"The Governor General of the Commonwealth of Australia, being the representative in Australia of Her Majesty Queen Elizabeth the Second, requests all those whom it may concern to allow the bearer, an Australian Citizen, to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may stand in need."
That's what it says on the inside cover of the Australian passport. But lest you think that might override the current legislation that keeps us from travelling overseas as we please, think again.
"The statement in the cover of passports is a request directed to foreign governments. It is not a law allowing people to leave Australia," says Dr Luke Beck of Monash University's Faculty of Law.
What other passports say
Other nations have similar injunctions in their passports. The US version requests, in the name of the Secretary of State, that its citizens be permitted to pass without let or hindrance. The British passport "requests and requires" much the same in the "Name of Her Majesty". The Ministry of Foreign Affairs of the People's Republic of China and the same ministry of the Democratic People's Republic of North Korea are in lockstep with that same sentiment, although passports issued by the Russian Federation carry no such requests.
At the heart of these fine words is the principle of freedom of movement, and in Australia's case that's under the spotlight. Australia is the only country that has denied its citizens the right to travel overseas without permission since the start of the pandemic.
Freedom of Movement
Freedom of movement is enshrined in the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory. Article 12 of the ICCPR says "Everyone shall be free to leave any country, including his own."
"But this right is not absolute," according to Dr. Beck. "Article 12(3) says that that right can be subject to restrictions that are necessary to protect public health."
The Attorney General's Department adds its own voice to the ICCPR document. 'The Right to Freedom of Movement', a public sector guidance sheet issued by the department states "The freedom to leave a country … cannot be made dependent on establishing a purpose or reason for leaving." Yet what is the purpose of the written application to the Department of Home Affairs, currently required of anyone wishing to leave, if not to establish a reason for leaving?
The legal challenge
The legislation the government is using to prevent Australians from entering or leaving the country without permission is the Biosecurity Act 2015. During a human biosecurity emergency, section 477 of the act gives the health minister the power to determine any requirement necessary to prevent a disease from entering Australia or from spreading to another country.
"The minister's powers under the Biosecurity Act are extremely wide but they are subject to limitations," according to Dr. Beck. "The Biosecurity Act says that the minister can only make rules that are 'no more restrictive or intrusive than is required in the circumstances.' This is basically a test of proportionality."
At the beginning of June 2021, advocacy group LibertyWorks challenged the legislation before the federal court, arguing that the minister did not have the power to impose a blanket restriction preventing Australian citizens from leaving. This was the latest of several challenges to the legislation. However, the court dismissed the application on the grounds that LibertyWorks' argument would require the minister to issue an order preventing Australians from travelling overseas on a person-by-person basis rather than en masse. That would hamstring the ability of the minister to impose controls required to respond to a national health crisis.
"It may be accepted that the travel restrictions are harsh," reads the court's judgement. "It may also be accepted that they intrude upon individual rights. But parliament was aware of that. Parliament intended that, in an emergency of the kind declared by the Governor-General… such measures could nonetheless be taken."
There is no possibility that this matter would be heard before an international court. Says Dr. Beck, "As a matter of Australian domestic law, international treaties cannot override legislation passed by Parliament."
Why block people who want to leave?
Many other countries have imposed travel restrictions since the start of the pandemic. However those restrictions only apply to incoming travellers, not outgoing. Makes sense, right? You don't want anyone coming into the country who might be infected with COVID-19. But how does restricting the freedom to travel overseas constitute a threat to public health within Australia?