Legal experts are warning Australia’s strict caps on international passenger arrivals could be unconstitutional, as hundreds of desperate Australians stranded overseas without access to flights home consider a potential class action.
Questions are being asked about the lawfulness of the caps following revelations last week that the limits are creating a “significant challenge” for 18,800 Australians trying to secure increasingly scarce and expensive flights home.
The caps on international arrivals are also causing unease within federal government ranks, with four members speaking out on the issue at a joint Coalition party room meeting on Tuesday.
Kim Rubenstein, a professor of constitutional and citizenship law at the University of Canberra, said Australians unable to return home could argue the caps were unlawful.
Rubenstein said the high court in 1988 ruled the right of an “Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or ‘clearance’ from the executive”.
She told the Guardian those seeking legal redress could look to rely on that statement, but noted because Australia does not have a bill of rights, the stated right was “not an absolute right”.
“The extent to which the commonwealth can make a law and limit that right (to enter the country) and put a cap on the number of citizens allowed back at any time would have to link back, as it appears now, to another public policy objective such as the health of the nation,” Rubenstein said.
“Then the question would boil down to whether that regulation is proportionate to the end being sought, or whether there were different ways of making that law sit within the power the commonwealth may seek to use to regulate citizens’ re-entry.”
Rubenstein said it could be argued the caps should be raised with quarantine facilities set up similar to when Christmas Island was used to house Wuhan evacuees. Alternatively, returning travellers could potentially wear tracking bracelets in mainland Australia.
The prime minister, Scott Morrison, attempted to reassure colleagues on Tuesday by pointing out Canberra was working with the states to review overseas arrival numbers regularly, but some backbenchers stressed the need to provide support to Australian citizens stuck offshore.
The Guardian has been contacted by scores of Australians pleading for help including essential medical workers, families trapped in Lebanon following the Beirut explosion, and others forced to live in caravans for months. Other Australians who planned to briefly travel overseas to visit dying relatives are now facing an indefinite period away from their schools, jobs, secure accommodation and families.
Repatriating stranded Australians is a controversial issue with the latest Guardian Essential poll showing 65% of respondents favoured closing the international border to all foreign travellers including returning Australians.
Many of those stranded reject claims they ignored government travel advice, especially those who exited with valid exemptions, or those who lived permanently overseas but were unable to sell properties and find jobs in Australia by the time the caps were introduced.
Customers have accused airlines of repeatedly cancelling economy tickets in order to carry more business class passengers as they struggle to remain profitable under the caps. Qatar Airways acknowledged it is now considering a ticket’s value and class when determining which passengers they will fly to Australia.
Introduced in July to ease pressure on states’ hotel quarantine regimes, the caps mean some international flights are limited to 30 passengers or fewer, with reports some planes have carried as few as four economy passengers. About 4,000 people in total can fly into Australian airports each week.
The Australian Competition and Consumer Commission is investigating whether airlines are breaching consumer laws by cancelling economy tickets while simultaneously selling more expensive seats for the same service.
The legal questions around Australia’s border policies include the decision by state governments to charge returning Australians for mandatory hotel quarantine. Chris Douglas, a former Australian federal police officer and anti-money laundering consultant, has questioned the legality of the policy.
Helen Irving, a professor of constitutional law at the University of Sydney, said she had been contacted by Australians stranded overseas eager to pursue legal action.
Irving also pointed out that the high court has stated Australians have the right to re-enter the country without clearance or license from the executive – but noted the constitution itself doesn’t say anything about citizens’ rights.
She told Guardian Australia the right to re-enter can be limited by a legitimate purpose – citing the commonwealth’s quarantine powers – and responsibility to protect public health during the Covid-19 pandemic.
Nevertheless, Irving said the government had set a precedent by organising repatriation flights for Australians stuck in Wuhan, South America and India earlier in the pandemic.
“The government has recognised in this way that it’s got a duty of protection towards Australian citizens,” she said.
In the weeks since the caps were introduced, online communities have formed to resist them, with one group specifically set up to discuss a class action growing to more than 1,100 members as of Tuesday.
Ella Camille, a 28-year-old working in Edinburgh, is one Australian who would consider joining a class action.
After her early July flight was cancelled five times, the not-for-profit worker now faces the possibility of being stuck in the UK without a valid visa, as her British visa expires in November and she must apply for her next visa from her home country.
Originally booked on British Airways, her ticket was transferred to Qatar Airways as international border closures altered flight paths from Europe to Australia. Frustrated at repeatedly cancelled flights, she has now transferred back to British Airways and is scheduled to fly home on 4 October.
While the British government has recently allowed applications for visas to be made from within the country, the approval process takes eight weeks. She is unsure what she will do if her next flight is cancelled.
“I began to actively dread the sound of an email notification because all I was expecting was another cancellation … this sat like a physical weight on my chest all day,” Camille said.
“Consideration of this certainly hasn’t fallen to government, who seem to have taken one look at this and dumped it in the too hard basket.”
Source: The Guardian