Yesterday, 3 May, a temporary, or rather a hopefully temporary, arrangement was put in place that attacked our never-debated but commonly shared assumption: that your Australian citizenship and passport meant that you could come home to Australia.

The criminalisation of entry into Australia from India has left me with a mix of disbelief, personal affront, anxiety, and uncertainty for the future, as a freedom I thought I could count on has slipped away with emergency action taken under the Biosecurity Act 2015.

The actions of the Government are an abandonment of the value, and values, of both your “Australianness” and mine. The circumstances are that those who are trapped in India have gone there lawfully (either due to travel there before the pandemic and have not been able to afford or reach home due to inflated fares, passenger capacity restriction and the absence of sufficient repatriation flights; or, during the pandemic in compliance with Australia’s outbound travel exemption rules). They should thus not be outcast on their return to Australia.
The Government justifies the restrictions on a risk assessment made based on the proportion of overseas travellers in quarantine in Australia who have acquired a COVID-19 infection in India. This is so even though similar measures were neither taken previously, nor ever targeted Australian citizens abroad when the rest of the world suffered (at the time, the worst) waves of COVID-19 infections and deaths in 2020, and Australians and others did bring the virus to Australia with them. They were not turned away; neither were they labelled criminals.

Let us be clear: Aussies caught in this newly crafted terrible crime of coming (or rather fleeing) to their country from COVID-plagued India are now and until 15 May liable to a fine of $66,600 (300 penalty units), or five years’ imprisonment, or both.

The Minister for Health has responded to criticisms of the ruling by saying that “Our hearts go out to the people of India – and our Indian-Australian community.”

I honestly do not think the Minister understands the magnitude of the situation, nor dangerous precedent it is setting, in addition to the ripple effect through the Australian community that can arise from oppressing a section of lawful Australians in this way.

Let me give you some personal history by way of example of the feeling of injustice this causes. My Australian citizenship is something I have valued from my earliest memories. I was born in Perth in 1977 to Indian parents (a registered disability services nurse and a marine engineer). They migrated in the 1970s.  I learned early on that they had made a huge sacrifice to come to Australia as they each came alone and left behind large social families, in order to seek opportunities sorely lacking in their motherland of India. 
I feel betrayed because not only has the citizenship for which my parents worked so hard to voluntarily obtain, and which I was gifted through birth, diminished in value and meaning, but my sense of Australian identity and faith in the Government to protect my wife, children and friends in times of emergency need is permanently eroded.

My parents obtained their citizenship through something of an exchange of promises: they verbally pledged their allegiance to Australia, to its laws, and to its ideals. In return they were granted privileges which they understood to be freedoms – freedom to participate in the democracy through voting, a sense of responsibility to pursue Australian ideals through diligent and dignified labour, taxed fairly to contribute to the nation’s development, and a civic sense of duty to bring me up with similar ideals of respect, strength and faith in what this nation stands for. And, last but not least, freedom to come and go embodied in the issue of their Australian passports.
The Australian Government has effectively reneged on their side of that bargain, and my heart weeps for the Australians and Indian-Australians suffering as a result of that shameful failure in the name of COVID prevention.

After learning about the travel ban, I felt paralysed, betrayed and abandoned – to think: that the safe harbour we all call home, could be taken from an Australian citizen under the guise of their protection. And, I feel doubly sorrowful because I am both of Indian origin and an Australian born citizen. I palpably feel the disbelief and betrayal of both my Indian-Australian and Australian countrymen and women who remain trapped in India.

I am left feeling that the only Australians our Government cares about are those randomly present here and now, ignoring and condemning the others as “second class citizens” to die in homes and hospitals in a developing nation sorely unprepared to face the onslaught of the pandemic.
I, like many in my position, have experienced the intolerance and injustice of racism first hand in my private life. But this is the first time that I’ve sought to make any public complaint type of  action in response to such injustices. However, the pain I feel at the targeting of my citizenship and simultaneously my place of origin by virtue of these travel bans and sanctions on Australian citizens, are something that can only be dealt with in a public way. I uniquely feel the pain of Australians and Indians today. Furthermore, as someone who has professionally, as a solicitor, solemnly sworn to uphold Australia’s laws, this is almost something too much to bear.

It is not just my identity as an ethnically Indian Australian citizen under threat; it is the identity and safety of every Australian citizen that is now under threat if the mechanism under the Biosecurity Act is continued to be used in ways that breach other fundamental promises that Australia has made to the world at large, and its citizens.
Other commentators have identified that Australia’s actions have very likely breached obligations to not discriminate under the International Covenant on Civil and Political Rights. Indeed the actions to prevent citizens returning to their lawful home likely also breaches the International Convention on the Elimination of All Forms of Racial Discrimination – another multilateral convention to which Australia has signed its name to.
Under Australia’s Racial Discrimination Act 1975, which also applies to the Crown, my view is that Australia is in breach of its own legislative protections. The travel ban works to disproportionately restrict the free lawful movement into Australia of citizens of ethnic Indian origin. It is an inelegant and blunt instrument to “close” Australia, when Australia should be acting in haste and prudence to bring back its people. It is manifestly indirect discrimination, in my view, as that term is understood under the Act.
In my view the new restrictions, temporary as they are said to be, present a dangerous precedent of government action and abuse of power that must be stopped in its tracks.

For over a year now Australians have felt a nascent discomfort in the pit of their stomachs to travel freely across state borders in their own country, with the threat of snap lock downs and other reactionary measures disproportionately affecting those required to travel. The Government’s new travel ban extends that uncertainty and fear to any Australian who happens to find themselves geographically absent from Australia now and possibly in the future, but with the added indignity of having no help from home. 

Law abiding citizens must not stand by and allow a government to create an all-pervasive state of anxiety for its citizens by preventing them from returning to the safe harbour of their home country in a time of pressing social, and health need.
My legal work involves the application of aviation law and I have stood silent while caps on international air arrivals have limited the ability of Australians abroad to come home, and driven inbound airline ticket prices to astronomical levels.  In some ways those restrictions, while unwanted, may be justifiable in that they apply to all persons seeking entry to Australia, equally.  

The banning of those who have stepped on India’s soil, but not others, is in no way equitable and at best is arbitrary, capricious and shortsighted.  At worst, it hearkens back to the kind of unjust laws that attracted civil disobedience and powerful objections from the forebears of India itself during its long fight for independence from the British. A battle, you will recall, that India won, through peaceful (though some may mischievously term “passive”) resistance.

In light of the astounding revelations about the lengths the Australian Government will go to in the name of health and safeguarding its own people, and its willingness to divide the nation in two (ie, those it will protect and those that it will not) I have made the difficult decision to put my own voice forward in support of those who do not or cannot at this time take action against this unjust law.

Our firm will act pro bono, to assist those caught by this arbitrary determination, to help them seek justice.
In addition, I am now planning to make a formal complaint to the relevant United Nations Human Rights Committee, and Australian Human Rights Commission in my own right, for what I allege to be racial discrimination by the Minister of Health in the disproportionate and discriminatory exercise of emergency powers under the Biosecurity Act of 2015. 

As described above, in my own life, the determination has sounded in despair, erosion of confidence in the value of my citizenship in breach of the Conventions, and a pervasive anxiety that the colour of my skin and those of my Indian-Australian compatriots has contributed to the door of Australia being closed to them even as they need entry most. 
While I am grateful that I continue to enjoy the safety of being within Australian geographical territory right now, many of my Indian-Australian “desi” people cannot; and they cannot because of something they are powerless to change. Maybe they are an easy target as they are largely voiceless and out of sight and out of mind. However I see them, and I feel their pain.

The only way they will have a chance at enjoying the values of the citizenship that was granted to them as Australians is by this unjust law being rolled back and the Australian Government taking responsibility for supporting its people appropriately by facilitating charter flights home from pandemic ravaged nations, and allocating suitable resources into federal quarantine facilities. The flu has never left humanity so it is unlikely COVID-19 will. I remain astounded that governments continue to play a short, rather than long game in this regard.
We must remember that not only are Australians affected by the travel ban overseas but that the fabric of Australian society and the reaction of everyday Australians to their Indian-Australian neighbours may change – and not for the better – as a result of the message this baffling law sends. I do not want to see Indians and Australians come into conflict because of a perception that Australia finds those who visit, or originated in, India are less important than everyone else.
We all belong to one race – the human race. And so we must be steadfast and hopeful that Australia’s judicial and other processes will help see the end of these unjust laws – if not now – then let us hope they will never repeat in future.

At times like these it is helpful to recall the words of C.S. Lewis:

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.

 C.S. Lewis, God in the Dock: Essays on Theology (Making of Modern Theology)

Directly contact Joseph Wheeler at [email protected] if you need assistance or advocacy for yourself or a relative in India at this time.