Two Australian residents suspected of travelling to the Middle East to assist in the battle against Islamic State have not been charged with any offences weeks after returning to Australia.
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Tough new laws passed by Parliament last year, which include life sentences for those who participate in hostile activities overseas, were drafted to apply equally to those on all sides of foreign conflicts.
Prime Minister Tony Abbott has said that anyone who returns to Australia after becoming a foreign fighter will be arrested and charged, after reports emerged that three Australians who joined IS in Syria or Iraq are in talks with the government about potentially returning home.
"A crime is a crime is a crime," Mr Abbott said.
"If you go abroad to break Australian law, if you go abroad to kill innocent people in the name of misguided fundamental extremism, if you go abroad to be an Islamist killer, well we are hardly going to welcome you back into this country."
Former Northern Territory Labor official Matthew Gardiner, who reportedly travelled overseas to help Kurdish forces fight IS militants, returned to Australia in early April. Mr Gardiner, who was deployed to Somalia in the 1990s with the Australian Army, was questioned by police upon his return before being released without charge. He has refused to comment publicly on why he travelled to Syria.
Melbourne father of two George Khamis returned to Australia in March after travelling to Iraq to join an Assyrian militia group, Dwekh Nawsha. Mr Khamis allowed Channel Seven's Sunday Night to interview him while he was in Iraq about his mission.
Mr Khamis was also questioned at the airport and released without charge.
University of NSW law professor George Williams said: "The law is pretty direct and clear - there's no exception if you regret what you've done or changed your mind. And the offences relating to engaging in hostile activity outside of Australia or entering prescribed zones do not differentiate between either side in the conflict."
Mr Williams said it was difficult to prove whether someone has participated in hostile activities overseas, especially if they did not speak publicly.
Rodger Shanahan, an associate professor at the Australian National University's National Security College, said the law should apply to all returned foreign fighters - regardless of which side they fought on or whether they became disillusioned with the cause.
"The punitive element needs to be done and seen to be done otherwise the Muslim community will point out the inconsistency of applying the law to one side and not another," he said.
Andrew Zammit, a researcher at Monash University's Global Terrorism Research Centre, said: "Not all foreign fighters are the same - there are degrees of seriousness, and fighting for a proscribed terrorist organisation is a more serious crime than fighting against one."
Mr Zammit said there should be some leniency for disillusioned returning foreign fighters, depending on their age, what activities they conducted overseas and the extent to which they will help authorities.
"It shouldn't be that the only options are either lengthy imprisonment or nothing at all," he said.
