The UN Human Rights Committee on Wednesday raised “serious concerns” about the Morrison government’s move to ban its own citizens from returning from India and criminalise breaches.
Committee spokesman Rupert Colville said the committee generally saw “few, if any” circumstances to justify depriving citizens of their right to return home.
“We have serious concerns about whether the biosecurity determination — and the severe penalties which can be imposed for its breach — meets Australia’s human rights obligations,” Mr Colville told 9News.com.au, in a statement.
That assessment hinged on article 12 of the International Covenant on Civil and Political Rights, ratified by Australia in 1980, which states “no one shall be arbitrarily deprived of the right to enter his own country”.
“The UN Human Rights Committee, which oversees implementation of the ICCPR, has emphasised the narrow authority to refuse nationals’ return, and considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable,” he said.
“In assessing the issue of arbitrary deprivation, key factors to be taken into account are its necessity to achieve a legitimate end and its proportionality, including whether it is the least intrusive approach to accomplish its public health objectives.”
The government last week said there were about 9000 Australians registered in India, 650 of those listed as vulnerable, amid a devastating outbreak leaving people dying outside overwhelmed hospitals and funeral pyres lighting up the night sky
Sydney designer Aviram Vijh said his cousin was one of them, stuck for six months after travelling to his father’s funeral.
“There’s a key piece that again, people miss,” he told 9News.com.au.
“This new rule that prevents people at the moment from India from coming here, etc, that’s just the icing on the cake, so to say, in a negative way.
“It was impossible to come back from India anyway.
“My cousin’s been trying for six months … because there are no tickets, the tickets get cancelled, you have to fly business class.”
While not wanting to use the term “racist”, the 36-year-old labelled the decision to single out India as “economic discrimination”, arguing Australia wouldn’t have had the power to take such harsh actions against a close ally the United States or superpower China.
The UNHRC comments came as criticism mounted over the ban, and particularly the move to punish breaches with fines of up to $66,000 or five years’ jail.
“I think it’s highly unlikely. Highly unlikely,” he told Today, saying his priority was to keep Australia safe and prevent a local COVID-19 outbreak.
“In the same way that these powers at their most extreme end have not been used for those sorts of sanctions in the entire time we’ve had these biosecurity regulations in place.
“So, I think people need to look at this in perspective.”
The likelihood of legal action appears to be growing, with both strategic litigators Grata Fund and human rights barrister Lionel Nichols confirming to 9News.com.au they have fielded enquiries.
Mr Nichols is working with renowned barrister Geoffrey Robertson, QC, on two test cases from Australians stranded overseas. That resulted last month in an interim NHRC measure calling on Australia to “facilitate and ensure” their “prompt return” home.
Mr Nichols told 9News.com.au the latest comments further bolstered any potential case against the India travel ban, saying the first priority was to challenge it under Australian, law, international law or both.
He said while the Biosecurity Act gave Health Minister Greg Hunt sweeping powers, the actions taken needed to “likely to be effective and is no more restrictive or intrusive than is necessary”.
“So we would say there are less draconian options which are available,” he said, pointing to quarantine, testing and other prominent examples.
“All of these measures are less of an infringement on individual liberty than the blanket ban (which) is using a sledgehammer to crack the nut.”
“To condemn innocent citizens for five years … that’s outrageous because it’s never been debated or considered by parliament,” he said from hotel quarantine in Australia.
India’s official count of coronavirus cases surpassed 20 million on Tuesday, nearly doubling in the past three months.
Deaths officially have passed 220,000 but the true figures are believed to be far higher.
This content first appear on 9news