Barring 'ISIS bride' could have triggered High Court challenge

Legal 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.

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.

Temporary exclusion order not tested in courts

Australian National University international law professor Donald Rothwell argued that while Ms Abby technically could have been barred from Australia for a further 12 months, such a move may have triggered a High Court challenge.

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," Professor 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."

Professor 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.

"It's been speculated by constitutional scholars for some time that Australian citizens do have a right of entry into the country,"

he said.

"Constitutional scholars have sought to advance that argument, based on 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.

Coalition calls for tougher laws

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.

"This government can't have its cake and eat it too. If the laws are weak, then strengthen them."

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]," he said.

Orders never designed as 'de facto' banishment

Former home affairs secretary Mike Pezzullo, a self-described hardliner on national security, said TEOs were never designed to keep citizens out of the country indefinitely.

"TEO's were not supposed to be a de facto banishment system, the parliament designed [the legislation] to be a temporary exclusion system that allows a managed return,"

he said.

The legislation was introduced under the former Morrison government as a fall-back measure in case the High Court ruled that stripping dual nationals of their Australian citizenship was unconstitutional, which the court did.

"Because the High Court decided that citizenship cessation could not be done in the terms legislated for … the bargain that had to be done was: how do you get the right balance between excluding someone and not effectively banishing them?" Mr Pezzullo said.

He said Mr Burke's decision not to extend Ms Abby's exclusion from Australia by a further 12 months was "probably prudent, but probably also very risk-averse."

"I've certainly experienced plenty of times during my career, when I'm advising a minister where I've got legal advice before me … but you're always going to say to the minister: it's really up to you, in the end it's your choice," he said.

Mr Pezzullo argued that even if the High Court were to strike TEOs, it would merely "reinforce the argument for legislative change."

"Yes, there's a degree of embarrassment when the executive government loses a case," he said.

"But unless you're pushing those boundaries, you're never really going to know what's possible."