The Australians stuck overseas have learned a bitter truth. Our rights stop at the border, and we have no recourse beyond it.

 

 

A few weeks ago, a group of desperate Australians who are stranded abroad filed legal action against the federal government. Most of them have been in dire straits now for more than a year, and the vaccine shambles will stretch that period into infinity.

When the pandemic started and Scott Morrison told them to come home ‘or shelter in place’, they did what he advised. People gave up jobs, sold houses, packed their belongings, cancelled their children’s education and booked a flight home as soon as possible. They budgeted for quarantine and when a vaccine became available, they made sure they got the jab.

And still, they are not home. Because of the government’s caps, only a limited amount of travellers can come into the country, and there are an estimated 40,000 Australians waiting to return. They told their horror stories, but Australians safely ensconced on their island were not interested and not moved. Some political parties tried to help them but got nowhere. And now the Morrison government has announced that fewer, not more Australians will return in future. Priority will be given to skilled migrants and because the caps stay the same, our fellow citizens will be waiting even longer before they will be able to live their lives as citizens of our country.

Now they have decided to go to court. To the only court that will take their complaint, the UN Human Rights Committee in Geneva. Here, they have launched a petition against the government ‘arbitrarily breaching their right to return to the land of their birth or citizenship’. Famous lawyer and silk Geoffrey Robertson is advising them and will present the petition. He bases himself on the International Covenant on Civil and Political Rights. ‘The right to return to your country is fundamental in international law’, he says, adding that he regards the response so far as ‘a failure of government’.

 

To the only court that will take their complaint, the UN Human Rights Committee in Geneva. Here, they have launched a petition against the government ‘arbitrarily breaching their right to return to the land of their birth or citizenship’.

 

 All of this would be so much easier if Australia had a Bill of Rights. But we don’t and we are the only liberal democracy without it. And that has consequences. Not just for the stranded Australians, but for all of us. Without a Bill of Rights, there is no path within the Australian judicial system to challenge the government. If the government does something that violates what you think are your rights as a citizen, you have nowhere to go.

Only Victoria and the ACT have human rights acts and the Constitution doesn’t protect us either. There are only five limited rights. We have the right to vote, to trial by jury, to freedom of religion and to ‘protection against acquisition of property on unjust terms’ (which, as we have seen in Jannali recently, doesn’t shield you if the government wants to compulsory take your house). There is also a ‘prohibition on discrimination on the basis of the state of residency’, which doesn’t mean much in practice either. That is it. We have no freedom of speech, movement, press, protest, or assembly. That means that we can do nothing against human rights abuses (like the Intervention), the way Indigenous people and asylum seekers and refugees are treated or ASIO taking more liberties that limit ours. And because governments know we are powerless, they do a worse job than they would otherwise. That famous Morrison smirk? That is where it comes from.

Geoffrey Robertson has been advocated a Bill of Rights for decades. More than ten years ago, he explained that without it, a lot of people unnecessarily fall between the cracks and have nowhere to go to protest. He thought, and still thinks, that ‘indignities and iniquities can be ameliorated by a federal Bill of Rights. It would offer some chance of betterment for the poor and oppressed. Most of its antagonists condemn the idea of a charter because they believe it is some kind of left-wing plot. They are wrong. It is a conservative idea to limit the powers of government and entrench citizens’ rights in common law.

In 1948, Winston Churchill urged a Bill of Rights for all countries “ensuring that the people own the government, not the government, the people. It is a check on government power. If citizens’ rights are not capable of legal enforcement, they are not rights, but empty promises.”

 

For us, it seems that citizenship ends at the border. And even within the country, we have few rights.

 

Robertson was then responding to one of the attempts to get a Bill of Rights accepted by the Australian Parliament. In 2009, then PM Kevin Rudd had asked Frank Brennan to head up a National Human Rights Consultation. Brennan spent nine months travelling the country to hear submissions and then reported that a lot was wrong that could be fixed with a Bill of Rights. His opponents said it would curtail the powers of parliament and should therefore not be accepted. And when Rudd left office shortly afterwards, the Report ended up in the proverbial draw.

Of course, it is true that parliament loses power with a Bill of Rights, because in every country that has a Bill of Rights, “the judiciary would have the power to invalidate an Act of Parliament, common rule law or official action which was contrary to the Bill of Rights”, to quote from the New Zealand version.

That means that parliament has to be careful not to violate citizens’ rights or they can go to court and have those measures overturned. We can do none of that now and our representatives want to keep it that way. They like their power and they obviously don’t like the idea of citizens limiting that. We can see this in the way they respond when somebody introduces the idea of a Bill of Rights. Independent MP Andrew Wilkie has tried twice now. Once in 2017, when it was defeated. In 2019, he tried again with the same result.

This is why Australian citizens are still abroad and can’t do anything to change their desperate situation. New Zealanders, on the other hand, who do have a Bill of Rights, are far less stranded. Their government uses a pre-booking quarantine system that guarantees placement and therefore a flight home. The result is double the amount of returned citizens per capita compared to Australia.

For us, it seems that citizenship ends at the border. And even within the country, we have few rights.

Apparently, we like it that way.

 

 

 

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