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 United States 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 University of Canberra 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 Health 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. While the ban was taken to the Federal Court, the challenge was limited to a narrower public law issue and the ban ended before the Constitutional law was addressed.
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.”
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In general Australians are much more properly styled subjects (of the Crown) rather than citizens (with inalienable rights). I know of numerous occurrences where people have naively sought consular help and got none. Friends working in DFAT have looked at me with bemusement at the idea that such help would be a diplomatic priority. Austrade officials might make an exception for a travelling business person but I would not count on it. Serving the national interest does not mean looking after travellers. You should assume you are your own and just hope the local officials don’t know just how little the Australian government is likely to care about what they do to you.
I know one region across several nations where there is a sporting league (including dual citizen or resident Australians) whose network could probably find and connect someone in distress anywhere in the region within 30 minutes anytime; take just a few calls.
Conversely if they tried DFAT i.e. Consulate at a weekend or evening they are as likely to get a message and be directed to Oz then informed that someone will/may call them back…..
Unfortunately I have read too many instances over the decades, of Australians traveling overseas, for whatever reason, needing Australian consular assistance, and getting none (Unless a sympathetic MP gets involved).
Just like returned services veterans are always looked after.
Just another quality service our Australian Government consistently does not proved for its citizens (patriotism is a one way deal).
Yes and add those risking their lives for Australian soldiers in Afghanistan .
Two questions:
Embassies are not set up to help poor individual travelers who may be caught up in a US or Chinese staged coup. They are set up as spy agencies and business facilitators. Marise Payne as a Young Liberal, as Phillip Adams pointed out some forty years ago, about Young Liberals, has less intellectual capacity than an average yabby; so we can’t expect too much in the way of justice for people who fall foul of the various despots around the world from her.
As she was a woman I was prepared to give her the benefit of the doubt with regards to empathy for people who end up in difficult circumstances, but it turns out she is a bitch. Just as Morrison and Potato Head are bastards or more accurately dogs the male variant on the ubiquitous scavengers who are held in such high esteem by many. The ones that people keep as pets, because they don’t know any better.
I prefer cats, they share more DNA with us humans than dogs, they don’t take delight in rolling in feces and they don’t continuously bark at non events. Cats also keep themselves clean, they don’t smell and they rid the house of vermin like mice, rats and spiders and as at leat one You-Tube Video shows; dogs.
The Egyptians worshiped cats and looked down on dogs and quickly realised that a person with dog like characteristics was just that a dog. Not very nice.
Egyptians worshipped cats because they were an agricultural society with grain stores and household furnishings to protect.
Dogs were probably first domesticated as a food source which came when called.
BTW, dogs as we now know them, have been bred to bark – for our purposes.
In nature, ie a dingo or wolf, they would be silent unless sending a message to their fellows in the evening howl.
Unfortunately one must triage – those who put themselves in danger intentionally and those who, by unfortunate happenstance, find themselves in difficulties. There is the rub .
Why? How many people does Desmond know “who put themselves in danger intentionally”? What of the politicians whose orders directly contributed to two decades of State-sponsored murder in Afghanistan and Iraq?
As I have pointed out many times, HUNDREDS of BILLIONS of annual Budget dollars goes to line the bank accounts and tax havens of those certainly not in need (except of a good tax accountant and political lobbyist – plus brown paper bag – for favours). “We” have ample funds to increase low incomes well above what JobSeeker has managed – but doing so would directly conflict with decades of bipartisan policy to cut wages (while enriching the filthy rich).
Refusal to publicly fund quarantine sufficient to allow the rapid return of citizens and permanent residents overseas is likewise not just because ex-Border Generalissimo-MP morrison built a political career on such brutalities, but also because the wealth of our society is to his kind not for the benefit of us but the rightful property of those like him who control us. Hence often unaffordable self-funding for quarantine, rather than by a Misgovernment that would not notice the cost, but has eye-watering tax giveaways to its mates to fund.
Here as with boat refugees, we again see the eagerness to victimise, to smear, and to blame.
That triage decision can be made within existing arrangements and protocols, without the need to explicitly spell out that assistance may be denied. The precedent it sets is dangerous.