Is the government telling expats ‘don’t come home’? It certainly seems that way

The Biosecurity Act, as I’ve noted before, is an extraordinary law that gives the executive arm of the federal government powers a dictator would find enticing and the people would, ordinarily, find terrifying. 

COVID-19 is not ordinary and we have all become accustomed to being told what not to do. That includes extreme restrictions on freedom of movement. We assume, as citizens, that one of our inherent rights is to come and go from our country as we please, but we’ve accepted that that carries an obvious public health risk.

Since March 2020, it has been the law, pursuant to a determination made by Health Minister Greg Hunt using his powers under the Biosecurity Act, that Australian citizens and permanent residents cannot leave Australia without an exemption, which is only supposed to be granted if they can show “exceptional circumstances”, defined as “a compelling reason to leave”. The practical application of that rule has been opaque and, many of us suspect, arbitrary.

The determination gave a number of blanket exemptions to certain classes of traveller, meaning they didn’t have to apply for a specific exemption. They included citizens and permanent residents who are returning to the country where they are ordinarily resident: expats.

Last week, without publicity, Hunt amended his determination by removing the general exemption for these people. As from August 11, they are required to seek a specific exemption before they can leave Australia to return to their homes overseas. 

Naturally this triggered pandemonium among Australian diaspora; nobody wants to come back here if there’s a risk they won’t be able to leave again and get back to their homes, jobs and families. But of course many people have needs to come here temporarily.

As soon as the panic began, Home Affairs Minister Karen Andrews was publicly saying no problem, every expat will get an exemption. According to an explanatory statement issued by the government, and confirmed by Andrews since, the problem it is addressing is that a small number of people have been engaging in “frequent travel between countries”, placing pressure on the hotel quarantine system.

As Andrews said: “These restrictions provide a balanced approach between allowing Australians to travel, if essential, while protecting community health.”

OK, so we know why it’s been done. The restriction cannot be legally valid unless it is directed towards, and justified by, the federal government’s constitutional responsibility for quarantine; the government has no legislative power to prevent Australian citizens from coming or going otherwise (except in case of war, or to ensure compliance with an international treaty obligation).

The claimed link to quarantine is that every time someone leaves Australia they want to come back again, and that affects the limited quarantine system as well as adding to the COVID risk generally.

However, while for Australians who live here the usual case is that they go overseas and then come back, for expats the opposite is the norm: they live over there, come here temporarily, and then go home. Imposing a restriction on their ability to leave here can have relevance to quarantine only if it is designed to deter them from returning here in the first place. That is, at best, tenuous. It’s also disingenuous.

Andrews is insistent that it’s just a box-ticking exercise; everyone will get their exemption, nobody will be trapped here unwittingly.

That leaves us with two possibilities: Andrews is right, in which case the imposition of an exemption requirement on foreign-resident Australians is a completely pointless waste of time and energy; she is wrong, in which case foreign-resident Australians are in fact going to be deterred from exercising their inherent right to come home.

Further, on the government’s own admission, the problem it claims to be addressing has nothing to do with the movements of most of the hundreds of thousands of Australians who live overseas; rather, apparently, it is a small number who’ve been coming and going like yo-yos. We can legitimately think that that is not OK, in the same way as we can wonder how Brian and Bobbie Houston got a special exemption to travel to spread the Pentecostal word.

Well, if so, then it would be easy to make a rule, using the health minister’s extraordinary powers, to put a cap on the movements of these few frequent flyers. There is no warrant in that to make life harder for the entire expat community.

The Biosecurity Act mandates that before the minister imposes any restriction he must be satisfied that it is likely to be effective, it is appropriate and adapted to the purpose, and it is no more restrictive or intrusive than is required. That is, the minimum necessary to achieve the purpose, which the minister has confirmed is to reduce the pressure on quarantine and restrict the spread of COVID in Australia.

I fail to see how this latest measure satisfies any of those tests. At best it’s lazy bureaucratic overreach; at worst, it’s a coded message to our own citizens abroad: don’t come home.