Former home affairs secretary Mike Pezzullo has expressed support for a "compromise" approach to the current process of allowing temporarily excluded Australian citizens back into the country. Pezzullo, who was involved in legislating the temporary exclusion order (TEO) regime under the Morrison government, suggested bolstering existing provisions by granting more discretionary power to relevant ministers.

The debate has intensified following the recent return of Islamic State-linked women to Australia and reports that at least 13 men imprisoned in Iraq could seek to return. In response, One Nation leader Pauline Hanson has called on the crossbench and Coalition to support her private members' bill aimed at stopping the return of Australians who joined Islamic State (IS) and canceling passports of convicted terrorists.

Pezzullo said he believed it would be constitutionally "safe" to amend the act to allow ministerial discretion over return permits. However, he warned that proposals like those from One Nation would likely fail quickly in the High Court, stating, "So on all the advice that I've had, something like what's being proposed [by One Nation] would last about 30 seconds in the High Court."

Anne Twomey, a professor of constitutional law at the University of Sydney, noted that the High Court has never ruled on whether Australians have an implied right to return and reside in the country. She said the criteria for the exclusion orders proposed by One Nation are "much harder to satisfy" than the current scheme, as the court would need to be convinced that the risk posed by the individual could not be managed by other measures.

Pezzullo also highlighted that about 750 people are made to leave Australia annually under current laws. The ongoing discussion reflects tensions between national security concerns and constitutional protections for citizens.

Sources