(Image: Mitchell Squire/Private Media)

Even as Australia hits high vaccination rates, border restrictions are still in place. Travellers from nine countries in southern Africa have to undergo hotel quarantine when coming to Australia even if they’re fully vaccinated, and South Australia and Western Australia are facing calls to delay border reopenings in the face of the Omicron variant. 

We’re likely to be coming to the tail end of border closures, but as this year has shown, nothing is certain. There’s not much Australians can do about restrictions either: constitutional law challenges have so far been unsuccessful, and human rights complaints are difficult to bring about. 

What potential breaches are there? 

Under article 12 of the International Covenant on Civil and Political Rights, all people have the right to freedom of movement and nationals have the right to enter their country. There are few limitations to this, says Australian National University associate law professor Kate Ogg.

“My view is that the travel caps are a violation of the right to freedom of movement,” she said. “We have potentially put our own citizens and permanent residents in really precarious situations where their visa might have expired, but they can’t return to Australia.”  

Ogg also believes border caps may have breached the Convention on the Rights of the Child with respect to family unity. Specific country border bans, such as against the nine African countries, present yet another issue under the principle of non-discrimination and the Convention on the Elimination of All Forms of Racial Discrimination specifically. 

One constitutional challenge was launched against the Commonwealth earlier this year when the government implemented a ban on anyone returning from India — citizens or otherwise. The 12-day ban expired before the challenge could be fully heard. 

Not-for-profit organisation Liberty Works also challenged the restrictions on Australians leaving the country — though lost the court case — and two Australians have brought a complaint to the UN Human Rights Committee over other border bans. Although they were returned to Australia, the committee has yet to fully hear the complaint. 

“My expectation is that they will find that there has been a breach of article 12 [of the International Covenant on Civil and Political Rights], but Australia’s position is that UN Human Rights Committee decisions are not binding, and previously has chosen not to act on the Committee’s rulings,” Ogg said. 

What about the state restrictions? 

Victorians have called for an apology from the state after children were left stranded between boarding school and home, families were locked out of their home state, and others were unable to visit sick or dying relatives. 

State border measures have been incredibly harsh. While exemptions on compassionate grounds could be sought, there were just 20 people working on Victoria’s permit team in July this year and exemptions were rare.

Despite the ombudsman’s report, there’s not a lot more Australians can do, Ogg says. Victoria and Queensland have human rights legislation which includes freedom of movement to allow residents to enter and leave their state. But complaints of breaches of human rights under Queensland and Victorian legislation can’t be taken to court alone — a second complaint has to be brought with it. 

“That will be, I think, the biggest impediment to going to court and getting some formal recognition of human rights violations in both Queensland and Victoria,” Ogg said. 

Is there any point in launching court cases? 

Despite all the potential human rights breaches, University of Sydney professor of constitutional law Anne Twomey tells Crikey there wasn’t much point in launching court challenges against state and federal governments. 

“It’s not inconceivable that more challenges will be heard, but the reality is every single challenge has failed so far,” she said. “There are huge costs with bringing such a challenge, and there’s often a timing issue given the temporary nature of border restrictions.”

Twomey believes many constitutional law challenges are more about making a point than dealing with specific restrictions. She doesn’t think court cases are needed to deal with strict international travel restrictions. 

“This is a democracy and if people are unhappy they can vote against the government in the next election,” she said. 

“In the end, who controls who is in government and in Parliament is the people — unless the government is breaching the rule of law these issues aren’t for the courts. They’re for voters to decide who would be in power in our democracy.”