A group of Australian women and children who lived under the Islamic State caliphate in Syria could be repatriated within days, but a legal expert has cast doubt on any government attempts to permanently block their return.
Thirteen Australian citizens, comprising four women and nine children, are believed to have secured flights out of a Syrian camp where they have been detained for seven years since the collapse of the Islamic State caliphate.
Legal framework well established
International law expert Donald Rothwell told the Sunrise program that the legal framework underpinning their return is well established, making any attempt to change the law unlikely to succeed.
“The likelihood of those laws changing is fairly remote,” Rothwell said.
Rothwell acknowledged calls to block the group’s return, but said such calls run up against Australia’s legal obligations to its citizens. He noted that any move to prevent their return outright would require a significant overhaul of existing legislation, not a short-term response.
“There are very limited circumstances under which Australians in Australia may be denied a passport being issued to them, if they are considered to be a person who might be travelling overseas and they pose a security risk to a country that they’re travelling to,” he said.
“In terms of returning Australian citizens who, for whatever reason, have had passports expired or have lost passports, there’s very limited capacity to deny those Australians overseas a passport being issued to them.”
Right of return and temporary exclusion orders
“Australian citizens under international law have a right of return. However, it is possible for the government to issue temporary exclusion orders against any Australians,” Rothwell said.
Temporary exclusion orders allow the government to delay a person’s return on national security grounds, but do not remove their citizenship or permanently block entry. One such order has already been issued to a member of the group of 34 women seeking to return earlier this year.
Instead of changing the law, Rothwell said authorities are far more likely to rely on existing powers once the group arrives.
“There’s every prospect that they could be charged with offences under the Commonwealth criminal code as a result of their activities in Syria. That would very much, of course, be relevant for the four women in this group,” he said.
Historical precedent
Rothwell said Australia has faced this scenario before, pointing to the return of Mariam Raad in 2022, who was later charged with entering a region controlled by a terrorist organisation. He added that returning ISIS fighters have typically faced serious charges and jail time under existing laws.
The federal government has maintained it is not facilitating the group’s return, warning any who do arrive will face the full force of the law.
