Barring 'ISIS bride' could have triggered High Court challenge

Legal experts say the Commonwealth risked losing a court challenge if it barred Australian woman Hodan Abby. (ABC News: Baderkhan Ahmad) Legal experts say the Commonwealth would have risked losing a High Court challenge to Temporary Exclusion Orders if it barred an Australian woman linked to Islamic State from returning home. Hodan Abby has been granted a permit to return after initially being banned from Australia for two years in February. The federal opposition has offered to work with Labor to strengthen counterterrorism laws it has labelled as "weak". Link copiedShareShare articleLegal experts say the Commonwealth risked losing a High Court challenge if it barred Islamic State-linked Australian woman Hodan Abby from returning home. Based on ASIO advice that she posed a security risk, Ms Abby was issued a temporary exclusion order (TEO) in February, when she and 33 other Australian women and children held in Syria's al-Roj detention camp tried to return home. TEOs allow the government to ban an Australian citizen from returning home if they believe it could prevent that person from carrying out, supporting or being trained to carry out an act of terrorism. Under the legislation, a TEO can block a citizen from re-entering Australia for up to two years unless they apply for a return permit, which Ms Abby had. One of the Australian women being held in a Syrian refugee camp has been barred from returning home after being given a temporary exclusion order — but the ban may not be as temporary as the name implies. The legislation also grants Home Affairs Minister Tony Burke power to block a person's return for a further 12 months, an option the government did not pursue. "We received the final advice yesterday that we can no longer have an exclusion condition available for her," Mr Burke said on Thursday. That means Ms Abby is now free to return to Australia when she chooses, provided she can get out of Syria. Mr Burke insisted police and security agencies "are ready", and that Ms Abby would be subject to strict surveillance conditions that go "absolutely to the legal limit of what we're able to do" — including requiring her to seek permission to use a phone or the internet. The orders are intended to enable authorities to plan for and manage the return of 'Australians of counterterrorism interest' and mitigate risks to the community. Australian National University international law professor Donald Rothwell argued while Ms Abby technically could be been barred from Australia for a further 12 months, such a move may have triggered a High Court challenge. Don Rothwell says a citizen's right to enter their home country is an "implied" constitutional right under human rights law. (Supplied) If the government lost such a case, it could remove the option of using TEOs altogether to manage citizens' returns. "We have no definitive decision by the High Court as to whether citizens have a right of entry into Australia, it has not been tested before the high court," Mr Rothwell said. "Given the grey area when it comes to TEO's … government lawyers would no doubt be advising the minister that there's every possibility that a temporary exclusion order could be challenged in the High Court on constitutional grounds." Mr Rothwell said while a citizen's right to enter their home country is not enshrined in the Constitution, it was a clear tenet of international human rights law and considered an "implied" constitutional right. "Constitutional scholars have sought to advance that argument, based on the international law principles, but also because of the way the High Court of Australia has been prepared to read implied rights into the constitution over the last 30 or 40 years." In 2023, the High Court ruled indefinite immigration detention — a regime set up to protect the community from potentially dangerous non-citizens — was unlawful. As a result, the High Court last month ruled in favour of a man seeking compensation from the Commonwealth for his unlawful imprisonment, which could open the door for more than 350 other illegally detained non-citizens to seek millions in damages. Shadow Home Affairs Minister Jono Duniam said the fact Ms Abby would be allowed to return to Australia "beggars' belief" as the Coalition offered to work with Labor to strengthen "weak" counterterrorism laws. "If the minister is saying to us that the laws say, 'if a permit is applied for then it must be granted, and there's nothing I can do', then we are in a lot of trouble as a nation," he said. Jonno Duniam has suggested the government should legislate changes. (ABC News: Matt Roberts) Asked if he believed tougher legislation, which effectively permanently barred a citizen from returning to Australia, could withstand a High Court challenge Mr Duniam said, "we won't know if we don't try." "This is the problem: the government isn't trying. They should try to draft something, but I see no amendments [to the legislation],

Barring 'ISIS bride' could have triggered High Court challenge

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