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Australia's cap on arrivals during Covid pandemic may break international laws

Paul Karp and Elias Visontay
·4-min read
<span>Photograph: Paul Kane/Getty Images</span>
Photograph: Paul Kane/Getty Images

Australia’s cap on arrivals from overseas may breach international laws guaranteeing children can be reunited with their families and citizens cannot be excluded from their home, the Australian Human Rights Commission has said.

The commission’s president, Rosalind Croucher, revealed on Thursday it had received “a number” of human rights complaints about the travel cap and she was concerned Australia “may not be meeting the obligation in article 10 of the Convention on the Rights of the Child”.

That section required signatories to “take steps in an ‘expeditious manner’ to enable a child or their parents to enter or leave Australia for the purpose of family reunification”, she told Senate estimates.

Guardian Australia is also aware the AHRC has told at least one complainant the caps could breach article 12 of the International Covenant on Civil and Political Rights, that “no one shall be arbitrarily deprived of the right to enter his own country”.

Related: Business class was my chance to get home. After 24 hours of niceness, I wish I had my $7,000 back | Lewis Jackson

National cabinet capped weekly arrivals at 4,000 in July due to limits on hotel quarantine after Victoria suspended its quarantine program, the source of the second wave of coronavirus infections. As the number of Australians stranded overseas continued to grow, in September national cabinet relented to public pressure by lifting the cap to 6,000.

The federal government has now struck a deal with the Northern Territory to further increase capacity by using the Howard Springs facility for quarantine and will charter more commercial flights.

Croucher revealed the AHRC had received 125 complaints in its human rights jurisdiction, some of which involved “travel issues” and family reunification.

The human rights commissioner, Ed Santow, said these related to limited seats on flight to Australia, at high cost, with commercial airlines reportedly giving preference to travellers who could afford business-class fares.

“The government should have a clear strategy how it should support people returning from overseas,” he said.

Santow praised increased repatriation flights from the UK and India operated by Qantas as “the sort of activity that will deal with some of the concerns we’re hearing”.

Croucher conceded that rights such as reunification of families “are subject to considerations like public health”. But given measures to combat the coronavirus have been in place “for such a long time” they should be re-examined.

Guardian Australia understands the AHRC has approached the Department of Home Affairs with its concern that the arrival caps are breaching key rights, including article 12 of the ICCPR.

In one case, the AHRC has said it is “progressing” a complaint lodged by a family of three who have been stuck in Paris since their flight home to Perth was cancelled in July, with subsequent flights also cancelled.

The family who lodged the complaint – who have asked to remain anonymous – argue they could quarantine at their home in Perth if electronic tracking were adopted.

“The commission is inquiring into the passenger arrival caps, including the department’s administration, management and/or enforcement of the passenger arrival caps,” the letter from the AHRC said.

Legal experts have warned the cap on international arrivals could be unconstitutional, citing a high court ruling that the right of an “Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or ‘clearance’ from the executive”.

Croucher told estimates she was “concerned at the lack of transparency in explaining the continued justification for some emergency measures, and even for identifying precisely which level of government is responsible for some of them”.

“The complexity of our federal system also makes it difficult to ensure appropriate scrutiny of these measures,” she said.

“For example, who is responsible to assist Australians to be repatriated to Australia? It would seem it is a federal obligation, and something where consular assistance would be necessary. But it is the role of states to determine how many passengers can arrive in each state or territory.”

Related: Two-week trip to New Zealand turns into seven-month Covid holiday

A federal government spokesperson told Guardian Australia the infrastructure department made “variations to the timetables operated by airlines into Australia to give effect to international passenger arrival caps” in cooperation with the airlines.

“These measures are given effect through use of the air navigation regulations 2016,” the spokesperson said.

Croucher said between January and October the AHRC had received 316 complaints relating to Covid.

The race discrimination commissioner, Chin Tan, said there had been a “substantial rise in race activities, particularly directed at some communities including Asian communities”. He said both racism and rightwing extremism had increased, and the two were “entwined”.