In Defense of ASIO’s Passport Powers


The Australian Security Intelligence Organisation often cancels the passports of suspected terrorists, and has increasingly done so to prevent Australians joining jihadist groups in Syria and Iraq. ASIO has issued adverse security assessments for more than 100 passports since 9/11, with over 60 cancellations in the past two years alone.

This tactic has occasionally been criticised on civil libertarian grounds, but has recently faced criticism from a different direction. Some commentators have argued that passport confiscations keep dangerous terrorists in Australia, and that it’d be better to let them leave and work to ensure they never return.

However, that approach would create bigger problems.

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The first problem is preventing their return. Arresting someone who has trained with the Islamic State or Jabhat al-Nusra is far from simple. Intelligence is never perfect and security agencies won’t always know if someone returning from abroad has been involved with a terrorist group.

Even when there’s strong intelligence that a returning suspect has been recently involved with a terrorist group, it often won’t be possible to charge them. Gathering enough admissible evidence of their activities in Syria or Iraq to prove their guilt beyond reasonable doubt would be extraordinarily difficult, even with recent changes to Australia’s foreign evidence laws. ASIO currently estimates over twenty fighters have returned, none of whom have been charged.

One method proposed to prevent return has been to strip suspects of their citizenship. This suggestion has appeared occasionally in public debate, and in July Federal MP Luke Simpkins attempted to introduce a motion to this effect in parliament.

However, this raises several dilemmas. For example, there’s the question of what basis the decisions will be made on. The human rights consequences of mistakenly stripping citizenship from an innocent person are far greater than mistakenly cancelling the passport of an innocent person.

This approach would also be politically difficult as it will raise questions of why citizenship isn’t revoked for other sorts of crimes, and would require a rethink of Australia’s whole approach to dual-citizenship.

But the biggest problem is that it would amount to forcing our security problems on to other countries, which are often far less equipped to handle them. If every government took that approach, the result would be countries pushing their terrorist suspects on to each other, undermining international counter-terrorism cooperation.

The war crimes boasted of by Khaled Sharrouf and Mohammed Elomar in Syria demonstrate the harm that Australian jihadists can cause abroad. Their activities don’t stop being a concern just because they’re happening overseas.

Where possible, such suspects should be prevented from leaving in the first place, rather than have them train, fight, or carry out atrocities where Australia cannot reach them. Withdrawing passports is a better tactic than chasing the suspects after they leave, or declaring that they are no longer our responsibility.

Finally, restricting travel is also better for the suspects themselves. It prevents them from getting tortured or killed in Syria or Iraq and gives them a chance to rethink their plans. It also prevents them from destroying their children’s lives by taking them to a war zone.

The risks warned of by critics of passport confiscation—that it could prompt suspects to attempt violence within Australia—are real. Both Zaky Mallah in 2003 and Numan Haider in 2014 lashed out at authorities after their passports were taken. This also played a role in the Holsworthy Barracks plot in 2009, when some Melbourne-based men who had been prevented from travelling to Somalia to fight for al-Shabaab decided to launch a terrorist attack within Australia.

However, monitoring and intervention can mitigate this risk. This approach has served Australia well so far, as agencies have closely watched suspected cells and stopped plots in their early stages. Re-investment in Countering Violent Extremism initiatives could further reduce the risk.

While there are no perfect options, letting terror suspects leave is the far riskier approach. It could allow them to cause harm in other countries in neglect of our international counter-terrorism obligations. It could also prove dangerous for Australia should they return, potentially with deadly skills, experience, connections, and intentions.

Andrew Zammit is a researcher at Monash University’s Global Terrorism Research Centre and blogs at The Murphy RaidThis article was first published in The Strategist, the Australian Strategic Policy Institute blog, and is reprinted with kind permission. 

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