With the exception of extremely rare situations in which citizenship may be revoked, a passport rejected, or a temporary exclusion order issued, the Australian government is responsible for overseeing the return of its citizens.
The Albanese administration should have prevented the return of four Australian women and nine children from Syria this week following the fight with the Islamic State, according to the Coalition and One Nation. However, was it ever a plausible scenario?
The government might have employed one of three strategies to stop return:
deny them passports, impose interim exclusion orders, and revoke their citizenship, as the British government has done in one instance.
Cancellation of citizenship
After being overturned in two High Court decisions (Alexander and Benbrika), the citizenship cancellation regulations that former immigration minister Peter Dutton implemented have a highly complicated past.
The government's reaction to these two High Court rulings is reflected in the present citizenship revocation procedures, which are as follows:
The individual is 14 years of age or older; they are a dual national; they have been found guilty of one or more serious offenses; the court has sentenced them to a minimum of three years in prison; and the offense's conduct is so serious and noteworthy that it shows they have abandoned their allegiance to Australia.
The primary modification is that the minister does not decide whether to cancel. Instead, the minister needs to request that a citizenship be revoked in court.
Two issues come up when it comes to Australian women. First, none seem to be dual nationals. Shamima Begum's UK citizenship was revoked by Britain in one instance due to her dual nationality. That is under dispute.
Secondly, these women have not yet been found guilty of any crimes. Now that they have been charged, that might occur. They had to go back to Australia to appear in court as a result.
Rejection of a passport
According to the Passport Act, if a "competent authority" requests it, the minister may reject or cancel a passport. Such a request may be made by a competent authority if it has reasonable suspicions that:
(a) If someone were granted an Australian travel document, they would probably perform the following:
(i) could jeopardize Australia's or a foreign nation's security; (ii) could jeopardize the health or physical safety of other people (in Australia or abroad); (iii) could interfere with the rights or freedoms of other people (in Australia or abroad) outlined in the International Covenant on Civil and Political Rights; (iv) could constitute an indictable offense against this Act; or (v) could constitute an indictable offense against a Commonwealth law, as determined by a Minister; and
The fact that no competent authority has, as far as we are aware, submitted such a request to the minister is scarcely surprising.
Orders for temporary exclusion
We are aware that one of the Australian women has received a temporary exclusion order.
A temporary exclusion order (TRO), which prohibits someone from entering Australia for a predetermined amount of time—up to two years—may be issued by the minister. An order may be rescinded and cannot be issued unless specific requirements are fulfilled.
The TRO decision must be referred to a reviewing authority by the minister. The decision is deemed to have never been made if that authority thinks it contained specific legal mistakes.
A TRO regarding an individual cannot be made by the minister unless:
(a) The minister has reasonable suspicions that issuing the order would significantly aid in one or more of the following:
(i) preventing a terrorist act; (ii) preventing training from being given to, received from, or engaged in with a state sponsor of terrorism or a listed terrorist organization; (iii) preventing the provision of support for, or the facilitation of, a terrorist act; (iv) preventing the provision of resources or support to an organization that would enable the organization to engage in an activity described in paragraph (a) of the definition of terrorist organization in subsection 102.1(1) of the Criminal Code; or
(b) The individual has been determined by the Australian Security Intelligence Organization to pose a direct or indirect risk to security (as defined by the Australian Security Intelligence Organization Act 1979) for reasons pertaining to politically motivated violence (as defined by that Act).
Similar to the denial of a passport, a TRO necessitates proof that the individual is likely to commit a crime in the future and may persuade a judge of that proof. That is a very high standard.
Furthermore, a TRO is only temporary by definition. It is intended to give the government the ability to arrange for the eventual return of pertinent Australian nationals.
The TRO legislation's constitutionality has not yet been thoroughly examined in court. Regarding the woman for whom a TRO has been issued, that might occur.
Additional choices
Barnaby Joyce of One Nation has stated that more legislation should be passed by the government to stop Australian women who went to Syria and Iraq while the Islamic State was in power from returning.
He has not said what those laws would entail. Joyce served as a senior minister in the Coalition administration, which created laws in this area for many years.
The Coalition has declared that it will enact legislation that would punish anyone who helps women in any way. This presents three challenges:
It is doubtful that the rules could be passed to apply to previous aid (i.e., retroactively); it is unclear if they would be enough to discourage organizations like Save the Children;
It is improbable that the courts would impose harsh punishments on individuals who have successfully filled the role of the Australian government in helping Australian citizens who are having problems abroad, taking the place of the consular support that the Australian government typically offers to Australian residents.
In actuality, the government must oversee the return of its residents, just like in many other countries, including the US.
The current cohort is the third to return to Australia, and Australian government services are adept at handling such returns.
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