This post has been contributed by Associate Professor Olivera Simic, Griffith Law School and a member of the Law Futures Centre.

Part of this post are based on Olivera Simic, ‘Australia, Covid-19, and the India Travel Ban’ (2022) 9 Griffith Journal of Law and Human Dignity.

While most countries in the world have experienced thousands of deaths and cases of infection, Australia has been praised for its response to the pandemic and efforts to save lives. Most of the deaths and infectious cases had been acquired only from July 2021. Prior to this time in the pandemic, Australia had been largely free of the virus. Until July 2021, the majority of infected cases were not from community transmission but detected from within the hotel quarantine system that housed Australian citizens returning from overseas. Due to early closure of international borders with exemptions only for Australian citizens, permanent residents, and their immediate family, Australians have been living mostly ‘COVID-19 free lives.’ Apart from New South Wales and Melbourne, where the repeated heavy-handed lockdowns lasted more than six months during 2020 and 2021, most other states and their citizens have lived “normal” lives in comparison to other countries in the world. Australia’s success relied on a strong public health response enforced by the government that focused on vigilant testing, tracing, and quarantine. It also relied on the closing of international borders which prevented citizens and non-citizens from not only entering the country, but also from leaving it.

However, this success has come with a mostly invisible and unacknowledged human cost. Until 1 November 2021, the international border had been closed for 19 months, prohibiting Australians from travelling out of the country unless they had an exemption. In August 2021, the government introduced exemptions for Australian citizens who ordinarily reside in other countries too. They must seek exemption to leave Australia if they wanted to return to their country of residence. Australia was the only democratic country that locked in its citizens by effectively banning them from leaving the country under the pretext of safeguarding public health.

Australia was also the only country to have locked out its citizens through the imposition of travel caps on the number of people who can return home due to the limited number of available quarantine spaces. The combination of international border closures and a limited number of passengers per flight with only a handful of airlines willing to still fly to Australia created disarray in international travel. As of September 2021, more than 45,000 Australians remained stranded overseas, not being able to return to their homes. These citizens are registered with the Department of Foreign Affairs and Trade as willing to return to Australia on one of the government’s repatriation flights. Most of them were stranded in India. At least 54 Australian citizens have died from COVID-19 while abroad waiting to return home. In April 2021, exhausted and disappointed from being ignored by the government to be allowed to return to their country, three Australian citizens who had been stranded overseas for months lodged a petition to the United Nations Human Rights Committee.

Australian states have also occasionally denied their own citizens the right to cross interstate borders and return home. The closure of interstate borders was done with a heavy hand; there were cases where even people who were terminally ill and needed to go back home to continue with their treatment were denied doing so. Due to the closure of interstate borders, Australian citizens within Australia reportedly felt exiled like refugees and internally displaced people in their own country. Some even made makeshift camps near the borders of Victoria and New South Wales. Mainly older people have been camping in caravans in “no man’s land” waiting to be allowed to return home or to see a dying family member.

There have been numerous heart wrenching stories of separation of family members during the COVID-19 pandemic. There were more than 400 children stranded overseas indefinitely separated from their parents. More than 200 of these children were stranded in India.  Arguably one of the biggest moral failures was a ban on returning from India under the threat of jail and monetary fines. The ban was controversial, in operation for two weeks in May 2021, and according to the government “targeted and temporary.”

On 30 April 2021, the government threatened fines of $66,000 or five years’ imprisonment (or both) for anyone trying to return from India to Australia.  It has been estimated that of more than 45,000 stranded citizens, approximately 9,000 were stranded in India at the time of the decision. Although this was not the first heavy-handed measure that the Australian Government enforced during the pandemic, it is the one that sparked widespread public outrage. In a span of a few days, a multitude of media articles were published criticising the decision, with many lawyers and academics writing about its potential unlawfulness and unconstitutionality. Such extraordinary measures caught many by surprise and left Australians with Indian heritage in despair, some of which were in life-threatening situations and eventually died from the virus.

The Right to Return

Measures that limit individual rights and civil liberties must be necessary, reasonable, proportionate, equitable, non-discriminatory, and in full compliance with national and international laws. The right of return is a principle in international law which guarantees everyone’s right of voluntary return to, or re-entry to, their country of origin or of citizenship. The right of return is part of the broader human rights concept of freedom of movement and is also related to the legal concept of nationality.

In contrast to most Western democracies, where responses to the pandemic were arguably slower and perhaps more human rights oriented, the Chinese and Australian governments immediately introduced heavy-handed measures. While other countries restricted freedom of movement and limited travel, Australia and New Zealand closed their borders indefinitely. As island countries it seemed appropriate and logical to do so. However, unlike New Zealand, Australia also banned its own citizens from leaving the country without seeking government permission. The right of return to the country of citizenship is a principle enshrined in the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, and the 1948 Fourth Geneva Convention. The idea that a citizen has a fundamental right to return freely to their country has deep historical roots. Under common law, this stems from the Magna Carta Project which states, “it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm…”

The limitations on the right of re-entry to the country of citizenship require serious justification. The UN Human Rights Committee has stated that there are “few, in any circumstances in which deprivation of the right to enter one’s own country could be reasonable.” However, there is no UN Human Rights Committee jurisprudence regarding how a public health emergency interacts with the right of re-entry to the country of citizenship.

The India travel ban

In April 2021, India was battling a second wave of COVID-19, coupled with oxygen and vaccine shortages. India had recorded more than 400,000 COVID-19 cases during this time – a global record up to that point. Deaths from COVID-19 jumped by 3,523 per day, taking the total toll in India to 211,853 according to federal health ministry data. The health system in the country, already in a dire situation, was on the brink of collapse. Most Indian cities were experiencing the ultimate crash of an inadequate health system. Hospitals were overwhelmed with the amount of people in need of care, along with a severe shortage of oxygen supply and life-saving equipment. 

On 27 April 2021, in response to a rising number of positive cases in hotel quarantine from people returning from India during its second wave, the Australian Government suspended direct flights from India to Australia. On 1 May 2021, the Health Minister Greg Hunt issued “a determination” under the Biosecurity Act which temporarily halted all direct and indirect air travel from India and introduced criminal penalties of five years’ imprisonment, fines of up to $66,000, or both. Australians exercising their right to return home could be jailed for an offence that the Parliament of Australia had never debated nor agreed upon. For the first time ever, the sole act of Australians returning home from India was regarded a criminal offence.

Western Australian Premier Mark McGowan, who called for Australia to seriously consider a possible ban on all travellers from India publicly stated that since “India is an epicentre of death and destruction as we speak. I don’t think there is any need to go to India.”  While many Australians would not have any reason to travel to India during those times, some Australian Indians had travelled to India before the outbreak to visit or bury their loved ones. Indians are the second-largest group of migrants in Australia; its diaspora numbers reach approximately 700,000 and many Australians have families and loved ones in India.

Although other countries have also faced a high volume of cases and deaths, flights to Australia from these countries have never been banned. The issue of racial discrimination was raised by some commentators because the same kind of rule was not imposed on people of Anglo-Saxon heritage from the UK or the US, both of which saw hundreds of thousands of cases and deaths in the second wave of COVID-19. Flights from these countries have never been banned nor have Australian citizens from them been threatened by criminalisation if they did try to return home. Evidently, different standards have been applied to those stranded in India. The government was widely criticised by the Australian Human Rights Commission and human rights experts raised “serious human rights concerns.”


While Australia has been very successful at curtailing the spread of the COVID-19 virus, it also left thousands of people in distress at being separated from their loved ones across borders and some in life threatening situations. Those who were already marginalised individuals and groups, such as refugees and migrants, have been placed even more at risk of death or serious health consequences because they were unable to rely on the healthcare systems in the countries they had been stranded in.

The closure of international borders and occasional closures of interstate borders has brought suffering to many Australian citizens who are unable to return to their loved ones even in the last hours of their lives. Migrants who have overseas family members were indefinitely separated. Citizens with family members spread across different states in Australia have been cut off from their families for prolonged periods of time. The difference between these two categories of citizens is that the international borders were not re-opened even once during those 19 months, intrastate borders have had periods when they were fully open so that people could travel and reunite with their families.

Under the International Covenant on Civil and Political Rights, citizens have a clear right to enter their country of citizenship. If this right is quashed or allowed to some citizens and denied to others, then, as Professor Kim Rubenstein asks, “what is the point of citizenship and passports when citizens cannot enter their own country?” The right to enter one’s own country should not be arbitrarily denied, and in the case of the India travel ban, a complete, blanket exercise of the common law instrument denying all Australians in India the right of entry no matter the circumstances was unacceptable. The failure of the Australian Government to return citizens and permanent residents to their country of citizenship arguably amounts to an Australian policy failure and a breach of international law.