Australian Citizens have the Right to return Home

QCCL President Michael Cope said today, “The QCCL welcomes the Court challenge to the travel ban on Australian citizens returning from India, accompanied by criminal sanctions under the Biosecurity Act.”

Whether the constitution or the common law gives Australian citizens a right of return is, it must be said, hotly debated amongst lawyers and legal scholars. There is one old High Court case http://classic.austlii.edu.au/au/cases/cth/HCA/1908/63.html which contains some support for such a right.

A 1988 case http://classic.austlii.edu.au/au/cases/cth/HCA/1988/61.html in which the High Court unanimously struck down a tax on people arriving in the country is seen by many scholars as supporting such a right, but others disagree.

But there is no doubt about it from the point of view of international human rights law -article 13 of the Universal Declaration of Human Rights says:

“Everyone has the right to leave any country, including his own, and to return to his country.”

“The reason why this is so ought to be obvious to all- if the concept of citizenship is to mean anything it must mean the right to return to and live in your place of citizenship” says Mr Cope

Citizenship involves the right to claim protection from your nation and a duty on that nation to assert rights on behalf of the citizen.

Mr. Cope says, “The duty of the government then is to make arrangements both in this country and overseas for any Australian who wants to return to come home and not be left to depend on the collapsing Indian health system”

We see now the consequences of the failure of the Commonwealth government to action the Halton review which said on page 31  “consideration should also be given to the establishment and maintenance of a national facility in reserve to facilitate large scale evacuations from international ports, if or when required.” That was said in the context of a possible surge of cases in the Northern Winter. But the particular circumstance does not matter. The need for surge capacity was clear and the government has failed to act.

“The QCCL calls upon the government to repeal the declaration imposing the penalty. If not, we trust the Courts will apply basic principles of reason and human rights law to recognise in our law one of the fundamental features of citizenship, without which it is meaningless, the right to come home”