Key Points
- Save the Children launched a legal fight against the Commonwealth earlier this year.
- The case centres around claims the group's detention is unlawful.
- The women are all Australian citizens.
The repatriation of women and children from a Syrian refugee camp last year is strong evidence of the Commonwealth's control over their detention, lawyers for another group of women fighting to return to Australia have argued.
A trial has begun in the Federal Court in a case brought on behalf of 11 women and 20 children seeking to be returned to Australia from detention in the al-Roj camp in northern Syria.
The group, among 34 Australians in the camp, are being detained by the Autonomous Administration of North East Syria (AANES) and its defence arm, the Syrian Democratic Forces.
Save the Children Australia launched a legal fight earlier this year, claiming the group's detention is unlawful and raising questions about why successive federal governments have allowed some women and children to return and not others.
They're seeking a writ of habeas corpus, which would require the Commonwealth to bring the women before an Australian court.
In his opening statement on Tuesday, Save the Children's lead barrister Peter Morrissey SC said they must prove that the Commonwealth has control over the detention of the women.
The starting point for that is the undisputed evidence of the repatriation of four women and 13 children to Australia from al-Roj last October, he said.
While there would be no legally enforceable agreement between the Australian government and non-state actor to return others, he said there could be an agreement of that nature.
Women residents from former Islamic State-held areas in Syria, line up for aid supplies at Al-Hol camp in Hassakeh province, Syria. Source: AP / Maya Alleruzzo
Mr Morrissey said in emails the Commonwealth confirmed the AANES wished to progress matters of joint interest, with procedural conditions including the signing of paperwork and the option of a statement thanking the AANES.
He rejected that those conditions were an apt analogy to a terrorist organisation seeking a ransom or quid pro quo.
Importantly, he said, the Commonwealth had sought changes to the procedures at different times, including by changing the time of meetings and altering the route the women and children were to take leaving the camp.
He also noted the group has referred to as "cohort one".
"We submit it is abundantly clear from the other documentation that there was a plan to repatriate further women and children from the al-Roj camp," he said.
Records showed a meeting between Mr Innes-Brown and a member of AANES confirming ongoing co-operation.
A note of the meeting expressly referenced discussions of a plan to repatriate further groups of women and children, Justice Mark Moshinsky heard.
Chris Lenehan SC, for the Commonwealth, said the central issue was the Commonwealth's ability to effect the writ.
"Merely being able to ask for a person's release and even having the high hopes that request would be successful could never be enough in an Australian constitutional context to constitute control," he said.
He argued the fact any repatriation would or could be contingent on agreement to conditions was the direct opposite of control.
Save the Children Australia chief executive Mat Tinkler, who visited the camp last year, has accused the federal government of abandoning the women and children.
"Despite countless opportunities to repatriate these families, the Australian government has ultimately failed in its duty to bring all of its citizens home to safety," he said.
"The government cannot allow these innocent children to suffer further – they must do what is legally and morally right, before it's too late."
The hearing continues.
