Gail Holmes has a flight home to California booked for next week. But a quiet rule change by the Australian government this month – forcing citizens and permanent residents who live overseas to obtain official permission to leave – has meant a nervous wait to see if she will be allowed to board.

Expats visiting Australia have been scrambling to rearrange flights and file their paperwork ever since. Many of their applications to leave have initially been knocked back – despite promises from the government they would be allowed to go. That includes a 17-year-old returning to Switzerland for her second year at an elite ballet school, and an Australian man trying to get home to his pregnant wife in Singapore. Also caught in the chaos is Holmes who has been back in Sydney helping her elderly mother recover from major surgery.

Then there are the tens of thousands of Australians already overseas who are still trying to come home. In March 2020, when Australia closed its border to the world to keep out the virus fast exploding into a pandemic, about a million of its citizens were living overseas. Many have now returned but strict caps on arrivals (and skyrocketing airline fares) mean about 40,000 are still stranded. That number has barely shifted in recent months despite government repatriation flights. A few people have died of COVID-19 while waiting to come back.

Australia’s hard border has raised eyebrows internationally even as it has worked at keeping case numbers (and deaths) remarkably low compared to most of the world. In line with expert modelling, the federal government has now tied Australia’s phased reopening plan to vaccination targets. That inoculation campaign, having lagged behind most of the developed world, is now speeding up but it’s not likely to meet the plan’s thresholds until the end of the year.

Some experts despair at what the “Fortress Australia” mentality is doing to the country in the meantime while others question the legality of travel bans for citizens. Meanwhile, with cases low in many Asian and Pacific nations, a number of epidemiologists say Australia could extend its travel bubble beyond New Zealand sooner than planned.

So, what is Australia’s border policy, how does it compare to the rest of the world, and what does the law say about shutting citizens out (and in)?

What are the rules at the national border?

Foreign visitors and temporary residents to Australia can leave whenever they want but they need a special exemption to get in. Australian citizens and permanent residents can come home without one – assuming they can find a flight – but they require an outbound travel exemption in order to leave. And everyone coming in, citizen or not, has to spend two weeks in hotel quarantine (unless they are coming from New Zealand when the travel bubble is running or have another valid reason, like being a foreign diplomat).

In 2020, Prime Minister Scott Morrison said the new border restrictions were needed because people were still trying to holiday overseas during the pandemic, putting the community at risk of COVID when they returned or risking becoming stranded themselves. In April, during the height of the deadly Delta wave ravaging India, the federal government took the extraordinary step of banning Australians trying to return from India, including children, with the measure threatening jail time or fines to those who tried to return. The ban ran out after three weeks but a small number of Australians trying to get out of India died in that time. While flights have resumed, Australia still has higher restrictions on travel to and from India, despite case numbers having fallen.

There are automatic exemptions for certain groups travelling to Australia, such as air and shipping crew, some business and investment visa holders, and the immediate family of Australian citizens who hold particular visas. However, “immediate family” does not include adult children or their parents. Far fewer of these inbound exemptions have been granted than outbound, with approvals averaging about 3400 a month out of 21,500 requests, usually for critical skills. Who gets approved to leave has also been fairly hit and miss so far, but people heading overseas for more than three months are often approved. Still some have had to apply multiple times and supply extra evidence. In June there were 32,000 applications lodged to leave and just 14,500 approved.

But until recently, Australians who lived overseas and were home visiting didn’t need a special exemption to leave again. They just had to show their passport at the airport (where electronic travel records could verify if they had been abroad for 12 of the past 24 months). Now, the government has closed this “loophole” – it says to stop more frequent expat travellers taking up spots in hotel quarantine for others looking to come back or needing to visit. Home Affairs Minister Karen Andrews says it’s not designed to lock expats in; they will still be allowed to leave, but through the exemption system.

Like many expats visiting home, Holmes heard of this new requirement on Facebook – the government made the change on August 1 to take effect on August 11 but did not announce it for six days. After The Herald and The Age reported on the chaos, as people scrambled to either change flights or file applications – only to have them rejected by Border Force because the online form hadn’t been updated yet – the government announced a grace period until September 7. Those leaving before then are encouraged to get exemptions but can still leave under the old rules.

Holmes, who needs to fly home to her partner and job in California next week, resubmitted an application on Monday when the forms were updated and sweated on the outcome all week. The exemption came through on Friday morning. “It’s really disappointing the way that the whole thing has been handled,” she says.“It’s almost like it’s underhanded, like they’ve tried to slip it in for some reason.”

The government says Australians who usually live overseas will be able to apply for their exemption to leave again before they come to visit, giving them peace of mind. But you can only apply three months before you’re due to leave Australia. Many will have to book flights before they can apply or, if coming for a few months, they might not be able to apply until they get here.

Why do celebrities and millionaires seem to get in easily?

In September, Morrison pledged to bring most stranded Australians, “if not all of them”, home by Christmas. At the time, there were 24,000 people registered for repatriation with the Department of Foreign Affairs and Trade. That number now hovers between 35,000 and 40,000 at any one time, including about 5000 listed as vulnerable.

Because of our caps on the number of passengers landing each week (as well as how many are allowed on each individual plane), many airlines have stopped flying to Australia altogether. And prices on board those still coming have soared.

When flights fill up, some airlines will bump economy passengers in favour of business class to stay beneath the new density limits. But, rather than getting refunds, many stranded Australians have found themselves rebooked on another flight – many months down the line. (Author and former model Tara Moss ran afoul of this practice in 2020.) All up, airfares and hotel quarantine costs can now cost tens of thousands of dollars for a family.

But if you can afford a ticket (and know which airlines are flying), you can still get home. The Australian Bureau of Statistics figures have consistently shown a high proportion of visitors – including Australian citizens who live abroad coming home to see family – even as other Australians remain stranded. Nearly a third of the 35,000 international travellers who arrived in Australia in December, for example, were visitors rather than returning residents. But this is not about Australians versus foreigners – “residents” can be foreign nationals on long-term visas, and “visitors” can be Australian expats coming to visit family.

Still, it is the number of celebrities and millionaires still crossing the moat into Australia of late (and often bypassing hotel quarantine in favour of picturesque but expensive alternatives) that has sparked anger. Private jets continue to land, mostly from the US, and a new Hollywood filming boom in Australia’s relatively COVID-free locations has attracted stars such as Matt Damon, Natalie Portman and Tom Hanks (who himself caught COVID while filming here early in the pandemic).

So is Australia the only country with a hard COVID border?

We are not completely alone in our isolationist approach to keeping out the virus but we certainly don’t have much company. Apart from the obvious comparison to North Korea (which slammed its border shut to China early on in the pandemic), there’s China itself. The nation also restricts foreigners coming in and puts returning citizens into hotel quarantine. But in March, it loosened restrictions for vaccinated travellers from more than 20 low-risk countries. The virus has still leaked in, most notably, along the border with Myanmar where people have been crossing into China to flee unrest. China is now battling its first major outbreak since its lockdowns stamped out the virus at the start of the pandemic. And this time it’s Delta.

Leading epidemiologist Zhang Wenhong, sometimes called China’s Dr Fauci after his US counterpart, has suggested China could reopen to the world in the first half of 2022, provided (as in Australia) vaccination rates continue to tick up. Hong Kong experts want China to open, at least to it, even faster. But Chinese officials have made no commitments as yet, doubling down on a zero-tolerance approach to crush the latest outbreak.

China and Australia, both export-dependent economies with strong domestic travel, have managed to keep their gates up and weather the fallout fairly well, experts say. Australia’s economy is already rebounding from its early pandemic recession in 2020 while China’s has continued to grow.

But smaller nations with tough COVID borders such as Singapore and New Zealand are now vowing to reopen to the world – and tourism dollars. (This week New Zealand unveiled a three-stage plan to reopen in the first half of 2022.) Canada, a country with a similarly sized population and economy to Australia, has surged ahead of our vaccination rates after its own supply delays and has just reopened to US travellers with plans to welcome international tourists in September (provided they are all vaccinated).

But Australia is notable on the world stage for banning its citizens from leaving without permission too, a policy described by Liberal backbencher Dave Sharma as “an extraordinary restriction on people’s liberty”. Britain had rules governing when and how its citizens could travel internationally, but these relied on a self-declaration, not government approval. About 7.5 million Australians – almost 30 per cent of the population – were born overseas, and many have family abroad.

Until late June (when New Zealand paused its side of the quarantine-free travel bubble with Australia over concerns about our latest outbreak), some Australians had been using the neighbouring nation as a backdoor to travel to the rest of the world.

But is this legal? Don’t we have rights?

Australia has form in border restrictions – not only was there the strict naval quarantine during the last great pandemic, the Spanish flu in 1918, but the White Australia policy of around the same time (since struck down as racist) restricted immigration from non-Europeans.Today, asylum seekers who arrive by boat are turned back or locked up at the border. And in 1988, Australia tried to impose a kind of tax or service fee on airlines for both returning citizens and foreign travellers. But that measure was thrown out by the High Court, law professor Kim Rubenstein at the University of Canberra says. Citizens have a right of entry, the court found. That makes it part of common law – an implied right but one not codified explicitly in Australia. (We are still the only Western democracy without a bill of rights.)

In Israel, COVID measures similar to Australia’s restricting both citizens returning home and flying out were struck down in the courts. Israel does not have a bill of rights in its constitution either but rights are enshrined in its laws so, Rubenstein says, “[the travel restrictions] were easier to challenge than it would be here in Australia”. “This does go to show that a lot of the rights we think are a given, like coming home if you’re a citizen, aren’t a given at all in Australia. ”

Still, she’s not convinced the restrictions on inward and outward travel are entirely legal either and says they could be vulnerable to a court challenge, if someone is willing to risk the legal fees.

In the case of stopping citizens from leaving the country, the Biosecurity Act gives the minister responsible such powers (the rules did not even have to be voted on in Parliament). “But it also says they have to be proportionate, the least restrictive means possible,” Rubenstein says. “And it’s listed as quarantine but it’s not really quarantine, is it, when people are leaving and pose no threat to Australia? There’s a very strong case to be made that these are unlawful.”

The Federal Court has already dismissed a challenge to the outward travel ban by the right-wing think tank LibertyWorks. And the temporary ban on Australians returning from India was also thrown out when it was challenged on human rights grounds. But in both cases, Rubenstein says a very narrow point of law was being raised. She sees bigger arguments against the restrictions, such as the federal government’s delay in setting up the open-air quarantine facilities experts recommended in 2020. “You could say these bans are not the least restrictive measure they could have taken.”

Even the requirement for people holding temporary visas for Australia to get an inbound travel exemption is legally flimsy, according to some experts. Abul Rizvi, a former deputy secretary of immigration, said there was no good legal basis for requiring someone with a valid visa to also obtain a travel exemption. There is a public health clause in the Migration Act but Rizvi says “legally it would be a stretch” because you would have to prove the person actually has COVID-19.

Former human rights commissioner Professor Tim Soutphommasane, now at the University of Sydney, agrees the border restrictions have revealed the vulnerability of our rights and freedoms under the law. And “morally speaking, it is offensive that our government has pulled up the drawbridge to citizens, and is now signalling that citizens can’t even leave the country if they ordinarily live overseas ... But do enough Australians care? I’m not sure.”

In a May poll, four in 10 Australians agreed with government policy that only people with special exemptions should be allowed to travel – but roughly the same number thought vaccinated Australians should. Almost 60 per cent thought the government had done enough to help Australians stranded overseas. Given the hard border’s relative popularity (and effectiveness against COVID), commentators expect the Morrison government to hang on to it for a while.

“There’s [still] high levels of public concern about case numbers,” Soutphommasane says. But he notes the backlash to the federal government’s slow vaccination rollout is biting, too.

Rubenstein says Australia’s “draconian” border puts it at odds with most of the world. If it drags on too much longer, Soutphommasane worries “we could end up turning our backs on the world”.

“We are an immigrant, multicultural nation. And we are a trading nation. You can’t separate our society, culture and economy from the rest of the world. Yet there’s a significant section of our population that seems perfectly content with having our borders closed indefinitely. [It’s] fed a public mood of protectionism.”

That protectionist streak is already in the Australian psyche he says, at its most potent in the now-defunct White Australia policy of the past. There’s “a strong reflex of closing down ... our island sanctuary ... to any perceived threat”. It helps explain public support for the government’s hardline stance on asylum seekers, he says, only now it’s directed at our fellow citizens, too. “Our national unity is shot ...The pandemic could end up turning the clock back on Australian society.”

When do we reopen then?

While the world waited for a vaccine, closing the border was arguably Australia’s most effective public health response to the pandemic. Virologist Professor Gary Grohmann, who consults for the World Health Organisation, likens it to John Snow, the doctor who stamped out London’s nasty 1854 cholera outbreak by taking away the handle of the water pump he realised was spreading the bacteria. “That was the source,” Grohmann says. “Well, this time our source is airports. And we have to take the handle off the pump by having good quarantine.”

“Certainly, if you’re going for zero cases [locally], then borders have to stay up,” agrees infectious disease physician Professor Nathan Grills.

But now that we have safe and highly effective vaccines, if enough of the population is inoculated, the number of people getting seriously ill with the virus will plummet, eventually putting it closer to something we can live with, such as flu. Based on modelling by the Doherty Institute, national cabinet has agreed that borders will stay shut until 70 per cent of people aged 16 and over have been fully vaccinated. Then caps will loosen on international arrivals, including letting some international students and visa holders back in and reducing quarantine requirements for those vaccinated. When we get to 80 per cent vaccine coverage (likely around the end of the year), the reopening begins in earnest, with no more caps on the number of returning vaccinated Australians or bans on them leaving the country, and an extension of the travel bubble with New Zealand to low-risk countries (likely Singapore and some Pacific islands).

Experts broadly back the government’s new staged reopening plan, when so much of the Australian population is still unvaccinated (“Now the plan’s been set, we should work urgently towards making it work,” says Soutphommasane). Some want vaccination rates a little higher before borders reopen, particularly as dangerous new variants of the virus keep evolving around the world. But others already see opportunities for more flexibility. Infectious disease expert Professor Greg Dore at the Kirby Institute has said that people going overseas only pose a risk if they return quickly. “If they’re going to be six months or more, we’ll have hit our vaccination targets by then anyway,” he says, adding quarantine should already be done in the home in many cases, rather than through limited spots in hotels. (Grills notes that the government is running a pilot trial of home quarantine but “it’s very small”.)

At the University of Melbourne, Grills and epidemiologist Professor Tony Blakely say we need to move away from the “one size fits all approach”. Right now, they argue we could already bypass quarantine as we do with New Zealand travellers for countries with similarly low caseloads such as Taiwan, Tonga and even China. In fact, they say, the risk of someone coming from one of these countries without quarantine and starting an outbreak is lower than it is for someone from the UK who completes their 14 days of hotel quarantine.

Even with a new outbreak in China, cases are still trending at about 100 new infections a day, says Grills. Blakely calculates that, out of the country’s 1.4 billion population, that means there’s a one-in-10-million chance of a traveller from China bringing the virus into Australia, assuming they are vaccinated and tested before arrival. That’s still well below what the team propose as an acceptable threshold to lift quarantine requirements - about a one-in-a-million risk.

“We think a traffic light system where countries like that are green, no quarantine, just vaccination and testing, and then yellow can be slightly more risk, one in 100,000 like Singapore and Canada, you’d probably still want some quarantine with them,” Grills says. “We could still be cautious at first, but it’ll take the pressure off the hotel system and it means there’ll be more places for stranded Australians coming from high-risk countries like India where we still need them to go through that strict quarantine.”

​In fact, such a strategy may even be safer for those coming from “green light” countries. “They’d have a higher chance of picking the virus up in hotel quarantine than of bringing it in,” Grills says. “It was the right thing to do when this thing started, when we closed the borders, but we know so much more about virus now, just as we know more about our quarantine system and its limitations.”

But while Grills and Blakely want decisions on travel to be based on real-time caseloads in those countries of origin, they note reopening to countries such as China, with its huge international student market, could also be a big boon for Australia’s economy as it waits to reopen more fully.

“The biggest risk factor by far is what country a traveller is coming from,” Grills says. “This is about using public health and the numbers, not politics.”