Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to travel restrictions.
QUESTION: I’m a dual British-Australian citizen and have lived here for 20 years with my wife and two small kids. My elderly parents are in the UK and my mum who’s 85 has terminal cancer. My dad is struggling to look after her and is getting easily confused, I think he may have dementia. I want to go out there and spend a month or so with my parents to see if they’re OK and see if they need to go into aged care. What are my legal rights to travel at the moment and can I come back? I so desperately want to see my parents but I don’t want to get stranded in the UK long-term away from my wife and kids. Surely the government can’t forbid me from leaving to go back to a country I’m a citizen of? I feel trapped and torn in two at the moment and want to know my rights so I can make a case to the government to leave. Colin – WA
ANSWER: It sounds like a very stressful time for you Colin with a lot of uncertainty.
As you know, Australia has closed its borders to overseas travel. You cannot leave the country, unless you get an exemption from the Department of Home Affairs.
Your dual citizenship alone will likely not be enough to qualify you for an exemption as you do not ordinarily live in the UK.
There are strict criteria that must be met before an exemption will be issued, with the following two potentially applying to your situation:
• You are travelling on urgent and unavoidable personal business
• You are travelling on compassionate grounds
The exemption application can be made online and you need to make the application at least two weeks prior to your intended travel, but no more than three months before the travel.
You’ll need to provide supporting evidence for your application, which in your case should include things like:
• Your passports and evidence of citizenship
• Proof of your relationship with your parents (eg birth certificate)
• Proof of your parents failing health and the importance of your visit (eg letters from their doctor)
• Information about any lack of alternate family support for your parents
• Evidence of when you intend to return to Australia (eg return ticket)
You should also find out if there are any restrictions on your ability to enter the UK including a self-isolation period.
You should be aware that when you return from the UK, you will be subject to a 14-day quarantine period, likely at your own cost, in a designated state or territory facility in the city you arrive in.
So for example, if you arrive in Sydney before catching a connecting flight home to Perth, your quarantine will be in Sydney.
You may then also need to self-isolate for a further 14 days after the quarantine, depending on the border restrictions in place in WA at the time of returning.
During quarantine you may, depending on the state you are in, be tested for COVID-19 on numerous occasions and if you refuse to undergo testing your quarantine period may be extended.
There’s been a lot of debate about the necessity and legality of the travel bans.
Under the Biosecurity Act 2015, during human biosecurity emergencies the Federal Health Minister has the power to put in place requirements that prevent or control the spread of the disease within its own borders and also any spread to another country.
The law says that any limits or bans of people’s movement are allowed as long as they are likely to be effective, appropriate and no more restrictive or intrusive than required in the circumstances.
There are also some international laws that govern freedom of movement within and out of a country, but these laws also say freedoms can be restricted to protect public health.
One such law is the International Covenant on Civil and Political Rights. Australia has signed this law, however for it to have direct effect it needs to be incorporated into Australian law.
We wish you all the best with your family circumstances.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
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