Peter Dutton foreign fighters isis
(Image: AAP/SAM MOOY)

With the return of parliament, the government is making yet another push for laws preventing Australian citizens with terrorist links from returning to Australia from war zones. Home Affairs Minister Peter Dutton is planning to push the Counter Terrorism (Temporary Exclusion Orders) Bill 2019 through both houses of parliament this week.

Haven’t we been here before?

The topic of what to do with foreign fighters attempting to return to Australia was a long-term preoccupation of former prime minister Tony Abbott following the spread of ISIS across Iraq and Syria in 2013 and 2014. In 2015, he moved to strip Australian citizenship from foreign fighters with dual citizenship, saying that the rising threat of foreign fighters “requires a modern form of banishment”.

By the time the bill passed, Abbott had been replaced by Malcolm Turnbull. Under these laws, according to Dutton, nine dual nationals had their citizenship revoked due to conflict-related activities in Syria and Iraq.

Abbott stayed on the topic, pushing for harsher and harsher penalties in the years since. He argued in 2017 for special courts “that can hear evidence that may not normally be admissible”. He went a step further in February 2018, writing in The Australian that the government should follow Britain’s lead in temporarily banning foreign fighters (including full citizens) from returning:

This is what now needs to be put in place: a way to stop terrorists returning even though they are solely Australian citizens with a normal right to be here. And there is a readily available overseas precedent. Since early 2015, the British government has been able to make court-supervised “temporary exclusion orders” against sole-citizens who have left the country to fight with terrorists and would pose a menace to the public if they returned.

In the aftermath of the Bourke Street attack in Melbourne late last year, Abbott got his wish. Prime Minister Scott Morrison pushed for two updates to the Australian Citizenship Act: increasing the existing power to revoke the citizenship of dual nationals, and a period of exclusion from reentry of foreign fighters returning to Australia.

The proposal allowed the Home Affairs Minister to impose an exclusion order for up two years on people who have been to conflict zones, making it a criminal offence to return to Australia unless given a “permit with other controls”. The measure stalled, and Dutton tried again in February and July this year.

What does the law provide for?

A temporary exclusion order (TEO) can be imposed on an Australian citizen overseas if they are 14 years or older, and:

  • The minister reasonably suspects that issuing the TEO would substantially help prevent terrorism-related acts, or;
  • ASIO has assessed the person to be a direct or indirect risk to security, for reasons related to political violence. ASIO doesn’t need to be satisfied to any standard of proof when making this assessment.

As Sangeetha Pillai points out in The Conversation, neither of these criteria “actually requires a TEO candidate to have engaged in any wrongdoing”.

The law would increase the already remarkable levels of discretion available to the Home Affairs Minister, allowing Dutton to decide if “reasonable grounds” exist to conclude allowing an Australian to return to Australia would assist a terrorist organisation. The Joint Parliamentary Committee on Intelligence and Security reviewed the legislation and made 18 recommendations increasing oversight, transparency and safeguards. The government has largely ignored them; proposing a right of review of any decision to bar an Australian from returning — but a decision could only be overturned if it is “legally flawed”.

Is it constitutional?

There have been persistent questions about whether exclusion orders are constitutional. The right to return to the country of which one is a citizen is commonly regarded as a core aspect of citizenship. The Law Council of Australia have argued this right is constitutionally protected in Australia.

Is it even effective?

Pillai argues the government hasn’t explained “why Australia’s extensive suite of existing anti-terrorism mechanisms doesn’t already adequately protect against threats posed by Australians returning from conflict zones”. She cites the “significant international legal concerns” around the exclusion, which Susan Hutchinson argued in Interpreter will make actual prosecutions harder:

It is well documented that ISIS perpetrated war crimes, crimes against humanity and genocide, including the egregious use of sexual violence are notoriously under-prosecuted. As a signatory to the Rome Statute of the International Criminal Court, Australia is obliged to investigate and prosecute alleged perpetrators of these crimes. The exclusion described in these amendments would only make it more difficult to detain such perpetrators for prosecution.