There are an estimated 9,000 Australian Citizens in India, with no lawful way of returning home before the middle of this month (at the earliest). So how did this happen, how is it lawful (if it is indeed lawful) and how is it okay?

Section 477 of the Biosecurity Act 2015 (Cth) allows the federal Health Minister (currently the Hon. Greg Hunt) to make “determinations” imposing any “requirement” deemed necessary to control the spread or entry of Covid-19 into Australia. These determinations operate in a bubble of exceptions which seem incongruous to administrative lawyers, where words like “ultra vires” and “Drake” are often used and well-understood. Instead, determinations made under s.477 cannot be disallowed by Parliament and are protected by the Henry VII provisions.

Henry VIII?

Yes, that Henry VIII: the overweight English king who had all the wives and all the ways of getting rid of them when they displeased him … or if couldn’t bear him a son … or if he decided he’d rather be married to someone younger or prettier or with a more powerful kingdom behind her … or if he woke up one morning and decided a good beheading was in order.

A Henry VIII clause is so named because in King Henry VIII wanted very large powers to make whatever laws he wanted. In 1531 he got his wish in the form of the Statute of Sewers. Yep – sewers as in smelly and stinky. And King Henry VIII’s power grab was just that.

Since then, politicians, lobbyists and all-around smart people in the United Kingdom and its former colonies (including Australia) have worked to undo this excessive grant of power. Mostly it has been successful but every so often a clause will avoid that undoing. Cue s.477 of the Biosecurity Act 2015.

A Henry VIII clause is one which allows policy, a determination, or another government instrument to change or amend primary legislation (the Act). All immigration and administrative lawyers will tell you that policy cannot serve as a fetter upon the law and it cannot be applied inflexibly – these accepted rules of administrative law do not apply to Henry VIII clauses and this is why the Biosecurity Act 2015 is so much of a problem.

Denying Australia to Australians

So even with this Henry VIII clause, how can the Australian Government tell Australian Citizens that they aren’t allowed to come home? Even more confusing, how can the Government say that Australian Citizens who are now in India might face a five year jail sentence if they try to enter Australia before 15 May 2021? Can the Government deny Australian Citizens the right to live in Australia?

Citizenship is a statutory concept as well as a common law understanding. As far as statutory citizenship is concerned, we need to look at the Constitution as well as the legislation that creates, confers and regulates citizenship of the country. Because every country makes their own rules about Citizenship and the Constitution which governs their nation state, the concept of Citizenship is going to vary. Citizenship confers rights and obligations upon individuals and the nation to whom they belong (the concept of belonging is important in citizenship law, especially in Australia). In a very large and complicated nutshell, the citizens’ responsibility is to be loyal to the nation; and the nation’s responsibility is to protect its citizens.

The Australian Constitution doesn’t make specific references to Australian Citizenship. But there were “small c” or substantive citizens in Australia well before the Australian Citizenship Act 1948 (Cth) came into effect; and when the Courts and politicians distinguished who was a citizen and who was not, the discussion centred largely on where people lived, or their “right of abode”. Factor into this the nation’s responsibility to protect its citizens, and the current prohibition on Australian Citizens returning to Australia from India looks very, very legally questionable.

What is a right of abode?

From as early as 1908, the High Court has recognised that a right of abode is crucial to whether someone belongs to Australia. In Potter v Minahan (1908) HCA 63, Mr Minahan’s status as a non-alien was confirmed through his belonging to the Australian community. In 1925, the High Court in Donohoe v Wong Sau [1925] HCA 6 found that Miss Wong Sau had abandoned her home in Australia and she was, therefore, an alien. Much of the pre-WWII judicial consideration around Australian Citizenship pertains to understandings of s.51(xix) of the Australian Constitution, which is referred to as “the aliens power”. Considering that the Australian Citizenship Act 1948 didn’t enter into effect until 1 January 1949, this is hardly surprising: it had to be tied to something.

As recently as 2003 in the case of Shaw v Minister for Multicultural Affairs [2003] HCA 72, the High Court has affirmed that the right of abode is confined to Citizenship. British subjects no longer have an automatic right to remain here. That means that the right to live in Australia is still connected to citizenship, and citizenship is still connected to the right to live in Australia. We know that living in Australia is important when people apply for Citizenship: applicants are required to satisfy a residency requirement and the vast majority of applicants are required to hold permanent residence before they are eligible to apply for Australian Citizenship or be recognised as an Australian Citizen. If there is a requirement that people live in Australia before they can become Citizens, and if the Courts have held for the past 100-plus years that living in Australia is something that distinguishes non-aliens or Citizens from everyone else, does it follow that the right to return to and live in Australia cannot be denied to Australian Citizens no matter where they may reside temporarily?

Enter vs. reside

Under the Migration Act 1958 (Cth) there is a distinction between “entering” and “residing” in Australia. While the Migration Act doesn’t apply to Australian Citizens, this understanding of entering vs. residing is still relevant.

The right to reside or remain in Australia doesn’t automatically come with a right to enter. We know this through our understanding of how bridging visas work. The next question is whether the right of abode enjoyed by Australian Citizens has the same limitation; or if it goes further to include a right of entry and re-entry.

Because the legislation and policy pertaining to Australian Citizenship is, to all extents and purposes, a work in progress, the answer to this question is really unclear. It’s not clearly stated in the legislation that Australian Citizens are able to enter Australia unincumbered at any time, despite what is written on the front of our passports. It’s not clear that Australian Citizens have the right to enter Australia no matter what. If there is such a right, the Henry VIII clause of s.477 of the Biosecurity Act operates to override it, which just stinks.

It’s true: the law stinks

If the responsibility of a nation is to protect its citizens, there is a strong argument that in the case of a global emergency (like a pandemic) every nation should welcome its citizens home with the legislative equivalent of chicken soup and a warm blanket. This would make sense – for everyone to be able to go “home” until the world is safe to explore once more. But in a world where dual citizenship is commonplace, and where people can hold citizenship of a country without having ever resided there, how welcoming should governments be? Will governments try to impose a residency test upon returning citizens?

I appreciate that hotel quarantine isn’t as effective as we want it to be. I appreciate that the Australian Government is trying to protect the health and safety of Australian Citizens who are here, and avoiding lockdowns is a really good way of doing that. But just because it might be lawful to prohibit overseas Australians from returning home – especially when they are currently residing in countries where Covid-19 is rampant – doesn’t make it okay. I don’t know what the answer is, and there probably isn’t a “great” option right now, but abandoning Australian Citizens certainly isn’t it.

Laws that stink need to be changed

Bad laws need to be changed. This situation (and the not insignificant fallout) will go a long way towards making that happen. But until the laws are changed, we’re stuck with them. There is no doubt that the Henry VIII clauses need to be removed, and never replaced. We elect politicians to make laws based on the best interests of the entire country – no one person is supposed to have as much power as King Henry VIII wanted.

In the meantime, what can we do? If you have family or friends who are in India, they can return to Australia if they have spent at least 14 days in a third country on their way home to Australia. But this option is financially and practically difficult, as other countries are also suspending travel for people coming from or through India, and there are no guarantees that a flight from that third country to Australia will be secured. You can contact your local MP and the Minister for Home Affairs ask that they advocate on your and your loved ones’ behalf. Perhaps most importantly, you can ensure that your loved ones’ presence in India is registered with the Australian authorities and their desire to return to Australia is recorded, so that if the Government commences repatriation flights on or after 15 May 2021, they will be properly notified and returned safely to Australia.

And until that time, when we can all meet at home again, may God hold you in the hollow of His hand.