Well, that will teach the little blighters.
I speak of the children born to the Australian citizen women who decamped over a decade ago to be “ISIS brides” in Syria and parts adjacent.
The Australian government is not not letting them or their children back into the Wide Brown, it’s just bad-mouthing them for all its worth and pronouncing on its refusal to help. The normal consular assistance provided to citizens offshore has been withdrawn.
The PM, drawing on familial homily, recounted his mother saying: “They’ve made their beds, now they must lie in them”.
Of course the metaphor immediately unravels: the kids made no beds; they didn’t ask to be brought into the world in these circumstances, which have involved entire childhoods growing up in huge camps in the Syrian desert constructed for the non-Syrian nationals left over from the dire Middle Eastern conflicts of the earlier twenty first century – and some of the children involved (many of them?) are Australian citizens.
“Home is the place where, when you have to go there, they have to take you in”, said Robert Frost.
The children involved, offspring of Australian citizen women, have to go somewhere, as the Syrian government is closing the camps.
Under international law, Australia must accept its citizens back, but we have passed laws to terminate our responsibility to “take in” these nationals, on the exercise of executive discretion.
The Albanese government is happy to rely on these Coalition period laws, and is sniffing the breeze as to the Opposition’s suggestion of draconian provisions that would not merely block the women and their children from returning, in perpetuity, but would criminalise the efforts of anyone who attempted to assist them in that endeavour.
All this in the name of political expediency, because it is alleged that the women/mothers involved were accomplices to their jihadist partners who left Australia to fight in the Middle East.
The memories are not lost: photographs of fathers encouraging small boys to carry around the heads of enemies.
But the jihadists are now all dead or behind bars, leaving the women and their children stranded in the desert. Yes, some of the women decamped to the Middle East knowing what their menfolk were up to, but is it appropriate in the 21st century to make their children bear the burden of their parents’ sins?
Apparently, yes, as the government buffers itself from any attack on the right flank for being soft on Islamists.
So we have a bipartisan policy of fear and loathing that culminates in gaslighting Australian children outside their country, broadcasting their undesirability, and all while they live in the most parlous of conditions.
The PM was on the precipice of previously unseen passion on the ABC as he denounced the women involved, turning the firehose of opprobrium on them lest any questions re the fate of the children get through.
Minister Tony Burke was equally evasive on the children when interviewed the next day.
It’s difficult terrain for lawyers acting for the kids. That is because of the dire position of the families in regard to their national government: there is precious little traction for a court to find that a government has responsible duties.
That was the fate of the claim for habeas corpus in the Full Federal Court in Save the Children Australia v Minister for Home Affairs [2024] FCAFC 81.
The writ was inside out to the facts, as it only operates where the government has custody of the person. In the current situation, the Commonwealth is delighted to have no custody and hopes to keep it that way by malign neglect.
But governments have a general duty in international law to let their own citizens in: the best we’ve had from Minister Burke is that with the exception of one exclusion order on intelligence advice, he has not moved to block any of the others in this group: we as a country have merely decided not to help them.
Australia signed up to the Convention on the Rights of the Child well over 30 years ago. It prescribes the “best interests of children” as the touchstone for decisions by governments that affect children, or at least that the calculus be a “primary interest” in the decision-making.
Arguably, such “decisions” extend to negative determinations, such as the refusal to assist citizens offshore who are in in need.
References to the CROC began in the High with Teoh in 1995, but the majority reasoning in that case left a trail of poisoned bread-crumbs involving recondite arguments over natural justice and whether affected children had notice of proposals to depart from the CROC standards.
It seems that no one now recognises Mary Gaudron’s simple solution in Teoh: resting on the prerogative power of parens patriae vested in the courts to monitor the welfare of children, particularly minor citizens, she found a standard of decision making that put the best interests of children up at Peko Wallsend levels: a mandatory consideration in governmental decision making.
I hear scurrying noises to the effect that decisions at Cabinet level, as this determination of non-assistance apparently was, are incapable of being judicially reviewed.
That shibboleth has been progressively undermined, and looked distinctly weak as at its last major workout: Disorganised Developments v SA (2023) 280 CLR 515.
Rather than becoming ensnared in post-Teoh minutiae regarding the application of CROC, an attack should be mounted on the simple basis that the non-assistance decision was taken in the absence of a mandatory consideration: the best interests of the children involved.
The Cabinet will have to wear the opprobrium if the document trail in fact shows that the children were considered, but deliberately consigned to their own efforts to escape outer darkness, for no better reason than political opportunism.
Yes, the children present problems if they return to Australia: some are ideologically influenced, and all will be adversely affected by years of living in a desert camp.
Yet, the mark of a mature polity is that it doesn’t run shrieking from difficult issues raised by the behaviour of some of its citizens.
Some of the women/mothers may be successfully prosecuted for terrorism related crimes when they return, so that plans will have to be in place for the care of their children. We deal with such criminal scenarios every day.
Facing up to responsibilities regarding child citizens rather than riding a populist wave following the Bondi massacre would display a spine so sadly lacking in the Albanese government.
≈ ≈ ≈
Why do I bother? The national ethos, at least among the Great and the Good, is devoted to photoshopping, airbrushing, and generally suppressing the inconvenient.
Ninety years ago, Stalin was so clumsy in the removal of the recently departed from group photos. We’ve mastered the art – see last week’s Law Council of Australia-Family Law Section’s knees up in Melbourne to celebrate 50 years of modern divorce law, divested of the medieval aspects of disclosure letters, fault, connivance and condonation, and focused on the best interests of children.
My spies at the Thursday night dinner reported that the Great n Good were there at their glossiest, but the words “Lionel” and “Murphy” were never mentioned. Who? Sorry, did I say something? No, you misheard me. That’s all right then.
A life in politics conducted to the level of Commonwealth Attorney General, where he drove the legislation for Family Law reform and Trade Practices, to name merely two outstanding examples, and now dead 40 years, the Unmentionable’s reward is to be, well, unmentioned.
No wonder Milan Kundera wrote:
“The struggle of man against power is the struggle of memory against forgetting.”
Whitlam and LKM got throw-away guernseys in speeches the next morning at the formal sitting of the FCFCOA to mark the half-centenary, at least as recorded in my electronic feed.
The great thing about life in Lotus Land is that, at least up on the top deck, there is no struggle. Just go along to get along. Stop causing scenes, please. Some things apparently just never happened, and Family Law reform apparently rose fully formed like Venus from the sea-foam without any actual parentage. What a miracle.
I leave younger readers who have never heard of the Unmentioned One to investigate the basis of the collective amnesia.