• edwinamarieking

COVID-19 - Has Australia sacrificed the rule of law in the bid to win the war against the pandemic?

While this topic has been raised by legal minds much greater than mine, as a current student of law, I have been brought back to the key fundamentals of the Australian legal system and cannot help but fear that the founding factors of our legal system have been abandoned in light of the state of emergency.

Cicero famously wrote that "in times of war the law falls silent" (inter arma enim silent leges). It is understandable that we are at war with the virus and the health and security of Australians must prevail. In saying that, I believe constitutional principles are fundamental in applying emergency requirements under the Biosecurity Act 2015 (Cth).

The rule of law is the principle that government authority must be exercised only in accordance with written, publicly disclosed laws, that are made and enforced in accordance with established procedure. The law must apply to everyone equally, regardless of their position within society. It is exemplified in Lord Atkin's speech in Liversidge v Anderson “…In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace".

Our office has assisted with an extensive number of international travel exemption requests and have found the decision making process under the Australian Border Force Commissioner to be unconstitutional for the reasons set out below.

There has been a clear lack of an established procedure and the policy being implemented in decisions has been inconsistent and in stark contrast to the publicly disclosed information on the Department of Home Affairs website.

There is an exemption for "immediate family members" of Australian citizens and permanent residents to travel to Australia. This definition includes a spouse, de facto partner, dependent child/ren and legal guardian.

The key issue we have identified is that the threshold to evidence a "de facto" relationship" has been set above and beyond any threshold outlined by the courts and migration legislation. De facto couples have been penalised because they do not hold a marriage certificate and cannot enter Australia to legally marry.

Under migration legislation, the "registration of a relationship" holds similar weight to a marriage certificate, in that it waives the necessity to demonstrate 12 months of a de facto relationship prior to lodgement of a partner visa. In our experience registration of relationship certificates have been disregarded in the assessment of travel exemption requests, albeit provided with evidence of the four pillars of the relationship. The emphasis seems to be on evidence of the couple residing together for 12 months prior to making the request for a travel exemption. This archaic reasoning does not take into account couples who live separately for work, study or religious purposes. Or, in fact, those who have been separated since March due to the pandemic restrictions.

The courts have come a long way from this reasoning and in the case of SZOXP, the Full Court of the Federal Court of Australia ruled that there is no express requirement under the Migration Act 1958 for two people to cohabitate prior to lodging an application for a Partner Visa. This begs the question - what definition or process is being referred to in the assessment de facto relationships in the context of travel exemption requests and what is the "established procedure"?

Permission to travel to Australia can also be requested by demonstrating that the applicant is "travelling for compassionate and compelling reasons". "Compelling" is not defined in migration legislation and should be given its normal dictionary meaning: “brought about by moral necessity”. The ordinary dictionary meaning of "compassionate" is "a feeling or showing sympathy for people who are suffering". However, the threshold to meet this criteria has become unobtainable.

We have recently had a young dual Australian citizen about to give birth, on her own, in Australia, diagnosed with a high risk pregnancy and her partner was refused entry as he was not deemed a "de facto" partner and, despite the medical evidence provided, this situation was not deemed compelling and compassionate.

Another young Australian citizen was separated from her partner in the airport upon return to Australia, because his work commitments meant they travelled together for the last 12 months and did not have a fixed address together. Despite providing a certificate of registration of relationship, shared financials, social commitments, household and evidence of commitment to the future together, he was denied permission to enter Australia. This young lady was also in her second trimester of pregnancy and only found out as entering quarantine in Australia. Due to a mishap with blood tests in quarantine it was not determined until her release that the baby had a serious neural defect and she had to have an emergency termination, alone, at 16 weeks - this was deemed not to be a compelling and compassionate reason for her partner to travel to be with her in Australia and they remain separated through the trauma! What is classified as a compelling and compassionate reason and what factors are actually being considered if the ordinary meaning of these words has been disregarded.

It has been emphasized that Australia wants to attract the best and brightest in the skill sector to build the economy. This was made clear in the introduction of the Global Independent Talent visa at the end of last year. Furthermore, an exemption to the travel ban can be requested by demonstrating "skills in a critical sector". However, what consideration is given to the family members of the skilled applicant? We have had a Chief Executive Manager from a large corporate international organisation gain entry to Australia on a temporary work visa just prior to the implementation of the travel ban. His family were due to follow him out and are now left isolated overseas. The family have a young autistic son who has regressed due to the separation from his father and the visa holder's wife is struggling to cope with her PhD studies and supporting their children alone. His role in Australia is critical to the operations of the business and he is torn between his work and his family. Again, this was deemed not to be compelling or compassionate and permission has been refused numerous times. Is this the message Australia wants to send to the industry leaders we are trying to recruit - we will look after you but not your family?

This emphasises the problems that arise when the rule of law is abandoned - the vulnerable in society are left behind or oppressed, human rights are abandoned and social order eventually breaks down. The law must apply to everyone equally, yet we have had requests for permission to exit Australia denied for dual Australian citizens, requesting permission to travel home to see their dying granddad and assist their grieving mother, who was alone. They were told a grandparent dying is not compelling enough! At the same time, a Sydney businessman is given permission to depart Australia to pick up a new luxury yacht in Europe. To me, the scales of justice seems to be unbalanced in the weighing of evidence and this is because the building blocks of the constitution are missing.

Who is balancing the separation of powers and reviewing the decision making process for travel exemption request refusals? Most likely the crisis will have passed before justice is recognized for some people. In the interim, the balance of power continues to tilt in the executive’s favour and jeopardise individual freedoms.

As a student of law, during the COVID- 19 pandemic the following words could not ring more true:

"The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law" - Dwight D. Eisenhower

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