Latest / Real Crime with Adam Shand / Equal Before the Law: The ISIS Brides Dilemma | Tanguy Mwilambwe

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Equal Before the Law: The ISIS Brides Dilemma | Tanguy Mwilambwe · Real Crime with Adam Shand

• 0:05
  Speaker 1: Apoche production, Welcome to Real Crime with Adam shand I'm
• 0:16
  Speaker 1: your Host. Adam shand four Australian women, known collectively as
• 0:19
  Speaker 1: the Isis Brides and nine children arrived back in Australia
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  Speaker 1: from Syria on May seventh this year. These women were
• 0:27
  Speaker 1: married to men who were legally traveled overseas to fight
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  Speaker 1: with ISIS. Two of the women were charged on arrival
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  Speaker 1: and remanded over alleged crimes against humanity and slavery offenses
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  Speaker 1: committed in Syria.
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  Speaker 2: Four of the.
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  Speaker 3: Isis brides land in Sydney after years detained in Syrian
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  Speaker 3: refugee camps. Two faced charges of crimes against humanity. Authorities
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  Speaker 3: confirmed the women were wives of men who traveled to
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  Speaker 3: join Islamic State.
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  Speaker 1: A third was arrested and charged with entering a prohibited
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  Speaker 1: area and being a member of a terrorist organization.
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  Speaker 2: Personally, I have no sympathy for them.
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  Speaker 1: Actions carry consequences, but there are larger principles at stake,
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  Speaker 1: namely the idea that all Australians are equal before the
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  Speaker 1: law and are subject to the same prohibitions and punishments
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  Speaker 1: as other citizens who commit crimes.
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  Speaker 3: A third Isis bride charged with terrorism offenses following her
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  Speaker 3: return to Australian soil. The arrests reigniting a fierce national
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  Speaker 3: debate who deserves the protection of Australian law.
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  Speaker 1: Putting aside the slavery charges, you have to ask why
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  Speaker 1: these isis brides can be prosecuted for traveling to a
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  Speaker 1: prohibited area when hundreds of Australians have left these shores
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  Speaker 1: to fight in Gaza for the Israeli Defense Force in
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  Speaker 1: a conflict designated a genocide by the United Nations. And
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  Speaker 1: why is the federal government not assisting in the return
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  Speaker 1: of another twenty isis brides and children from Syria when
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  Speaker 1: Australians fighting for the IDF are free to come and
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  Speaker 1: go like tourists.
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  Speaker 3: Hundreds of Australians reported to have joined the Israeli Defense
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  Speaker 3: Force since October twenty twenty three, no charge is laid. Meanwhile,
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  Speaker 3: more than twenty women and children remain stranded in Syrian
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  Speaker 3: detention camps, unable to obtain Australian travel documents.
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  Speaker 2: You may not like these isis brides.
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  Speaker 1: I certainly don't, but I fear their treatment signals a
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  Speaker 1: weakening of the protection all Australians should expect from the
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  Speaker 1: government and an erosion of the rights of citizenship. To
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  Speaker 1: discuss this heenous intrusion of politics in a criminal law,
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  Speaker 1: I'm joined by lawyer Thanking Mulambware of Brisbane based firm
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  Speaker 1: Sambi Legal.
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  Speaker 2: My taking, Hi Adam, thanks for the introduction.
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  Speaker 1: Firstly, let's try to understand what the law provides in
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  Speaker 1: relation to people who go overseas to fight for foreign forces.
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  Speaker 2: Is it inherently illegal or are you allowed to do this?
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  Speaker 4: It's not inherently illegal to fight for a foreign army.
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  Speaker 4: You can leave austrand fight for another Countri's foreign government.
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  Speaker 4: You're not committing any offense in the eyes of Australian law. Okay,
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  Speaker 4: it's not very black and white, and that in seeing
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  Speaker 4: that you could go overseas to fight for the Italian
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  Speaker 4: Army or for the Israeli Defense Force, it's not unlawful.
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  Speaker 2: What is unlawful is when you join a.
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  Speaker 4: Non government agency or a terrorist group that's listed as
• 3:11
  Speaker 4: a terrorist group or a non government agency like Arcadia
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  Speaker 4: and Isis that's illegal. So generally, now, when it comes
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  Speaker 4: to the issues of Australian's going overseas to fight for
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  Speaker 4: Israeli Defense Force and whether they are committing genocide. It's
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  Speaker 4: not a simple task of assessment. The government has to
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  Speaker 4: assess that specific officer is involved in the genocide.
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  Speaker 1: In that sense, they're going to prove a specific case.
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  Speaker 1: In other words, there's got to be a crime committed
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  Speaker 1: in Gaza and then the Australian government would look at this.
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  Speaker 1: But you see, that's the problem is the UN and
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  Speaker 1: said the whole thing is genocide. So does that not
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  Speaker 1: cast a gray area on whether Australians can be fighting
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  Speaker 1: in Gaza.
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  Speaker 4: I mean it does, but we have to be able
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  Speaker 4: to prove that those particular individuals are involved in the
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  Speaker 4: genocide for them to be prosecuted for it, for any
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  Speaker 4: war crimes, and that's the difficult that the Australian government
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  Speaker 4: will have. Generally, I don't believe there's any reports of
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  Speaker 4: any Australian citizens fighting in the IDF and has been
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  Speaker 4: implicated in any genocides. I mean, I could suggest that
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  Speaker 4: the UNA suggests the whole war itself in Palestine is
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  Speaker 4: there's the issues of genocide there, but there's no evidence
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  Speaker 4: any of those trained citizens have committed genocide. I mean
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  Speaker 4: it's a very difficult test, it is, and there could
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  Speaker 4: be a matter for the International Criminal Court to decide ultimately,
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  Speaker 4: when the washup of Gaza is looked at, whether or
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  Speaker 4: not individual actions should be punishable.
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  Speaker 2: I guess is that the process that would happen.
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  Speaker 4: I mean, look, the ultimate issues with international law. Even
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  Speaker 4: though with signatories are on a lot of conventions, it's
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  Speaker 4: not binding to Australia.
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  Speaker 2: Now.
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  Speaker 4: If those individuals are going to be prosecuted in Australia,
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  Speaker 4: they have to be prosecuted with Australian law.
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  Speaker 2: There are laws that have.
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  Speaker 4: Been created to prosecute individuals in those kinds of situations
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  Speaker 4: which could lead up to more than twenty years of
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  Speaker 4: imprisonment in a sense that they're engaged in a hostility
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  Speaker 4: activity like we can say Gaza, and in that sense
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  Speaker 4: it's led to genocide and Australian government wants to prosecute
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  Speaker 4: that specific individual they can, and there was a legislation
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  Speaker 4: that was passed about two years ago that allows this
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  Speaker 4: kind of prosecution as well. It's very very difficult for
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  Speaker 4: Australian citizens who are engaged in foreign armies being prosecuted here.
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  Speaker 4: If those armies are those armies are legitimate. Austrians have
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  Speaker 4: participated in the British armies. A lot of strains are
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  Speaker 4: part of the British Army, Italian Army. They're not prosecuted
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  Speaker 4: for being part of those armies. They would have been prosecuted.
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  Speaker 4: They're joining a non terrorist group, and I think that's
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  Speaker 4: the key issue, a non terrorist group. The difference between
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  Speaker 4: the IDF and ISIS and arcadis those two organizations are
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  Speaker 4: terrorist groups and they're not government agencies. Even has Balao
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  Speaker 4: Hamas if argument states, but IDEAF is a government army.
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  Speaker 2: Okay.
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  Speaker 1: Because the critics are saying this is a double standard,
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  Speaker 1: that the ISIS brides are going to be prosecuted for
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  Speaker 1: going to prohibited areas and fighting for the wrong side effectively,
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  Speaker 1: and people who are going to participate in the genocide,
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  Speaker 1: You're thinking it's quite different. So let's look at what
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  Speaker 1: that law provides about what is a prohibited area and
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  Speaker 1: on what basis will these women be prosecuted.
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  Speaker 4: I mean, there's certain areas that are considered prohibited areas,
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  Speaker 4: for example, between twenty fourteen twenty seventeen, as an example, Syria,
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  Speaker 4: and those areas will considered a prohibited area, and if
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  Speaker 4: you go to those areas you could be subject to
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  Speaker 4: prosecution as an example. That's the generality of that. Unfortunately,
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  Speaker 4: I don't think there's any legislation I might be around,
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  Speaker 4: but for my knowledge that has noted Palestine or Israel
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  Speaker 4: as a prohibited area as well. Now, the issues with
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  Speaker 4: those Isis brides, it's not very black and white, because
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  Speaker 4: each bride has different circumstances. Like I said, some of
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  Speaker 4: them have been charged, some haven't. But the ultimate issue
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  Speaker 4: that they have and the government had is keeping them
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  Speaker 4: out of the country, which was a very difficult task
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  Speaker 4: for the government because they were restricted in so many ways.
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  Speaker 4: In some situations, some of these brides were not dual citizens.
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  Speaker 4: They couldn't have stripped their citizenship because you can't strip
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  Speaker 4: a citizen of an Australian citizen that's not a dual citizen.
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  Speaker 4: We can't leave a person stateless. That made it very difficult.
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  Speaker 4: Some of them were provided. Some of these ladies were
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  Speaker 4: provided were issued a what we call temporary exclusion order
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  Speaker 4: and where they couldn't return to Australia for two years. Generally,
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  Speaker 4: with this temporary exclusion order, it doesn't go past two years.
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  Speaker 4: And some of them were able to return to Australia
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  Speaker 4: because the two year period has expired, and this temporary
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  Speaker 4: exclusion period, like you said, we're preventing people from god
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  Speaker 4: going to specific prohibited areas and if they didn't listen,
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  Speaker 4: they could get an exclusion order that prevents them from
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  Speaker 4: returning back to Australia, But there's no permanent ban of
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  Speaker 4: Austrian citizens coming back to the company.
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  Speaker 1: I think popular opinion would say you've gone to fight
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  Speaker 1: with isis we don't want your back, and the government
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  Speaker 1: seems to be taking a political position.
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  Speaker 2: They're saying we don't.
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  Speaker 1: Want to assist these people to return. Surely, equality before
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  Speaker 1: the law would provide that regardless of what you've done,
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  Speaker 1: you're still in Australian You've still got your citizenship and
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  Speaker 1: the right supply. But it seems like the government is taking,
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  Speaker 1: as I say, a political position on this.
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  Speaker 2: Now.
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  Speaker 4: Look, I think it's a very difficult thing. I'm not
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  Speaker 4: saying they're taking a political position. They have exhausted their
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  Speaker 4: legal avenues in preventing this woman from coming back to Australia.
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  Speaker 4: The realities are if they continue to prevent this woman,
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  Speaker 4: their government is not applying the rule of law. And
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  Speaker 4: I think it's a very very technically difficult issue for
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  Speaker 4: the government because in generality, some of those ladies women
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  Speaker 4: should be able to return to Australia. Firstly, if they're
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  Speaker 4: not dual citizens, we contstript their citizenship. Secondly, they don't
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  Speaker 4: have an exclusion order anymore. And thirty or some of
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  Speaker 4: them have children who have should be Australian by descent,
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  Speaker 4: and it's so complicated. I think it's a case by
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  Speaker 4: case basis because some of those ices brides were taken
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  Speaker 4: out of Australi when they were children fourteen fifteen or
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  Speaker 4: child brides, and now they're adults they want to come
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  Speaker 4: back to Australia. There's a lot of complications when it
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  Speaker 4: comes to some of these. There's a lot of different
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  Speaker 4: cases that I would say it's not a simple case
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  Speaker 4: for them to just say you've gone there, you can't
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  Speaker 4: come back, because they have the rights to go back
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  Speaker 4: to their country of citizenship, which is Australia, and the
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  Speaker 4: majority of them, to what are I understand, are not
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  Speaker 4: dual citizens, just Australians so straight so we can't prevent
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  Speaker 4: them from coming back.
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  Speaker 1: I think there's another twenty plus maybe thirty. Even if
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  Speaker 1: you are still in Syria, they've been in a refugee
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  Speaker 1: camp all that time they want to come home. What's
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  Speaker 1: to stop them just getting on a plane and coming
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  Speaker 1: back to Australia.
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  Speaker 4: The point is getting a passport issued. That's been the
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  Speaker 4: difficulties for That's an issue which, like I said, the
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  Speaker 4: government can restrict those certain things for a certain period,
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  Speaker 4: and which if they don't do that, if those women
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  Speaker 4: get competent lawyers, they could get a declaration from the
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  Speaker 4: courts they're not being able to get passports because they
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  Speaker 4: have a certain exclusion period where they could prevent them
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  Speaker 4: from getting Australian passports and all that. So it's not
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  Speaker 4: a simple decision for them to just block them. I
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  Speaker 4: know the public's issues are wire they're allowed to come back.
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  Speaker 4: They're allowed to come back because the rule of law
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  Speaker 4: allows them to come back. I mean, we have certain
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  Speaker 4: legislations that prevent them from getting passports for a certain
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  Speaker 4: period or prevents them from doing certain things. But if
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  Speaker 4: they only hold a particular citizenship, Australia has an obligation
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  Speaker 4: to ensure that they get back into the country.
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  Speaker 1: Because putting aside the political and sensational nature of what
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  Speaker 1: they've been doing, Yeah, being with isis forces their husbands
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  Speaker 1: in horrible things. You've seen children holding up seven heads
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  Speaker 1: and all kinds of things. Let's put that to one side.
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  Speaker 1: And if I'm your average criminal who does time overseas,
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  Speaker 1: I'm an Australian citizen, I would imagine it will be
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  Speaker 1: quite a simple process for me to go to my
• 11:33
  Speaker 1: local embassy, Australian embassy, get a passport and just come home.
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  Speaker 2: Correct. Correct?
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  Speaker 4: I mean generally, if you're not a strange citizen and
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  Speaker 4: you've committed a crime overseas, you'll be most likely to
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  Speaker 4: be deported, the same way we deport people with visas
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  Speaker 4: under our five oh one direction one hundred and ten
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  Speaker 4: Character Assessment. A lot of New Zealand citizens, foreign citizens
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  Speaker 4: are deported if they commit any offenses that would a
• 11:56
  Speaker 4: month to more than twelve months imprisonment. Even if they're
• 11:59
  Speaker 4: not serving twelve months imprisonment, their visas are mandatorily canceled.
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  Speaker 4: So generally that's correct me. In so many ways, we
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  Speaker 4: can say if this woman have committed offenses in a
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  Speaker 4: foreign country, the country itself can deport them back to Australia. Generally,
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  Speaker 4: that's correct. The problem that we have is that some
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  Speaker 4: of this woman had issues getting a passport. In a
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  Speaker 4: perfect world, Australia could have gotten a lot of these
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  Speaker 4: women emergency travel documents to come back to Australia and.
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  Speaker 2: That would be a normal form of assistance.
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  Speaker 4: You would say, correct, that's an assistant that they obligated
• 12:33
  Speaker 4: to do for Austraine citizens. The biggest issue with the
• 12:37
  Speaker 4: isis Vriet is they didn't renounce their citizenship in any aspect.
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  Speaker 4: There's nothing in the legislation that allows those strength government
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  Speaker 4: to strip a person's citizenship in any sort of process.
• 12:50
  Speaker 4: There's a there's steps that needs to be taken to
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  Speaker 4: do that. Well, I mean, what is even renouncing one
• 12:56
  Speaker 4: citizenship mean? I mean you could say I hate Australia
• 12:59
  Speaker 4: to the going I ever say, is is that renouncing No,
• 13:01
  Speaker 4: it's an application. You have to make a formal application
• 13:05
  Speaker 4: and renounce your citizenship. But you can't renounce your citizenship
• 13:09
  Speaker 4: if you only hold one citizenship. You can renounce your
• 13:12
  Speaker 4: citizenship if you're a dual citizen, as in for example,
• 13:15
  Speaker 4: let's say there's a legislation under the Passport Act. Let's
• 13:19
  Speaker 4: say you are a criminal with a very heinous crime,
• 13:24
  Speaker 4: a crime that puts you on a specific registration like
• 13:27
  Speaker 4: a sex Offenders Registration and you're seeking to travel overseas.
• 13:32
  Speaker 4: Under the Passport Act, you could be prevented from getting
• 13:35
  Speaker 4: a passport to travel overseas. However, if you are a
• 13:39
  Speaker 4: dual citizen, there's a way around that issue itself. You
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  Speaker 4: would renounce your stranged citizenship. Therefore you're not subject to
• 13:46
  Speaker 4: that exclusion with the Passport Act. This will allow you
• 13:50
  Speaker 4: to leave the Australia permanently with the other citizenship, and
• 13:55
  Speaker 4: that breaks that whole issue of preventing people from leaving.
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  Speaker 4: And that's a good example of a demonstrating how you
• 14:02
  Speaker 4: can renounce your citizenship if you're a dual citizen.
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  Speaker 1: But as you say, they're not dual citizens what I've heard,
• 14:09
  Speaker 1: I think that's right. There are Australians, and let's take
• 14:11
  Speaker 1: the case of people who aren't dual citizens. They're just Australians.
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  Speaker 1: So it's really a political renunciation. And I think in
• 14:17
  Speaker 1: the popular view you're saying, people are saying, well, these
• 14:20
  Speaker 1: people have decided to fight with our enemies and therefore
• 14:24
  Speaker 1: they're not Australian anymore, but they still retain their.
• 14:29
  Speaker 4: Rights, they still retain the Australian citizenship, and you can't
• 14:32
  Speaker 4: renounce your citizenship if you don't have dual citizenship. We
• 14:36
  Speaker 4: ask signatories to a lot of conventions, and one convention
• 14:39
  Speaker 4: doesn't allow us to make our citizens stateless. Everybody supposed
• 14:44
  Speaker 4: to be a part of a particular country. So therefore
• 14:49
  Speaker 4: you can't be left stateless because of that you're Australian citizen.
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  Speaker 4: The most appropriate way would be for them to come
• 14:57
  Speaker 4: to Australia and get charged if they've committed offenses overseas,
• 15:02
  Speaker 4: and let the courts prosecute them for those offenses. And
• 15:05
  Speaker 4: I think that's the correct way of dealing with this
• 15:08
  Speaker 4: issue because generally, if they are Austrian citizens, let them
• 15:11
  Speaker 4: come back to Australia to be prosecuted for it.
• 15:14
  Speaker 2: It seems the.
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  Speaker 1: Government doesn't find this politically palatable. They would rather find
• 15:18
  Speaker 1: bureaucratic ways to keep them out by not a system them,
• 15:22
  Speaker 1: by not issuing passports but not issuing emergency travel documents.
• 15:26
  Speaker 2: What you're saying is a very simple process.
• 15:28
  Speaker 1: They come back, they get charged with being in a
• 15:30
  Speaker 1: prohibited airway.
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  Speaker 2: If I think carries a ten year I mean some
• 15:34
  Speaker 2: of them.
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  Speaker 4: To what I've heard, some have been charged with slavery
• 15:38
  Speaker 4: and being part of a terrorist group and all that.
• 15:41
  Speaker 4: We have the legislative powers to do that. We have
• 15:44
  Speaker 4: laws that allow us to charge them so they can
• 15:47
  Speaker 4: face the music in front of the courts. But the
• 15:51
  Speaker 4: ultimate question keeping them out of the country for a
• 15:53
  Speaker 4: particular period or dragging it out becomes more complicated. I'm
• 15:58
  Speaker 4: assuming some of those ladies that are left back some
• 16:01
  Speaker 4: are poly dual citizens, and probably some of them are
• 16:04
  Speaker 4: people that came to Austray on other permanent visas. They've
• 16:08
  Speaker 4: lost these permanent visas things like that. So there's a
• 16:12
  Speaker 4: lot of issues that we have to look at that
• 16:14
  Speaker 4: go by case to case basis because it's not that simple.
• 16:17
  Speaker 4: But the Austraian government not allowing them to return into
• 16:21
  Speaker 4: the country is a complicated issue. Like I said, they've
• 16:25
  Speaker 4: got an exclusion order, but it's not a permanent exclusion order.
• 16:29
  Speaker 1: Right because as I said, people will say good riddance
• 16:32
  Speaker 1: to these people, but I think people need to understand
• 16:36
  Speaker 1: the implications it has for everybody else. Yeah, when we
• 16:39
  Speaker 1: have these issues of citizenship coming up, what implications do
• 16:43
  Speaker 1: you see for the average person in this situation.
• 16:46
  Speaker 4: I mean, the implications are we have to make sure
• 16:51
  Speaker 4: the rule of law operates fairly because the realities are
• 16:55
  Speaker 4: let's say an Austriian citizen joints a foreign army and
• 16:59
  Speaker 4: they are accused of genocide, I would assume when they
• 17:03
  Speaker 4: get back, and if they are there's credit evidence that
• 17:05
  Speaker 4: they are accused of genocide, they've got an opportunity to
• 17:09
  Speaker 4: defend themselves in a court of law. That's the realities
• 17:13
  Speaker 4: of it. We have to take it this way, but
• 17:15
  Speaker 4: Wilson have to. I think the most sensitive part is
• 17:18
  Speaker 4: that this woman are not.
• 17:20
  Speaker 2: Joining a foreign army.
• 17:22
  Speaker 4: I mean, what we determine how to feign army ISIS
• 17:24
  Speaker 4: or Archaeda were not considered a foreign army. They're a
• 17:26
  Speaker 4: terrorist group, and which they are. That creates the complication.
• 17:30
  Speaker 4: And there are laws that were created to exclude these people.
• 17:34
  Speaker 4: For example, I told you the exclusion order that prevents
• 17:37
  Speaker 4: them from coming back for two years. But there's no
• 17:41
  Speaker 4: law that suggests that because they've joined a terrorist group
• 17:43
  Speaker 4: that they lose their citizenship automatical.
• 17:46
  Speaker 1: And also this is fertile ground for defense in that,
• 17:51
  Speaker 1: as you say, some of them might have just gone
• 17:53
  Speaker 1: along with their husbands. They weren't going to join a
• 17:57
  Speaker 1: terrorist organization. They weren't intending to go to a prohibited area.
• 18:01
  Speaker 1: They just went with their husband. So you could imagine,
• 18:05
  Speaker 1: particularly with difficulty approving offenses committed overseas, that reasonable doubt.
• 18:11
  Speaker 2: Might go in their favor. It might.
• 18:13
  Speaker 4: I mean, I mean, the realities are, Like I said,
• 18:15
  Speaker 4: it's so complicated because we can't group all this women
• 18:19
  Speaker 4: as ISIS brides and they all have the same circumstances.
• 18:23
  Speaker 4: To what I understand, some of the alleged women were
• 18:27
  Speaker 4: kind of almost humans smuggled out of the country into Syria.
• 18:31
  Speaker 4: There were fifteen fourteen year olds that married ISIS members.
• 18:35
  Speaker 4: Now these ladies are not probably adults, and I've realized
• 18:39
  Speaker 4: they've probably made a really bad mistake.
• 18:41
  Speaker 2: They were fifteen years old or other years in a
• 18:43
  Speaker 2: Syrian refugee camp. Australia looks good again, Yeah, one d per.
• 18:46
  Speaker 4: I mean, I'm assuming a fifteen year old and a
• 18:48
  Speaker 4: twenty five year old have a different perspective on life,
• 18:52
  Speaker 4: and I think that plays an impact on that. The
• 18:55
  Speaker 4: realities are. If we're going to criticize specifically the ones
• 18:59
  Speaker 4: that were as children that were taken by adults, and
• 19:02
  Speaker 4: so why did you go overseas?
• 19:05
  Speaker 2: Have the choice.
• 19:06
  Speaker 4: There were probably forced to go overseas and married off
• 19:09
  Speaker 4: to foreigners and like I said, those ISIS members and
• 19:15
  Speaker 4: now they still maintain the use strange citizenship. They didn't
• 19:18
  Speaker 4: renounce it, which they're kind of they're only Austrian citizens and.
• 19:23
  Speaker 2: Now want to come back.
• 19:24
  Speaker 4: I mean, they have the rights to come back, and
• 19:26
  Speaker 4: ultimately it'll be whether they're committed offenses in Syria or
• 19:32
  Speaker 4: in the Middle East, whether they're.
• 19:34
  Speaker 2: And it's so hard.
• 19:35
  Speaker 1: Let's take these slavery charges that have apparently been laid
• 19:38
  Speaker 1: against a couple of the returning ISIS brides so called,
• 19:43
  Speaker 1: and there's an allegation that ten thousand US was paid
• 19:46
  Speaker 1: for a slave. I mean, you imagine the difficulty of
• 19:49
  Speaker 1: trying to for the prosecutor trying to get that case up.
• 19:52
  Speaker 2: Your witnesses are overseas.
• 19:54
  Speaker 1: How do you have no access to crime scenes, you
• 19:56
  Speaker 1: access to documentation. It's an allegation, but will they be
• 19:59
  Speaker 1: able to prove it beyond reasonable doubt? I mean, I
• 20:02
  Speaker 1: think the fear of some people is that the citizenship system,
• 20:06
  Speaker 1: well a lot of these people back into the country
• 20:08
  Speaker 1: and the offenses they've committed will be too hard to
• 20:11
  Speaker 1: prove and they'll get off scott free.
• 20:13
  Speaker 4: Look, the realities are Australian court systems have prosecuted Austraians
• 20:18
  Speaker 4: committing offenses overseas. It's nothing new. I think the most
• 20:22
  Speaker 4: popular one is I think Ben Roberts, Ben Robert Smith.
• 20:25
  Speaker 4: I was going to mention Ben Robert Smith and as
• 20:28
  Speaker 4: an example an easier case to prove given the access
• 20:32
  Speaker 4: to witnesses and so forth. So that's the difficulty of that.
• 20:36
  Speaker 4: I mean, the realities are, I don't know whether you're
• 20:38
  Speaker 4: going to get a jury that's not going to be
• 20:40
  Speaker 4: tainted by how the media sees this. Brides isis Brides.
• 20:44
  Speaker 4: It's going to be a very complicated case. Whether there's
• 20:47
  Speaker 4: going to be enough evidence to suggest that does matter
• 20:49
  Speaker 4: can be committed, there's enough evidence to prosecute. That's also
• 20:53
  Speaker 4: another question there as well. I mean, I haven't seen
• 20:56
  Speaker 4: the evidence, but I think there's a lot of difficulties
• 20:58
  Speaker 4: in progressing those charges and it's going to be a
• 21:02
  Speaker 4: very complicated one. And I think Ben Roberts Smith matter
• 21:07
  Speaker 4: will be a good roadmap in this global world because
• 21:11
  Speaker 4: I'm assuming everybody moves around way easier and people are
• 21:14
  Speaker 4: committing offenses overseas. The reality is with these women, I
• 21:17
  Speaker 4: think the public is not entirely upset about the process
• 21:23
  Speaker 4: of prosecuting them. I think the biggest issue the public
• 21:26
  Speaker 4: has is why are they allowed to come back?
• 21:29
  Speaker 2: Correct?
• 21:30
  Speaker 4: And they're allowed to come back because that's the law.
• 21:33
  Speaker 4: The austrenge citizens.
• 21:34
  Speaker 2: That's the law.
• 21:34
  Speaker 1: And I think you've worked in this immigration area for
• 21:36
  Speaker 1: a long time now, Yes, that's correct, and you've seen
• 21:39
  Speaker 1: over that period hardening of attitudes in the public towards
• 21:44
  Speaker 1: people with any kind of criminal background or sketchy background whatever,
• 21:48
  Speaker 1: and the government has tried to use its discretion, the
• 21:51
  Speaker 1: character test and things like that to eject people. And
• 21:56
  Speaker 1: you wonder whether this is this is not not another
• 21:58
  Speaker 1: leg of that journey where the government tries to appease
• 22:03
  Speaker 1: public sentiment by making sure these people don't come back.
• 22:07
  Speaker 4: I mean I started dealing with visa cancelation. Whether it
• 22:11
  Speaker 4: started in twenty fourteen when Scott Morrison was the Minister
• 22:14
  Speaker 4: of Immigration and he presented and Direction sixty five, which
• 22:19
  Speaker 4: was the first direction Minister of Direction for mandatary visa cancelation,
• 22:24
  Speaker 4: the five oh one visa cancelation and that was the
• 22:26
  Speaker 4: first wave of things. And then by Direction seventy eight
• 22:30
  Speaker 4: under Peter Dutton, there was a more aggressive and no forgiveness.
• 22:35
  Speaker 4: You're going out of this country direction and it evolved
• 22:39
  Speaker 4: with time and right now Direction one hundred and ten
• 22:43
  Speaker 4: is probably one of the hardest directions for offenders. For example,
• 22:48
  Speaker 4: you've got five primary consideration in order for you to
• 22:50
  Speaker 4: get your visa back, and the main primary consideration protectional strength,
• 22:54
  Speaker 4: community is the most important one under Direction one hundred
• 22:57
  Speaker 4: and ten. And this kind of matters, and this kind
• 23:00
  Speaker 4: of direction was created because of the public public's interest
• 23:03
  Speaker 4: on foreigners offending in Australia, and it's rightly so.
• 23:08
  Speaker 2: I think it assists.
• 23:10
  Speaker 4: From understanding, there's been over nine hundred visa cancelations under
• 23:13
  Speaker 4: five oh one in twenty twenty five, which is probably
• 23:18
  Speaker 4: the highest amount of visa cancelation for a labor government
• 23:22
  Speaker 4: because generally the labor government, from understanding, had a lower
• 23:26
  Speaker 4: amount of visa cancelation. Twenty twenty four the numbers were
• 23:29
  Speaker 4: pretty low compared to twenty twenty five under the Liberal government.
• 23:33
  Speaker 4: That was a consistent number, had numbers between five hundred
• 23:37
  Speaker 4: and two. One thousand was a consistent amount of visa cancelation.
• 23:41
  Speaker 2: It's the directions itself.
• 23:44
  Speaker 4: It takes them to account people's connections to Australia, whether
• 23:46
  Speaker 4: they have was strained children, and also what we call
• 23:49
  Speaker 4: the expectation of the austrain community. I think we do
• 23:52
  Speaker 4: have one of the harshest process when it comes to
• 23:56
  Speaker 4: canceling people's visas, and I think it's a very fair
• 23:59
  Speaker 4: process to an extent because the generality it allows individuals
• 24:03
  Speaker 4: to appeal a decision made by a delegate of the minister.
• 24:07
  Speaker 4: But it's not a perfect process, and I can tell
• 24:09
  Speaker 4: you in practice it's not perfect. There's a lot of
• 24:12
  Speaker 4: situations that we I would suggest that an individual's visa
• 24:16
  Speaker 4: should have been returned and the visa should have been canceled,
• 24:20
  Speaker 4: but that's a question of the process that I need
• 24:23
  Speaker 4: to take going to court filing appeals. But I think
• 24:27
  Speaker 4: that we do have probably one of the most difficult
• 24:33
  Speaker 4: visa cancelation process. I think even as more difficult than
• 24:36
  Speaker 4: the US when it comes to taking your visa away
• 24:39
  Speaker 4: for criminal offenses.
• 24:42
  Speaker 2: And it's politically charged, that's for sure.
• 24:45
  Speaker 1: And I think the ciis Bride's issue typifies the difficulty
• 24:49
  Speaker 1: people have with admitting people back to this country, or
• 24:53
  Speaker 1: giving them visas, or even having them as citizens here
• 24:56
  Speaker 1: who would be inclined to go and fight terrorist causes
• 25:00
  Speaker 1: overseas and expect to come back. Do you see a
• 25:03
  Speaker 1: set of circumstances in the future where governments would start
• 25:06
  Speaker 1: to proscribe our rights as citizens and be able to
• 25:10
  Speaker 1: remove that citizenship and eject us to make it stateless
• 25:14
  Speaker 1: or something.
• 25:15
  Speaker 4: I mean, I don't think they can. I mean, that's
• 25:17
  Speaker 4: the point. We have three heads of government. We've got
• 25:21
  Speaker 4: an executor, we got the jujitsuary where we've got the legislator.
• 25:24
  Speaker 4: I mean, I don't think that is going to happen,
• 25:27
  Speaker 4: at least for people who are Austraian citizens. To be
• 25:30
  Speaker 4: a popular movie, wouldn't it. I don't think it will
• 25:32
  Speaker 4: be popular. It's popular for people that are not experiencing it.
• 25:35
  Speaker 4: And the rule of law just has to be fair.
• 25:38
  Speaker 4: The realities are, if you commit, if you go overseas
• 25:41
  Speaker 4: and your strength citizen, you join a terrorist group, you
• 25:43
  Speaker 4: should face the law in your.
• 25:45
  Speaker 2: Country in Australia.
• 25:47
  Speaker 4: And I think you might remember the Austrian citizen that
• 25:50
  Speaker 4: was in Guantanamo Bay for quite some time and he
• 25:54
  Speaker 4: was held with our charge in Guantanamo Bay and he
• 25:56
  Speaker 4: got released and etcetera. I mean, he had to face
• 26:00
  Speaker 4: the music here. I don't know whether he was charged
• 26:02
  Speaker 4: or et cetera, but he had the rights to come
• 26:05
  Speaker 4: back to Australia and face the music.
• 26:07
  Speaker 2: I don't know if you remember him.
• 26:09
  Speaker 1: That was David Hicks who was captured in Afghanistan in
• 26:11
  Speaker 1: December two thousand and one after attending an LKA training
• 26:14
  Speaker 1: camp in Afghanistan, ended up in Guan Talamo Bay as
• 26:17
  Speaker 1: an enemy combatant in two thousand and seventy. He pleaded
• 26:20
  Speaker 1: guilty to providing material support for terrorism and was later
• 26:24
  Speaker 1: returned to Australia to serve the remaining nine months.
• 26:26
  Speaker 2: So that suspended seven years sentence.
• 26:29
  Speaker 4: We can say the same thing, his citizenship wasn't stripped.
• 26:32
  Speaker 4: This is the same thing with Julian Assange. He was
• 26:34
  Speaker 4: allegedly charged with treason overseas and treason against the foreign government.
• 26:40
  Speaker 4: In a sense that we're not going to abandon him
• 26:42
  Speaker 4: still an Austriian citizen, and on that basis, Australian assisted
• 26:47
  Speaker 4: him in getting the best possible justice he could get
• 26:51
  Speaker 4: to return back to Australia. So the realities are the
• 26:55
  Speaker 4: rule of law should remain fair and consistent, and the
• 27:00
  Speaker 4: realities are the government have to just accept that they
• 27:04
  Speaker 4: have an obligation to their citizens, even if they don't
• 27:06
  Speaker 4: like them, even if they've committed offenses. Those citizens should
• 27:10
  Speaker 4: face the noise in court and put their defense against
• 27:15
  Speaker 4: their actions and their conduct. But preventing Australians citizens from
• 27:19
  Speaker 4: coming back is a very difficult thing. I mean, if
• 27:22
  Speaker 4: they wanted to strip their citizenship, they can. If they
• 27:25
  Speaker 4: are dual citizens, there's a process that government can proceed
• 27:28
  Speaker 4: with that they can revoke an individual citizenship okay, or
• 27:31
  Speaker 4: they can cancel it based.
• 27:33
  Speaker 2: On as long as they have somewhere else to go correct.
• 27:36
  Speaker 4: So unfortunately, not under the circumstances, they can't just strip it.
• 27:42
  Speaker 1: So if you're the defense counsel for these isis brides
• 27:46
  Speaker 1: and they're encountering obstacles, they're encountering bureaucratic obfuscation, if you like, yeah,
• 27:53
  Speaker 1: what are you trying to do for them? What are
• 27:55
  Speaker 1: the causes of action? The rights they have?
• 27:57
  Speaker 4: I mean, the realities are if they were charged with
• 28:00
  Speaker 4: those of like they've been charged, they just have to
• 28:03
  Speaker 4: follow the process of the law, get representation and then
• 28:08
  Speaker 4: get the advice whether they're going to interpreaw guilty or
• 28:10
  Speaker 4: take it to trial. And that's what they will be
• 28:12
  Speaker 4: advised by any defense lawyer. I mean, I deal mostly
• 28:17
  Speaker 4: with the administrative part of this process, but I'm just
• 28:20
  Speaker 4: saying generally that's what they'll do. I mean, the prosecution
• 28:25
  Speaker 4: will have to present their case and there's going to
• 28:28
  Speaker 4: have to be a foot brief of evidence, and from there,
• 28:31
  Speaker 4: the defense is going to have to commit the matter
• 28:34
  Speaker 4: and take it to trial, and the course will decide
• 28:38
  Speaker 4: whether they're guilty or not.
• 28:40
  Speaker 1: Indeed, one of the questions at the moment is whether
• 28:42
  Speaker 1: they should get bail on remand I note that one
• 28:45
  Speaker 1: has withdrawn their bail application, but there's other dates coming up,
• 28:49
  Speaker 1: and I wonder, again, you're the court. You're looking at
• 28:53
  Speaker 1: this background of somebody who's been involved in this terrorist
• 28:57
  Speaker 1: activity or at least supporting a terrorist.
• 29:00
  Speaker 2: Do you give them bail?
• 29:01
  Speaker 1: What are the principles there that would apply to someone
• 29:03
  Speaker 1: getting bailed.
• 29:04
  Speaker 4: Ultimate the bill's been opposed by the prosecution, it will
• 29:08
  Speaker 4: be the question of their defense team whether they can
• 29:12
  Speaker 4: provide any level surely why they should get the bill
• 29:15
  Speaker 4: should be granted.
• 29:16
  Speaker 2: There's a whole process there.
• 29:17
  Speaker 4: And now if Bell's refused, I'll give an example of
• 29:21
  Speaker 4: Bell's refused in Queensland they'll have an opportunity to do
• 29:24
  Speaker 4: a Supreme Court bail application. There's a lot of processes
• 29:28
  Speaker 4: that will allow them to get bail. If they really
• 29:30
  Speaker 4: want to get bail or try to fight the opposition
• 29:34
  Speaker 4: of a bail application, that whole process is provided to them,
• 29:38
  Speaker 4: and the merits of the case might determine the aspect
• 29:42
  Speaker 4: of the bail application. And generally I'm assuming if they're
• 29:46
  Speaker 4: going to plead not guilty, that's a huge incentive of
• 29:49
  Speaker 4: getting bail. And also depending the kind of evidence the
• 29:54
  Speaker 4: prosecution has, it's not a very black and white perspective.
• 29:59
  Speaker 4: Majority of times, as you were, non popular beliefs. If
• 30:02
  Speaker 4: there's a strong case against you and it's very likely
• 30:05
  Speaker 4: going to be find guilty or it's very likely that
• 30:07
  Speaker 4: you're going to interpretat guilty, it's very likely that you
• 30:09
  Speaker 4: will get bail.
• 30:11
  Speaker 2: Ye and the other bride.
• 30:12
  Speaker 4: That has refused to proceed with an application for bail
• 30:15
  Speaker 4: NA it's probably the basis of a strategy and getting
• 30:19
  Speaker 4: sufficient evidence to put forward a proper bail application.
• 30:22
  Speaker 1: Yes, this is an unpalatable test of our legal system
• 30:27
  Speaker 1: and the ability to apply it equally to everybody. Public
• 30:32
  Speaker 1: sentiment does affect law making, it affects politicians.
• 30:37
  Speaker 2: What room is there in.
• 30:40
  Speaker 1: The constitution, in our black letter law to tighten the
• 30:44
  Speaker 1: eligibility for citizenship and the ability to eject people permanently
• 30:49
  Speaker 1: from this country if they've offended us in the way
• 30:52
  Speaker 1: these people have.
• 30:53
  Speaker 4: I mean, the ultimate problem is a lot of people
• 30:57
  Speaker 4: are not naturalives or strained citizens.
• 30:59
  Speaker 2: It's very easy.
• 31:00
  Speaker 4: To cancel or take away and naturalize or strands citizens
• 31:05
  Speaker 4: citizenship because most naturalized as strained citizens retain their previous citizenship.
• 31:12
  Speaker 4: But that doesn't apply to everybody. Certain countries, once you
• 31:15
  Speaker 4: apply for strained citizenship, you lose your citizenship because they
• 31:19
  Speaker 4: don't have dual citizenship in their constitution. The reality is
• 31:23
  Speaker 4: are if somebody has a singular citizenship, it doesn't matter
• 31:27
  Speaker 4: how you tighten the laws. The realities are Australia are
• 31:31
  Speaker 4: responsible for those individuals and if they are returned in Australia,
• 31:34
  Speaker 4: they should be punished in the eyes of Australian law.
• 31:38
  Speaker 4: The realities are the citizenship process is actually not an
• 31:41
  Speaker 4: easy process per se. If you have a drink driving offense,
• 31:46
  Speaker 4: your citizenship will most likely be refused. It's easy for
• 31:48
  Speaker 4: your citizenship to be refused for drink driving offense, so
• 31:52
  Speaker 4: it's not entirely that easy if you've got offenses getting
• 31:56
  Speaker 4: a straind citizenship. There's a lot of individuals that have
• 31:59
  Speaker 4: waited more than ten years to get Austraan citizenship. I
• 32:03
  Speaker 4: don't see how we're going to tighten that process without
• 32:06
  Speaker 4: affecting everybody's rights. And I think the realities are the
• 32:11
  Speaker 4: law is there. It's just that unfortunately what's documented in
• 32:17
  Speaker 4: the media and how the law applies doesn't kind of
• 32:22
  Speaker 4: mash up because this lady is this woman from that
• 32:26
  Speaker 4: way in Syria. I don't see any other ways of
• 32:29
  Speaker 4: preventing them from coming back, but the best ways to
• 32:32
  Speaker 4: charge them if they've committed any offenses overseas, that's the thing.
• 32:35
  Speaker 4: A lot of them entered exclusion zones, which is why
• 32:39
  Speaker 4: some of them are going to get charged for that.
• 32:42
  Speaker 4: And some have been accused of slavery. And the questions
• 32:46
  Speaker 4: are they have to prove beyond reasonable doubt they're guilty
• 32:49
  Speaker 4: of those charges, and it's not a very simple black
• 32:53
  Speaker 4: and white situation. I don't see how we're going to
• 32:55
  Speaker 4: tighten the citizenship process. It's already very difficult.
• 33:00
  Speaker 1: I'm just going to speculate that it's much more likely
• 33:03
  Speaker 1: that the progress of the women and their families will
• 33:06
  Speaker 1: be monitored by our intelligence services.
• 33:09
  Speaker 2: And if they're mingling.
• 33:10
  Speaker 1: And plotting, conspiring with other people who are not citizens
• 33:15
  Speaker 1: in this country, those individuals might find themselves facing canceling, deportation,
• 33:22
  Speaker 1: cancelation under the character test, that's.
• 33:24
  Speaker 2: Correct, which can happen.
• 33:26
  Speaker 4: The realities are if they are involved in a foreign
• 33:30
  Speaker 4: illegal organization like some of these groups, they will implicate
• 33:34
  Speaker 4: other people who are likely are dual citizens or possibly
• 33:40
  Speaker 4: visa holders, and their visas could be canceled or their
• 33:43
  Speaker 4: citizenship could be removed taken away from them.
• 33:47
  Speaker 2: So it's a difficult one.
• 33:49
  Speaker 4: I think we do have the agencies that will monitor
• 33:52
  Speaker 4: the conduct of these individuals if they are going to
• 33:56
  Speaker 4: commit any further offenses in Australia, which is fair enough,
• 34:00
  Speaker 4: and I think the realities of their actions will have
• 34:04
  Speaker 4: to be you know, monitored, But like we have to
• 34:07
  Speaker 4: look at a case to case basis, because, like I said,
• 34:10
  Speaker 4: some of these women left Austray as children and were
• 34:14
  Speaker 4: forced as child brides and now they're probably twenty four
• 34:17
  Speaker 4: to twenty three whatever, and it's not that simple to
• 34:20
  Speaker 4: just ignore them because there are strange citizens, and there
• 34:24
  Speaker 4: were children when they were forced to marry these men.
• 34:27
  Speaker 4: So it's a very very complicated case, it really is.
• 34:30
  Speaker 1: And I think at the moment, the way that politics
• 34:32
  Speaker 1: is going heading more to the right, more towards if
• 34:35
  Speaker 1: there's any doubt, there's no doubt. I think it's going
• 34:37
  Speaker 1: to be difficult for people to go and get involved
• 34:39
  Speaker 1: in these circles, particularly if they're fighting on the wrong side.
• 34:43
  Speaker 1: And that's correct.
• 34:44
  Speaker 4: I mean everybody's saying, while we're allowing them to come
• 34:46
  Speaker 4: back and et cetera, we are we cannot leave austranged
• 34:50
  Speaker 4: citizens stranded overseas. We obligate it to help if they
• 34:54
  Speaker 4: want to come back home. And that's the that's the
• 34:57
  Speaker 4: real point. So thanks for making that today, Tank you. I
• 34:59
  Speaker 4: really appreciate that. That's Tanking blum Way of Samby Legal.
• 35:09
  Speaker 4: That's the point here.
• 35:10
  Speaker 1: You might not like these Isis brides, but wonder if
• 35:13
  Speaker 1: it was your child, as a citizen of this country
• 35:16
  Speaker 1: overseas and this happened to them, wouldn't you want them
• 35:20
  Speaker 1: to return. We don't like these people, but the law
• 35:24
  Speaker 1: still matters, and it's we've all got to be equal
• 35:27
  Speaker 1: before the law. And if they've committed offenses, let them
• 35:31
  Speaker 1: be tried by their peers in Australian courts.
• 35:34
  Speaker 2: We can't simply leave.
• 35:35
  Speaker 1: Them overseas and obfuscate their return to appease public opinion
• 35:41
  Speaker 1: often based on wrong facts or ignorance.
• 35:45
  Speaker 2: Anyway, that's a thorny question.
• 35:46
  Speaker 1: I don't want to get into politics too much in
• 35:48
  Speaker 1: this podcast, but I think it does matter.
• 35:50
  Speaker 2: Because the law always matters.
• 35:52
  Speaker 1: So if you've got a crime you want to report,
• 35:54
  Speaker 1: please call crime Stoppers one eight hundred, triple three, triple zero.
• 35:58
  Speaker 1: You might not trust the police, you can always email
• 36:00
  Speaker 1: me Adam Shander writer at gmail dot com and I'll
• 36:03
  Speaker 1: treat your inquiry your report with the utmost discretion.
• 36:07
  Speaker 2: But thank you for listening to This has been Adam
• 36:09
  Speaker 2: Shann for Real Crime. Thanks for listening to this episode
• 36:22
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• 36:26
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• 36:28
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