The spectre of continued COVID-19 pandemic travel restrictions has brought to the fore not only the powerful motivational nature of international travel to secure compliance with public health measures, but also the fact that mismanagement of border controls can prolong the local impacts of public health emergencies. Border closures and bans are nothing more than temporary “last resort” measures in emergency circumstances, and must never become a way of life due to their oppressive impact on human rights. Neither should taking away an individuals’ right to decide if they wish to accept a medication like a novel vaccine.
This article examines and makes policy recommendations in respect of the need for a suitable Australian exit strategy from a public emergency-mindset brought about by the pandemic, in order to transition safely through to a new “normal” state of travel for Australians that does not impede public health outcomes nor trample on individuals’ rights. The plan announced by the Prime Minister on 2 July 2021 is insufficient, and does not provide the clear roadmap Australians deserve, and that other countries are providing their citizens. The new plan foresees travel privileges as a carrot held out for people who receive vaccinations but, like the 2002 Tim Deluxe (ft Sam Obernik) track catchily cries “It just won’t do – without you”! I don’t know if I want an Australia where only the conforming-medicated folks get to fly and those who cannot or refuse to, are effectively grounded for life.
As part of this examination I note the primacy of the rights of individuals with respect to their medical and social autonomy in terms expressed and ratified by Australia’s adherence to certain international instruments, as well as its own explicit and implied freedoms.
The corollary of this review is that safety, security and compliance with Government policy that takes Australians out of an emergency mindset to a safer and more vigilant, compromise of “normal” travel freedoms, requires certainty of purpose and careful thought to unify people, businesses and equity of promised outcome. That is, Australians should be given suitable options for future travel freedoms (eg, as discussed below, short home quarantine upon return for vaccinated persons with post travel testing), but not be excluded altogether from travelling if they exercise their discretion to not be vaccinated. In that case there can and should be a requirement to undertake other relevant and appropriate risk mitigation measures (eg, hotel or other self-funded longer quarantine for unvaccinated persons along with more frequent post travel testing).
At no time should vaccination mediate the crossing of borders unless the international health community uniformly decides that this should be the case.
Travel internationally is unequivocally premised on the aspirational and uniform international benefits of safe transport. For example, this is expressed in the constitution of international aviation, the International Convention on Civil Aviation (Chicago Convention 1944), in terms that reflect benefits to society like helping to create and preserve friendship and understanding among the nations and peoples of the world, avoiding friction and promoting cooperation between nations and peoples, while doing so on the basis of equality of opportunity.
Exceptions to this equality of opportunity are inherently limited, but include public health emergencies.
Ratification of the Chicago Convention 1944 requires Australia to take “effective measures to prevent the spread by means of … communicable disease”. It does this through the application of standards and recommended practices set out in Annex 9 to the Chicago Convention 1944 (Facilitation) and other guidance material which describes the practices involved such as the International Civil Aviation Organisation (ICAO) Facilitation Manual (ICAO DOC 9957).
International aviation and maritime travel both subscribe to the WHO centred International Health Regulations 2005 (IHR2005) to mediate public health disruptions and management of public health emergencies of international concern (PHEIC). The IHR2005:
- Is guided by principles that actions taken under them “shall be with full respect for the dignity, human rights and fundamental freedoms of persons”….“The implementation of these Regulations shall be guided by the Charter of the United Nations and the Constitution of the World Health Organization.”: Art 3.
- “Public health measures shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection” (thus they must be proportionate, and not extreme: Art 43).
- Implementation of health measures taken (pursuant to IHR2005) shall be initiated and completed “without delay, and applied in a transparent and non-discriminatory manner”: Art 42.
- Requires that quarantine and such measures must be paid for by the inbound state rather than international travellers: Art 40.
Further, public health measures must be undertaken in accordance with temporary or standing recommendations made by the WHO. Recommendations are made by the IHR Emergency Committee at its regular meetings, the last of which was on 19 April 2021 at which time the WHO reminded states of their Art 40 (ie, pay for quarantine) requirement.
The upshot of the IHR2005 methods are that burdens placed on travellers by inbound and outbound states should be proportionate to the relevant health risks and in compliance with international law.
There are specific United Nations agencies for both civil air and maritime transport (ICAO and International Maritime Organisation, IMO). ICAO guidance on the restarting of international travel focuses on:
… a phased approach to enable the safe return to high-volume domestic and international air travel for passengers and cargo. The approach introduces a core set of measures to form a baseline aviation health safety protocol to protect air passengers and aviation workers from COVID-19. These measures will enable the growth of global aviation as it recovers from the current pandemic.
The plan (known as the Take-Off Report) notes that the essentials across the world, notwithstanding that states will differ in the ability to and preferred approaches to response to the pandemic. The guiding considerations for aviation are to:
- Remain Focused on Fundamentals: Safety, Security and Efficiency;
- Promote Public Health and Confidence among Passengers, Aviation Workers, and the General Public; and
- Recognize Aviation as a Driver of Economic Recovery.
This is a responsible approach in line with reasonable expectations of both governments and travellers, with the uniformity and safety primary drivers of international transport at its core. ICAO recommends that states implement Public Heath Corridors (PHC). A PHC is formed when two or more states agree to mutually recognize the implemented public health mitigation measures on one or more routes between their States, and an example of this is the Australia-New Zealand “Travel Bubble”. To enable such mutual recognition, States are strongly encouraged to actively collaborate and share information with other States and enter into bilateral or multilateral discussions with each other to implement PHCs in a harmonised manner and mitigate the spread of COVID-19. The PHC approach is the public health equivalent of the bilateral historic driver of exchanging rights and freedoms of air travel that still manage and permit flights internationally today. Thus, it is well established as means by which aviation can once again flourish against a background of diverse country-specific economic and social drivers and needs.
In terms of maritime law, the IMO (of which Australia is a member) invited governments to plan a safe gradual resumption of cruise ship operations as early as November 2020, and yet Australia continues to extend blanket bans with no plan on how to recommence sailings here.
It is against this background of international, cohesive, uniform and risk proportionate approaches to minimising interference with international travel, and burdens on those who would travel, that any local Australian measures to reopen air and sea transport more freely to the world should be drawn and measured.
Australia’s border closures
Australia’s borders are closed – the smarttraveller.gov.au website is headed by the words “Crisis – Do not go overseas. A travel ban is in place. Exemptions apply.”
However, a closer look suggests that there is no hard closure of entry or exit, rather certain travellers can depart, or return to or visit Australia but only if they meet certain exemption conditions and quarantine upon arrival, whether or not they have received COVID vaccinations. The website announces:
When you arrive in Australia you must quarantine for 14 days at designated facilities in your port of arrival, unless you have an exemption or are travelling on a quarantine-free flight from a green zone destination. At this time, vaccination against COVID-19 does not change this quarantine requirement.
This has been largely the case since shortly after the announcement of the pandemic by the WHO in 2020. The number of categories of exemption are broad and have an emphasis on certain prioritised economic needs of Australia such that certain visa holders, for example a foreign national with critical skills or working in a critical sector in Australia or a foreign national sponsored by an employer to work in Australia in an occupation on the Priority Migration Skilled Occupation List (PMSOL), are permitted to come to Australia, or if they have invested significantly (millions of dollars typically) into Australia and qualify for the subclass 188 Business Innovation and Investment (Provisional) Visa. This indicates that while Australia is “closed” it will preferentially open its doors on the basis of its prevailing economic priorities. There is nothing inherently wrong with this but it does not, arguably, properly reflect the countervailing international legal obligations and norms applicable to Australia in terms of minimising interferences with travel for individuals in a way that seeks uniformity in a safe and risk proportionate way.
Australia also manages borders in terms of capping international passenger arrivals. With the introduction of the Australia-New Zealand Travel Bubble international arrivals have significantly risen but still arrivals into Australia who are not Australian, remain high:
Provisional statistics on the number of overseas arrivals to Australia in May 2021 are:
- 115,600 estimated arrivals, an increase of 60,800 compared with the previous month, and
- 44,600 Australian citizens arrivals (39%), 9,900 permanent visa holders (9%), 52,300 New Zealand citizens (45%) and 10,100 temporary visa holders (9%).
Prior to the Bubble roughly half of the arriving passengers were not Australian. It is at least arguable that if Australia considers itself to remain in an emergency response level in respect of the pandemic that it should be capping its entries further (or rather, have capped them further for non-Australians uniformly) to properly reflect its adherence to the values espoused in its travel law international obligations. For the present and immediate future, it is considered that either a brief more restrictive approach be taken on international non-Australian arrivals which is both permissible under international law, and perhaps warranted as a public health measure; and to conclude that restriction with a phased reopening of international travel for Australians and visitors alike under a transparent risk proportionate plan reflecting not only Australia’s international travel law obligations, but the spirit of recovery, cooperation and reward that doing so would represent motivationally for Australia’s people.
At least insofar as reductions (uniformly) of non-Australian arrivals in Australia is concerned, the Prime Minister’s policy announcement of today’s date (2 July 2021) – ie, to reduce by 50% international non-Australian arrivals by 14 July – has captured the need to ensure less arrivals put pressure on local quarantine resources while plans are made for reopening Australia.
Reopening the borders
There seems to be an implicit social presumption prevailing, that vaccination is the way to “get back our freedom”. This concept has, until today, been without any written justification, but been used by governments and those associated with them in the public narrative as if it is the only way forward of opening up travel, and without due regard for the unusual circumstances of the novel COVID vaccines still in testing phases though deployed worldwide in various forms.
Readers may be aware that vaccines recommended or advised in the circumstances of restricting or limiting travel currently and in the past have never been those that are still in the early stages of development or trials or used under emergency or similar authorisations by public health agencies.
It was only as late as today that Australian Premiers and the National Cabinet started publicly describing some relevant aspects of this discussion, for example basic questions such as if vaccination is to the key means of economic recovery from the pandemic, then what threshold of adult population vaccinated will be sufficient to inform a plan to commence reopening borders.
Up to this time the public narrative by western world leaders regarding reopening of travel has suggested that mandatory vaccination is a foregone conclusion. The recent G7 meeting of states produced the Carbis Bay G7 Summit Communique (13 June 2021) which at paragraph 23 implies that mandatory vaccination (to travel) is a certainty:
- We recognise the importance to the global economy of safely restarting international travel, by land, air and sea, and multilateral efforts to achieve this, including new public health guidance on international travel by the WHO, International Civil Aviation Organisation and International Maritime Organisation. We recognise that this will need a set of common standards for travel including interoperability and mutual recognition of digital applications, testing requirements, recognition of vaccination status including exemptions and comparable criteria for when responsive measures may be required. We welcome G7 Transport and Health Ministers’ ongoing discussions and ask them to deepen cooperation to support a safe reopening.
Also, the International Air Transport Association (IATA), which lobbies governments on behalf of its member airlines, and which has developed written material in respect of its “Travel Pass” app solution for facilitating proof of identity and vaccination status/COVID-19 test results states:
IATA Travel Pass will help give governments the confidence to reopen borders without quarantine. To reopen borders without quarantine, governments need to be confident that they are mitigating the risk of importing COVID-19. Testing, or proof of vaccine, is the solution. IATA Travel Pass will manage and verify the secure flow of testing or vaccination information between governments, airlines, laboratories and travelers which will guarantee the traveler’s COVID-19 status.
It must to be remembered that mandatory or agreed vaccination in exchange for travel rights privileges is just one way forward. Others include or are complementary, such as proof of negative test result and/or implementation of the emerging understanding of how proof of immunity due to past infection (such as through demonstration of recent immunoassay blood test results for IGa and IGm for COVID-19) can be used in future facilitation solutions.
Another related means is not to rely wholly on vaccination (which has to date only been made mandatory for Yellow Fever and only for certain destinations – all encompassing restrictions on entry like mandatory vaccination have never before been anticipated nor implemented), but to give the rightful scientifically based prominence on new and emerging treatments for COVID-19 a place in the risk analysis of reopening borders, including the prophylactic and intervention options used and developed by clinicians like “I-MASK+ Prevention & Early Outpatient Treatment Protocol for COVID-19” across many countries with at least encouraging, and in some cases, significant success.
Australia’s present position in terms of reopening travel
Australia currently does not have a concrete published plan or roadmap for reopening travel for Australians, and ending lockdowns and other harsh socioeconomic interventions to mitigate risks of community transmission of COVID-19. The 2 July 2021 announcement of a plan lacks detail and, most importantly, a firm timeline (which features prominently in other states’ plans – see more below).
Australa has, to date, reacted to the COVID-19 pandemic in emergency response terms (ie, activation of the Biosecurity Act 2015 (Cth) provisions, and state based equivalents) rather than considered proactively the reopening of the country in a logical, efficient and risk proportionate way. As noted above, it was only first considered publicly on 2 July 2021.
In 2020 a Victorian report into hotel quarantine considered how to build rights into any new system, and this should be part of the plan that we call on the Government to supply. The 2020 National Review of Hotel Quarantine recommended bolstering Australian quarantine capacity for emergencies, and that must be the preferable view.
Also, I note that Australia presently has no bill of rights and acceleration of national efforts in that regard are needed to support a plan of returning to normal life post-pandemic, to ensure plans account for those rights appropriately. Recourse to the Biosecurity Act 2015 and its inbuilt options to trample on human rights through an emergency, are not tailor made for the unique COVID situation and does not empower the Australian Government to compel mass vaccinations – nor should it ever be amended to provide for it – making the need for concrete human rights explication an urgent necessity. Australia does accede to the international travel and human rights treaties/multilateral conventions but these provide limited assistance as they are largely self-polices.
Australia has in place presently a policy to not make vaccination mandatory, nor to limit access to government services for those who do not receive COVID-19 vaccination, as manifested on the Australian Government and Department of Health websites which provide:
If you choose not to have a COVID-19 vaccine, your eligibility for Government payments won’t be affected.
Mandatory for some? Is that OK?
Australia has recently announced it will make it mandatory for certain workers be vaccinated against COVID-19, and presently requires aged care workers/centres to report numbers vaccinated on a weekly basis.
Australia does impose some disincentives to families in respect of choices to not vaccinate for common childhood diseases, for example:
- Participation in daycare per ss.86 and 87 Public Health Act 2010 (NSW)
- Receive Child Care Subsidy per s.6 A New Tax System (Family Assistance) Act 1999 (Cth) noting s.6(4) gives an exception where a vaccine is temporarily unavailable; and
- Employers have been found to be able to lawfully order employees to be vaccinated for influenza Barber v Goodstart Early Learning (influenza vaccine in childcare industry).
However, these measures are in respect of traditional, well researched and older vaccine types and programs largely preventing against controllable childhood illnesses, and have not been tied to seasonal and changing/mutating diseases like influenza except in very narrow high risk circumstances (such as childcare). It is my position that a broad mandate for adult vaccination against COVID-19 is not supported by nor warranted by the COVID-19 pandemic as neither the level of experience with present vaccine options, nor any need for a blunt adult vaccination option is necessary to control the community transmission of the virus according to the WHO. In their own terms the WHO’s position is:
At the present time, it is WHO’s position that national authorities and conveyance operators should not introduce requirements of proof of COVID-19 vaccination for international travel as a condition for departure or entry, given that there are still critical unknowns regarding the efficacy of vaccination in reducing transmission. In addition, considering that there is limited availability of vaccines, preferential vaccination of travellers could result in inadequate supplies of vaccines for priority populations considered at high risk of severe COVID-19 disease. WHO also recommends that people who are vaccinated should not be exempt from complying with other travel risk-reduction measures.
A nation that departs from such advice does so at the peril of its own perceived sanity or care for its citizens in the eyes of the world, doing so, as it were, all on its own.
How Australia’s next steps might be planned
In my view, Australian Government planning for reopening of international travel should be published, transparent and available for community comment, aligned with international law and policy outlined above in respect of the basis for minimal disruptions for travel, and if tied to vaccination provide trackable expectations in return for medically supported actions and discretions offered to Australian citizens (ie, a clear date for reopening of international travel and upon certain terms, unlike the roughly drawn “National Plan to transition Australia’s National COVID-19 Response” issues on 2 July 2021.
Additionally, such a scheme should be backed by a suitable compensation scheme for those agreeing to take medical actions such as agreeing to vaccination upon such promises, and becoming ill due to serious side effects from such vaccines.
My view is also that Government should minimise to the fullest extent possible, any mandatory or coercive exercise of its powers under the Biosecurity Act 2015 in respect of a reopening pathway. The net social benefit to Australia of such unusual constructs and schemes should be positive in terms of health outcomes and freedom of movement/travel, rather than rely on emergency powers to push a nation into its future.
All of this is premised on the fact that Australian individuals and businesses need certainty as to when emergency powers and impositions will end as regards the COVID-19 pandemic so that they can plan their actions and lives without the prospect of disruption. However, whatever way forward is determined regarding the movement of people internationally must follow international procedure and uniformly be as least intrusive to passengers as possible, reflecting their rights as travellers and their human rights (eg, I would not support a mandate of vaccination in exchange of bare rights to travel unless the rest of the world uniformly does, as is the case with Yellow Fever which is specifically endorsed for such restrictions with suitable procedures by the WHO within the IHR 2005).
Of course, Australian Government action re COVID-19 vaccines should not infringe on Australians’ rights as implied by Australia’s accession to its international obligations in respect of both international travel and human rights, together with Australian-based obligations.
Additionally, Australia needs dedicated national quarantine facilities in each state rather than interim solutions like hotel quarantine, to enable trade and travel to continue in the event of this and future pandemics – other risks to public health and consequent public health emergencies have already been noted and better identification or prediction of their ability to affect us needs to happen. Swine and canine coronaviruses threaten us and may, like COVID-19 and SARS and MERS, prove highly contagious if not self-limited or eliminated through other means, if they spread. This approach is also the recommended view in the National Review of Hotel Quarantine.
Governments, while relying on the guidance of the WHO, should also ensure their own independent expert evaluation of it’s health-related advice is continued in parallel to critically appraise whether conformance with such advice is in the national best interest. Such medical opinion and bases for social action interfering with individuals’ and business’s rights and freedoms must be transparently published and open to critique from the citizenry and not discard alternative narratives and options to universal vaccination such as emerging, clinically effective and recommended prophylactic and treatment regimes in preference for the present narrative “sole solution” approach.
How are other countries reopening travel?
The United Kingdom has eclipsed Australia’s vaccination takeup, but even though it has not reached universal vaccination it has published guidelines and requirements allowing international travel that reflect the realities of the varying degree to which the pandemic has been controlled in diverse nations and geographical locations. Essentially, countries have a traffic light categorisation that import different requirements for inbound UK travellers in respect of quarantine, and testing upon arrival and in the days that follow. Travellers are able to depart the UK freely (bound only by the inbound requirements of the state of destination), and there is a date nominated (19 July) for the reduction of lockdowns.
None of the requirements involve showing proof of vaccination.
The United States has also published international travel rules and guidance that reflects another balanced approach demonstrating a proportionate method of minimising risk of local community transmission from foreign sources. This approach provides slightly different guidelines and information for inbound travellers depending on whether they have been vaccinated for COVID-19 or not.
The recommendation remains to not travel if unvaccinated but it does not restrict travel. Travellers entering the US without vaccination simply have different after travel requirements:
- Get tested with a viral test 3-5 days after travel AND stay home and self-quarantine for a full 7 days after travel.
- Even if you test negative, stay home and self-quarantine for the full 7 days.
- If your test is positive, isolate yourself to protect others from getting infected.
- If you don’t get tested, stay home and self-quarantine for 10 days after travel.
- Avoid being around people who are at increased risk for severe illness for 14 days, whether you get tested or not.
- Self-monitor for COVID-19 symptoms; isolate and get tested if you develop symptoms.
- Follow all state and local recommendations or requirements.
Those who are vaccinated must comply with the following:
- Get tested with a viral test 3-5 days after travel.
- If your test is positive, isolate yourself to protect others from getting infected.
- Self-monitor for COVID-19 symptoms; isolate and get tested if you develop symptoms.
- Follow all state and local recommendations or requirements after travel.
The upshot of these approaches is that planning can and should predate significant or universal uptake of COVID-19 vaccination, and need not be strictly reliant on coercive or limiting policies requiring the exchange of individuals’ own personal medical sovereignty for travel rights and privileges. I would strongly advocate for a similarly balanced approach in Australia that phases in travel in consonance with a suitable risk mitigating series of mechanisms involving but not solely relying on vaccinations, and conforming to a transparent but discrete plan that provides hope to all that the pandemic will (as it must) end.
- Government planning for reopening of travel should be:
- published as a priority,
- available for public and expert comment,
- in accordance with international and Australian law, and emerging policy and norms in the international community (eg local restrictions be no more intrusive than the norms for states with comparable risks and conditions to Australia’s COVID-19 situation),
- provide ample trackable expectations in return for medically supported actions and discretions offered to Australian citizens (eg pathway to reopening of international travel be offered in exchange for certain social benefits such as permission to travel internationally with only minimal home, or no, quarantine when returning to Australia rather than “vaccine=travel, no vaccine=grounded”), and
- be backed up by a suitable compensation scheme for those agreeing to take medical actions such as vaccination in exchange for this proposal, but who suffer as a result of accessing present COVID vaccines.
 Chicago Convention, Preamble.
 The import of this visa subclass is the facilitation of travel to Australia for those that invest millions of dollars into Australia’s economy.
 Of the 25,800 estimated arrival trips, 11,500 were by Australian citizens: https://www.abs.gov.au/statistics/industry/tourism-and-transport/overseas-travel-statistics-provisional/feb-2021
 See above n 1.
 US use of COVID vaccines is under FDA emergency authorisation – https://www.fda.gov/regulatory-information/search-fda-guidance-documents/emergency-use-authorization-vaccines-prevent-covid-19; Australia is under TGA approval set out here, based on emerging pharmaceutical company provided information: see https://www.tga.gov.au/media-release/tga-provisionally-approves-pfizer-covid-19-vaccine and also the recent agreement to “fast track” the development and approval of vaccines to cover variants of COVID: see https://www.tga.gov.au/tga-adopts-access-consortium-guidance-fast-tracking-authorisations-modified-covid-19-vaccines-variants (last accessed 17 June 2021)
 See https://www.abc.net.au/news/2021-07-02/scott-morrison-national-cabinet-covid-vaccine-targets-lockdown/100261584
 See https://covid19criticalcare.com/covid-19-protocols/i-mask-plus-protocol/
 “The Australian Government should consider the establishment a national facility for quarantine to be used for emergency situations, emergency evacuations or urgent scalability.” See https://www.health.gov.au/sites/default/files/documents/2020/10/national-review-of-hotel-quarantine.pdf
 International Covenant on Civil and Political Rights; 1948 Universal Declaration of Human Rights; International Convention on the Elimination of All Forms of Racial Discrimination, and others.
 https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/getting-vaccinated-for-covid-19 (last accessed 17 June 2021).
 https://www.the-scientist.com/news-opinion/two-new-coronaviruses-make-the-leap-into-humans-68783 (last accessed 17 June 2021)