Top law expert points out glaring problem in Hanson’s ‘high-court proof’ terror law

One of Australia’s leading constitutional law experts says One Nation’s proposal to create a new ban on foreign fighters would do nothing to block Australians with terror links from returning to the country.

One Nation has unveiled its first substantial legislative proposal since the populist party began to surge in the polls, drawing level with Labor and leaving the official opposition languishing in third place. Leader Pauline Hanson will introduce The Protecting Australians From Foreign Terrorist Fighters Bill when parliament returns in August, which she says will strengthen powers to cancel or refuse passports and toughen bail laws for terrorism charges.

A key pillar of the legislation would create a new “foreign terrorist fighter exclusion order” that the minister could ask the Federal Court to impose. However, the existing exclusion order regime under the minister’s control would also remain.

“It looks like it’s adding an extra thing, but it’s adding an extra thing that’s harder to achieve,” Professor Emerita at the University of Sydney, Anne Twomey, said.

“If a minister wasn’t able to do it under the existing law, then the court’s certainly not going to be able to,” she said, pointing to the difficulties of getting evidence and witnesses for crimes committed overseas.

Twomey speculated it could be a delaying mechanism, given the proposal would also suspend the minister’s obligations to issue return permits while the Federal Court deliberated an order.

“But you have to ask yourself what the appropriateness of it is if, in fact, what you’re trying to do is effectively exclude people by relying on slow court processes,” she said.

One Nation’s spokesman declined to answer questions about the legislation, referring this masthead to the bill’s explainer document.

“One Nation’s position is absolute,” Pauline Hanson said on social media on Thursday. “People who choose to serve a listed terrorist organisation like ISIS over Australia, and who remain an unacceptable risk to the Australian community, should not be allowed to return. Not with a permit. Not under surveillance. Not at all. Australians should not be forced.”

Twomey also questioned whether the laws would achieve their stated purpose, saying a dangerous person likely to cause a terrorist attack could pose a greater threat overseas.

“There is certainly a significant risk in leaving such people outside Australia without any supervision or control,” she said, pointing to the Bali bombings in which 88 Australians were killed by al-Qaeda linked jihadists.

While Home Affairs Minister Tony Burke declared Hanson’s proposal “would last about 30 seconds in the High Court” and set a dangerous precedent that would jeopardise Australia’s own deportation regime, Twomey said an equivalent case had not been heard in the High Court.

“The constitutional argument about whether there is a guaranteed right for an Australian citizen to enter and stay in and live in Australia has never been argued before the High Court, so we don’t know the answer,” she said.

Burke told ABC Sydney radio on Thursday that every country in the world had to accept back its own citizens, even if you manage to delay them for a time.

He argued to do so would make Australia less safe because it set a precedent for other nations to block the return of their citizens.

“They’re child sex offenders, they’re murderers… Their country of origin doesn’t want them either, but they have to take them back,” Burke said.

“Australia has an interest in that principle because of the people we want to kick out.”

One Nation’s proposal would also grant the home affairs minister powers to refuse, suspend or cancel a passport for those charged with or convicted of a terrorism offence, or subject to an exclusion order.

While the bill will fail without Labor support, it signals the party’s priorities in an area traditionally viewed as a Coalition strength and sets up rival counter-terror pitches between the parties.

Hanson said last week, after it was reported that an Australian ISIS recruit, the presumed-dead “Dr Jihad” Tareq Kamleh, was alive in an Iraqi prison, that opposition parties needed to work together to block him from returning.

Asked on Thursday whether he would support One Nation’s bill, Taylor said Hanson should support his, which would include criminalising charities and NGOs for helping Australians return. That proposal has already been defeated in the Senate, but the Coalition is considering reintroducing a version when parliament returns.

Prime Minister Anthony Albanese said no one had any sympathy for those who left to fight for terrorist organisation, but citizens had rights that Australia would uphold.

”We will do everything we can, of course, within the law though, and will also, of course, provide no support for any of these people to return to Australia,” he told ABC TV on Thursday.

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