Australian citizens have the right to return home

1 July 2015

Regardless of their conduct or relationship to culpable persons, Australian citizens have the right to return to their country. The wife and children of Islamic State fighter Khaled Sharrouf, currently in Syria and subject to an emotional appeal by the children's grandmother, Karen Nettleton, appear to want to come home.

Immigration Minister Peter Dutton suggested that the help the government could provide was limited, and warned others from doing the same: "It's not a place that we have Australian troops, it's not a place where we have diplomatic presence."

But whatever we think of these people or their circumstances, they enjoy the right to return on the same footing as every other Australian citizen. This right was established in a case concerning a person also considered "undesirable" by most Australians at that time.

James Minahan, also known as Ying Coon, was born in Victoria of an Anglo-Australian mother and a Chinese father. His Australian nationality was acquired by birth. He was taken to China as a child and, as an adult, sought to return to Australia. Minahan spoke no English, and immigration officers attempted to prevent his entry. But, at the height of anti-Chinese sentiment in the Australian community, the High Court upheld his appeal in 1908 against expulsion, affirming his right to remain in or return to his place of birth.

In later years, the High Court upheld the denial of re-entry to an Australian-born Chinese woman, it did so only after finding that she had lost her citizenship. Most recently, in 1988, the High Court struck down a law that imposed an "immigration clearance" fee on all persons, including citizens, arriving in Australia by air.

The unanimous decision confirmed that: "... the right of the Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or 'clearance' from the Executive."

Entry also cannot depend on holding a passport. There is no unqualified right to a passport, but an Australian citizen cannot lawfully be denied entry, even without one. In the 1960s, the government adopted stalling techniques to prevent Australian journalist Wilfred Burchett from returning. Burchett, a communist, living overseas, was repeatedly denied a passport.

However, as cabinet minutes of the era reveal, the government was well aware, on advice from the attorney-general's department, that Burchett could not lawfully be kept out. It deliberately chose to keep this from public knowledge, lest it attract criticism for a denial of rights.

Earlier this year, Aboriginal activist Callum Clayton-Dixon was permitted to re-enter Australia, although the Aboriginal "passport" he presented at Brisbane airport was not recognised as valid. Customs officials confirmed that a citizen's identity can be established in other ways.

International law supports the citizen's right to return. While no treaty or convention states categorically that citizens cannot be denied entry or residence in their country, Article 12 of the International Covenant on Civil and Political Rights provides that: "no-one shall be arbitrarily deprived of the right to enter his own country."

State practice and international customary law combine to endorse this rule. The Australian government is, no doubt, aware of this, as it is aware of the citizen's right to come home.

It is no coincidence, then, that the bill to amend the Australian Citizenship Act presented to parliament last week includes deprivation of citizenship as an automatic penalty for certain forms of conduct committed overseas. This conduct includes giving assistance to terrorists, and may or may not apply to members of terrorists' families.

But, so long as they are citizens, the families cannot be denied entry. One of central reasons for the proposal to strip citizenship must surely be to get around this.

In any case, the bill's measures will not apply retrospectively and "mono-citizens" (sole nationals) will be exempted. These protections, it seems clear, were inserted in response to criticism of earlier government proposals that would have seen citizenship deprivation give rise to statelessness, in breach of Australia's international law obligations.

Additionally, retrospective laws - although not prohibited by the Constitution - are contrary to the rule of law. While the bill remains open to constitutional challenge, the government's respect for the principles of law deserves recognition.

The bill is currently being considered by the parliamentary Joint Standing Committee on Intelligence and Security. In the meantime, those members of the families in Syria who are citizens retain the right to return to Australia.

How they get back is a different question. Citizens have no enforceable right to consular assistance in foreign countries, although they have a reasonable expectation of it - and states have a moral obligation to help their own.

The government's relative silence on the claims made on behalf of the Sharrouf family may reflect diplomatic and other initiatives behind the scenes, perhaps with the aim of assisting them to exercise their rights. When the government eventually acts, one trusts it will do so again with respect for the law - regardless of public pressure.

This article was originally published on The Conversation.