 13 of Human Rights Declaration Suspended?

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Due Process
With Michael Krakat

Legal Scholar Michael B. Krakat observes investment migration through the lens of international, constitutional, and administrative law.

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Australian returning citizens’ quarantine fees, interstate passports and restrictions on leaving the country: Health- and debt related impediments on global mobility in times of the ‘new normal.’ 

Citizenship today includes adaptations between the local and the global, such as is the case now with pandemics affecting most places. The phenomenon of citizenship-for-sale, also known as citizenship-by-investment (‘CBI’), may at times allow almost instantaneous naturalization as citizens in another country by buying property, investing in a business, or giving a direct donation to a country’s development fund.

Sometimes these sales are coupled with the rebuilding of infrastructure and the payment of sovereign debt after natural disasters, which will be true also for the rebuilding of economies during (and after) Covid-19. 

Australia does not directly offer passports, but it has at some point contemplated the general sale of visa entitlements. 

Today in Australia, as in many other places, things are changing dramatically with the ‘new normal’ created by Covid-19. It remains to be seen if emergency legislation and policy will stay with us even after the pandemic has passed. At the moment, there are certain impediments for citizens and residents in regards to returning home, on traveling interstate and also, on leaving Australia.

People wanting to cross state borders within Australia, expats returning to Australia as well as citizens and permanent residents wanting to leave Australia may now be interested in knowing about the human- ‘right to leave any country, the right to return one’s country, and the right to interstate travel’ as outlined in Art.13 of the Universal Declaration of Human Rights (UDHR) and Art.12 of the International Covenant on Civil and Political Rights (ICCPR). 

Article 13 UDHR for example, reads: 

1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.    

Any and all of these rights may now be affected in one way or another:

Inter-(and intra?)state passports
First, there are interstate-lockdowns, such as between the states of New South Wales and its northern neighbor, Queensland. For example, under Queensland Border Restrictions Direction (No. 10), an internal passport is necessary for cross-border travel into Queensland, together with a valid Covid-19 health test. Intra-state lockdowns are now on the horizon. These could be lock-downs of suburbs vis-à-vis the central business districts or complete home confinements.

The right to come home and substantial costs for quarantine
Further, since mid-July 2020, Australia charges thousands for the right to return home. This relates to the 14 days of mandatory supervised quarantine in government select hotels. The Queensland Government’s website states here: ‘The quarantine fee includes your accommodation and daily meals. It costs $2,800 for 1 adult, $3,710 for 2 adults, and $4,620 for 2 adults and 2 children. At the end of your quarantine, you will get an invoice to pay within 30 days. Payment plans are available if you cannot pay by the due date. Details will be on the invoice.’

This differs from other countries, where these costs will be paid, such as the UAE.

By charging substantial fees for quarantine, the right to come home faces serious limitations, to the point of impeding on the decision whether to leave for home at all.

The right to leave
In addition to the restrictions placed on going home to Australia (if it is your home), leaving Australia got harder as well. The Australian government states (on example of the Queensland government): ‘Australia has strict border measures in place to protect the health of the Australian community. […] If you are an Australian citizen or a permanent resident you cannot leave Australia due to COVID-19 restrictions unless you have an exemption. You can apply online but you must meet at least one of the following:

• 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.’ 

Safety versus liberty
Quarantine charges, interstate travel bans, as well as travel bans on citizens freely leaving Australia will remain an important emergency response but come with controversial effects and at times unforeseen consequences. 

Emergency measures are currently being justified by the government in view of the bonum commune, the public’s well-being and the interest of the community at large. This is an important argument for decision-makers justifying inroads into personal rights.

However, that argument loses weight, especially in regards to citizens wanting to leave, as these people no longer pose any risk to Australians within Australia (unless they return sick). All care must be taken by decision-makers when weighing public and individual safety and liberty.

What comes next?
Regrettably, with the crisis unfolding in waves, the possibilities for limitations to travel for health-related reasons are endless, and may include making the right to enter or leave subject to further mandatory health checks (as is the case already for interstate travel), perhaps, to the taking of further measures deemed necessary including ‘vaccine passports.’ 

Returning Australians may now even need to get into debt in order to be able to make their fair contribution to society’s costs for quarantine upon their ‘late’ arrival home. The issue remains contentious: It may be true that there were free expatriation flights and quarantine offered in the previous months. However, subject to globalization, not everyone solely works in their home countries, or was able to leave behind contracts, sell any property in time, leave behind sick relatives abroad or prepare to leave any one country overnight with little warning.

A general quarantine fee may thus face challenges when viewed as a limitation on the right to return and it is not clear whether any procedural hardship relief will change that. 

The sovereign debt question
Remaining expats may not have much of a choice as to the timing of their return to their respective home countries and, if quarantine and other fees await, will now face payment or the entering into debt. Individual debt and global mobility are uneasy bedfellows.

Tax debts to governments run with the person and are enduring, that is, they do not expire. In other words, they follow the debtor upon leaving a country and may even prevent one from leaving. For example, certain debts to the Commonwealth of Australia may pose reason not to be able to leave the country, but being held back at the border through departure prohibition orders (‘DPO’) and ‘airport watch lists’ existing in Australia for some time.

Individual debt people owe to their governments directly is not to be confused with sovereign debt. The latter is money owed by countries to creditors, which may find its expression in per capita debt.

Here in Australia, and which may be true for most countries, sovereign debt could be viewed as being at least indirectly assigned to citizens as forming part of the concept of statehood (with the state consisting of territory, government able to enter into international treaties and a permanent population).

Today, sovereign debt emerges also in the form of the now-ballooning corona-debt many governments incur on a daily basis and in dizzying figures. The corona-crisis is pricey and wartime rhetoric is employed in regards to growing sovereign debt. 

From a general (not Australian) perspective on sovereign debt and the purchasing of passports, careful consideration must apply before ‘buying yourself into’ and effectively sharing as a citizen any excessive debt that was created before your purchase.

Never has it been more prudent to hold plural citizenship and passports. The same applies to the thorough understanding of the legal machinery pertaining to the exiting of countries and the exit from sovereign debt, which has become as important as the matter of entry through CBI.