As a fight gets underway to repatriate Australian women and children from refugee camps in Syria, a leading supporter says national security concerns are a red herring.
Save the Children is fighting to force the Commonwealth to return the 11 women and 20 children to Australia from detention at the al-Roj camp in northern Syria where they're being detained by Kurdish forces.
The group, among 34 Australians in the camp, are held by the Autonomous Administration of North East Syria (AANES) and its defence arm, the Syrian Democratic Forces.
A trial began in the Federal Court on Tuesday, where the Save the Children's barrister Peter Morrissey SC said they must prove the Commonwealth has control over the women.
The starting point, he said, was the repatriation of four women and 13 children to Australia in October 2022.
Save the Children Australia chief executive Mat Tinkler said they have already settled back into the Australian way of life.
They are living with family, receiving training to enter the workforce and their children are doing normal things like dressing up for book week at school, he said.
Mr Tinkler didn't shy away from the fact one of the women was charged with a foreign incursion offence because she had spent time in Syria's Al-Raqqa province.
"And that's as it should be if there was evidence an offence has been committed," he said.
"We should let the national security regime play out and the best place for that to happen is here in Australia where we can put our faith in the robustness of our judicial and law enforcement systems."
Suggestions the women could be a national security risk is a red herring, he said, believing the best chance of mitigating risks of radicalisation would be in Australia.
Australians should put their faith in federal police and national security agencies to do the appropriate checks and assessments, he said, noting the women had also volunteered to be subjected to terrorism control orders allowing every aspect of their lives to be monitored.
After exhausting non-legal avenues to return the remaining women, Save the Children launched its Federal Court bid in June, claiming the group's detention was unlawful and raising questions about why some women and children have been allowed to return while others haven't.
They're seeking a writ of habeas corpus, which would require the Commonwealth to bring the women before an Australian court.
Mr Morrisey said documents established that Australian diplomat and ambassador Mark Innes-Brown had been appointed as a special envoy to liaise with the AANES to facilitate the return of Australians to Australia.
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 said.
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 in "cohort one" were to take leaving the camp.
"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.
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 could be contingent on conditions was the opposite of control.
The trial before Justice Mark Moshinsky is set to continue on Thursday.
