The Right to Stay: the scope of the right to enter ones own country as a legal protection for long-term permanent residents deported under Australia’s 501 policy

Abstract

Article 12(4) of the ICCPR states “No one shall be arbitrarily deprived of the right to enter his own country”. Australia's continued practice of using the controversial 501 policy to deport individuals, who for all purposes but citizenship can be considered Australians, is a violation of this right. This paper analyses the relationship between international law and domestic law on the availability of Article 12(4) as a method of protection for individuals who face deportation under Australia’s 501 policy. It discusses the meaning of one's “own country” and how its interpretation has developed in international law from the Travaux Preparatoires of the Article to decisions of the Human Rights Committee. It then assesses how Australia’s domestic legal framework has responded to the standards established in international law in relation to cases concerning 501 deportees. It demonstrates how Australia has been reluctant to exclude individuals from the scope of s 501 on the basis of their absorption into the Australian community, such that it renders Australia their “own country”. Overall, it demonstrates how Australia is failing to recognise the right enshrined in Article 12(4) by continuing to employ the 501 policy to deport individuals with sufficient connections to Australia such that it can be considered their “own country”.