Criticism over Federal Government’s ban on Australian citizens returning from India

SCOTT MORRISON, PRIME MINISTER (January 2020): This is a serious and evolving situation. The travel advice has been upgraded to reconsider all travel to China.

LAURA TINGLE, CHIEF POLITICAL CORRESPONDENT: In the early days of the pandemic, as COVID was starting to spread rapidly through China, Australia brought in what were then considered sweeping travel bans but there were exceptions.

SCOTT MORRISON (February 2020): To substantially reduce the volume of travellers coming from mainland China, with the exception of Australian citizens, permanent residents and their immediate family.

SCOTT MORRISON (September 2020): I would hope that we can get as many people home, and if not all of them, by Christmas.

LAURA TINGLE: That ambition proved wildly elusive. Fast forward to around midnight on Friday night, when Health Minister Greg Hunt announced an emergency declaration under the Biosecurity Act 2015 that imposes a very new kind of border control – travellers from India are banned, including Australian citizens.

ANNE TWOMEY, CONSTITUTIONAL LAW EXPERT: It is a significant shift and obviously the Government is taking it very seriously as well.

The real question that underlies it is, is the right of an Australian citizen to enter the country an absolute right upon which there can be no restrictions? Or is it the case that the Government can impose reasonable restrictions if they have good reason to do so?

LAURA TINGLE: National Cabinet had met on Friday, and 7.30 understands that the ban was raised by the Prime Minister but was not a decision of National Cabinet. The decision was subsequently taken by the Federal Government.

Unusually, Scott Morrison did not appear for his normal post-National Cabinet press conference. There was just a press statement from the PM, leaving it to Greg Hunt, who hadn’t been in the meeting, to face the cameras, and there was no reference to the looming ban.

REPORTER: Usually the Prime Minister is the one who stands up when there’s a National Cabinet meeting. Where is the Prime Minister and why isn’t he doing that?

GREG HUNT, HEALTH MINISTER: I think the PM has spoken on many, many days in the last week. Today, I think National Cabinet was more in review than decision-making mode.

LAURA TINGLE: Which brings us to the ongoing questions about the capacity of the quarantine system – who should run it, whether we need dedicated facilities, and the appropriateness of hotel quarantine – all issues which remain contentious.

Figures provided to 7.30 by the Department of Health reveal 47 cases of COVID, or one in seven passengers, had been identified on just two flights from India over two days coming in to Howard Springs in mid-April, with a further 84 passengers from those two flights identified as close contacts. All in all, too many people to manage effectively.

The Government insists the ban was based on such medical advice, but Chief Medical Officer Paul Kelly made clear the penalties themselves are set down in the legislation.

PAUL KELLY, CHIEF MEDICAL OFFICER: I didn’t advise anything in relation to fines or any of those other matters. That is the law.

The Act is very explicit that the minister must be satisfied whatever is brought into place is proportionate to the risk. What we were faced with was a quarantine system under stress.

ANNE TWOMEY: The legislation required the minister to be satisfied of certain things. How effective this would be, is it no more intrusive than required in the circumstances?

If a person could show that the minister could not have been reasonably satisfied of those things on the basis of the material and the evidence that had been put before the minister – such as, for example, the advice of health authorities – then they might be able to challenge it.

LAURA TINGLE: Australian citizen Mandeep flew to India a month ago for his father’s funeral. Now he’s stuck there.

MANDEEP SHARMA, AUSTRALIAN CITIZEN: I’m trying to get out of here as soon as I can. My flight was scheduled on 7th of May and that has been cancelled.

If COVID doesn’t kill us, probably stress will. Personally, I’m very devastated with this announcement. I feel disowned by my own government. I’m an Australian citizen.

LAURA TINGLE: The question of whether it is even constitutional for the Australian Government to ban its own citizens from re-entering the country is a complex one.

Human rights lawyer Geoffrey Robertson says he has concerns, even though the Government is using powers contained in the Biosecurity Act, passed in 2015.

GEOFFREY ROBERTSON, HUMAN RIGHTS LAWYER: These directions, aimed at Australians who happen to be in India at the moment, are objectionable on a number of counts. I think it could be argued that they relate only to times when there’s a national emergency in Australia. There isn’t, there is one in India but basically, they infringe Magna Carta and the idea of democracy.

ANNE TWOMEY: There’s no explicit right for Australian citizens to live in Australia. You’d have to get the High Court to imply that right from the Constitution, but you’d also have to get the court to be satisfied that that was an absolute right. That is, that you couldn’t make any restrictions on it even in circumstances where you had, for example, a pandemic, as we do now.

LAURA TINGLE: Like many Indian Australians, Mandeep Sharma has taken the announcement of the travel ban personally.

MANDEEP SHARMA: This kind of decision coming from the Government looks like a bit racist. So why then are we Australian citizens? If we are not being treated equal, then it’s definitely a very, very heartbreaking moment for us.

LAURA TINGLE: Rupali Jetiley has lived in Melbourne for 15 years but her family is in Mumbai. Her mother died of COVID two weeks ago, followed by her father just days later.

RUPALI JETILEY, AUSTRALIAN CITIZEN: It was a very sudden death because we didn’t expect that COVID will take them away but when Dad’s situation deteriorated, we had to hospitalise him as well.

LAURA TINGLE: Unable to attend her mother’s cremation, Rupali’s relatives filmed it for her.

RUPALI JETILEY: They both were cremated in a crematorium. Obviously, when a person passes away, and in our culture, we burn the body. Now, there were so many deaths that there were absolutely no place at all in the crematorium to cremate the bodies. So, people were just burned wherever, you know, they had land, they had empty space.

LAURA TINGLE: Despite the scale of the crisis in India, Rupali supports the Australian Government’s ban on travel to and from India.

RUPALI JETILEY: I definitely don’t think it is racist. Yes, I would say that the ban is fair. I would 100 per cent support the government, Australian Government, because what Australian Government is doing is not to punish them, it’s basically saving our country people.

ANTHONY ALBANESE, OPPOSITION LEADER: The Government’s got to justify how it is that the figures from India are similar to what they’ve been in the past from the UK and the US, but we haven’t seen these sort of measures.

LAURA TINGLE: With both Labor and the Nationals criticising the decision, the Prime Minister was on the defensive today, determined to portray this latest ban as no different to earlier ones.

RAY HADLEY: The Prime Minister Scott Morrison is on the line. All I pick up and read over the course of the weekend is you’re racist, your government is racist and everyone else is racist. Can you elaborate on why you’re not racist?

SCOTT MORRISON: Yes, I understand the measures have strong sanctions with them, but we’ve had the Biosecurity Act in place now for over a year and no-one’s gone to jail. There’s no politics or ideology in a pandemic and I’m constantly taken aback by those who seek to inject it into it.