The federal government just made it even harder for Australians overseas to come home. Is this legal? Or reasonable?

Posted on August 9, 2021 by particularkev

Liz Hicks, The University of Melbourne; Jane McAdam AO, UNSW, and Regina Jefferies, UNSWThe COVID-19 pandemic has meant huge restrictions on Australians’ ability to travel both within Australia and overseas. But until now, Australian citizens ordinarily resident in other countries have been able to return to Australia and then leave without requiring additional permission.

However, last week, the federal government quietly removed that exemption. This is designed to deter Australians from coming home in the first place, thereby reducing demand on quarantine places. It will come into effect on Wednesday August 11.

It follows lobbying from state premiers (who have to quarantine people) to limit the movement of fly-in fly-out workers.

This means Australians who live abroad and return to Australia (even if it is to see family) will not automatically be able to leave again unless they meet narrow grounds for an exemption. They will need to prove they have an “established and settled” home overseas, via documents like a residency permit, tenancy agreement, letter from an employer or utility bills. This is not necessarily straightforward, particularly as lives, jobs and visas continued to be disrupted by the pandemic.

Is this latest move legal? Are there any grounds to challenge this?

The Biosecurity Act

The government’s power to ban people from leaving Australia comes from the Biosecurity Act. In an emergency, section 477(1) gives the health minister sweeping powers to prevent and control the entry of diseases into Australia.

Since COVID began, Health Minister Greg Hunt has issued determinations to stop Australian citizens and residents from leaving without permission, to ban them from travelling on from the New Zealand “travel bubble” to another country, and to ban people from returning to Australia from India during the second wave. If people breach these rules, they can be subject to penalties of up to five years’ imprisonment, a fine of up to $66,000, or both.

By contrast to other legislative instruments, these determinations by the health minister cannot be “disallowed” (or overturned) by federal parliament.

This means parliament can’t block the health minister’s decision to stop Australians who live abroad from leaving without permission.

What about constitutional rights?

Australia is one of the only liberal democracies in the world without a bill of rights.

In countries such as Germany, Slovenia, and Spain, citizens and residents have been able to challenge COVID restrictions in courts by arguing they breach their constitutional rights. Courts then consider whether a restriction is a proportionate way of controlling the virus.

There is a strong argument the new restriction for Australians is disproportionate. This is because its objective — managing the entry of COVID by deterring demand for quarantine places — is already achieved via caps on the number of people who can enter Australia. There are also other means of managing risk that would place a lesser burden on rights to leave and return to Australia, such as tailoring restrictions to vaccination status.

Reducing demand for already regulated spaces, as the new restriction does, is really about reducing political pressure on government to expand quarantine systems.

What does the India experience tell us?

Because Australia doesn’t have a bill of rights, citizens can’t challenge the proportionality of Hunt’s determinations.

This was clear in the challenge to the ban on citizens returning from India, where the Biosecurity Act was described by counsel for the Commonwealth as a “legislative bulldozer” — knocking over any other statutory protections or common law rights that people might have. The ban was found to be legal.

The minister does need to consider whether there are less intrusive ways of controlling the entry of COVID when making a determination. But the challenge to the India ban shows courts will allow a great deal of discretion to the health minister in making that call. As long as there is a basis for the minister to make that call — such as health advice — courts will not look too deeply into the premises underlying that advice or its proportionality.

Commonwealth power

One argument against stopping Australians who ordinarily live abroad from leaving is the Commonwealth must have a power explicitly listed in the Constitution to make a law about this.

The federal government is likely relying on the Constitution’s quarantine power to stop Australians from leaving. The explanatory statement tabled in parliament last Thursday makes clear the Commonwealth is removing the exemption on people who ordinarily live abroad to reduce demand on quarantine places.

Passengers at Sydney airport line up to check package. — Australians will find it even harder to travel overseas from August 11.
Dan Himbrechts/AAP

There is an argument stopping people from leaving doesn’t have enough of a connection to the Commonwealth’s power over quarantine. Given the broad approach courts have taken to emergency powers during the pandemic, a court may nonetheless find restrictions on people leaving is incidental to managing quarantine.

International human rights law

What about Australian citizens’ rights under international law?

Under international law, everyone must be free to leave any country, including their own. In exceptional and very limited circumstances, this right may be restricted – for instance, if it is necessary to protect public health. However, the restrictions must be clearly set out in domestic law, consistent with other human rights (including the right to family life), and “the least intrusive” way of achieving the desired aim.

The United Nations Human Rights Committee has been very plain.

The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality.

In other words, a “one size fits all approach” will not cut it.

The current restrictions do not take into consideration vaccination status, nor the fact a cohort of Australian citizens have their permanent home abroad.

Particularly when considered in conjunction with the barriers the government has already put in place that limit these Australians’ right to return home, this additional exit requirement truly seems like overreach.

Liz Hicks, PhD / Dr. iur. candidate, The University of Melbourne; Jane McAdam AO, Scientia Professor and Director of the Kaldor Centre for International Refugee Law, UNSW, and Regina Jefferies, Affiliate, Andrew and Renata Kaldor Centre for International Refugee Law, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australia shouldn’t ‘open up’ before we vaccinate at least 80% of the population. Here’s why

Posted on July 31, 2021 by particularkev

Stephen Duckett, Grattan Institute and Will Mackey, Grattan InstituteEarlier this month National Cabinet released a four-phase COVID response plan. It wasn’t so much a plan – it had no dates and no thresholds – but more a back-of-the-napkin thought bubble. It was sensible, but vague.

National Cabinet now faces the hard task of converting vagueness into a real plan. To do this it must answer the question: what proportion of the Australian population needs to be vaccinated before we can open our international borders?

This means allowing stranded Australians to return, letting footloose people travel overseas, and welcoming international tourists and students again.

Well qualified experts differ on the requisite threshold for vaccination partly because there are so many unknowns, such as how quickly the Delta variant of COVID would spread through Australia if we open up, and how effective the different vaccines will prove to be in preventing transmission.

But new Grattan Institute modelling shows it would be dangerous for Australia to open up before at least 80% of the population is vaccinated.

Here’s what we found, and how we came to the 80% figure. Let’s start with the good news.

Vaccines offer substantial protection

Both vaccines on offer in Australia – Pfizer and AstraZeneca – are effective at preventing infections from the Delta strain. Two doses of Pfizer offers about 88% protection against infection, while two doses of AstraZeneca offers about 67% protection.

Vaccinated people can still catch COVID, but those that do pass it on to about half as many others compared to the unvaccinated.

Evidence from the United Kingdom, Canada, and the European Union – areas with higher vaccination levels than Australia – also suggests both vaccines offer substantial protection against hospitalisation and death from COVID. A vaccinated person is about 95% less likely than an unvaccinated person to end up in hospital with COVID.

Now for the bad news.

The delta strain is far more infectious

Researchers estimate the Delta variant is 50% to 100% more infectious than the Alpha variant, which itself was more transmissible than the variant that was dominant throughout 2020.

The effective reproduction number, or Reff, tells us how many people one infected person will spread the virus to, taking into account behaviour and public health measures in place designed to reduce transmission, such as masks and physical distancing.

A masked supermarket check out operator scans products. — The Reff changes according to the public health measures in place, such as mask mandates.
Shutterstock

If the Reff of the Delta variant in Australia is around 6 without vaccination, having 50% vaccination coverage will reduce the Reff to 3.

But the national goal must be to bring the Reff down to below 1, which would mean each person who was infected would infect less than one other person – and the virus would eventually peter out.

The higher the vaccination rate, the lower the effective reproduction number. Each person vaccinated offers a chance of breaking a chain of transmission that might lead to an outbreak.

Not only are vaccinated people less likely to become infected, they are also less likely to pass the virus onto others if they are.

The higher the vaccination rate, the lower the effective reproduction number

Effective reproduction number (Reff) by population vaccination rate.
Grattan Institute

So why do we need 80% of people vaccinated?

Grattan Institute’s model simulates the spread of COVID within a partially vaccinated population, and helps us peek into the future.

It uses age-based hospitalisation and intensive care unit (ICU) admission rates from more than a year of COVID data from Australian ICU units. It also assumes children under 16 are about one-fifth less likely to get COVID, and children over the age of two are able to be vaccinated.

In most of our simulations, older people have higher rates of vaccination, and no age group has more than 95% vaccine coverage.

We ran thousands of simulations of different vaccination rates, and different estimates of the Reff. The outcomes for 12 distinct scenarios are shown in the table below.

You can see why we recommend Australia not open up until at least 80% of the population is vaccinated – it is the only scenario where the virus is managed, with hospitalisations and deaths kept down to reasonable levels, even if the Reff is high.

Let’s break it down

Our simulations show that opening up at 50% vaccination rate (scenario 1) is a very bad idea, with many, many thousands of deaths.

Scenarios 2 and 3 are the optimist’s and gambler’s scenarios. If you are lucky and the Reff of Delta in Australia is 4 (with 70% vaccination rate) or 5 (with 75% vaccination rate), deaths and hospitalisations would not rise above moderate levels, and lockdowns could end and the borders could reopen.

But if you gambled on the wrong Reff, our hospitals would be overwhelmed and deaths would be unacceptably high. Opening the borders is a one-shot gamble: if you make the wrong call, the virus will quickly spread and all the good work and hard yards of living through lock-downs over the previous two years will have been wasted.

Public health decision-making is often risk averse, for the best of reasons. The difference in virus spread, hospitalisations and deaths between opening at 75% and at 80% are big, but the wait between the two thresholds may only be a month or two.
This is why we recommend an 80% vaccination rate (scenario 4) as the threshold for opening up.

Even if the Reff of Delta is 6, our hospital system will not be overwhelmed, and deaths will not rise above the number of deaths in a moderate flu season, such as 2010, when there were 2,364 flu deaths.

Stephen Duckett, Director, Health Program, Grattan Institute and Will Mackey, Senior Associate, Grattan Institute

This article is republished from The Conversation under a Creative Commons license. Read the original article.

COVID has made one thing very clear — we do not know enough about Australians overseas

Posted on May 9, 2021 by particularkev

George Tan, Charles Darwin University; Andrew Taylor, Charles Darwin University, and Kelly McDougall, University of South AustraliaThe COVID-19 crisis has thrust a largely unseen part of Australia’s population firmly into the national spotlight.

These are the Australians who live and work abroad — our diaspora.

For more than a year, we have been hearing harrowing stories of Australians unable to get home. Most recently, there is the distress of those in India, currently banned from even trying to return.

But despite increasing awareness of this group, there is still much we don’t know about our diaspora. The bottom line is, we don’t have precise or up-to-date information about Australians overseas.

This lack of knowledge and understanding highlights the need for a national diaspora policy that truly reflects contemporary, multicultural Australia.

What do we know about Australians overseas?

Australia’s diaspora is estimated to include around one million people, but this would be significantly higher if former residents, such as international students, were included.

Australian family returning to Canberra in November 2020. — COVID-19 has seen more than 400,000 Australians return home, but more than 30,000 are still registered as wanting to come back.
Mick Tsikas/AAP

Large-scale studies in 2003 and 2006 told us Australians overseas tend to be highly educated and highly valued by employers. Many also retain links with family and friends in Australia. They continue to identify as Australian and intend to eventually come back.

In 2004, without putting a number on them, the Lowy Institute identified five sub-groups of expats.

The who’s who — people at the pinnacle of their careers in significant international positions
Gold collar workers — highly-skilled, well-paid Australians developing their careers on the international stage
Other professionals — including nurses or teachers
Return migrants — first or second generation Australians, going to their family’s original country for family or professional reasons
Rite of passage travellers — young Australians living or working overseas.

Organisations such as Advance (which is supported by federal government funding) work to connect Australians overseas with each other and Australia. The focus here is on high-profile or very successful expats and how we can leverage their skills and networks to Australia’s advantage.

Traditionally, the majority of departures from Australia have been to Europe, the United States and New Zealand. This has lead to a narrative that doesn’t necessarily reflect the make-up of Australia’s population living overseas and Australia’s multicultural story.

We know from immigration and short-term travel data (those away for less than a year) that Asia, and in particular countries such as India, China, Indonesia, Thailand and Japan, are increasingly important for Australians.

Long-term departure data present a similar picture. Our analysis of Australian Bureau of Statistics data shows India saw a 54% increase as a destination for Australian residents between 2007-08 and 2016-17.

So, the idea that Australia’s diaspora is largely made up of young Aussies backpacking in Europe, or hyper-successful entrepreneurs in Silicon Valley is an outdated one. There is every indication today’s diaspora is complex, and largely made up of everyday Australians doing everyday things.

Yet, we don’t have comprehensive or up-to-date data on where Australians are overseas, what they are doing and whether they are planning to come back.

Why don’t we have a clearer picture?

At a broader level, Australia’s national focus has been on our immigrants, for whom detailed data are recorded and available from the Department of Home Affairs and Bureau of Statistics.

Emigrants have long been an understudied element of Australia’s migration story.

Qantas plane leaving Perth from London in 2018. — Australia does not have a dedicated policy to keep track of and make use of its citizens living overseas.
Tony McDonough/AAP

One of the reasons for our limited and outdated information on our diaspora is the voluntary nature of registration with the Department of Foreign Affairs’ SmartTraveller program.

In 2017, Australia also stopped collecting information on intended destination and reasons for travel on outgoing passenger cards. This was to improve the “traveller experience” and streamline the border clearance process.

Meanwhile, despite recommendations from Senate committees in 2005 and 2013, Australia has not set up a dedicated diaspora policy and monitoring unit within government.

Why do we need a diaspora policy?

At a basic level, a diaspora policy would provide a formal commitment to strengthen links and maintain connections with Australians abroad.

Aside from taking advantage of the knowledge and skills of Australians overseas (which can influence bilateral trade, business and investment opportunities), a diaspora policy should also foster engagement by attending to the welfare of Australians overseas.

COVID-19 has shown us how important it is to understand where Australians are and their circumstances in a time of crisis.

This lack of information makes it difficult to plan and help people quickly. A holistic, consistent and ongoing dataset would tell governments where the pressure points are in times of crisis — where are most of our citizens? How old are they? How vulnerable might they be?

How can we do it better?

A commitment to deeper engagement with our diaspora is fundamental. In addition to a diaspora policy, a relatively easy way to get a better grip on Australians overseas would be to improve how Australians interact with SmartTraveller, so it becomes second nature for travellers to register and update their movements when overseas.

Another alternative is to use census data from destination countries. This requires greater synchronisation among national censuses as suggested by the United Nations. However, this also means we are relying on other countries’ data collection, not our own.

We could also look at regular large scale “census-like” surveys of Australians living overseas.

Getting a better grip on Australians overseas will have huge benefits in terms of planning, our economy and national identity. Bringing our diaspora back into our national population and migration story will help us understand its true character, nature and value.

Importantly, it will also move beyond the narrative of Australians overseas as either a “burden” or an “asset”.

George Tan, Research Fellow, Charles Darwin University; Andrew Taylor, Associate professor, Charles Darwin University, and Kelly McDougall, Research fellow, University of South Australia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Can we use the RAAF to bring home stranded Aussies overseas?

Posted on September 20, 2020 by particularkev

Peter Layton, Griffith University

Amid mounting concern about Australians stranded overseas during COVID-19, Labor leader Anthony Albanese has offered a solution.

This week, he suggested using the Royal Australia Air Force (RAAF) VIP aircraft to bring people home. Albanese says these could bring the estimated 25,000 Australians stuck overseas, “100 at a time”.

While the federal government has downplayed this suggestion, the pressure to do more to bring home Australians stuck overseas continues.

So, is it feasible to use the RAAF? What challenges might this pose?

What are the VIP aircraft?

The VIP fleet is operated by the air force to fly the governor-general, politicians and military leaders on official business when commercial flights are not suitable.

Albanese has honed in on the VIP fleet for obvious reasons: it’s currently sitting idle, the aircrews involved need to maintain their flying proficiency and Australians have always held a jaundiced view of the aircraft being simply another “pollie perk”.

However, while all five aircraft are long range, only the two B737 Boeing Business Jets could conceivably carry the 100 people mentioned — and that’s after reconfiguring their normal VIP fit-out that accommodates 30 passengers. The other three aircraft, the brand new Dassault Falcon 7X executive jets, have room for only 14 passengers.

The five aircraft are good for the VIP role, but they are not large capacity international airliners. They are inherently a rather inefficient way to move large numbers of people.

What else could the RAAF use?

The RAAF does have seven large airliners in service. These are the aptly named KC-30A Multi-Role Tanker Transport, a modified Airbus A330 airliner used for air-to-air refuelling of fighter aircraft and strategic airlift.

KC-30 Tanker flying over a mountain range. — The RAAF have larger aircraft than the VIP fleet.
Supplied/United States Air Force

In the latter role, each aircraft can carry 270 passengers. For the past several years, the aircraft have been busy in the Middle East. But the last deployed KC-30A is just returning.

Allowing for some aircraft being under maintenance and others busy with ongoing training, the RAAF could potentially allocate two to three KC-30A aircraft to the “bringing Aussies home” task.

It’s possible but not straightforward

This would not be as simple as it sounds. The KC-30As are military aircraft, so decisions would need to be made whether to fly them into civil or military airfields overseas.

In the latter case, embarking passengers may be difficult. Moreover, being military aircraft (not scheduled civil air services), formal diplomatic approval would need to granted by the other countries involved.

There are further technical issues of guarding RAAF aircraft if they need to remain overnight at a foreign airfield, refuelling the aircraft on arrival, embarkation procedures and keeping the crews COVID–free.

There are also more mundane matters. like having aircraft stairs available and monitoring pilot duty hours — exhausted pilots are a flight safety hazard.

What about Qantas?

While this is technically feasible, there are also efficiency concerns.

Australians are scattered across the globe. They may need to find their way to major departure airport hubs — as diverting a large aircraft to pick up only a few passengers from a country may not be sensible. In addition, smaller countries may be unsure about letting a large, obviously military aircraft use their airfields.

It is in these smaller countries that Albanese’s idea of using the two B737 Business Jets might be more appropriate.

But if the RAAF has airliners, so too do the civil airlines. Qantas has many aircraft and crews available at the moment who, like the RAAF’s VIP crews, need to maintain their flying experience.

It’s true Australian taxpayers have already paid for the RAAF aircraft and crews, so the additional costs of picking up stranded Australians would be low. On the other hand, the airlines and their associated unions are in difficult circumstances. Should the RAAF do what Qantas could?

On Thursday, Qantas chief executive Alan Joyce told Radio National the airline was in talks with the federal government to subsidise flights home.

Qantas plane waiting on a runway. — Perhaps Qantas flights should be used instead of the RAAF.
Joel Carrett/AAP

Finally, there’s the issue of quarantine. Only 4,000 Australians have been allowed back each week due to government imposed quarantine hotel restrictions. After a federal government push to the states, this is set to be increased to 6,000.

Large airliners, whether operated by the RAAF or commercial airlines, can bring many people home, but the cap on arrivals is a notable constraint.

This means the biggest benefit of such an approach might be not so much bringing more people home, but making the flights affordable and available. Today, with strict passenger limits, the airlines are charging high fees. This is a significant impediment to people returning, even with the Australian government offering loans to assist.

We could use the RAAF if we wanted to

So, while Albanese’s idea may be critiqued on its finer points, it is broadly doable. It’s perhaps a good if small example of politics in action.

At its core, when it comes to bringing home Australians in distress, it becomes a simple political question.

How should the government spend Australia’s taxpayer dollars?

Peter Layton, Visiting Fellow Griffith Asia Institute, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Federal government pre-empts national cabinet to raise the cap for returning Australians

Posted on September 19, 2020 by particularkev

Michelle Grattan, University of Canberra

The federal government, under pressure to expand and accelerate the return of stranded Australians, has pre-empted national cabinet by announcing the “cap” on these arrivals will be expanded from about 4,000 up to 6,000 a week.

After the announcement Western Australia immediately hit out, saying the national cabinet process was being flouted.

More than 25,000 people are presently registered as having expressed a wish to return, and there have been numerous hardship cases in the media and in representations to MPs offices.

The government says the new weekly caps will be: NSW 2,950 (present cap is 2,450), Queensland 1,000 (500), South Australia 600 (500), and Western 1,025 (525). Victoria, struggling out of its second wave, will not have any arrivals.

This adds up to only 5,575 but the government hopes the other jurisdictions will take some people, although there are not commercial airline services into the ACT, the Northern Territory or Tasmania.

The government wants the higher numbers operating by late this month.

The caps were imposed at the request of states, which were concerned at pressure on their quarantine facilities, in particular when Victoria, where there was a quarantine breakdown triggering the second wave crisis, stopped taking any returnees.

People wanting to come home are not just facing the problem of the cap but the difficulty of securing flights, and at reasonable prices.

Unveiling the higher cap Deputy Prime Minister Michael McCormack, who has responsibility for aviation, said he had written to premiers and territory leaders to tell them the caps for international flights based on quarantine levels.

“Not every Australian will be able to come home by Christmas, I accept that. But we want to get as many of those who need to come home, want to come home, paid for a ticket to come home, to be able to do so”, McCormack said.

The federal government says it has constitutional power over quarantine, and so does not need the states’ approval. But it will take the new quotas to Friday’s national cabinet.

Under the existing deal the states make the quarantine arrangements and carry the cost – although they are now charging returnees.

The opposition has called for the government to use RAAF planes to return some people. But the government says there are thousands of unused commercial seats, and the VIP fleet has only very small capacity. It also rejects calls for the use of federal facilities for some of the returnees, saying they are not available or suitable.

Attorney-General Christian Porter, asked on Perth radio whether WA had agreed, said he did not know but “we very much hope they will”.

WA premier Mark McGowan said he had not known about the announcement beforehand and described it as “very directly outside the spirit of the national cabinet”.

“I don’t really like the fact that this has been sprung via a press conference without a discussion with the people actually required to implement it,” McGowan said.

He warned of the risks of putting pressure on hotel quarantine and said using Commonwealth facilities should be looked at.

The federal government says it would consider ADF assistance with more quarantine, noting ADF personnel have been helping WA with hotel quarantine for weeks.

WA Health Minister Roger Cook said it was extraordinary the matter was being dealt with through a letter from McCormack and said Scott Morrison should call “his dogs off” and work with the premiers.

NSW premier Gladys Berejiklian said that after a request from the prime minister “I consulted my relevant ministers and the police commissioner, who is in charge of quarantine, and everybody said they could take on that extra load”. Her agreement was on the basis other states agreed.

Queensland premier Annastacia Palaszczuk also indicated her government was willing to take more people.

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

There’s a ban on leaving Australia under COVID-19. Who can get an exemption to go overseas? And how?

Posted on September 1, 2020 by particularkev

Anthea Vogl, University of Technology Sydney

Australians are all too aware of the restrictions on interstate travel and on who can currently enter Australia.

But people may not realise there is also a ban on overseas travel for all Australian citizens and residents, subject to a limited number of exemptions.

Since March, about one in three requests to leave the country have been granted. This comes amid reports of Australians facing huge hurdles to see sick and dying relatives overseas.

So, what’s going on? Who can actually leave Australia at the moment?

What is the ban?

The ban on leaving Australia was put in place by Health Minister Greg Hunt on March 25, as an “emergency requirement” under the Biosecurity Act. It is the first time Australia has had such a ban, and it was made on the advice of the Australian Health Protection Principal Committee.

The determination says plainly:

An Australian citizen or permanent resident … must not leave Australian territory as a passenger on an outgoing aircraft or vessel.

The accompanying statement explains,

[This] is in response to the COVID-19 pandemic, which continues to represent a severe and immediate threat to human health in Australia and across the globe.

Is this legal?

The government legally made the determination under the Biosecurity Act, which gives the health minister power to put in place “any requirement” they believe is necessary to prevent or control the entry or spread of the virus into Australia.

International law recognises the right to leave any country, including your own, but there is no equivalent constitutional protection in Australia.

Man pushing a baggage trolly past an empty airport carousel. — There is a legal ban on Australians leaving Australia.
Darren England/AAP

In other words, Australians don’t have a constitutional right to leave Australia.

Strict exit bans for citizens are generally associated with authoritarian states, like North Korea and the former USSR. But the Health Department has said the ban is needed because of the burden returning residents place on quarantine arrangements, the health system and testing regimes.

The government has also argued it is “impossible” to only ban travel to specific places, due to the fast-moving nature of the pandemic in different countries.

Who can leave Australia at the moment?

Anyone who is isn’t a citizen or resident is allowed to leave Australia.

Some Australians are also still free to leave. This includes those who are “ordinarily resident in a country other than Australia”, airline and maritime crew, outbound freight workers, and essential workers at offshore facilities.

All other citizens and residents must have an exemption if they want to leave. They need to apply online (which is free) and then bring the approved exemption to the airport.

To be granted an exemption, you must have a “compelling reason” for needing to leave Australian territory, and your travel must fall into one of the following categories:

compassionate or humanitarian grounds
part of the response to the COVID-19 outbreak
essential for the conduct of critical industries and business
to receive urgent medical treatment unavailable in Australia
urgent and unavoidable personal business
in the national interest.

Most applications to leave are not successful

Despite these exemptions, it is still difficult to get permission to leave. Only about one in three requests are being granted.

According to Border Force, between March and mid-August it received more than 104,000 requests to leave Australia. About 34,300 exemptions have been granted.

Exemption applications are assessed by Border Force and applicants are advised to apply at least two weeks but not more than three months before departure.

Border Force adds:

If you are travelling due to death or critical illness of a close family member, you can apply inside this timeframe and we will prioritise your application.

However, timeframes haven’t been guaranteed and people have reported significant delays even in emergency situations. If a request is refused, an applicant can reapply.

Failing to comply with the ban is a criminal offence, punishable by up to five years’ prison, a $63,000 fine, or both.

Are Victorians especially banned?

There is nothing to exclude Victorians, currently under Stage 3 and 4 restrictions, from applying to leave Australia.

The Victorian government directs residents to federal government advice regarding overseas trips.

However, Victorians would also need to comply with or seek exemptions from state-based restrictions (including for travel to the airport, for example) where an exemption was granted.

What are the problems with the ban?

Usually when governments pass legislation, they provide definitions of key terms. However, no definitions for any exemptions are included in the travel ban determination, which was made by Hunt and not reviewed by parliament.

What exemptions like “urgent and unavoidable personal business” cover is unclear, to say the least (luxury yacht, anyone?).

Grounded Qantas planes against Sydney skyline. — The ban on overseas travel was introduced in March as the coronavirus crisis took hold in Australia.
Biance De Marchi/AAP

There have been repeated stories of Australians having enormous difficulties getting permission to see family and loved ones overseas. Although recent reports suggest the process is becoming easier.

One woman reported difficulty meeting the “compassionate grounds” exemption because her dying step-parent was not in hospital, due to a choice to spend his last days at home. Another received three different responses to the same request.

Applicants must provide sufficient documentation, but it is also unclear what documents are required. People whose documents are not in English must have them officially translated as part of an application. Those in distressed or bereaved states must nonetheless gather complex documentary evidence, which may include death certificates, or proof of an event or relationship.

Due to this lack of clarity, some people are seeking the advice of migration agents to help them leave Australia.

This adds to the ever-growing costs of mobility during the pandemic, while creating the extraordinary circumstance where legal advice is needed to help residents and citizens depart their own country.

When will the ban end?

Australia’s complete travel ban has not been adopted in similar countries. In New Zealand, Canada and Britain, overseas travel is strongly advised against but not banned.

Other countries to have completely prohibited travel include Kazakhstan, Lithuania and Uzbekistan.

Australia’s ban will automatically cease when the “biosecurity emergency period” is declared over, unless revoked beforehand.

But while the the current period runs until September 17, it is likely to be extended. In June, Hunt warned borders will remained closed for a “very significant” amount of time.

Although he also described Australia as an “island sanctuary”, it’s unlikely the many people held on either side of its borders feel the same way.

Anthea Vogl, Senior lecturer, University of Technology Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australians don’t have a ‘right’ to travel. Does COVID mean our days of carefree overseas trips are over?

Posted on August 30, 2020 by particularkev

Susan Harris Rimmer, Griffith University

Australia is a nation of enthusiastic travellers, it is one of our defining national characteristics.

At any given time, around a million of us are living and working overseas. In 2019, a record 11.3 million Australian residents went on short-term trips, double the figure of ten years earlier.

But COVID-19 has radically changed our capacity to go and be overseas. Will we ever travel so easily and readily again?

You don’t have the ‘rights’ you probably thought you had

Travel may be of huge importance to Australians, but it is not a right or entitlement.

When you leave Australia, you also take on an element of risk. The federal government has long-warned their help in a crisis will have “limits”. The consular services charter says,

You don’t have a legal right to consular assistance and you shouldn’t assume assistance will be provided.

Australians don’t even have the absolute right to a passport, although in practice, it is rarely denied.

International law provides for the right to freedom of movement – both in and out of Australia. As the International Covenant on Civil and Political Rights says,

Everyone shall be free to leave any country, including his own. [This] 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 … No one shall be arbitrarily deprived of the right to enter his own country.

Australia ratified the covenant in 1980, but there is no Commonwealth legislation enshrining the right of freedom of movement.

Even if there was, this doesn’t mean it would override legitimate public health concerns.

Coming home is no longer simple

In March, when the pandemic took off, the Morrison government advised Australians overseas to return home.

But coming back is no longer a simple question of booking a ticket and getting on a flight. For one thing, the global airline industry has collapsed, making available flights scarce.

As part of Australia’s COVID response, caps have also now been placed on international arrivals. In July, the number of Australian citizens and residents allowed into the country was then reduced by a third, from about 7,000 to about 4,000 a week, to ease the pressure on the hotel quarantine system. This system will be in place until at least October.

Prime Minister Scott Morrison explained he knew this made it more difficult for people to come home, but the policy was not “surprising or unreasonable”. Rather,

[it will] ensure that we could put our focus on the resources needed to do testing and tracing.

Nightmare logistics

According to the Department of Foreign Affairs and Trade, more than 371,000 Australians overseas have returned since March.

But more than 18,000 are still stuck overseas, saying they want to come home. Last week, a Senate inquiry heard about 3,000 of this group were “vulnerable” for medical and financial reasons.

There are a growing number of media reports detailing the stories of those stranded overseas. Many are desperate to return for financial and personal reasons.

Man in mask at airport, looking at ticket. — More than 18,000 Australians are still overseas and want to come home.
http://www.shutterstock.com

People have spoken about the complex logistics involved in returning – including lack of available flights, lack of affordable flights – with reports of tickets costing as much as A$20,000 – strict border controls to exit the country they are in, and the cost of quarantining when they get home.

Internal border closures in Australia have added a further level of complexity.

On Friday, The Sydney Morning Herald reported the Morrison government was drawing up new plans to evacuate Australians stuck overseas.

It is worth noting that despite people’s understandable frustrations, the Australian government has limited options to help here – and the options they do have are not simple. They can potentially charter flights or cruise ships, but this is not straightforward because it requires agreements from host countries, available planes and ships, and can be hugely expensive.

Leaving Australia is no longer simple, either

Less visible, but very concerning from a rights perspective, is the Australians who are stuck in Australia. A state generally should allow citizens to leave their own country.

There are wide-ranging bans on people leaving Australia during the coronavirus pandemic, with a limited range of exemptions.

There are obviously compelling reasons why people will still want to travel, given Australia’s strong international connections, especially when close relatives are ill or dying overseas.

But again, we don’t actually have a “right” under domestic law to leave Australia – with the federal government able to control our movements under the Biosecurity Determination 2020.

Between March 25 and August 16, Australian Border Force received 104,785 travel exemption requests. Of these, 34,379 were granted a discretionary exemption. Some perhaps more discretionary than others – entrepreneur Jost Stollmann was granted an exemption to travel overseas to pick up his new luxury yacht.

The way we think about travel needs to change

Significant Australia’s diplomatic resources have been going into supporting Australians overseas during COVID-19. In July, the Department of Foreign Affairs and Trade reported 80% of its staff took part in the response effort.

Secretary Frances Adamson has also noted her department’s approach to COVID-19 had to go “well beyond what’s written in our consular charter”.

Young woman taking a selfie against Russian skyline. — Pre-COVID, there were more than one million Australians living and working overseas.
http://www.shutterstock.com

Given the range of pressing foreign policy issues at the moment, a serious question is how much of the Department of Foreign Affairs’ time and attention should be spent on consular services? What is being lost in other diplomatic efforts trying to get Australians home?

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.

We don’t know how long these COVID changes will last – particularly if efforts to create a vaccine are not successful. So, the way we think of travel and our risk calculations may unfortunately need to change. This might result in the biggest shift in our travel mindset since the 1950s, when international travel opened up to ordinary Australians.

With rising awareness of climate impacts of travel, this may not be a wholly negative development. But a deeper conversation is still required about the right to freedom of movement for Australian citizens.

Susan Harris Rimmer, Professor and Director of the Policy Innovation Hub, Griffith Business School, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Scott Morrison set to slow the arrival home of Australians amid coronavirus fears

Posted on July 10, 2020 by particularkev

Michelle Grattan, University of Canberra

Scott Morrison will take a proposal to Friday’s national cabinet to slow arrivals of Australians returning from overseas.

Morrison’s proposal followed this week’s request from Western Australian Premier Mark McGowan for a cap on international flights landing in Perth to relieve pressure on resources, and the earlier diversion of flights from landing in Melbourne because of the new outbreak.

There is already a cap applying to NSW, and the WA government has said the federal government has responded favourably to its representation. Queensland also wants limits.

The prime minister told a news conference his proposal would be to contain the flow rather than pause it. He said the numbers coming in were very low “but at this time, we don’t want to put any more pressure on the system than is absolutely necessary”.

New Zealand has moved to slow the flow of returnees.

Morrison also said the federal government would support state governments charging travellers returning from abroad for their quarantine.

It was up to the states but “if they wish to do that, then the Commonwealth would have no objection to that”.

“I think that would be a completely understandable proposition for people who have been away for some time.”

There had been “many opportunities for people to return. If they’re choosing to do so now, they have obviously delayed that decision for a period,” he told a news conference.

Queensland is already charging – $2,800 for one adult, $3,710 for two adults, and $4,620 for two adults and two children, with some provision for waivers. The Northern Territory also charges.

As Victoria announced 134 new cases, Morrison’s message to Melburnians facing the six-week lockdown was: “It’s tough. And it will test you and it will strain, but you have done it once before and you will be able to do it again because you have proven that”.

“We’re all Melburnians now when it comes to the challenges we face. We’re all Victorians now because we’re all Australians.”

Treasurer Josh Frydenberg said the cost to the economy of the Victorian re-imposed lockdown would now be factored into the government’s July 23 economic statement. It would affect forecasts for growth and unemployment. “Victoria is a big part of the national economy” and “the cost to Victoria is up to a billion dollars a week and that will fall heavily on businesses”.

“This is a major challenge to the economic recovery. This is going to have an impact well beyond the Victorian border. It’s already starting to play out in consumer confidence numbers that have been down in the last two weeks, ” Frydenberg said.

“We have been there with JobKeeper and the cash flow boost, which together have provided more than $10 billion into the Victorian economy,” he said.

“We’re ready to do what is required to support Victoria, and Daniel Andrews himself has said whenever he’s asked the Prime Minister for support the answer has been an unequivocal yes.”

Frydenberg confirmed there will be another phase of income support for the period beyond September when JobKeeper is due to finish. The future support would be temporary and targeted, he said. The higher JobSeeker payment is also scheduled to snap back at the end of September, although it is not expected to return to the old rate.

Frydenberg also indicated the government was considering bringing forward the next round of the legislated tax cuts. “We are looking at that issue, and the timing of those tax cuts, because we do want to boost aggregate demand, boost consumption, put more money in people’s pockets, and that is one way to do it”.

NSW premier Gladys Berejiklian told people in communities along the NSW-Victorian border not to move outside their “bubble”; nor should people go into these areas. She warned “the probability of contagion in NSW given what’s happening in Victoria is extremely high”.

The ACT has three new cases, the first in more than a month. Two arrived from a Melbourne hot spot and the third is a household contact.

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: Scott Morrison announces mandatory self-isolation for all overseas arrivals and gives up shaking hands

Posted on March 16, 2020 by particularkev

Michelle Grattan, University of Canberra

Chief Medical Officer Brendan Murphy was still shaking hands on Sunday morning. But when that afternoon Scott Morrison announced the latest coronavirus measures, including compulsory self-isolation for overseas arrivals, the Prime Minister said he and other cabinet members wouldn’t be shaking hands anymore.

Only on Friday Morrison had been thrusting his hand at a notably wary Gladys Berejiklian.

Confusing signals.

On the other hand, this isn’t just a fast-moving situation, but one in which even experts have differing takes (the advice from the federal-state medical officers panel may be unanimous but it’s understood there are disputes in their deliberations), and politicians struggle with responses, even as they follow the medical recommendations. For example, the NSW government has appeared more forward-leaning than the feds.

While members of the public understandably seek certainty, on some fronts there will be no absolutes, just scales of assessment, probability, and risk.

That’s not to say the federal government should not have been clearer at times, and its mass media advertising campaign, which started at the weekend, was inexplicably slow to materialise.

The Australian tally of cases approached 300 and the death toll rose to five at the weekend. Only history will show definitely whether Murphy and the government are right in their claims Australia is keeping “ahead of the curve”, or the critics vindicated in arguing it is behind it.

Morrison in particular has wanted to put the most optimistic gloss on things, not least because he hoped to minimise economic disruption. Despite the constant flow of news conferences over recent weeks, the government avoided dwelling on how bad things could get.

By Sunday Morrison’s tone had changed. He had a graph to illustrate the need to flatten the curve of infection to enable the health system (notably the intensive care facilities) to cope. “Slowing the spread, you free up the beds,” he said.

Stark and unfolding realities were starting to prevail – though not entirely – over the prime ministerial desire to keep the lines upbeat.

And compulsion and the law were replacing choice and advice, in the measures Morrison outlined following Sunday’s meetings of cabinet’s national security committee and the new “national cabinet” of federal and state leaders (and after Morrison spoke at the weekend with Britain’s Boris Johnson and New Zealand’s Jacinda Ardern).

Like New Zealand, Australia will now insist all arrivals self-isolate for a fortnight. The only exceptions will be Pacific Islanders who are transiting to their home countries. Morrison said this measure would be effective in “flattening the curve”.

As foreign travellers dry up, most incoming traffic will be Australians returning home.

Foreign cruise ships are to be stopped from arriving for 30 days in what will be a rolling ban.

The cessation of non-essential gatherings of 500 or more has moved from advice on Friday to a formal prohibition, which will be backed by state law. Morrison flagged the threshold could soon be lowered.

On the enforcement side he said: “the states and territories wisely are not going to create event police or social distancing police … But the legislation impact would mean that if a person did fail to observe the 14 day self-isolation or if an event was organised, that would be contrary, once those provisions are put in place, to state law”.

Berejiklian was quick to say NSW already had the powers to enforce self-isolation, emphasising what was involved “is a matter of life and death”. This recalled her strong language of a few days ago when she said the situation was “not business as usual”.

Work is underway on restrictions on visits to nursing homes and arrangements for indigenous communities as well as further restrictions on enclosed gatherings, which is likely to cut the 500 number. The “national cabinet” will review the position on Tuesday night.

As for federal cabinet, it will be “social distancing” with “no more handshakes”, more meetings by video conferences, and less travelling. Morrison has already cancelled some engagements.

So far schools generally are not being closed (though some individual schools are shutting down). It’s said closing schools could promote community transmission, with children out and about. Many would be left with grandparents who would be in the most vulnerable age group. Also, if parents had to stay at home to care for their kids, this could deplete the health work force.

But the question of schools remains in the frame.

Arrangements for next week’s parliament are still being worked on, and the presiding officers have had talks with Murphy. The sitting is likely to be kept as short as needed to get through the legislation necessary for last week’s $17.6 billion stimulus package.

Opposition leader Anthony Albanese in his Sunday night national address promised “a spirit of bipartisanship. We will be constructive. We will support the government to protect the health of Australians, but also to protect their jobs and our economy.”

The package was all about trying to head off a recession by keeping growth positive in the June quarter. As things are going, that looks like it could require a miracle as well as the package. Many small businesses will collapse, despite the help the government is offering.

Almost certainly, a lot more stimulus will be needed, with the question only the amount.

But a measure of how deep the crisis is becoming is that at the moment, the national conversation is mostly about health, not economics.

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Travelling overseas? What to do if a border agent demands access to your digital device

Posted on October 9, 2018 by particularkev

File 20181005 52691 12zqgzn.jpg?ixlib=rb 1.1 — New laws enacted in New Zealand give customs agents the right to search your phone.
Shutterstock

Katina Michael, Arizona State University

New laws enacted in New Zealand this month give border agents the right to demand travellers entering the country hand over passwords for their digital devices. We outline what you should do if it happens to you, in the first part of a series exploring how technology is changing tourism.

Imagine returning home to Australia or New Zealand after a long-haul flight, exhausted and red-eyed. You’ve just reclaimed your baggage after getting through immigration when you’re stopped by a customs officer who demands you hand over your smartphone and the password. Do you know your rights?

Both Australian and New Zealand customs officers are legally allowed to search not only your personal baggage, but also the contents of your smartphone, tablet or laptop. It doesn’t matter whether you are a citizen or visitor, or whether you’re crossing a border by air, land or sea.

New laws that came into effect in New Zealand on October 1 give border agents:

…the power to make a full search of a stored value instrument (including power to require a user of the instrument to provide access information and other information or assistance that is reasonable and necessary to allow a person to access the instrument).

Those who don’t comply could face prosecution and NZ$5,000 in fines. Border agents have similar powers in Australia and elsewhere. In Canada, for example, hindering or obstructing a border guard could cost you up to C$50,000 or five years in prison.

A growing trend

Australia and New Zealand don’t currently publish data on these kinds of searches, but there is a growing trend of device search and seizure at US borders. There was a more than fivefold increase in the number of electronic device inspections between 2015 and 2016 – bringing the total number to 23,000 per year. In the first six months of 2017, the number of searches was already almost 15,000.

In some of these instances, people have been threatened with arrest if they didn’t hand over passwords. Others have been charged. In cases where they did comply, people have lost sight of their device for a short period, or devices were confiscated and returned days or weeks later.

On top of device searches, there is also canvassing of social media accounts. In 2016, the United States introduced an additional question on online visa application forms, asking people to divulge social media usernames. As this form is usually filled out after the flights have been booked, travellers might feel they have no choice but to part with this information rather than risk being denied a visa, despite the question being optional.

There is little oversight

Border agents may have a legitimate reason to search an incoming passenger – for instance, if a passenger is suspected of carrying illicit goods, banned items, or agricultural products from abroad.

But searching a smartphone is different from searching luggage. Our smartphones carry our innermost thoughts, intimate pictures, sensitive workplace documents, and private messages.

The practice of searching electronic devices at borders could be compared to police having the right to intercept private communications. But in such cases in Australia, police require a warrant to conduct the intercept. That means there is oversight, and a mechanism in place to guard against abuse. And the suspected crime must be proportionate to the action taken by law enforcement.

What to do if it happens to you

If you’re stopped at a border and asked to hand over your devices and passwords, make sure you have educated yourself in advance about your rights in the country you’re entering.

Find out whether what you are being asked is optional or not. Just because someone in a uniform asks you to do something, it does not necessarily mean you have to comply. If you’re not sure about your rights, ask to speak to a lawyer and don’t say anything that might incriminate you. Keep your cool and don’t argue with the customs officer.

You should also be smart about how you manage your data generally. You may wish to switch on two-factor authentication, which requires a password on top of your passcode. And store sensitive information in the cloud on a secure European server while you are travelling, accessing it only on a needs basis. Data protection is taken more seriously in the European Union as a result of the recently enacted General Data Protection Regulation.

Microsoft, Apple and Google all indicate that handing over a password to one of their apps or devices is in breach of their services agreement, privacy management, and safety practices. That doesn’t mean it’s wise to refuse to comply with border force officials, but it does raise questions about the position governments are putting travellers in when they ask for this kind of information.

Katina Michael, Professor, School for the Future of Innovation in Society & School of Computing, Informatics and Decision Systems Engineering, Arizona State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Sharing my thoughts with the world from a Particular Baptist perspective

The Biosecurity Act

What about constitutional rights?

What does the India experience tell us?

Commonwealth power

International human rights law

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Vaccines offer substantial protection

The delta strain is far more infectious

So why do we need 80% of people vaccinated?

Let’s break it down

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What do we know about Australians overseas?

Why don’t we have a clearer picture?

Why do we need a diaspora policy?

How can we do it better?

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What are the VIP aircraft?

What else could the RAAF use?

It’s possible but not straightforward

What about Qantas?

We could use the RAAF if we wanted to

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What is the ban?

Is this legal?

Who can leave Australia at the moment?

Most applications to leave are not successful

Are Victorians especially banned?

What are the problems with the ban?

When will the ban end?

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You don’t have the ‘rights’ you probably thought you had

Coming home is no longer simple

Nightmare logistics

Leaving Australia is no longer simple, either

The way we think about travel needs to change

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A growing trend

There is little oversight

What to do if it happens to you

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