Could the government have blocked return of Australian women and children from Syria?

The Australian Government has to manage the return of its citizens, except in very particular circumstances when citizenship can be cancelled, a passport denied or a temporary exclusion order issued.

The Coalition and One Nation have insisted the government should have stopped the return of four Australian women and nine children from Syria after the conflict with Islamic State. But was that ever a realistic possibility?

There are three mechanisms the government could potentially have used to prevent return:

• cancel their citizenship as the UK Government has done with one case
• deny them passports
• implement Temporary Exclusion Orders.

Citizenship cancellation

Citizenship cancellation laws introduced by former Immigration Minister Dutton have a very chequered history, having been overturned in two High Court cases (Alexander and Benbrika).

The current arrangements for citizenship cancellation, which reflect the government’s response to these two High Court decisions, are as follows:

• the person is aged 14 years or over
• the person is a dual national
• the person has been convicted of one or more serious offences
• the court has imposed a period or periods of imprisonment that total at least three years or more
• the conduct the offence relates to is so serious and significant that it demonstrates that the person has repudiated their allegiance to Australia.

The key change is that a decision on cancellation is not one made by the minister but that the minister must apply to a court to have a citizenship cancelled.

In the case of the Australian women, two difficulties arise. First, it appears that none of them is a dual national. The one case where the UK has cancelled the UK citizenship (of Shamima Begum) was on the basis she was a dual national. That is being contested.

Second, these women have not yet been convicted of a crime. That may happen once they are charged. That requires they return to Australia to face court.

Passport denial

The Passport Act provides that the minister can refuse or cancel a passport if requested by a ‘competent authority’. A competent authority can make such a request if it suspects on reasonable grounds that:

(a) if an Australian travel document were issued to a person, the person would be likely to engage in conduct that:

(i)  might prejudice the security of Australia or a foreign country; or
(ii)  might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or
(iii)  might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or
(iv)  might constitute an indictable offence against this Act; or
(v)  might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister’s determination; and

(b)  the person should be refused an Australian travel document in order to prevent the person from engaging in the conduct.

The challenge for the government is that the cancellation or refusal must be based on the likelihood of a future action. To make a request for cancellation/refusal, the competent authority must:

• have sufficient grounds to demonstrate the likelihood of that future action
• provide evidence of those grounds to the applicant for comment as part of the procedural fairness process
• submit that evidence and the applicant’s response to convince the minister to act
• have sufficient confidence that the refusal or cancellation can withstand legal challenge.

It is hardly surprising that no competent authority has, as far as we know, made such a request to the Minister.

Temporary exclusion orders

We know that one of the Australian women has had a temporary exclusion order issued to them.

The Minister may make a temporary exclusion order (TRO) that prevents a person from entering Australia for a specified period, which may be up to two years. An order cannot be made unless certain criteria are met, and it can be revoked.

The Minister must refer the decision to make a TRO to a reviewing authority. If that authority is of the opinion that the decision involved specified errors of law, the decision is taken never to have been made.

The Minister must not make a TRO in relation to a person unless either:

(a) the Minister suspects on reasonable grounds that making the order would substantially assist in one or more of the following:

(i) preventing a terrorist act;
(ii) preventing training from being provided to, received from or participated in with a listed terrorist organisation or a state sponsor of terrorism;
(iii) preventing the provision of support for, or the facilitation of, a terrorist act;
(iv) preventing the provision of support or resources to an organisation that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code;
(v) preventing the provision of support or resources to an entity that would help the entity engage in an activity described in subparagraph 110.3(3)(b)(i) of the Criminal Code; or

(b) the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of the Australian Security Intelligence Organisation Act 1979) for reasons related to politically motivated violence (within the meaning of that Act).

As with the refusal of a passport, a TRO requires evidence that the person is likely to commit a future act and can convince a judicial officer of that evidence. That is a very high bar. Moreover, a TRO is by definition only temporary. It is designed to enable the government to make arrangements for the eventual return of relevant Australian citizens.

The constitutionality of the TRO legislation has not yet been fully tested in court. That may happen in relation to the one individual for whom a TRO has been issued.

Other options

One Nation’s Barnaby Joyce has said the government should make further laws to prevent the return of Australian women who travelled to Syria and Iraq during Islamic State rule. He has not specified what those laws would be. Joyce was a senior minister in the Coalition Government that for years developed laws in this space.

The Coalition has said it would introduce laws to penalise people who provide any form of assistance to the women. Three difficulties arise with this.

• It is unlikely the laws could be enacted to apply to past assistance (i.e. retrospectively).
• It is not clear if such laws would be a sufficient deterrence to organisations such as Save the Children.
• It is unlikely the courts would apply severe penalties to people who have effectively been doing the work of the Australian Government in assisting Australian citizens facing difficulties overseas, replacing the consular assistance the Australian Government usually provides to Australian citizens.

The reality is that, as with many other nations including the United States, the government has to manage the return of its citizens. Australian government agencies are now well practiced in managing such returns: the current cohort is the third one to return to Australia.