Australia, Covid-19, and the India Travel Ban


  • Olivera Simic Griffith Law School


As of 20 March 2020, the Australian Government closed the country’s international borders and enforced a ban on overseas travel to and from the country. The citizens of Australia have become the only citizens among democratic nations who cannot leave the country unless they receive an exemption from the Department of Home Affairs. Australia’s ban on travel has been among the strictest in the world. On 30 April 2021, the Morrison Government moved to threaten Australians trying to return home from the then COVID-19-ravaged India with fines and jail time. This was the first time in its history that Australia banned its own citizens from returning to their homeland, to the point of enacting criminal sanctions for those who attempted to do so. In this paper, I look at how extraordinary measures stipulated in the Biosecurity Act 2015 (Cth) have affected Australian citizens’ human rights and freedoms. I use the India travel ban as a case study in this paper. The paper argues the unprecedented move to ban all flights to and from India by the federal overnment was disproportionate, unnecessary, and life threatening for stranded citizens. I draw on media, human rights reports, and available data to analyse how the biosecurity laws were arguably enforced with little or no regard for fundamental human rights, including the right to life and healthcare. This decision ultimately resulted in the deaths of overseas citizens from COVID-19, who were banned from returning to their own homeland.



A Articles/Books/Reports

Boll, Alfred Michael, Multiple Nationality and International Law (Brill Publishing, 2007)

Dechent, Susanna, Sharmin Tania and Jackie Mapulanga-Hulston, ‘Asylum Seeker Children in Nauru: Australia’s International human Rights Obligations and Operational Realities’ (2019) 31(1) International Journal of Refugee Law 83

Devereaux, Annemarie, ‘Australia’s Journey to Ratification of the ICESCR and ICCPR’ (2019) 36(1) The Australian Year Book of International Law Online 163

Nyamutata, Conrad, ‘Do Civil Liberties Really Matter During Pandemics?’ (2020) 9(1) International Human Rights Law Review 62

Rosand, Eric, ‘The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent?’ (1998) 19(4) Michigan Journal of International Law 1091

Saul, Ben, ‘Indefinite security detention and refugee children and families in Australia: International human rights law dimensions’ (2013) 20 Australian International Law Journal 55

B Legislation/Treaties

Australian Constitution

Biosecurity Act 2015 (Cth)

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Cth)

Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Universal Declaration of Human Rights, opened for signature 10 December 1948, GA Res 217A (III)

C Cases

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgement) [2007] ICJ Rep 43, 184

Newman v Minister for Health and Aged Care [2021] FCA 517

Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483

Potter v Minahan [1908] HCA 63

Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560

D Other

ABC News (Australia), ‘Lawyer Geoffrey Robertson says India travel ban violates essential rights of citizenship | ABC News’ (YouTube, 4 May 2021) <>

Atkinson, Simon, ‘Covid: The lives upended by Australia's sealed border’, BBC News (online, 15 September 2021) <>

‘Australia: 8 Years of Abusive Offshore Asylum Processing’, Human Rights Watch (Web Page, 15 July 2021) <>

‘Australia and the Universal Declaration on Human Rights’, Australian Human Rights Commission (Web Page) <>

Betigeri, Aarti, ‘Indians are becoming visible in Australia like never before’, The Interpreter by the Lowy Institute (online, 28 May 2021) <>

Bourke, Latika, ‘“A bloody outrage”: Leaving Aussies stranded a breach of human rights, says Alexander Downer’, The Sydney Morning Herald (online, 8 April 2021) <>

Byrne, Elizabeth, ‘Federal Court throws out part of challenge to Federal Government’s India travel ban’, ABC News (online, 10 May 2021) <>

‘Chart of Australian Treaty Ratifications as of May 2012’, Australian Human Rights Commission (Web Page) <>

‘Charter or Bill of Rights: Questions and Answers’, Law Council of Australia (Web Page) <>

Coleman, Carl and Andreas Reis, ‘Ethical considerations in developing a public health response to pandemic influenza’, World Health Organisation (Web Page Publication, 2007) <>

Conifer, Dan, ‘Data reveals more than 50 Australian citizens have died from COVID-19 while overseas’, ABC News (online, 5 August 2021) <>

‘COVID-19 and the border: leaving Australia’, Australian Government Department of Home Affairs (Web Page, 5 October 2021) <>

‘COVID-19 experts and community leaders urge politicians to allow schools to open for face-to-face learning in open letter’, ABC News (online, 12 January 2022) <>

‘COVID-19: Inbound passenger cap decreased’, Berry Appleman & Leiden LLP (Web Page, 16 July 2021) <>

‘Covid-19 in the UK: How many coronavirus cases are there in my area?’, BBC News (online, 18 October 2021) <>

‘COVID 19 summary statistics’, Australian Government Department of Health (Web Page, 22 November 2021) <>

Cramsie, Elizabeth, ‘Annastacia Palaszczuk's comments about COVID-19 travel overseas perplexes Queensland's Indian community’, ABC News (online, 25 September 2021) <>

‘Delhi COVID lockdown extended as India becomes first country to record 400,000 new cases in a day’, ABC News (online, 1 May 2021) <>

‘Depth of Australia’s coercive refugee family separation policy revealed in new report’, Human Rights Law Centre (Web Page, 29 April 2021) <>

Durkin, Patrick, ‘Spike in distressed children presenting to emergency’, Australian Financial Review (online, 2 September 2021) <>

Dziedzic, Stephen, ‘About 900 Australians stuck in COVID-hit India and wanting to return now listed as “vulnerable”, High Commissioner says’, ABC News (online, 5 May 2021) <>

Dziedzic Stephen, and Tom Lowrey, ‘First repatriation flight from India arrives in Darwin following end of COVID-19 travel ban’, ABC News (online, 15 May 2021) <>

Feng, Lydia, and Tony Ibrahim, ‘Australians trapped in India during COVID-19 crisis fear for their families’ survival’, ABC News (online, 28 April 2021) <>

Forsaith, Rob and Glenn Valencich, ‘COVID-positive Aussie cricket great in limbo as Maldives BANS travellers from India’, 7 News (online, 14 May 2021) <<>

Galbally, Francis, ‘Banning Citizens? Take a Flying Leap’, The Weekend Australian (online, 7 May 2021) <>

Gilbert, Lachlan, ‘Quarantine quandary: the case for building dedicated facilities’, UNSW Newsroom (online, 4 June 2021) <>

Guardian Sport, ‘Former cricketer Michael Slater says Scott Morrison has “blood on his hands” over India travel ban’, The Guardian (online, 4 May 2021) <>

Haseltine, William A., ‘What Can We Learn From Australia’s Covid-19 Response?’, Forbes (online, 24 March 2021) <>

Hicks, Liz, ‘Australia and the right of repatriation: Why have “stranded” Australian citizens brought a complaint against their government in the United Nations?’, Verfassungsblog (online, 12 April 2021) <>

Hitch, Georgia, ‘Scott Morrison defends India COVID travel ban after criticism of jail time and fines for citizens who try and return’, ABC News (online, 4 May 2021) <>

‘How are human rights protected in Australian law?’, Australian Human Rights Commission (Web Page) <>

Hunt, Greg, ‘COVID-19 emergency measures extended for a further three months’, Australian Government Department of Health (Web Page, 2 September 2021) <>

Hurst, Daniel, ‘UN urges Australia to act quickly to bring stranded Australians home’, The Guardian (online, 16 April 2021) <>

Hurst, Daniel and Elias Visontay, ‘Constitutional question: is it legal to limit how many Australian citizens can fly home each week?’, The Guardian (online, 26 August 2020) <>

‘India travel ban exposes gaping void in Australian human rights protections’, Australian Lawyers for Human Rights (Web Page, 4 May 2021) <>

‘Is the India travel ban constitutional?’, RN Breakfast with Fran Kelly (ABC Radio, 3 May 2021) <>

Issa, Antoun, ‘Have Australians in India been abandoned because people of colour are seen as “less” Australian?’, The Guardian (online, 7 May 2021) <>

Johnson, Sian, ‘Victorian couple “stunned” woman not allowed to return home for pancreatic cancer treatment’, ABC News (online, 3 September 2021) <>

Kagi, Jacob, ‘Critics blast Federal Government's 'immoral and un-Australian' ban on citizens returning from India’, ABC News (online, 2 May 2021) <>

Keck, Madeleine, ‘Australian Court Rules the Government Has ‘Duty of Care’ to Protect Young People From Climate Change’, Global Citizen (online, 2 June 2021) <>

Kumar, Akshaya, ‘Indian Coronavirus Outbreak Shows Australia is on the Wrong Side of the Global Fight Over Vaccine Access’, ABC News (online, 2 May 2021) <>

Law, Pete, ‘Mark McGowan calls for possible ban on all travellers from India after virus jumps between Mercure Hotel rooms’, The West Australian (online, 21 April 2021) <>

‘Learn about being an Australian citizen’, Australian Government Department of Home Affairs (Web Page, 29 October 2020) <>

Luu, Jennifer, ‘Australia is failing to meet its basic human rights obligations, report finds’, SBS News (online, 25 June 2020) <>

Makkar, Sahil, ‘Most Australians stranded overseas are in India, only three repatriation flights planned in June’, SBS News (online, 4 June 2021) <>

Marsh, Stuart, ‘Legal challenge against India travel ban rejected in the Federal Court’, 9 News (online, 10 May 2021) <>

Martin, Sarah, ‘Australians could die from Covid in India under travel ban, medical chief warns’, The Guardian (online, 3 May 2021) <>

Martin, Sarah, ‘“People will die”: Indian-Australian community leaders call on government to evacuate vulnerable Australians’, The Guardian (online, 5 May 2021) <>

Masters, Rebecca, Richard Wood, Emily Bennett and Freya Noble, ‘Three-year-old boy granted exemption to cross Queensland-NSW border, after health minister called rules “profound moral failure”’, 9 News (online, 2 September 2021) <>

McAdam, Jane, ‘Should Aussies stranded overseas go to the United Nations for help to get home?’, ABC News (online, 3 February 2021) <>

McGowan, Michael, ‘Marise Payne denies racism motivated ban on Australian citizens returning from Covid-ravaged India’, The Guardian (online, 2 May 2021) <>

Meixner, Sophie, ‘Australia’s outbound travel ban is one of the strictest coronavirus public health responses in the world’, ABC News (online, 31 August 2020) <>

Middleton, Karen, ‘As more than 25,000 Australians wait for the chance to return home, at least one legal expert says the travel restrictions may breach the constitutional rights of citizens’, The Saturday Paper (online, 19 September 2020) <>

Mimis, Sheri, ‘Human rights lawyers “outraged” by “unconstitutional” India travel ban’, 9 Now A Current Affair (online, 20 May 2021) <>

Murphy, Katharine, Paul Karp and Mostafa Rachwani, ‘Covid crisis: Australians trying to return home from India face up to $66,000 fine or five years jail’, The Guardian (online, 1 May 2021) <>

Noori Farzan, Antonia, and Miriam Berger, ‘Melbourne lifts one of world’s longest lockdowns after 111 days’, The Washington Post (online, 28 October 2020) <>

Pillai, Sangeetha, ‘Australia’s decision to ban its citizens from returning from India: Is it legal? Is it moral? Is it just?’, ABC News (online, 7 May 2021) <>

Rangarajan, Rashmi, ‘Unethical and immoral’: Travel bans, COVID-19, and the disregard for human dignity’, Lens by Monash University (online, 7 May 2021) <>

Ransley, Ellen and Darren Cartwright, ‘The heartbreaking face of QLD premier’s iron fist approach to borders’, The West Australian (online, 2 September 2021) <>

Raphael, Angie, ‘West Australian Premier Mark McGowan among those calling for a temporary ban on travellers from India’, (online, 22 April 2021) <>

‘Reverse fines for Australians in India and bring them home safely’, Australian Medical Association (Web Page, 4 May 2021) <>

‘Right to freedom of movement: Public sector guidance sheet’, Australian Government Attorney-General Department (Web Page)

Rothwell, Donald R, ‘When border control goes over the line’, The Interpreter by the Lowy Institute (online, 19 May 2021) <>

Rubenstein, Kim, ‘Why MPs are unwilling to do more for Australians trapped by COVID travel bans?’, The Sydney Morning Herald (online, 21 April 2021) <>

Ryan, Hannah and Tiffanie Turnbull, ‘“WE ARE NOTHING”: Over 9000 Australians stranded in India amid worsening COVID-19 crisis’, 7 News (online, 3 May 2021) <>

Schelle, Caroline, ‘Sister’s mercy mission to be with terminally ill brother in Victoria’, (online, 15 August 2021) <>

Soutphommasane, Tim and Marc Stears, ‘Government responses to COVID-19 are undermining our democratic commitments: why have progressives remained silent?’, ABC News (online, 1 September 2021) <>

Stayner, Tom, ‘More than 200 Australian children remain stuck in coronavirus-ravaged India’, SBS News (online, 3 June 2021) <>

Strong, Matthew, ‘JAL flies 41 Taiwanese, 3 Indians from India to Taiwan’, Taiwan News (online, 8 May 2021) <>

Summerson (trans), ‘The 1215 Magna Carta: Clause 42’, The Magna Carta Project (Web Page) <>

The New York Times, ‘Coronavirus in the U.S.: Latest Map and Case Count’, The New York Times (online, 17 October 2021) <>

‘The Role of the Diaspora: An India Economic Strategy to 2035’, Australian Government Department of Foreign Affairs and Trade (Web Page) <>

‘The UN Children’s Convention and Australia’, Australian Human Rights Commission (Web Page, 1991) <>

Visontay, Elias, ‘More than 45,000 Australians stranded overseas registered for government help’, The Guardian (online, 21 September 2021) <>

Visontay, Elias, ‘Planes fly empty into Australia as international arrivals Covid cap bites’, The Guardian (online, 7 July 2021) <>

Wahlquist, Calla, ‘How Melbourne’s “short, sharp” Covid lockdowns became the longest in the world’, The Guardian (online, 2 October 2021) <>

Waters, Carly, ‘Australian cricketers and staff touch down in Sydney after leaving coronavirus-stricken India’, 9 News (online, 17 May 2021) <>

‘What is Duty of Care?’, Slater and Gordon Lawyers (Web Page) <>

Whitson, Rhiana, ‘Australia plans to reopen international borders by Christmas, but detail is light on’, ABC News (online, 27 September 2021) <>

Yosufzai, Rashida, ‘Australian Indians slam Queensland premier’s “sarcastic” comment’, SBS News (online, 25 September 2021) <>