Citizens’ right to return home is not guaranteed

Our nation has achieved remarkable success in responding to COVID-19. However, not all Australians have benefited from this. Strict border controls have left 40,000 citizens stranded, often in locations with high rates of infection. Angry and sometimes confused, they have asked: how is it possible for our country to treat its citizens in this way?

This question has been put to me many times during the past year by Australians desperate to return. Their messages have often assumed the law permits them a right of entry. They believed when going overseas that they could come back at any time. After all, one of the most basic aspects of being a citizen is the ability to enter and live in one’s own nation.

This is apparently confirmed by government information. The Department of Home Affairs website lists the responsibilities and privileges of Australian citizenship. Responsibilities include obeying the laws of Australia and defending the nation should the need arise. In return, Australian citizens are said to have privileges, including that they can “re-enter Australia freely”.

Common assumptions about what it means to be an Australian citizen often fail to stack up. There are many ambiguities in the law, as well as gaps that mean the rights of citizens are far more limited than expected. Citizenship has also been eroded over recent years by laws that prioritise other interests, especially national security. The federal government has been given the power to strip Australians of citizenship and to stop any person from entering Australia for up to two years where they may be involved with terrorism or politically motivated violence. Other laws deny citizens their democratic rights, including removing the right to vote in federal elections from prisoners serving three or more years in jail.

Preventing Australians from entering or exiting the country during the pandemic is another example. The federal government can achieve this by working with airlines to ensure very few flights land in Australia, and any flights that do land have limited capacity. Without available seats, there is no practical way for every Australian to return home.

If the airlines refuse to co-operate, the government can get its way by using the extraordinary powers at its disposal. The federal Biosecurity Act provides for the declaration of a human biosecurity emergency for up to three months. The federal Health Minister can then determine “any requirement” and make “any direction” he feels is needed to control the disease. These override other laws and cannot be disallowed by parliament. A person who fails to comply is liable for a fine of up to $63,000 and imprisonment for five years.

Australia declared a human biosecurity emergency last year when it became clear the pandemic posed a severe threat to the community. The emergency has since been renewed, most recently in early March, and will remain in force until June 17. A range of measures has been imposed using such powers. For example, passengers on international flights must wear face masks and report a negative coronavirus test before boarding.

The only possible legal check on these powers is the Australian Constitution. To do so, it would need to establish that citizens have a right to re-enter Australia. However, the Constitution does not express any such right. It does not even mention Australian citizenship. The only mention of citizenship at all is in section 44, which establishes that a “citizen of a foreign power” cannot sit in the Australian parliament.

At best, a right of re-entry might be implied into the Constitution by the High Court. The closest the court has come to this is an obscure reference in a 1988 case. Air Caledonie International v Commonwealth concerned a new immigration clearance fee imposed on international airline passengers entering Australia. The court remarked that a citizen has “under the law, the right to re-enter the country, without need of any Executive fiat or ‘clearance’, for so long as he retained his citizenship”.

This statement provides weak support for the idea that citizens have a constitutional right to re-enter Australia. The court did not fully consider the issue and did not deal in detail with whether such a right might be implied from the Constitution. It gives small hope to those who want to litigate the issue in the High Court.

Even if the court found an implied constitutional right of citizens to re-enter Australia, this would be subject to qualification. The court would likely preserve the ability of parliaments to restrict entry where it is reasonable and appropriate to do so. One example would be to restrict re-entry by citizens where this is needed to maintain public health. As a result, Australians stranded overseas have little prospect of invoking the Constitution to support their cause. Despite their distress, they have no choice but to take their chances at securing a flight home.

George Williams is a Deputy Vice-Chancellor and Professor of Law at the University of NSW.