Becoming an internally displaced person in Australia: state border closures during the COVID-19 pandemic and the role of international law on internal displacement

ABSTRACT

In response to COVID-19, Australian state and territories have, at various times, restricted entry to returning residents. Consequently, many people have been unable to return to their homes, some for significant periods. While there have been discussions of the human rights implications of COVID-19 international travel bans and lockdowns, there has been little consideration of the application of international human rights law to those stranded by internal border closures. In this paper, we contend that these ‘stranded’ people are internally displaced persons (‘IDPs’) within the meaning of international law and examine how international law on internal displacement can inform domestic human rights law and processes. In doing so, this paper contributes to scarce scholarship on IDPs in higher-income nation-states and internal displacement associated with pandemics. We argue that while internal border closures were implemented to reduce the spread of COVID-19, the nature of the restrictions and the manner in which they were implemented were a disproportionate interference with rights to freedom of movement, family unity, education, healthcare and culture. Our analysis has lessons for responses to disaster displacement (a phenomenon likely to increase with acceleration of climate change), future pandemics and central themes in international scholarship on IDP protection.

KEYWORDS:

• COVID-19
• ICCPR
• internally displaced person
• freedom of movement
• Guiding Principles on Internal Displacement
• Queensland

Acknowledgements

Kate and Olivera would like to thank the anonymous reviewers for their very helpful feedback and insightful comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Florian Hoffman and Isadora d’Avila Lima Nery Gonçalves, ‘Border Regimes and Pandemic Law in Time of COVID-19: A View from Brazil’ (2020) 114 American Journal of International Law Unbound 327; Bríd Ní Ghráinne, ‘COVID-19, Border Closures and International Law’ (Research Paper, Institute of International Relations Prague, 4 May 2020) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3662218> accessed 3 June 2021; Michelle Foster, Hélène Lambert and Jane McAdam, ‘Refugee Protection in the COVID-19 Crisis and Beyond: The Capacity and Limits of International Law’ (2021) 44(1) University of New South Wales Law Journal 104; Kate Ogg, ‘Of Flights and Rights’ (2021) 51(2) ANU Reporter <https://reporter.anu.edu.au/flights-and-rights> accessed 16 December 2021; Kate Ogg and Chanelle Taoi, ‘COVID-19 Border Closures: A Violation of Non-Refoulement Obligations in International Refugee and Human Rights Law?’ (2022) 39(1) Australian Yearbook of International Law 32.

2 Rosalind Croucher, ‘Lockdowns, Curfews and Human Rights: Unscrambling Hyperbole’ (2021) 28(3) Australian Journal of Administrative Law 137.

3 For a brief discussion of domestic human rights and state and territory border closures see Kylie Evans and Nicholas Petrie, ‘COVID-19 and the Australian Human Rights Acts’ (2020) 45(3) Alternative Law Journal 175.

4 Susan Chenery, ‘“I Just Want to go Home”: The Locked-Out Queenslanders Trapped in No Man’s Land’ The Guardian (Sydney, 16 October 2021) <www.theguardian.com/society/2021/oct/16/i-just-want-to-go-home-the-locked-out-queenslanders-trapped-in-no-mans-land> accessed 2 December 2021; Stephanie Zillman, ‘Stranded Queenslanders Struggle as they Wait for State’s COVID-19 Border Restrictions to Ease’ ABC News (Sydney, 5 November 2021) <www.abc.net.au/news/2021-11-05/qld-coronavirus-covid-stranded-queenslanders-in-nsw/100588704> accessed 2 December 2021; Victorian Ombudsman, Investigation into Decision-Making Under the Victorian Border Crossing Permit Directions (7 December 2021) 6.

5 Chenery (n 4).

6 ibid.

7 Victorian Ombudsman (n 4).

8 Human Rights Act 2019 (Qld), s 3(c) (‘HRA’); George Williams, ‘The Victorian Charter of Human Rights and Responsibilities: Origins and Scope’ (2006) 30(3) Melbourne University Law Review 880.

9 Romola Adeola, The Internally Displaced Person in International Law (Edward Elgar 2020) 4.

10 United Nations Secretary General’s High-Level Panel on Internal Displacement, Shining a Light on Internal Displacement: A Vision for the Future (29 September 2021) 5–6.

11 Rao, in examining how international IDP law can be used to interpret domestic legislation in India in the COVID-19 context, highlights that international IDP law is also relevant to internal displacement in India caused by disasters (India has one of the highest numbers of disaster displacement in the world): Malavika Rao, ‘Should Internal Migrants Who Cannot Return Home due to COVID-19 be Treated as Disaster IPDs? Lessons from India’ (2020) 39(4) Refugee Survey Quarterly 609, 612.

12 UNHCR, ‘Refugee Data Finder’ (UNHCR) <www.unhcr.org/refugee-statistics/download/?url=vmp5Pt> accessed 2 December 2021.

13 Saeed Kamali Dehghan, ‘Climate Disasters “Caused More Internal Displacement than War” in 2020’ The Guardian (Sydney, 20 May 2021) <www.theguardian.com/global-development/2021/may/20/climate-disasters-caused-more-internal-displacement-than-war-in-2020> accessed 2 December 2021; ‘Global Report on Internal Displacement 2021’ (IDMC, 2021) <www.internal-displacement.org/global-report/grid2021/> accessed 2 December 2021.

14 See discussion in Greta Zeender and Mark Yarnell, ‘Improving Attention to Internal Displacement Globally: An Introduction to the Special Issue’ (2020) 39(4) Refugee Survey Quarterly 405, 406–07.

15 High-Level Panel on Internal Displacement (n 10) 2.

16 UNHCR, ‘Global Trends: Forced Displacement in 2020’ (UNHCR, 18 June 2021) 22 <www.unhcr.org/60b638e37/unhcr-global-trends-2020> accessed 2 December 2021.

17 David Cantor, ‘“The IDP in International Law”? Development, Debates and Prospects’ (2018) 30(2) International Journal of Refugee Law 191, 192.

18 UN Commission on Human Rights, ‘Guiding Principles on Internal Displacement’ (22 July 1998) UN Doc E/CN.4/1998/53/Add.2.

19 Walter Kälin, Guiding Principles on Internal Displacement: Annotations (2nd edn, The American Society of International Law 2008) 6. There are some rights in the Guiding Principles that are not explicitly recognised in treaty law such as the right not to be arbitrarily displaced (principle 6) which must be ‘deduced from the relevant provisions of international law’: Naziye Dirikgil, ‘Addressing the Prevention of Internal Displacement: The Right not to be Arbitrarily Displaced’ (2022) Journal of International Migration and Integration <https://doi.org/10.1007/s12134-022-00935-4> accessed 5 December 2021.

20 Kälin (n 19) vii.

21 ibid vii.

22 Convention for the Protection and Assistance of Internally Displaced Persons in Africa (adopted 23 October 2009, entered into force 16 December 2012).

23 For example, Kenya has The Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act 2012. For an examination of other domestic laws implementing the Kampala Convention and the Guiding Principles see: ‘The Kampala Convention: Key Recommendations Ten Years On’ (International Committee of the Red Cross, 27 January 2020) <www.icrc.org/en/document/kampala-convention-key-recommendations-ten-years> accessed 2 December 2021; Dirikgil (n 19).

24 Cantor (n 17) 192.

25 ibid 199–203.

26 ibid 197.

27 Phil Orchard, Protecting the Internally Displaced: Rhetoric and Reality (Routledge 2019) 6.

28 Guiding Principles, Introduction [2]. The Kampala Convention (article 1(K)) adopts the same description. The annotations to the Guiding Principles stress that the description of IDPs in the Guiding Principles is not a legal definition: Kälin (n 19) 5–6. For a detailed discussion of each element of the description see Adeola (n 9) ch 1.

29 Kälin (n 19) 4.

30 ibid 32.

31 ibid 3–4; Council of Europe, ‘Enhancing the National Legal Framework in Ukraine for Protecting the Human Rights of Internally Displaced Persons’ (Under the Framework of the Council of Europe Action Plan for Ukraine, June 2016) 23; Adeola (n 9) 9; Nina Schrepfer and Martina Caterina, ‘On the Margin: Kenya’s Pastoralists—From Displacement to Solutions, a Conceptual Study of Internal Displacement of Pastoralists (Internal Displacement Monitoring Centre and Norwegian Refugee Council)’ (March 2014) 20, 21.

32 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, as amended by the Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267.

33 See, e.g. Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45 (‘OAU Refugee Convention’); Council Directive 2011/95/EU of 13 December 2011 on Standards for the Qualification of Third Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and the for the Content of the Protection Granted (Recast) (2011) OJ L 337/9-337/26 (‘EU Council Directive’); Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, Cartagena de Indias, Colombia (22 November 1984) (‘Cartagena Declaration’).

34 UN Refugee Convention art 1A(2); OAU Refugee Convention arts 1-2; EU Council Directive art 2; Cartagena Declaration [3]. Some scholars defend the distinction between IDPs and refugees on the grounds that it is reflective of international law’s structure and the principle of state sovereignty—see James Hathaway, ‘Is Refugee Status Really Elitist? An Answer to the Ethical Challenge’ in Jean-Yves Carlier and Dirk Vanheule (eds), Europe and Refugees: A Challenge? (Kluwer Law 1997). However, others problematise the distinction international law draws between IDPs and refugees. They highlight that many IDPs leave their homes for the same or similar reasons as refugees. The fact that they are unable to leave their country of origin or habitual residence may be because factors such as gender, race, class and/or disability make international travel prohibitive, meaning that many IDPs may be in more vulnerable positions than those who have the ability to cross an international border—see Patricia Tuitt, False Images: The Law’s Construction of the Refugee (Pluto Press 1996) 12–13.

35 Orchard (n 27) 2–3.

36 Only a few rights in the ICCPR such as voting apply only to citizens: see art 25 ICCPR. See Ruvi Ziegler, Voting Rights of Refugees (Cambridge University Press 2017) for a discussion of refugees’ right to vote. Article 2(3) of the International Covenant on Economic, Cultural and Social Rights (adopted 16 December 1996, entered into force 3 January 1976) 993 UNTS 3 (‘ICESCR’) provides that ‘[d]eveloping countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals’. See Alice Edwards, ‘Human Rights, Refugees, and the Right “To Enjoy” Asylum’ (2005) 17(2) International Journal of Refugee Law 293 for an argument as to why article 2(3) of the ICESCR does not apply to refugees.

37 Jane McAdam, Complementary Protection in International Refugee Law (Oxford University Press 2007) 5–6.

38 Tuitt (n 34) 12–13.

39 Schrepfer and Caterina (n 31) 19.

40 ibid 20. We discuss some of the rights in the Guiding Principles such as rights to education, shelter and healthcare in this paper.

41 Amir Khouzman and Malvika Verma, ‘Internal Displacement and COVID-19: Taking Stock and Looking Forward’ (2020) 39(4) Refugee Survey Quarterly 591; International Committee of the Red Cross, Reducing the Impact of the COVID-19 Pandemic on Internally Displaced People (27 May 2020); International Organization for Migration, Impact on IDPs (11 October 2020, COV1D-19 Mobility Update Series, 16th edn).

42 UNHCR (n 16).

43 Rao (n 11).

44 ibid 611.

45 ibid 610.

46 ibid 610.

47 ibid 614.

48 David Fisher, ‘The Right to Humanitarian Assistance’ in Walter Kälin et al. (eds), ‘Incorporating the Guiding Principles on Internal Displacement into Domestic Law: Issues and Challenges’ (2010) 41 Studies in Transnational Legal Policy 47, 76 cited in Rao (n 11) 614.

49 James Cantor and Agnes Woolley, ‘Internal Displacement and Responses at the Global Level: A Review of the Scholarship’ (2020) IDRP Working Paper 1, 13 <https://sas-space.sas.ac.uk/9356/1/IDRP%20WPS> accessed 2 December 2021; Jane McAdam, ‘Displacing Evacuations: A Blind Spot in Disaster Displacement Research’ (2020) 39(4) Refugee Survey Quarterly 583, 583–84. But see Matthew Scott and Albert Salamanca, ‘A Human Rights-Based Approach to Internal Displacement in the Context of Disasters and Climate Change’ (2020) 39(4) Refugee Survey Quarterly 564.

50 Khouzman and Verma (n 41) 592.

51 Ana Mosneaga, ‘Technological Disasters and Displacement in the Developed World: What Should We Learn From Fukushima IDPs?’ (2020) 39(4) Refugee Survey Quarterly 572, 572.

52 UNHCR (n 16). We are using the World Bank’s definition of higher-income found at: ‘World Bank Country and Lending Groups’ (The World Bank, 2021) <https://datahelpdesk.worldbank.org/knowledgebase/articles/906519-world-bank-country-and-lending-groups> accessed 11 November 2021.

53 ‘Global Report on Internal Displacement 2021’ (IDMC, 2021) <www.internal-displacement.org/global-report/grid2021/> accessed 2 December 2021.

54 Vincent Fung, ‘Displacement and Housing Affordability in the United States’ (IDMC, July 2019) <www.internal-displacement.org/expert-opinion/displacement-and-housing-affordability-in-the-united-states> accessed 2 December 2021.

55 Roberta Cohen, ‘Time for the United States to Honor International Standards in Emergencies’ (Brookings, 9 September 2005) <www.brookings.edu/opinions/time-for-the-united-states-to-honor-international-standards-in-emergencies/> accessed 2 December 2021; Frederic L Kirgis, ‘Hurricane Katrina and Internally Displaced Persons’ (2005) 9(28) ASIL Insights <www.asil.org/insights/volume/9/issue/28/hurricane-katrina-and-internally-displaced-persons> accessed 2 December 2021.

56 Mosneaga (n 51) 573.

57 ibid.

58 Elisabeth du Parc and Louisa Yasukawa, ‘The 2019–2020 Australian Bushfires: From Temporary Evacuation to Longer-term Displacement’ (IDMC, September 2020) <www.internal-displacement.org/sites/default/files/publications/documents/Australian%20bushfires_Final.pdf> accessed 2 December 2021.

59 In the matter of an Application for a Writ of Mandamus directed to Phillip R Thompson Ex parte Wadjularbinna Nulyarimma, Isobel Coe, Billy Craigie and Robbie Thorpe (Applicants), Tom Trevorrow, Irene Watson, Kevin Buzzacott and Michael J Anderson (Interveners) [1998] ACTSC 136 (‘Nulyarimma’) (upheld on appeal: Nulyarimma v Thompson [1999] FCA 119).

60 Henry Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (2nd edn, Penguin Books 1982).

61 Nulyarimma (n 59) [31].

62 Australian Human Rights Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (April 1997).

63 Joseph Pugliese, ‘Geopolitics of Aboriginal Sovereignty: Colonial Law as “A Species of Excess of Its Own Authority”, Aboriginal Passport Ceremonies and Asylum Seekers’ (2015) 19 Law, Text, Culture 84, 109–10; ‘Aboriginal Australian Communities Announce a Global Call to Action’ (linksunten Archiv, 17 March 2015) <https://linksunten.archive.indymedia.org/en/node/137877/index.html> accessed 2 December 2021.

64 United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) UN Doc A/RES/61/295.

65 ibid art 10.

66 ibid art 7(2).

67 Kälin (n 19) viii.

68 The term ‘refugee’ has been employed. See, for example, Dawn Casey, ‘Refugees in Our Own Country’ in Megan Davis and Marcia Langton (eds), It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform (Melbourne University Press 2016). For a discussion of the uneasy and complex relationship between Indigenous Australians and international law see Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2016).

69 Chief Health Officer (Qld), Border Restrictions Direction (No. 28) (22 July 2021). This Direction was quickly superseded. New Directions were issued frequently. Copies of the CHO’s Border Restriction Directions can be found at: Queensland Health, ‘Chief Health Officer Public Health Directions’ (Queensland Government) <www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers> accessed 2 December 2021.

70 ‘Queensland Border’ (Queensland Government) <www.covid19.qld.gov.au/government-actions/border-closing> accessed 2 December 2021.

71 ‘Changes to Queensland’s Border Restrictions at 13 December 2021’ (Queensland Government) <www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/current-status/queensland-restrictions-update/changes-to-queenslands-border-restrictions> accessed 15 December 2021.

72 A cancer patient who had travelled from Queensland to Tasmania to attend a funeral could not return to Queensland because her brain tumour meant that she could not travel by plane. She spent months living in her car just south of the Queensland border. She applied for multiple exemptions to enter Queensland by road but did not receive a response. See Zach Hope, ‘“People are Broken”: “Queenslanders Made Homeless for Months Prepare to Cross Border”’ Brisbane Times (Brisbane, 11 December 2021) <www.brisbanetimes.com.au/national/queensland/people-are-broken-queenslanders-made-homeless-for-months-prepare-to-cross-border-20211211-p59gqr.html> accessed 12 December 2021.

73 Chenery (n 4).

74 Queensland residents were required to fly into the state and quarantine in a privately owned dwelling no more than two hours away from the airport. Every person over the age of 16 living in the residence must have had their first COVID-19 vaccination. See Chief Health Officer (Qld), Border Restrictions Direction (No. 55) sch 2 pt D (23 November 2021). These requirements meant that many people from rural areas and those living in shared housing arrangements or mobile homes were not able to home quarantine.

75 Fisher (n 48).

76 HRA s 3.

77 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

78 Explanatory Notes to the HRA 20.

79 HRA s 26.

80 ibid s 36(1).

81 ibid s 37(1).

82 ibid s 28.

83 ibid s 13(1). The HRA includes protection from torture, and cruel, inhumane and degrading treatment: s 17 HRA. In international law, the right to be free from torture and the right to be free from inhuman and degrading treatment are considered absolute rights, meaning that there are no permissible limitations or derogations; ICCPR arts 4(2), 7; International Law Commission, Peremptory Norms of General International Law (Jus Cogens) (29 April 2019) UN Doc: AN/CN.4/L.936 annex; Saadi v Italy App No. 37201/06 (ECHR 28 February 2008). In treating the protection from torture, and cruel, inhumane and degrading treatment as subject to permissible limitations, the HRA is inconsistent with international law.

84 HRA s 13(2).

85 ibid pt 3, div 1.

86 ibid pt 3, div 2.

87 See Chief Health Officer (Qld), Border Restrictions Direction (No. 32) (8 August 2021).

88 Statement of Compatibility to the Public Health and Other Legislation (Public Health Emergency) Amendment Bill 2020 (Qld) 1 (‘Statement of Compatibility’).

89 ibid 9.

90 ibid 9–10, 17–19.

91 ibid 20.

92 ICCPR art 4.

93 ICCPR arts 4, 50.

94 ICCPR art 4 provides that ‘[a]ny State party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated … ’.

95 UNHRC, General Comment No. 29: States of Emergency (Article 4) (31 August 2001) UN Doc CCPR/C/21/Rev.1/Add.11 [5].

96 Statement of Compatibility (n 88) 18.

97 Kälin (n 19) 30.

98 UNHRC, General Comment No. 27: Article 12 (Freedom of Movement) (2 November 1999) UN Doc CCPR/C/21/Rev.1/Add.9 [14].

99 Jennifer King and Ben Smee, ‘“No Compassion”: Why Thousands of Queenslanders Remain Stranded on the NSW Border’ The Guardian (28 November 2021) <www.theguardian.com/australia-news/2021/nov/28/no-compassion-why-thousands-of-queenslanders-remain-stranded-on-the-nsw-border> accessed 4 December 2021.

100 Felicity Caldwell and Matt Dennien, ‘“Our Mental Health is Really Struggling”: Queensland Border Pass Waiting List Balloons’ Brisbane Times (Brisbane, 20 October 2021) <www.brisbanetimes.com.au/national/queensland/our-mental-health-is-really-struggling-queensland-border-pass-waiting-list-balloons-20211020-p591jd.html> accessed 2 December 2021.

101 Kituo Cha Sheria v Attorney General [2013] Kenya Law Reports (High Court of Kenya, Constitutional and Human Rights Division) [92].

102 S v Jaipal [2005] (4) SA 581 (CC) (South Africa Constitutional Court) [55]–[56] cited in ibid [92].

103 Victorian Ombudsman (n 4) 8.

104 Olivia Day, ‘Sick Queensland Man Collapses at NSW Border after His Travel Pass Was Denied’ Daily Mail (Sydney, 14 September 2021) <www.dailymail.co.uk/news/article-9987771/Coronavirus-Australia-Sick-Queensland-man-collapses-NSW-border-denied-exemption.html> accessed 5 December 2021.

105 ibid.

106 Ben Smee, ‘Patient Stuck in NSW Faces Bureaucratic Nightmare to Cross Queensland Border for Cancer Treatment’ The Guardian (Brisbane, 7 September 2021) <www.theguardian.com/australia-news/2021/sep/07/patient-stuck-in-nsw-faces-bureaucratic-nightmare-to-cross-queensland-border-for-cancer-treatment> accessed 16 December 2021. The Victorian Ombudsman’s report noted that cancer patients were unable to return to Victoria for treatment: (n 4) 12.

107 Zillman (n 4).

108 High-Level Panel on Internal Displacement (n 10) 4.

109 Peta Stephenson and Jonathan Crowe, ‘Queensland Public Health Laws and COVID-19: A Challenge to the Rule of Law?’ (Australian Public Law, 21 August 2020) <https://auspublaw.org/2020/08/queensland-public-health-laws-and-covid-19-a-challenge-to-the-rule-of-law/> accessed 2 December 2021.

110 Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic) s 12 inserting new Part 8A in Public Health and Wellbeing Act 2008 (Vic).

111 Public Health and Wellbeing Act 2008 (Vic) s165AP.

112 Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 (Vic) Part 2A.

113 Indigenous and Tribal Peoples Convention (adopted 27 June 1989, entered into force 5 September 1991) ILO Doc C 169.

114 ibid art 13(1).

115 ibid art 16(3); Kälin (n 19) 42.

116 Ben Smee, ‘Fear and Anger as NSW-Queensland Border Town Cut in Two by Covid Restrictions’ The Guardian (Brisbane, 26 August 2021) <www.theguardian.com/australia-news/2021/aug/26/fear-and-anger-as-nsw-queensland-border-town-cut-in-two-by-covid-restrictions> accessed 5 December 2021.

117 ibid.

118 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.

119 Warren Barnsley, ‘Queensland Boy Stuck in NSW after Border Closure Reunited with Mum on Airport Tarmac’ 7 News (Brisbane, 3 September 2021) <https://7news.com.au/lifestyle/health-wellbeing/queensland-boy-stuck-in-nsw-after-border-closure-reunited-with-mum-on-airport-tarmac-c-3862917> accessed 4 December 2021.

120 ibid.

121 Raffaella Ciccarelli, ‘Little Boy “Stranded” Over Border Granted Exemption to Return to Queensland’ 9 News (Brisbane, 2 September 2021) <https://9now.nine.com.au/today/coronavirus-update-queensland-threeyearold-boy-barred-from-seeing-mum-and-dad-amid-border-war/d77f9918-8335-4408-8b37-b71578391657> accessed 4 December 2021.

122 Liam Bland, ‘Another Fraser Coast Family has been Torn Apart by Queensland’s Border Closure’ 7 News (7 September 2021) <https://fb.watch/dGfqth1z8f/> accessed 2 December 2021.

123 ibid.

124 Convention on Elimination of all Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13.

125 Kälin (n 19) 91.

126 Judith Gardam and Hilary Charlesworth, ‘Protection of Women in Armed Conflict’ (2000) 22(1) Human Rights Quarterly 148.

127 Chenery (n 4).

128 Alex Turner-Cohen, ‘Heavily Pregnant Woman Misses Medical Appointment due to Queensland Border Closure’ News (11 October 2020) <www.news.com.au/travel/travel-updates/health-safety/heavily-pregnant-woman-misses-medical-appointment-due-to-queensland-border-closure/news-story/22541126a4702bd6f3784c805017db7a> accessed 16 December 2021.

129 ibid.

130 See also Principle 18, which provides that all internally displaced persons have the right to an adequate standard of living including essential food and potable water, shelter, clothing and essential medical services and sanitation.

131 Chenery (n 4).

132 ibid.

133 ibid.

134 ibid.

135 Kevin Airs and Kylie Stevens, ‘Mum of Eight-Year-Old Boy Stranded in Sydney for 10 Weeks after he Visited his Father During the School Holidays Slams Queensland’s “Disgusting” Hard Border Closure—After Another Heartbroken Family Waited Two Months to See their Toddler’ Daily Mail Australia (Sydney, 7 September 2021) <www.dailymail.co.uk/news/article-9964209/Covid-19-Australia-Mother-boy-8-Sydney-10-WEEKS-says-Queenslands-border-closure-disgusting.html> accessed 2 December 2021.

136 SBS News, ‘Unborn Twin Baby Dies in NSW after QLD Border Confusion’ (28 August 2020) <www.sbs.com.au/news/unborn-twin-baby-dies-in-nsw-after-queensland-border-confusion/ce3f1450-b9f3-485c-93b7-e30fcbdc8ec7> accessed 2 December 2021.

137 ibid.

138 ibid.

139 Kelsey Wilkie and Tita Smith, ‘Annastacia Palaszczuk said Queensland Hospitals were “For Our People Only”’ Daily Mail (19 August 2020) <www.dailymail.co.uk/news/article-8641343/Comrade-Anna-blasted-saying-Queensland-hospitals-people.html> accessed 7 December 2021.

140 International Covenant on Economic, Cultural and Social Rights (adopted 16 December 1996, entered into force 3 January 1976) 993 UNTS 3.

141 See, for example, Andrew Shacknove, ‘Who is a Refugee?’ (1985) 95(2) Ethics 274; Tuitt (n 34).

142 HRA s 48(1)–(2).

143 ibid s 48(3).

144 ibid s 58(1).

145 ibid s 58(2).

146 ibid pt 4 div 2.

147 Ben Smee, ‘Queensland Human Rights Commission Flooded with Inquiries due to Covid Border Confusion’ The Guardian (Sydney, 27 November 2021) <www.theguardian.com/australia-news/2021/nov/27/queensland-human-rights-commission-flooded-with-inquiries-due-to-covid-border-confusion> accessed 2 December 2021.

148 HRA s 58.

149 ibid s 65.

150 ibid s 65(1). Section 65(2) provides that the Commissioner may nevertheless accept a complaint in exceptional circumstances.

151 The HRA includes in the definition of a public entity any entity established under an Act when the entity is performing functions of a public nature: s 9(1)(f). The CHO is established under section 52 of the Hospital and Health Boards Act 2011 (Qld).

152 HRA s 9(1)(c).

153 ibid s 40C(2).

154 ibid s 59(1)–(2).

155 Louise Schetzer, ‘Queensland’s Human Rights Act: Perhaps Not Such a Great Step Forward?’ (2020) 45(1) Alternative Law Journal 12; Bruce Chen, ‘The Human Rights Act 2019 (Qld): Some Perspectives from Victoria’ (2020) 45(1) Alternative Law Journal 4.

156 Chen (n 155).

157 ibid.

158 HRA s 59(3).

159 Cantor (n 17) 199–203.

160 Romola Adeola and Phil Orchard, ‘The Role of Law and Policy in Fostering Responsibility and Accountability of Governments Towards Internally Displaced Persons’ (2020) 39(4) Refugee Survey Quarterly 412, 413.

161 ibid.

162 Dirikgil (n 19).

163 Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 [2].

164 Cantor (n 17).

165 High-Level Panel on Internal Displacement (n 10) 4.

166 Chenery (n 4).

167 Scott Emerson, ‘No “Happily Ever After”: The Long-Lasting Legacy for Locked Out Queenslanders’ 4BC News Talk (13 December 2021) <www.4bc.com.au/no-happily-ever-after-the-long-lasting-legacy-for-locked-out-queenslanders/> accessed 16 December 2021.

168 Victorian Ombudsman (n 4) 8, 17.

169 UNHCR, Special Rapporteur on the Human Rights of IDPs, Global Alliance of National Human Rights Institutions and United Nations Development Programme, Protecting Internally Displaced Persons: A Handbook for National Human Rights Institutions (4 February 2022) <www.unhcr.org/en-us/publications/brochures/61fd4a4a4/handbook-internal-displacement-national-human-rights-institutions.html> accessed 10 February 2022.

170 ibid 7.

171 See discussion in UNHCR et al. (n 169) 17.

172 ibid 17, 23, 30–31, 57.

173 ibid 35.

174 ibid 35.

175 ibid 39.

176 ‘Covid-19 and Human Rights’ (Australian Human Rights Commission) <https://humanrights.gov.au/about/covid19-and-human-rights> accessed 24 February 2022.

177 ‘What Human Rights are at Particular Risk of Being Restricted During the Pandemic?’ (Australian Human Rights Commission) <https://humanrights.gov.au/about/covid19-and-human-rights/what-human-rights-are-particular-risk-being-restricted-during-pandemic> accessed 24 February 2022.

178 ‘Covid-19 and Human Rights’ (Queensland Human Rights Commission) <www.qhrc.qld.gov.au/your-rights/covid-19-and-human-rights> accessed 24 February 2022.

179 ‘Your Rights in Full Lockdown’ (Victorian Equal Opportunity and Human Rights Commission) <www.humanrights.vic.gov.au/static/ccf126eca03a506d1c6148afaf6261d5/Resource-Factsheet-Full_lockdown-English.pdf> accessed 24 February 2022.

180 High-Level Panel on Internal Displacement (n 10) 5.

181 ibid 5.

182 ‘Mid-Year Trends 2021’ (UNHCR) <www.unhcr.org/statistics/unhcrstats/618ae4694/mid-year-trends-2021.html> accessed 24 February 2022; ‘UNHCR’s Initiative on Internal Displacement 2020–2021’ (UNHCR) <https://reporting.unhcr.org/sites/default/files/UNHCR%20Initiative%20on%20Internal%20Displacement%202020-2021.pdf> accessed 24 February 2022.

Additional information

Notes on contributors

Kate Ogg

Dr Kate Ogg is an Associate Professor at the Australian National University’s College of Law. She undertakes interdisciplinary research in the areas of refugee law, human rights, litigation, access to justice and feminist legal theory. Kate is the co-editor of ‘Feminist Engagement with International Law’ (Edward Elgar, 2019). Her monograph ‘Protection from Refuge: From Refugee Rights to Migration Management’ was published by Cambridge University Press in 2022. In 2021, Kate was part of a team led by Professor Susan Kneebone that was awarded an Australian Research Council Discovery Project Grant to conduct a study on private refugee sponsorship.

Olivera Simić

Dr Olivera Simić is an Associate Professor at the Griffith Law School, Griffith University, Australia and Visiting Fellow at the Transitional Justice Institute, Ulster University, Belfast. Olivera has published numerous articles, book chapters and books. Her latest monograph ‘Silenced Victims of Wartime Sexual Violence’ was published by Rutledge in 2018. After working for many years with survivors of mass atrocities, Olivera is working on a project that looks at what happens to individuals who served their sentence for war crimes, genocide and crimes against humanity. At the moment, she is finalising her monograph about Biljana Plavsic, the only woman prosecuted for war crimes by the International Criminal Tribunal for the former Yugoslavia (ICTY). Over the past two years, Olivera has been researching the issues of migration, closed borders and travel bans in the context of COVID-19 pandemic.