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Plan to ban foreign fighters returning to Australia 'embarrassing', legal experts say

A plan to ban foreign fighters from returning home to Australia for two years is an embarrassing dog’s breakfast, politicians have heard.

Under changes introduced to federal parliament last month, Australian foreign fighters who want to return home could be blocked from entering the country for up to two years by a ministerial decision.

Legal experts including the Law Council of Australia and the Australian Human Rights Commission, say it should not be passed.

“This is a dog’s breakfast,” Law Council president Arthur Moses told parliament’s joint committee on intelligence and security in Canberra on Friday.

“It’s quite embarrassing that this type of legislation would be put before the parliament. I can’t see how I could sit here and draft this legislation to make it better for you.”

In its current form, a person could go to prison for up to two years for breaching a temporary exclusion order, but the minister could revoke the order to then allow someone to enter Australia under a return permit.

The permit could include a range of conditions, including when and how the person enters the country.

They would also have to register where they live, work or study, and any plans to travel within Australia or abroad.

Moses said the plan went against two high court rulings that the minister could not stop citizens from returning to Australia, and it should instead follow the UK model where a court has to make the exclusion order.

The high court had good reason to say such powers should be the place of the courts, not the executive, he said.

“[Setting that precedent] means you could pass legislation to prevent somebody coming in on the grounds of their religion and the minister could determine that,” Moses said.

“This is what our enemies want us to do, to get into this division and to get into this nonsense.”

The UK example offered greater transparency and better protections both for the minister and the person affected by the order.

“We want to make clear again: this is not a soft-on-terrorism approach,” Moses said.

“This is about being smart. You don’t pass legislation when you know it’s going to be invalid. You pass legislation that works,” he said.

The Law Council also has concerns the law would apply to children as young as 14, and that there is no restriction on a minister making a rolling series of orders that would be a “sham arrangement … to permanently deprive an individual from coming back to the country”.

Department of Home Affairs officials told the committee the orders were needed because authorities did not have a tool that allowed them to manage the return of foreign fighters in cases where there was not enough evidence to prosecute them.

The department says there are about 100 Australians still involved in the Syria and Iraq conflicts, fighting or supporting extremist groups, who may pose a threat when they return home.

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