Time for review on COVID-19 border and quarantine restrictions

OPINION

With the McGowan Government announcing earlier this week that the Western Australian hard border will ease on February 5, 2022, Australia is inching ever closer to border closures becoming a thing of the past.

But while many of us would like this to be true, it is important to realise that we’re not there yet. While border restrictions are easing around Australia and State premiers have expressed hope that they will not be necessary in the future, there is no guarantee hard border closures will not happen again.

The tightening of border controls with NSW just days after the Premier’s announcement of the planned February reopening is a stark reminder that the global pandemic is not yet over. The reality is that pandemic-related restrictions will be with us for the foreseeable future.

The planned reopening of State borders eases restrictions but does not remove them entirely.

For example, under the Safe Transition Plan in Western Australia, travel restrictions still apply with respect to people who are unvaccinated, and the WA Health Minister has confirmed that WA residents who travel interstate and then contract COVID-19 will not be allowed to return home until they have recovered.

A system that was set up as a temporary emergency measure has surely reached the point — almost two years on — when the urgency of its establishment can no longer be an excuse for its failings.

A review of the impact that these systems have had on the human rights of Australians is overdue. This is needed both to ensure that exemption processes are effectively tailored to achieving their important public health aims and – even more importantly – that they operate fairly, giving due regard to the enormous impact these decisions have on the lives and wellbeing of individuals and families.

While border closures have played an essential role in keeping Australians safe, there is also no doubt they have caused immeasurable harm to many people.

The impact has been highlighted in Western Australia by several examples in recent weeks.

Hearing fully vaccinated Melbourne parents describe their grief after being denied entry into Western Australia unless they spent two weeks in hotel quarantine, when the sole purpose for their trip was to identify their son’s body and bring him home with them, was heartbreaking.

Similarly, it is hard to understand the public health imperative that would require a 69-year-old great-grandmother to complete the final four hours of her mandatory quarantine period alone in her home after having just been discharged from hospital following an alleged serious assault (which occurred outside a COVID-19 testing clinic that she had attended for her mandatory day 12 test).

While the individual circumstances of these cases may be unique, the seeming inability of border management and quarantine processes to balance risk with compassion has unfortunately been a feature of far too many cases.

Indeed, the recent investigation into the Victorian border crossing permit system by the Victorian Ombudsman highlighted the urgent need for a broader review of these processes.

The investigation showed that in Victoria between July 9 and September 14 2021 there were 33,252 exemption applications received, with only 8 per cent of these being granted.

The Ombudsman was scathing in her assessment of the exemptions scheme, finding that it was “a blunt instrument that resulted in unjust outcomes”, that “the department put significant resources into keeping people out rather than helping them find safe ways to get home” and describing some outcomes as “downright unjust, even inhumane”.

Make no mistake, these issues are not unique to Victoria. Nor are they limited to State border closures. Our international border closures have similarly caused irreparable harm to individuals and families.

It is possible to support border restrictions as an essential part of Australia’s pandemic response, while also recognising that they have had a serious impact on human rights and have led to unjust outcomes in too many cases.

Obviously, governments have a right — indeed, an obligation — to take measures during a pandemic to protect public health and save lives. It is well established under international human rights law that many human rights and freedoms can be legitimately restricted as part of an emergency response.

However, it is also well established that all such limits always need to be (amongst other requirements) justified, necessary and proportionate, and can only continue for as long as this is the case. Even in the middle of an emergency, human rights matter.

This has important implications for the future management of border restrictions. If restrictions and exemption schemes are going to be a continuing part of our transitional response, they need to be properly managed.

At the very least, the processes must be timely and transparent, reasons must be given for decisions, discretion must be exercised in a consistent manner, and a right of review must be available. Recent examples suggest there is considerable room for improvement in each of these areas.

In the middle of an emergency, the immediate priority is dealing with the emergency. This requires decision-making that is swift and responsive. There will not always be time to put the usual checks and balances in place, or to take every possible contingency into account.

But now that we are almost two years on from the start of the pandemic, this calculation has changed.

People should expect that decisions that have such a significant effect on their lives should be made with due regard to their human rights. Safety and compassion should not be mutually exclusive.