As more than 25,000 Australians wait for the chance to return home, at least one legal expert says the travel restrictions may breach the constitutional rights of citizens. By Karen Middleton.

Australians stranded overseas

Lawyer and academic Dr Liz Curran is stranded in Britain, waiting to return to Australia.
Lawyer and academic Dr Liz Curran is stranded in Britain, waiting to return to Australia.
Credit: Supplied

In her rented room in the English city of Nottingham, lawyer and academic Dr Liz Curran gives in, briefly, to tears. She keeps insisting many others among the 25,000 Australians stranded overseas are in worse situations. She doesn’t want to sound like a whinger.

But the many layers of strain are tumbling over each other. Isolation and distance. Concern for her 89-year-old mum back in Melbourne. Fear for her own health due to underlying conditions. The financial pressure and stress of unemployment. The uncertainty.

That’s the worst, she says: not knowing when she can go home.

“The Australian government is the only country in the world, to my knowledge, that is not allowing its own nationals and permanent residents to come home,” says Curran, steady again now. “They need to stop overreacting.”

When the Covid-19 pandemic was at its early peak, few argued that locking down the country was an overreaction.

But with Victoria the only state now experiencing serious transmission levels – and things improving there as well – Liz Curran is not alone in suggesting the time has come for more flexibility.

Business is also making a case for compassion and common sense.

As the federal government partially eases the cap on international arrivals from next Friday, the Australian Chamber of Commerce and Industry (ACCI) is rallying support for a national road map to reopen the economy and a parallel plan to lift restrictions on traveller movements and risk-rate the approach to quarantine.

“What we’ve been concerned with is the lack of certainty in long-term vision and consistency across jurisdictions,” ACCI’s workplace health adviser, Jennifer Low, tells The Saturday Paper.

Still in draft form, and circulating among industry groups, the road map lays out steps towards reopening and urges more cohesion.

There is a drive towards a more hotspot-focused approach to domestic travel restrictions, so employees can travel more easily and keep businesses functioning. Business groups are also investigating testing options and other technology that could help ease the strict quarantine rules.

Low says they could make the system more workable “but also safer and reassuring to the health authorities”.

Industry is also pressing government to plan for further easing of restrictions on international travel, even if that might be further off. “We want the international discussion to start now, so there are more parallel processes,” Low says.

The travel proposals advocate removing restrictions both on Australians departing – currently only allowed by special exemption – and on those returning home.

They include risk-rating countries according to infection levels and designating “safe corridors” between Australia and other low-risk countries, such as New Zealand. Travellers from these countries would not be required to quarantine for 14 days.

The draft proposal also favours allowing some other travellers to isolate, monitored, at home, rather than in a hotel.

Liz Curran is apprehensive about the system as it currently stands.

“Let’s face it,” she says. “Where have the rates of Covid been out of control and become a problem? Hotel quarantine.”

She says the idea of risk-rating and frequent testing makes sense. “It’s more nuanced. It’s not as blunt as the current policies.”

Curran left Australia on February 28 on a five-month sabbatical. Her July flight home has been cancelled twice by Emirates and she is now booked for October 15. She has had to pay for a business-class fare for part of the return sector, first-class for the rest.

It’s an expensive flight for the academic, who unexpectedly lost her job in October last year, when the Australian National University restructured its law courses.

The university had already approved Curran’s study leave to finish a legal book before she was made redundant, and said it would honour its promise to cover her original airfare and accommodation.

On that basis – and as she had no job in Australia, a book contract to fulfil and obligations to two British universities that had offered to host her – Curran decided to go.

The Australian government has scolded citizens who left Australia as the pandemic descended and those who did not – or could not – come home fast.

“We’ve provided advice to Australians not to travel overseas from as far back as January and February of this year,” Home Affairs Minister Peter Dutton told ABC TV’s Insiders program last Sunday.

But the government’s do-not-travel advice was issued on March 13 – two weeks after Liz Curran left the country.

Curran worries from afar about her mother, who lives in an outer-Melbourne retirement complex. Since the flight cancellations though, it’s been mother supporting daughter.

“She’s just an amazing font of wisdom and a really compassionate, positive, glass-half-full [person],” Curran says. “She’s been fabulous. Very philosophical … She said, ‘I’m safe here.’ ”

But Curran worries about her own situation, too. Her Airbnb hosts have been generous, but they can’t let her stay beyond October.

“If I’m not able to fly home on October 15, I don’t know what I’ll do.”

She’s applied for dozens of academic and legal jobs back home; so far though, she hasn’t had any success.

Back in Australia, some are questioning the legality of the edict that is keeping her and other Australians stranded overseas.

University of Canberra law professor and citizenship specialist Kim Rubenstein believes the government’s arrivals cap may be unlawful, potentially undermining an implied constitutional right of citizens to return to Australia.

“There is a real question of their capacity to limit Australian citizens in their return,” Rubenstein says.

The High Court acknowledged that right in its 1988 ruling in Air Caledonie International v Commonwealth – a challenge to a federal arrivals tax.

Rubenstein notes it is legally possible to impose return restrictions to meet certain objectives – such as protecting public health – but they would need to be “necessary and proportionate and must be the least intrusive means of achieving the desired result”.

She is not convinced that capping arrivals, which has led to Australians being bumped off flights and charged higher fares, meets that test.

The Department of Infrastructure, Transport, Regional Development and Communications confirmed the government is relying on regulations under the Air Navigation Act for the power to cap the numbers.

Those regulations allow it to vary or suspend airline “timetables”. The definition of a timetable includes “the capacity on all or part” of a route.

Another constitutional expert, Sydney University professor Anne Twomey, is more circumspect about the legal situation.

“This is a murky area,” she tells The Saturday Paper. “Any challenge to the caps on numbers entering the country would face difficulties.”

Twomey says the implied constitutional right of return would have to be established and may not be absolute. There is also the complication that the caps are only delaying, not preventing, arrival.

As yet, no case has clarified the situation.

“It’s only murky because we’ve never tested it in the courts,” Rubenstein says.

The Saturday Paper understands several law firms are considering a class action, challenging both the incoming and outgoing traveller restrictions, but that the proposals are not well advanced.

Qantas chief executive Alan Joyce says his company believes the government is “entitled to manage the international borders the way they are”.

Separate restrictions on departures are being applied under the Biosecurity Act, which requires Australians to seek exemptions to go overseas.

Minister Dutton said the departure restrictions were needed because of the return restrictions – despite predating them. The return restrictions were linked to the number of hotel rooms that state and territory governments were making available for the compulsory 14-day quarantine.

Domestic travellers are using considerable quarantine capacity under states’ border restrictions.

New South Wales, already carrying the greatest quarantine burden, agreed this week to the number of weekly arrivals increasing from 2400 to 3000, provided other states also increased their intake.

South Australia agreed, Western Australia and Queensland were unenthusiastic, and the federal government was in talks with Tasmania, the Northern Territory and the Australian Capital Territory about also taking incoming international passengers.

Some states want the Commonwealth to do more, either financially or by using federal facilities to boost capacity.

It is unclear what will happen when hotels are needed for regular travellers as domestic border restrictions ease.

The federal government is using the stranded Australians’ situation to pressure the states about the domestic borders, particularly the Palaszczuk Labor government ahead of next month’s Queensland election.

At the same time, the Coalition has accused the federal Labor opposition of playing politics.

Opposition Leader Anthony Albanese wants the government to use Royal Australian Air Force planes to pick up stranded Australians or to enter a cost-sharing arrangement with Qantas for repatriation flights.

Over eight weeks, beginning in April, the government sponsored repatriation flights from London, Los Angeles, Hong Kong and Auckland, but hasn’t done so since.

Albanese insists there is no shortage of hotel space or planes.

“The only thing that is lacking at the moment is leadership,” he said on Wednesday.

Increasing the arrivals cap will not fully address the issue of the high airfares that travellers are being charged for the few seats available, now up to 6000 a week.

Qantas suspended all international flights in June, so the only flights coming into Australia are with international airlines, some backed by their governments.

It has offered to help with more flights to bring Australians home, if the government will underwrite them.

Alan Joyce notes the government is already doing so on domestic routes.

“Then you don’t get people that are gouged for high airfares,” he told ABC Radio National on Thursday. “… We want to get those Aussies who want to get home back here. We need to do that as fast as possible. We’d like to do it before Christmas.”

The government is setting a similar deadline for getting stranded Australians home.

Deputy Prime Minister Michael McCormack said he hoped to raise arrival numbers again to 8000 a week and then 10,000 – all dependent on more quarantine hotel rooms being made available by the states.

“We want [them] increasingly, exponentially available so that more Australians can come home and be home with their loved ones by Christmas,” McCormack said. “It just makes good sense.”

Liz Curran hopes she won’t have to wait that long.

“I’m trying to stay buoyant,” she says. “It isn’t easy.”

This article was first published in the print edition of The Saturday Paper on September 19, 2020 as "Flights unseen".

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