Locked In: Australia’s COVID-19 Border Closures and the Right to Leave
Forthcoming (2022) 40 Australian Year Book of International Law
36 Pages Posted: 6 Jan 2023 Last revised: 12 Apr 2023
Date Written: February 19, 2023
In March 2020, Australia became one of a handful of democratic states worldwide to adopt a blanket prohibition on the right of citizens to leave its territory, whether temporarily or permanently, in response to the COVID-19 pandemic. The International Health Regulations, which bind all members of the World Health Organization (WHO), including Australia, provide an international legal framework to guide the public health response to the international spread of disease in a manner which respects human rights and fundamental freedoms. The right to freedom of movement in international human rights law is enshrined in the International Covenant on Civil and Political Rights (ICCPR), which Australia ratified in 1990. Although states can place restrictions on freedom of movement to protect public health, they must be appropriate to achieve their protective function, the least intrusive instrument which might achieve the desired result, and proportionate to the interest to be protected. This article argues that in adopting sweeping restrictions on outbound travel, Australia re-purposed aspects of its migration control regime – ordinarily employed to externalise its international border and prevent people from entering the country – in order to prevent Australian citizens and permanent residents from leaving Australia. The outbound travel restrictions further bypassed an analysis of the intrusiveness and proportionality of the measures themselves, and shifted the burden onto individuals to request an exemption where the regulation of exit proved overly intrusive or disproportionate in their particular circumstances. In examining parliamentary transcripts, press statements by government officials, and recently revealed data regarding outbound travel exemptions, this article raises serious questions regarding the legality of the restrictions over time and their implementation in light of international law.
Keywords: COVID-19, border closures, right to leave, international law, human rights, freedom of movement
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