In Save the Children Australia v Minister for Home Affairs [2024] FCAFC 81, Save the Children Australia appealed from a decision refusing to issue a writ of habeas corpus, to require the Australian government to bring before the Federal Court, in Australia, Australian-citizen women and their children who are presently detained, in camps in North-East Syria, by the Autonomous Administration of North-East Syria.

Habeas corpus usually issues against a person (often exercising governmental authority), who is directly detaining someone, to test the legality of that detention. However, in three UK cases —  Barnardo v Ford [1892] AC 326; R v Secretary of State for Home Affairs; ex parte O’Brien [1923] 2 KB 361; and Rahmatullah v Secretary of State for Defence [2013] 1 AC 614 — the courts issued the writ where there was a doubt whether the recipient, though not the detainer, had control over the detention. In O’Brien, doubt as to control arose from an oral agreement between the governments of Britain and the Irish Free State. In Rahmatullah, doubt as to control arose from a memorandum of understanding between the governments of Britain and the US.

Save the Children contended that the writ should be given the same extraterritorial operation under Australian law. They said the evidence showed an arrangement or understanding between the Australian government and the Autonomous Administration of North-East Syria, on which the Australian government could call to have the women and children released from detention into the hands of Australian officials, who could then repatriate them to Australia, thus complying with the writ. In a unanimous judgment, Mortimer CJ, Kennett and Horan JJ dismissed the appeal, finding on the evidence that the existence of an agreement or arrangement was nothing more than conjecture, and therefore did not give rise to sufficient doubt as to control.