Desperate Australians in India inexplicably cut off from refuge in their own country

UNPRECEDENTED: The Australian government has explicitly criminalised any attempt to defy the ban on flights from India
UNPRECEDENTED: The Australian government has explicitly criminalised any attempt to defy the ban on flights from India

In the midst of India's devastating second wave of COVID-19, a situation described in The Guardian by Indian author Arundhati Roy as a crime against humanity, instead of coming to the rescue of our own citizens, the Federal government has abandoned them.

Last week, the Morrison government took the unprecedented step of denying a group of Australian citizens the right to return home, introducing flight bans from the coronavirus-ravaged country.

Late on Saturday evening, the government went further, explicitly criminalising any attempt to defy that ban. Any Australian attempting to return home after being in India during the previous 14-day period could be subject to fines of up to $66,000 or potential jail time.

In short, for what's believed to be the first time in our nation's history, Australian citizens could face imprisonment for exercising their unequivocal right to re-enter their own country. While you let that sink in, let's consider in more detail, the concept of citizenship.

Citizenship is the foundation of every nation state, the most privileged form of nationality. It's a relationship between an individual and a state where in return for owing allegiance and agreeing to meet various obligations and responsibilities as well as abiding by a nation's laws, individuals are conferred with certain rights and privileges. Chiefly among them, is an entitlement to receive that nation's protection, particularly protection while overseas. It also includes an unfettered right to re-enter your country of nationality at will.

International law embodies both of these principles, expressing 'Nationality' as the broad term used to denote all individuals whom a state is obliged to protect. Article 12 of the International Covenant on Civil and Political Rights (ICCPR), which according to the UN high commissioner for human rights is binding on Australia, clearly prescribes that "no one shall be arbitrarily deprived of the right to enter his own country."

Without a Bill of Rights to completely mirror obligations under international law within our domestic legal system, the Federal government has latitude to choose whether to comply, ignore or even repudiate these agreements as the case may be. In the recent past, there have been examples where international conventions have been ignored when it doesn't suit the government's prevailing political narrative.

Whether the government's moves are unlawful will undoubtedly be tested however Australian citizens don't require international law to tell them what they already have every right to expect from their country's political leadership under this social contract. When they are overseas facing genuine extreme danger through no fault of their own, they can rely on the government's obligation to pursue all lengths to protect them and facilitate their return home to safety.

Over the past week, India has reportedly experienced record numbers of new cases and deaths; averaging 350,000 new cases and more than 3000 deaths daily. Chronic nationwide oxygen shortages to treat patients and a critical lack of hospital beds have brought doctors, health professionals and the health system to breaking point.

If there was ever a time to ensure that the 9000 Australian citizens currently stranded in India could seek refuge from the unfolding tragedy taking place there, it's now. However, desperate and in genuine danger, they have been inexplicably cut-off and forced to fend for themselves.

Criminalising the attempts of citizens to return has been met with universal condemnation, including from the Australian Human Rights Commission and Human Rights Watch. HRW's Australia Director, Elaine Pearson, labelled the decision outrageous, noting that Australians have a "right to return to their own country." The UN high commissioner for human rights today raised serious concerns about whether the extreme penalties that may be imposed contravene Australia's human rights obligations.

Much has been made of the fact that India has been singled out, while second and third waves of the coronavirus that occurred in the US, the UK and in Europe did not result in similar travel bans. Epidemiologists, in acknowledging that official COVID data is severely under-reporting the real situation on the ground in India, believe the situation to be far more extreme than has occurred elsewhere. Nevertheless, this should only create further impetus for the Federal Government to explore options and take more decisive action to get those stranded Australians home.

Several nations have systematically stratified the risk profiles attached to various countries, specifying groups of nations that that fall into the COVID-19 high-risk category. However here, it's just India and the arbitrary nature of the measures and their criminal penalties, primarily affecting Australian citizens of Indian descent, has led to accusations of the measures being discriminatory. The government denies this but there is no reality I can imagine where Australian citizens trying to return from the UK, or the US would ever face potential prison time for doing so.

Barring innocent individuals who are forced to flee extreme, life-threatening danger not of their own making, who desperately seek our safety and protection from coming here is nothing new. It is how this country has constructed its entire refugee policy for the past eight years.

Barring innocent individuals who are forced to flee extreme, life-threatening danger not of their own making, who desperately seek our safety and protection from coming here is nothing new. It is how this country has constructed its entire refugee policy for the past eight years.

However now we are talking about our own citizens and the fact that the government considers this measure even vaguely palatable only proves the accuracy of observations made by Greek academic and refugee advocate Loukia Kotronaki. She reflected that actions of governments that violate the rights of one group of people within society produce values that eventually become part of everyday life.

This mentality of segregation, once normalised, becomes dangerous for everyone because it is soon naturally re-produced in the treatment of other groups of society in ways that were once considered unimaginable. This is exactly the case here.

Our country's non-negotiable obligation of prioritising the safety and protection of its own citizens is sacrosanct. Health Minister Greg Hunt has said the measures were introduced to deal with "unmanageable" numbers of people who have returned from India testing positive.

However, it is not unmanageable, only challenging. Rather than abandoning their obligations to their own people and punishing them, the government should direct their energy into taking whatever steps are necessary to rapidly bolster inadequate quarantine infrastructure and devise a strategy to get every citizen home as soon as possible.

  • Angus McDonald is an award-winning artist and documentary filmmaker. Twitter and Instagram @angusmcz