Australia | Law lets gov’t ban extremists for up to two years

Home Affairs Minister Peter Dutton (center) interjects during debate in Australia’s Parliament House in Canberra

The Australian Parliament yesterday passed laws that enable the government to prevent suspected extremists from returning home for up to two years despite concerns it could be unconstitutional.

The Senate passed the laws with the center-left Labor Party supporting the conservative government’s bill even though it worried Home Affairs Minister Peter Dutton would have too much discretion to decide who was banished.

The law will take effect in about two weeks. Dutton has said repatriations would be decided case by case, particularly where young children are involved.

Aid groups estimate at least 50 Australian women and children are stranded in crowded Syrian refugee camps following the loss of Islamic State’s territory in the Middle East.

The Law Council of Australia, the nation’s leading advocacy for lawyers, urged senators to refer the bill to committee rather than vote for it. The council said it was disappointed that a law that was open to constitutional challenge had been passed.

“Governments shouldn’t roll the dice and gamble on constitutionality,” council president Arthur Moses said in a statement.

“To present any minister with the power to exclude citizens because it is believed they may be foreign fighters creates a slippery slope to exclude people on other grounds, such as geography or religion,” he added.

Rex Patrick, a senator from the minor Center Alliance, wanted the government to reveal its own legal advice, but a vote on his motion failed. The government refused to disclose its legal advice from the solicitor-general, but said it raised no constitutional concerns.

“The government has clear advice that this legislation is constitutional,” Defense Minister Linda Reynolds told the Senate.

Patrick reminded the Senate of the case of Australian journalist Wilfred Burchell, a communist renowned for reporting the Korean and Vietnam wars from behind communist lines. Australia prevented him from making family visits, but classified documents made public decades later revealed that the governor-general’s legal advice was that Burchell had a right to return to the country where he was born.

Patrick also cited a unanimous High Court decision in 1988 overturning a so-called immigration clearance fee for air travelers entering the country. Australia’s highest court ruled that an Australian citizen’s right to enter the country “is not qualified by any law imposing a need to obtain a license or a clearance” from the government.

Under the measures based on British law, any citizen suspected of extremism would be temporarily banned from returning to Australia until protections are in place through a so- called “return permit,” setting conditions for the person’s entry and stay in Australia.

Labor was critical that the law enabled Dutton to issue the exclusion orders without judicial oversight. But his decisions can be appealed.

“Given the minister for home affairs’ track record at crying wolf and bending the truth, if there’s one minister that requires oversight, it’s the minister for home affairs,” Labor Senator Kristina Keneally told the Senate.

Greg Barns, spokesman for the rights-focused Australian Lawyers Alliance, said the law also allowed Australians to be banished for being an indirect security risk.

“When whistleblowers, media organizations and journalists have published information about misconduct in military operations in the past, such exercises have been labelled as assisting terrorism,” Barns said in a statement. Rod McGuirk, Canberra, AP