When filling out exemption forms to travel abroad, Australians must check a box acknowledging they do not have a legal right to consular assistance — meaning there is no guarantee the government will help them out in a crisis.
Although Australians have never had a legal right to overseas assistance, legal experts say the document’s wording presents a worrying imbalance of power. They also question whether the hard border closures are legal.
Lower your expectations
To leave the country, an exemption must be granted through the Australian Border Force using emergency powers under the Biosecurity Act. Data provided to Crikey by the ABF showed between March 25 and June 30 this year, 363,796 people applied for an exemption. Of those 171,209 were approved, 94,178 were denied — a success rate of 47% — and the rest are still waiting for a result.
Exemptions for citizens and permanent residents are granted only if the person is travelling in response to the pandemic, such as providing aid, work, urgent medical treatment, compelling or compassionate reasons, or if it’s in the national interest.
The documents ask people to tick a box acknowledging “I do not have a legal right to consular assistance and the Australian government may limit consular assistance where I put others or myself at risk”. The line was added in September 2020.
The United Nations has argued consular assistance is a right, but in many countries — including the US and Australia — it is not enshrined in law — though some have tried to test this.
“The consular services charter makes no reference to a right of an Australian to receive certain levels of assistance,” ANU law Professor Donald Rothwell tells Crikey.
“We could think of all sorts of initial responses where [the Department of Foreign Affairs and Trade] did exceptional work in terms of trying to bring back Australians, but that position seems to have evolved gradually as the pandemic has proceeded,” Rothwell said.
“This is the first time the charter has been tested during a pandemic.”
The charter stresses if Australians break local laws, act recklessly or negligently, or have a repeated pattern of behaviour of needing assistance, assistance may be denied.
Where it gets interesting is around crisis response, including responding to political unrest, terrorist attacks, major accidents, pandemics and natural disasters: “Some international crises involving Australians overseas will require an exceptional response.” But this still doesn’t mean Australians have a right to a response.
While there’s nothing in the law, there is an expectation Australians abroad receive help, professor in the ANU’s business, government and law faculty Kim Rubenstein says.
“The Australian government has what is known as extraterritorial power to govern us even when we’re not in Australia, just by virtue of our citizenship,” she said. “One of the expectations is, just as the government has the capacity to have power over you, so should it protect you.”
But it has always been up to the government’s discretion whether that assistance is offered or not. Rubenstein says she was concerned about the vague wording in the exemption form, with no details about when assistance can be expected, or in which circumstances.
“What it is saying to Australians is in relation to an imbalance of power — that the government can choose to legislate for you wherever you are, but it can choose to also not fulfil its international legal principles of acting on your behalf when you are in need,” she said.
“What appears to be a real overreach here is the government effectively making that decision as a blanket statement as opposed to making that on an individual basis.”
Rubenstein said using the Biosecurity Act to restrict people from leaving the country was inconsistent with World Trade Organization agreements and with Australians’ constitutional rights.
A few test cases
Right to consular assistance was tested by Australian David Hicks in 2006.
Hicks was detained by the US in 2002 and placed in Guantanamo Bay detention camp after training with al-Qaeda in a camp in Afghanistan. He alleged he was subjected to mistreatment by US forces during his six years’ confinement, including sexual assault, sleep deprivation and beatings. He struck a plea deal in 2007 and served the remaining nine months in Australia under a prisoner transfer arrangement.
Australia was found by the UN human rights committee to have breached Hicks’ human rights by not assisting him to get home earlier and not ensuring he had a fair trial. Hicks’ lawyers aimed for a precedent-setting trial to determine a right to consular assistance, but didn’t get one.
When Australia launched a travel ban in May this year on anyone who had been in India within the past fortnight in response to rising case numbers, lawyers argued the ban was unconstitutional. The ban ended before the challenge could be taken to the Federal Court.
Similar arguments were raised around WikiLeaks’ founder Julian Assange’s detention, although DFAT said it had offered Assange consular assistance 19 times between 2019 and 2021 which went unanswered.
Why is the exemption provision in place?
Asking those seeking to leave Australia to check a box forgoing consular assistance may simply be to lower expectations during the pandemic, Rothwell says.
A COVID-19 update on the government’s smart traveller websites warned that consular assistance “may be limited in some places” because embassy buildings were closed to the public.
In June there were 99,500 departures, including 40,100 citizens and 5900 permanent visa holders who required an exemption to leave; 40% of departures were New Zealand citizens.
DFAT tells Crikey its “highest priority” is helping vulnerable Australians overseas and says the exemption document declaration was consistent with the consular services charter.
“DFAT aims to provide consular assistance to Australian citizens whose welfare is at risk abroad,” it said. “Each situation is unique and our assistance will depend on the circumstances and availability of consular resources.”