In the wake of the physical collapse of the Islamic State in Syria and Iraq, Australia has attempted to deal with the growing threat of returning foreign fighters through the legislation of a fresh tranche of national security laws. This will see Australians with suspected overseas links to terrorism banned from entering the country for up to two years.
Last Thursday, the Morrison government successfully legislated its Counter Terrorism (Temporary Exclusion Orders) Bill 2019, which effectively gives the home affairs minister the power to block an Australian citizen over 14 years of age with suspected terrorism links from returning to Australia for two years.
Under the new laws, the home affairs minister can issue a Temporary Exclusion Order (TEO) if he suspects on reasonable grounds that an individual would seek to support or provide assistance to a terrorist organization.
The laws also stipulate that a TEO can be issued if the Australian Security Intelligence Organization (ASIO) suspects an individual of being either a direct or indirect threat to security for “reasons related to politically motivated violence.”
Once the individual has fulfilled the two-year exclusion order, they can then apply for a “return permit,” which is also granted by the home affairs minister. If granted, the individual would then be subjected to strict measures on their return, including the surrendering of their passport and strict monitoring and surveillance by Australia’s security agencies.
In addition to these new powers, the new laws also absolve the Australian government from its obligation to assist Australian foreign fighters in returning to Australia. This is necessary because without these laws in place the Australian government would be obliged to issue travel documents to these individuals, and support them with their return back to Australia.
The Morrison government has pushed hard to have these laws legislated by Parliament after it was revealed that 40 out of a total of 230 Australians who had traveled to Syria and Iraq to fight had already returned to Australia.
Home Affairs Minister Peter Dutton said that there were around 80 Australians including men, women, and children seeking to return to Australia, but for many of these individuals their location remains unknown.
With this bill now enshrined in law, the Morrison government believes that it will be better equipped to deal with the remaining foreign fighters seeking to return to Australia.
While the Morrison government framed this legislative victory as a win for Australia’s national security, concern has emerged over the bill’s constitutional validity after recommendations issued by the Parliament’s bipartisan Joint Committee on Intelligence and Security called for the bill to include judicial oversight.
Australia’s main political opposition party, the Australian Labor Party, seized on this concern and accused the federal government of pursuing legislation without implementing the 18 bipartisan recommendations of the Joint Committee, and warned against the centralization of power under the home affairs minister.
It then pledged to amend the bill to include the 18 recommendations issued by the bipartisan joint committee and launch a further parliamentary review into the bill.
However, this position quickly evaporated when the Morrison government went around the Australian Labor Party and secured enough support from the Senate crossbench to legislate the bill.
In responding to this development, the Australian Labor Party quickly decided to abandon its position and throw support behind the bill. This course of action sought to inoculate the party from the Morrison government, which would likely characterize Labor as weak on national security if it failed to back the bill.
Zooming out from Australia’s domestic political debate on this issue, the legislation of TEOs demonstrates a growing trend among Western countries, with Britain also employing similar laws.
However, this approach only delays any meaningful action and leaves groups like the Kurds and the Iraqi government to deal with these individuals alone, allowing Australia and other Western countries to eschew their international responsibility in the fight against terrorism.
In addition to these concerns, this approach also raises a number of ethical questions around the rights of individuals — even if they are foreign fighters — to return to their country of origin.
It also stands in stark contrast to developing nations such as Malaysia and Indonesia, who rather than preventing their citizens from returning home have chosen to use rehabilitation programs to reintegrate their foreign fighters into their respective societies.
While it is too early to measure the effectiveness of these varying approaches, it is clear that countries around the world will be carefully monitoring their effectiveness as the fallout caused by the physical collapse of the Islamic State continues to reverberate globally.
Marcus Tantau is a political analyst based in Jakarta, Indonesia.