Renewed legal bid to repatriate Australian women and children

‘Government has the power to bring these innocent children and their mothers home at any moment’: Save the Children CEO.

Australian women and children at the Al-Hawl camp in northeast Syria. Picture: Supplied

A renewed bid to repatriate Australian women and children from Syrian detention camps for families linked to Islamic State will challenge a judge’s finding the Albanese government “does not have control” of their detention.

Mark Moshinsky previously dismissed an application brought by charity Save the Children Australia, which requested the Australian government uphold its moral and legal obligations to repatriate Australian citizens locked up indefinitely without charge since the fall of Islamic State in March 2019.

The non-profit is now appealing the November Federal Court decision, with six women and their 11 children detained in desert camps controlled by the Autonomous Administration of North East Syria so far signed on to the legal action. The organisation said it respects the court’s decision but cannot stand by and watch the ongoing suffering of innocent children.

Al-Roj camp, where Australian women and children linked to Islamic State members are being held in northeastern Syria. Picture: Ellen Whinnett / The Australian

“Save the Children Australia is appealing the Federal Court’s decision on several grounds, including a challenge to the finding that there was no agreement to repatriate the remaining women and children, and to the finding that the government does not have control over their detention,” chief executive Mat Tinkler said.

“We know government has the power to bring these innocent children and their mothers home at any moment they choose, as demonstrated by previous rounds of repatriations. It is only political will standing in the way.”

In October 2022, the Australian government repatriated 13 children and four women in a similar situation. The government did not explain in court why it was not taking steps to repatriate the remaining Australian women and their children.

“The government should not require legal action to do what is right, however in lieu of them stepping up and finishing what they had already started, we have no choice but to take this next step because we believe that every one of these vulnerable kids need to be brought home,” Mr Tinkler said.

Save the Children CEO Mat Tinkler. Picture: Mark Stewart

During the original court proceedings, which related to 34 Australian women and their children in northeast Syria, the Australian government said AANES held “complete and unfettered discretion” over the detainees and therefore it couldn’t be compelled to repatriate them.

“Merely being able to ask for a person’s release, and even having high hopes that would be successful, would never be enough,” counsel for the commonwealth, Craig Lenehan SC, told the court.

“Our fundamental point is the applicant fails to prove its case.”

He also said there was never an “arrangement or agreement” made that covered all the women and children despite a decision being made by political leaders to bring back the group in October.

Justice Moshinsky ruled the government did not have “any such requirement” to make a decision about repatriation.

The case is listed for a Federal Court hearing in Melbourne on May 8 and 9.