What to know about travelling to the US and your rights at the border

Australia Broadcast Center

18-06-2025

Professor Donald Rothwell says he's no longer accepting invitations to speak in the United States anymore.
"I do a lot of commentary that's critical of the US — on Guantánamo Bay, on foreign policy, on war powers. I just don't want to take the risk," the international law expert told the ABC.
The Australian National University academic says he fears being detained, searched or denied entry under the same visa waiver rules that many Australians use to enter the US.
The recent case of Australian writer Alistair Kitchen — who was sent back to Melbourne from Los Angeles International Airport after being questioned about his views on the Israel-Gaza conflict — has highlighted a serious reality for travellers under the US Visa Waiver Program (VWP).
The Department of Foreign Affairs and Trade (DFAT) again updated its travel advice for the US last week, warning Australians to avoid areas where demonstrations and protests are occurring due to the potential for unrest and violence.
Here's what Australians need to know about travelling to the US and what to do if you're stopped at the border.
Most Australians visiting the US do so using the VWP — a fast-track system that lets you apply online for a pass known as an "Electronic System for Travel Authorization", or ESTA.
It allows Australians to stay in the US for up to 90 days without applying for a visa — but the convenience comes at a cost.
You surrender many legal rights at the border, leaving you with no guaranteed right to entry, no access to legal advice, and little protection over digital devices.
"By agreeing to the VWP and by acquiring an ESTA, you actually waive some of your rights to contest the way in which you may be treated at the border," Professor Rothwell says.
Yes and no.
A B-1 (for business purposes) or B-2 (for recreation) does require a more rigorous vetting process before travelling, including an interview at the US consulate in Australia, so if you're going to be denied, you'll likely know before boarding a plane.
However, even with a visa, entry is never guaranteed — US Customs and Border Protection (CBP) still has the final say at the border.
Professor Rothwell says the risk of being stopped at the border has surged post-9/11, particularly for Australians whose political views or public profiles attract scrutiny.
"US border officials have complete discretion under US immigration law to refuse someone entry, even if they hold a valid ESTA or visa," he says.
"They don't have to give a reason, and there is very little ability for an Australian traveller to challenge that."
Professor Rothwell says Alistair Kitchen's case "highlights the full range of discretionary powers that US border officials have".
Professor Rothwell says many Australians incorrectly think they have an unconditional right to enter the US.
Australians have a right to request consular assistance anywhere in the world, but access is ultimately controlled by the host country.
If you're detained under US immigration powers, authorities aren't required to give immediate access to a phone or lawyer.
CBP has sweeping powers at ports of entry, including detaining travellers for hours, searching phones and luggage, and personal searches.
If you're deemed inadmissible, you may be held in a detention room until the next available return flight.
Since you're not formally "under arrest", many standard legal protections, such as the right to a lawyer immediately, don't apply.
Australia's Smartraveller website advises travellers detained at the US border to ask to call a lawyer or the Australian consulate.
In Alistair Kitchen's case, his phone and passport were reportedly held by Qantas staff until his plane landed back in Australia.
Professor Crock says airlines can be prosecuted if they bring somebody into a country they have no right to enter.
"Generally, the airlines sign an undertaking that they will remove a person from point A to point B," she says.
Professor Rothwell says airlines usually follow the instructions of border authorities.
"If Qantas agreed to transport someone under a US deportation order, then US authorities would have set the conditions," he says.
"That could include retaining their documents until they're off the aircraft at the other end."
Being turned around at the US border can have ongoing effects.
"Once you've been refused entry to the US, that will go on your immigration record — and you'll likely be ineligible for the VWP in future," Professor Rothwell says.
"It can also affect your ability to travel to other countries. You may be asked on future visa applications whether you've ever been deported or refused entry — and you'll have to answer 'yes'."
Professor Crock echoed that warning.
"Once you've been excluded like that, it makes your life difficult. You're never going to be eligible to go for one of these quick electronic visas again, probably in any country," she says.
If you're detained or questioned by US border officials, experts say it's vital to stay calm and know your limited rights.
"You certainly have rights to consular support … detained persons have the right to make a phone call, to family, a friend, or the consulate," Professor Rothwell says.
"But the ability of the consulate to intervene and assist on your behalf is going to be quite limited."
He also warns about potential delays and difficulties.
"You could find yourself waiting a very significant period of time before there would be a legal resolution of your case … putting yourself into purgatory for days, weeks, if not a number of months."
Professor Rothwell says Australians are unlikely to face the same level of scrutiny when travelling to most other popular destinations such as New Zealand, the UK, Canada, European nations, and many parts of Asia.
While most countries will ask about criminal history or past visa issues, Professor Rothwell says few, if any, investigate a traveller's social media presence or political activity.
"I have no knowledge of any of those countries regularly visited by Australians seeking to investigate a person's social media history or low levels of political activism such as attending rallies and marches," he says.
He says he found border processes in a recent trip to Europe to be seamless and contactless.
Professor Rothwell is not alone in deciding not to travel to the US.
He and Professor Crock say growing numbers of scholars, progressive academics and journalists, are refusing to travel there or are nervous to do so.
"There are a lot of people I know who've made the same decision as me," Professor Rothwell says.
"When you're not guaranteed entry, when you have no access to a lawyer, when your digital devices can be searched, it's just not worth it."