The repatriation of women and children from a Syrian refugee camp last year is strong evidence of the Commonwealth's control over their detention, lawyers for another group of women fighting to return to Australia have argued.
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A trial has begun in the Federal Court in a case brought on behalf of 11 women and 20 children seeking to be returned to Australia from detention in the al-Roj camp in northern Syria.
The group, among 34 Australians in the camp, are being detained by the Autonomous Administration of North East Syria (AANES) and its defence arm, the Syrian Democratic Forces.
Save the Children Australia launched a legal fight earlier this year, claiming the group's detention is unlawful and raising questions about why successive federal governments have allowed some women and children to return and not others.
They're seeking a writ of habeas corpus, which would require the Commonwealth to bring the women before an Australian court.
Save the Children's barrister Peter Morrissey SC said they must prove the Commonwealth has control over the detention of the women and the starting point is the repatriation of four women and 13 children from al-Roj to Australia last October.
Documents established that Australia's Ambassador to Turkey, Mark Innes-Brown, had been appointed as a special envoy to liaise with the AANES to facilitate the return of Australians to Australia, he said.
Mr Morrissey said 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 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.
Save the Children Australia's Mat Tinkler said the women who have already been repatriated have 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.
Australian Associated Press
