The Australian government’s new regulations barring expats who temporarily return home from leaving again could face a constitutional legal challenge.
Last week, the federal government quietly tightened the rules on Australians who live overseas but come home temporarily, removing the ability for them to leave the country without an exemption.
Such exemptions have been notoriously difficult to obtain during the pandemic.
Experts told Guardian Australia the changes, which take effect on 11 August, may be unconstitutional.
Now, the law firm Marque Lawyers has confirmed it is investigating a potential legal challenge. No decision has yet been made, but Marque is attempting to gather stories from expats who will be affected by the change.
“We have been engaged to look into the potential for a challenge to the legal validity of the new measures. No decision has been made as yet,” Marque managing partner Michael Bradley said.
“It is a significant additional restriction on the generally assumed freedoms of Australian citizens, including the right of return.”
The home affairs minister, Karen Andrews, said that living abroad would provide enough reason to obtain an exemption to travel out of Australia.
“Outbound exemptions for Australian citizens are necessary as every Australian leaving, and planning to return, creates a queue of people wanting to come back,” she said. “This is because Australian citizens and permanent residents and their immediate family are automatically exempt from inwards travel restrictions and can enter Australia without obtaining an individual exemption.”
“This does not stop Australians ordinarily resident outside Australia from departing, however these people will now need to apply for an exemption,” she told the Sydney Morning Herald. “These restrictions provide a balanced approach between allowing Australians to travel, if essential, while protecting community health.”
The changes were made last week, with no public announcement or debate.
The ensuing confusion and uncertainty has left many Australians living abroad fearing they will be trapped if they return.
Susanne Koen, from the small town of Mylor in the Adelaide Hills, said two of her three children – a daughter on Vancouver Island in Canada and a son in Philadelphia – were now too worried to come home.
Her children try to make a return trip every year, with the cost of the air fare usually the only barrier.
Koen, 67, hasn’t seen them since September 2019. She described the latest changes as “absolutely devastating”.
“For me personally, the question has turned from when I will see my kids again, to will I see my kids again,” she said.
“This is just one more nail in the coffin. It’s one more example of government overreach, I think.”
The government says exemptions can be applied for prior to an individual leaving their home country to travel to Australia
Koen understands the need to balance the health of Australians with their personal freedoms. But she sees no health benefit whatsoever from trapping Australians in the country, when they usually live abroad.
“I can understand that some of the measures that the government implements certainly do make sense from a health point of view,” Koen said.
“But this one doesn’t. It absolutely does not.”
Dr Ben Hanson has, until early last year, lived and worked in the United Arab Emirates. He returned home a few days before the borders shut after his father died of a stroke. Finding himself stuck in Australia, he worked at a local medical centre to help with the initial Covid-19 outbreak.
He has since returned to the UAE to see his partner, wind up his affairs and prepare to come back to Australia. The huge flight costs and unreliable bookings have made it extremely difficult for him to return.
Now, his mother’s health is deteriorating. He says the changes have made it “almost impossible” for him to come back to Australia temporarily.
“My mother was really struggling without me there. Her health is deteriorating. She is in daily pain with crippling arthritis and she is lonely. She had to pack up and move into aged care outside Sydney without any assistance,” he said.
“If something happened to her there is now absolutely no way I could return to Australia to help her.”
