Introductory Info

Date introduced: 21 February 2019
House: House of Representatives
Portfolio: Home Affairs
Commencement: Royal Assent.

The Bills Digest at a glance

The Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 (the Bill) will introduce two new orders, each of which could be made by the Minister for Home Affairs:

• a temporary exclusion order (TEO), which may prevent an Australian citizen aged 14 years or older who is overseas from returning to Australia for up to two years at a time and
• a return permit, under which the Minister may impose conditions on the person’s entry into Australia, including conditions with which the person must comply for up to 12 months after re-entering the country.

The orders are intended to enable authorities to plan for and manage the return of Australians of counter-terrorism interest (such as individuals who have fought with or otherwise supported a terrorist organisation overseas) and mitigate risks to the community posed by such individuals. Similar orders exist under United Kingdom law and have been made at least nine times since they were introduced in 2015.

The Bill is being considered by the Parliamentary Joint Committee on Intelligence and Security (PJCIS). The Senate Standing Committee for the Scrutiny of Bills raised concerns about the broad discretionary powers that would rest with the Minister; the ability to impose orders on individuals aged 14–17 years; the exclusion of procedural fairness; limited access to review; and the use of offence-specific defences for which a defendant would bear an evidential burden. The Parliamentary Joint Committee on Human Rights had not reported on the Bill as at the date of publication of this Digest.

Stakeholders have objected to the Bill on the grounds that the Government has not demonstrated the need for the new powers, that the Bill may not be constitutionally sound, and that it may be inconsistent with international human rights law and international obligations to exercise criminal jurisdiction over people suspected of engaging in terrorism.

Some stakeholders also outlined changes they would recommend to the Bill if it is to proceed. Key changes suggested included:

• TEOs being issued or approved by a court or a retired judicial officer instead of the Minister
• an additional threshold that must be met before a TEO may be issued, namely that the person has engaged in certain conduct while overseas
• a requirement to afford a person the full requirements of procedural fairness in relation to decisions made under the proposed law
• providing for merits review of decisions made under the proposed law
• only allowing TEOs to be made in relation to persons aged 18 years or older
• if TEOs are permitted in relation to persons aged 14–17 years, requiring the best interests of the child to be given as much weight as protecting the community and
• other safeguards and accountability mechanisms, including requiring the Minister to periodically review TEOs and conditions imposed under return permits, and enabling review of the new law by the Independent National Security Legislation Monitor (INSLM).

Parliament may also wish to consider amendments to clarify the interaction of return permits and the existing control order regime and whether an assessment provided by the Australian Security Intelligence Organisation (ASIO) to the Minister for the purposes of the possible imposition of a TEO constitutes a security assessment.

Purpose of the Bill

The purpose of the Bill is to introduce two new orders, each of which could be made by the Minister for Home Affairs:

• a temporary exclusion order, which may prevent an Australian citizen aged 14 years or older who is overseas from returning to Australia for up to two years at a time and
• a return permit, under which the Minister may impose conditions on the person’s entry into Australia, including conditions with which the person must comply for up to 12 months after re-entering the country.

The orders are intended to enable authorities to plan for and manage the return of ‘Australians of counterterrorism interest’ and mitigate risks to the community posed by such individuals.[1]

Background

In November 2018, the Prime Minister announced that the Government would introduce a scheme for TEOs based on that which exists in the United Kingdom (UK):[2]

... Exclusion Orders would enable the Minister to impose a condition on the control, return and re-entry into our community of Australians who have been in conflict zones like Syria. It will enable the Minister for Home Affairs to impose an Order for up to two years on Australian citizens of counterterrorism interests who are located offshore. It would be a criminal offence for them to return to Australia, unless a permit of this nature is provided - that is the Temporary Exclusion Order. Once the person is back in Australia it would impose controls on them to mitigate the risk to the community, such as reporting to police, curfews, restrictions on technology used and the like. Failure to comply with the terms of that Temporary Exclusion Order, would be also an offence and subject to penalties for that citizens.[3]

The Minister for Home Affairs provided the latest figures on Australians involved in overseas conflicts in his second reading speech for the Bill:

Since 2012, around 230 Australians have travelled to Syria or Iraq to fight with or support groups involved in the conflict. Around 100 are still active in the conflict zone, having fought for or otherwise supported Islamic extremist groups.[4]

He went on to outline the Government’s rationale for introducing TEOs and related return permits:

... Even after the defeat of Islamic State on the battlefield, the issue of foreign terrorist fighters will continue to be a challenge for our national security agencies and international partners for years to come.

...

Following the collapse of Islamic State's territorial control, more Australians participating in or supporting the conflict are seeking to leave the conflict zone, and return to Australia. The government is determined to deal with these people as far away from our shores as is possible to ensure that if they return it is into the hands of authorities. This will enable law enforcement and security agencies to reduce the threat returnees pose to Australia.[5]

The foreign fighter phenomenon is not a new issue.[6] However, a range of factors, including the large number of foreign fighters who joined the conflicts in Iraq and Syria (many of them with the Islamic State group), and the relatively high proportion from Western nations, has concerned authorities.[7] A key concern is the potential threat these individuals may pose to domestic security upon return.[8] Since 2014, the Australian Parliament has passed several pieces of legislation aimed at preventing Australians from joining overseas conflicts and better equipping authorities to deal with those who were nonetheless able to do so. This has included:

• the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, which introduced broad-ranging amendments primarily aimed at addressing the increased threat of terrorism posed by Australians engaging in, and returning from, conflicts in foreign countries. Amendments included updating existing foreign incursions offences and enacting a new offence of entering a declared area, removing the requirement for ‘terrorism-related proceedings’ to comply with the usual rules of evidence, allowing the Minister for Foreign Affairs to suspend a person’s passport pending a decision about cancellation, and expanding the control order regime.
• the Counter-Terrorism Legislation Amendment Act (No. 1) 2014, which included amendments to further expand the control order regime and to amend the functions of the Australian Secret Intelligence Service to explicitly include providing assistance to the Australian Defence Force in support of military operations and cooperation with the Defence Force on intelligence matters and
• the Australian Citizenship Amendment (Allegiance to Australia) Act 2015, which expanded the national security-related grounds on which dual citizens may lose their Australian citizenship, including by enabling citizenship loss on the basis of acting inconsistently with allegiance to Australia by engaging in specified conduct, and of having fought for or been in the service of a terrorist organisation.[9]

The UK scheme

The Counter-Terrorism and Security Act 2015 (UK) introduced TEOs, permits to return and notices specifying obligations with which an individual subject to a TEO must comply after return to the UK.[10]

TEOs

The Home Secretary may impose a TEO if:

• the Home Secretary reasonably suspects an individual is, or has been, involved in terrorism-related activity outside the UK
• the Home Secretary reasonably considers that it is necessary, for purposes connected with protecting members of the public in the UK from a risk of terrorism, for a TEO to be imposed on the individual
• the Home Secretary reasonably considers that the individual is outside the UK
• the individual has the right of abode in the UK and
• the court has given its permission for a TEO to be imposed on the individual, or the Home Secretary reasonably considers that the urgency of the case requires a TEO to be imposed without obtaining such permission (in which case, the Home Secretary must refer the imposition of the TEO to the court immediately after giving notice of the order).[11]

TEOs remain in force for two years unless revoked or brought to an end earlier, though another TEO may be imposed on the same individual.[12]

Permits to return

The Home Secretary may issue a permit to an individual subject to a TEO that gives the individual permission to return to the UK (a ‘permit to return’). Such a permit may only be issued on application of the individual, or if the Home Secretary considers that the individual is to be deported to the UK or because of the urgency of the situation it is expedient to issue a permit in the absence of an application from the individual.[13]

A permit may be subject to the individual complying with conditions specified therein; and must stipulate the time at which or period during which the individual is permitted to return to the UK, the manner in which the individual is permitted to return and the place where the individual is permitted to return.[14]

Obligations after return

The Home Secretary may issue a notice imposing certain obligations on a person subject to a TEO who has returned to the UK (under a permit). The obligations able to be imposed are:

• reporting to a police station, and complying with directions given by a constable about such reporting
• notifying the police of the individual’s place or places of residence and any changes to the same and
• attending appointments with specified persons or persons of specified descriptions, and complying with reasonable directions given by the Home Secretary relating to matters about which the individual is required to attend an appointment.[15]

Such a notice remains in force until the TEO ends, unless it is revoked or brought to an end earlier.[16]

Offences

Offences apply if an individual subject to a TEO returns to the UK other than under a permit to return, contravenes a requirement in a permit to return, or fails to comply with an obligation included in a notice.[17]

Use of TEOs

There is little publicly available information on the use of TEOs in the UK. Nine TEOs were imposed in 2017, with none imposed before 2017, and no publicly available information about whether any have been imposed in 2018 or 2019.[18] Information on the circumstances in which the TEOs that have been issued were made does not appear to be publicly available.

Proposed scheme and interaction with existing powers

The scheme proposed in the Bill is broadly similar to the UK scheme, with TEOs able to exclude individuals for up to two years at a time and a requirement that the Minister issue a return permit on application from the individual or if the individual is to be deported. The ‘Key issues and provisions’ section of this Digest compares key elements of the Bill with the UK scheme.

The Minister stated that the conditions individuals may be required to comply with following their return to Australia ‘will assist law enforcement and security agencies to monitor [their] whereabouts, activities and associations’, and:

Following a period of investigation and further assessment, authorities may use other powers to address risks posed by the person, such as a control order or arrest and prosecution.[19]

The Department of Home Affairs’ submission to the PJCIS further notes that the TEO scheme is ‘intended to operate alongside existing extradition processes’, providing a means of controlling the return of individuals ‘who represent a security threat, but whose extradition cannot be sought or secured’.[20]

In the context of Australia’s existing counter-terrorism framework, including powers introduced or expanded since 2014 to deal with foreign fighters, some stakeholders have questioned the necessity of the scheme proposed in the Bill (see further under the ‘Position of major interest groups’ and ‘Necessity of the proposed orders’ headings below).

Committee consideration

Parliamentary Joint Committee on Intelligence and Security

The Bill has been referred to the PJCIS for inquiry and report. No reporting date has been set. Details of the inquiry are at the inquiry homepage.

Some of the evidence presented to the PJCIS is included in the ‘Position of major interest groups’ and ‘Key issues and provisions’ sections of this Digest.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) raised several concerns about the Bill.

The Committee had ‘significant scrutiny concerns’ about the decision to exclude an Australian citizen from the country resting with the Minister, and with the threshold test being set at reasonable suspicion instead of reasonable belief that an order will prevent certain conduct.[21] It was also concerned that TEOs may be made in relation to persons aged 14–17 years, and that in such cases, the interests of the child are to be given lesser consideration than community protection.[22]

The Committee was also concerned at the exclusion of procedural fairness, lack of access to merits review of Ministerial decisions to issue a TEO or impose conditions under a return permit, and the limited scope for judicial review. It considered that it may be appropriate for the Bill to be amended to require the Minister to observe the usual requirements of procedural fairness and to allow for merits review of Ministerial decisions ‘by a tribunal with appropriate national security expertise’.[23]

Finally, the Committee noted the inclusion of offence-specific defences in the Bill for several offences. The Committee recognised that the defendant will bear only an evidential rather than a legal burden in relation to those defences, but nonetheless stated that it expected any reversal of the burden of proof to be justified (which had not been done in this instance).[24]

The Committee did not seek a response from the Minister on the matters outlined above.

Policy position of non-government parties/independents

At the time of publication of this Digest, there was no public indication of the policy position of any non-government parties or independents on the Bill.

Position of major interest groups

Non-government stakeholders that made submissions to the PJCIS’s inquiry into the Bill recommended that the Bill not be passed at all, or that it not be passed in its current form.[25] The reasons stakeholders opposed the Bill included that:

• the Government had not demonstrated the need for the new orders/the gap in existing counter-terrorism laws that the orders would fill[26]
• the Bill may not be constitutionally sound, in particular it may:
  • deprive Australian citizens of their constitutional right of abode and
  • breach the separation of powers and[27]
• the Bill may be inconsistent with international human rights and other laws, including the right to enter one’s country, right to privacy, right to freedom of movement, right to a fair trial, right to family life, the rights of children, and international obligations to exercise criminal jurisdiction over people suspected of engaging in terrorism.[28]

Some stakeholders, including the Law Council of Australia (LCA), Australian Human Rights Commission (AHRC) and legal academics, also outlined changes they would recommend to the Bill if it is to proceed. Key changes that were suggested included:

• TEOs being issued or approved by a court,[29] or by a retired judicial officer,[30] instead of the Minister
• an additional threshold that must be met before a TEO may be issued, namely that the person has engaged in certain conduct while overseas[31]
• a requirement to afford a person the full requirements of procedural fairness in relation to decisions made under the proposed law[32]
• providing for merits review of decisions made under the proposed law[33]
• only allowing TEOs to be made in relation to persons aged 18 years or older[34]
• if TEOs are permitted in relation to persons aged 14–17 years, requiring the best interests of the child to be given as much weight as protecting the community and[35]
• other safeguards and accountability mechanisms, including:
  • requiring the Minister to periodically review TEOs and conditions imposed under return permits and
  • enabling review of the new law by the Independent National Security Legislation Monitor (INSLM).[36]

The Inspector-General of Intelligence and Security (IGIS) considered that some aspects of the Bill ‘would benefit from greater clarity’.[37] In particular, the IGIS suggested it be made clear whether or not the advice provided by the Australian Security Intelligence Organisation (ASIO) to the Minister for the purposes of the possible imposition of a TEO is to be in the form of a security assessment in accordance with the Australian Security Intelligence Organisation Act 1979 (ASIO Act). The IGIS noted that the form of advice provided will have implications for an individual’s rights of review.[38]

Further detail is included in the ‘Key issues and provisions’ section of this Digest.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[39] Costs outlined in an impact assessment for the UK’s TEO scheme included training police and border protection officers, conducting prosecutions of offences under the scheme, and operational/enforcement costs for police and border protection officers.[40] Given the similarity of the proposed scheme to that in the UK, it might be more accurate to say that any costs of the proposed scheme will be met from the existing resources of the relevant agencies and departments.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[41] However, several stakeholders questioned the compatibility of the Bill with some of those rights, including the right to enter one’s country, right to privacy, right to freedom of movement, right to a fair trial, right to family life, and the rights of children.[42]

The Parliamentary Joint Committee for Human Rights had not commented on the Bill at the date of publication of this Digest.

Key issues and provisions

Overview

The Bill will allow the Minister for Home Affairs to make two types of order:

• a temporary exclusion order (TEO), which may prevent an Australian citizen aged 14 years or older who is overseas from returning to Australia for up to two years at a time
• a return permit, under which the Minister may impose conditions on the person’s entry into Australia, including conditions with which the person must comply for up to 12 months after re-entering the country.[43]

A TEO will be taken to be revoked if a return permit is given to the person.[44] The Minister will be required to give a return permit to a person subject to a TEO if that person applies for one in a form and manner specified by the rules.[45] However, a return permit may delay a person’s return to Australia by up to 12 months.[46]

The Minister will not be required to observe any requirements of procedural fairness in exercising a power under the Act.[47]

Temporary exclusion orders

Conditions for issue

The Minister will be able to make a TEO in relation to a person if:

• the person is:
  • located outside Australia
  • an Australian citizen and
  • at least 14 years of age
• one of the thresholds outlined below is met and
• where the person is 14 to 17 years of age, the Minister has, before making the TEO, had regard to the protection of the community as the paramount consideration and the best interests of the person as a primary consideration.[48]

Thresholds for issue

There will be two possible grounds on which the Minister may make a TEO, namely if:

• the Minister suspects on reasonable grounds that making the order would substantially assist in preventing:
  • a terrorist act
  • training from being provided to, received from or participated in with a listed terrorist organisation
  • the provision of support for, or the facilitation of, a terrorist act and/or
  • the provision of support or resources to an organisation that would help the organisation to engage in an activity described in paragraph (a) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code Act 1995 (Criminal Code) (directly or indirectly engaging in, preparing, planning, assisting in or fostering the doing of a terrorist act) or
• the person has been assessed by ASIO to be directly or indirectly a risk to security for reasons related to politically motivated violence (where both security and politically motivated violence take the meanings of the ASIO Act).[49]

The first of the two thresholds outlined above is similar to that which applies in order for a senior AFP member to seek the Minister’s consent to request an interim control order, but is more focused on the prevention of certain activities.[50]

Of relevance to the second threshold, the definition of security in the ASIO Act includes the protection of Australia and its people from politically motivated violence, which is defined to mean:

1. acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere, including acts or threats carried on for the purpose of influencing the policy or acts of a government, whether in Australia or elsewhere; or
2. acts that:
   1. involve violence or are intended or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons); and
   2. are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or the constitutional system of government of the Commonwealth or of a State or Territory; or

   (ba) acts that are terrorism offences; or

3. acts that are offences punishable under Division 119 of the Criminal Code, the Crimes (Hostages) Act 1989 or Division 1 of Part 2, or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992 or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991; or
4. acts that:
   1. are offences punishable under the Crimes (Internationally Protected Persons) Act 1976; or
   2. threaten or endanger any person or class of persons specified by the Minister for the purposes of this subparagraph by notice in writing given to the Director‑General.[51]

Unlike the UK scheme, the Minister will not be required to seek the prior permission of a court before issuing a TEO.[52]

Issue: TEOs issued by Minister with no judicial involvement or independent oversight

Several stakeholders argued for the involvement of the courts or retired judges in the issuing of TEOs.

The AHRC and the LCA considered that the power to make TEOs should sit with the courts instead of the Minister, with the AHRC suggesting that orders only be made:

... where a court is satisfied on the balance of probabilities that the making of the order is necessary and proportionate to achieve the objects of the Bill, in all the circumstances of the particular case.[53]

Drs Rebecca Ananian-Welsh, Jessie Blackbourn and Nicola McGarrity stated that their preferred model would be to require the Minister to apply to a retired judge for a TEO (and for issue of a return permit), pointing to the procedures in place for the issue of continuing preventative detention orders and ASIO questioning and questioning and detention warrants, and arguing:

Such an approach is consistent with the severity of the consequences which flow from a TEO, including exclusion from their country of citizenship for up to two years (or one year where a Return Permit has been issued). Whilst forced to remain overseas, there is a real risk of the person being imprisoned in another country that may have less concern for human rights than Australia. Furthermore, even after a Return Permit is issued, intrusive pre- and post-entry conditions may be imposed. The experience of the judiciary in making independent and impartial decisions in the sensitive national security space would assist in ensuring the necessity and proportionality of TEOs and Return Permits, as well as the legitimacy of the TEOs scheme in the eyes of the public.[54]

In the alternative, they suggested independent judicial oversight of the Minister’s decision to issue a TEO, following the UK model.[55] As noted above, except in urgent cases, one of the pre-conditions for the issue of a TEO by the UK’s Home Secretary is that the court has given the Home Secretary permission.[56] The Home Secretary applies to the court for permission to issue a TEO, and the court determines whether the Home Secretary’s decisions on the other thresholds for issue are ‘obviously flawed’, applying ‘the principles applicable on an application for a judicial review’.[57] If the court determines that any of the Home Secretary’s decisions were obviously flawed, it may not give its permission; in any other case, it must give its permission.[58]

The Department of Home Affairs was asked at a PJCIS hearing why it had been determined that TEOs should be issued by the Minister, without judicial involvement. The Department indicated that the decision was based on the time and resources involved in a court-based process, and because TEOs are made on the basis of future risk as opposed to past conduct (it conceded, however, that an individual’s past conduct would inform an assessment of future risk).[59]

Issue: TEOs in relation to persons 14–17 years of age

Allowing orders to be made in relation to children at least 14 years of age is consistent with the control order regime in Division 104 of the Criminal Code as amended in 2016, and citizenship cessation laws enacted in 2015.[60] Nonetheless, the LCA and the AHRC objected to TEOs being able to be made in relation to anyone under 18 years of age, and the Scrutiny of Bills Committee was concerned about this aspect of the Bill.[61] The AHRC considered that in allowing TEOs to be made in relation to children, the Bill would impinge on a range of rights protected in the Convention on the Rights of the Child (CRC) and that depriving a child of the right to re-enter Australia ‘is likely to have even more serious consequences than it would an adult, and is more likely to be arbitrary’.[62]

The requirement in subclause 10(3) to have regard to the protection of the community as the paramount consideration and the best interests of the child as a primary consideration also mirrors requirements relating to the imposition of obligations, prohibitions and restrictions under control orders made in relation to young people.[63] However, several stakeholders considered that requiring greater weight to be given to community protection than to the best interests of the child is inconsistent with Australia’s obligations under CRC.[64] They pointed to comments of the United Nations Committee on the Rights of the Child and a 1995 High Court judgment to argue that the interests of the child must be given either the greatest weight, or equal greatest weight with other considerations.[65] The AHRC and Ananian-Welsh, Blackbourn and McGarrity recommended that community protection and the best interests of the child both be made primary considerations to be given equal weight.[66]

Issue: appropriateness of proposed thresholds

Each of the thresholds in subclause 10(2) under which a TEO may be made relate only to an assessment of the risk posed by an individual. In contrast, the UK scheme also requires reasonable suspicion that an individual is, or has been, involved in terrorism-related activity outside the UK before a TEO can be made (that is, an assessment about the past conduct of an individual).[67] The AHRC and Ananian-Welsh, Blackbourn and McGarrity recommended that an additional threshold along the lines of the UK model be included in the Bill so that TEOs may only be made where there is a suspicion of wrongdoing on the part of an individual.[68]

Ananian-Welsh, Blackbourn and McGarrity also recommended that the second ground on which a TEO may be issued (the person has been assessed by ASIO to be directly or indirectly a risk to security for reasons related to politically motivated violence) be removed from the Bill. They noted that this threshold is similar to one of the character tests in the Migration Act 1958, under which a person may be denied a visa or have their visa cancelled if ASIO assesses they are directly or indirectly a risk to security. They argued that the threshold raises procedural issues and that applying such a test to citizens ‘ignores the particular legal position of citizens, in terms of their rights and the reciprocal responsibilities of the State’.[69]

Issue: form of advice from ASIO and implications for rights of review

One of the grounds on which a TEO may be issued is that the person has been assessed by ASIO to be directly or indirectly a risk to security for reasons related to politically motivated violence.[70] However, as the IGIS noted, the Bill does not appear to require ASIO’s advice to be provided in the form of a security assessment made under Part IV of the ASIO Act, meaning it would not be subject to review by the Administrative Appeals Tribunal (AAT).[71] The IGIS noted that this would be inconsistent with the way ASIO advice is provided on Australian citizens in other contexts:

Although neither the Bill nor the Explanatory Memorandum directly addresses this, we understand that it is the policy intention that any advice provided by ASIO for these purposes would not be required to be in the form of a security assessment, in accordance with Part IV of the Australian Security Intelligence Organisation Act 1979 (the ASIO Act). We further understand the policy underpinning the Bill to be that the imposition of a TEO would not be a ‘prescribed administrative action’ as defined in section 35 of the ASIO Act. For the avoidance of ambiguity, the Committee may wish to consider whether the Bill should be amended to make this policy intention clear.

If this is the case, it would mean that the advice provided by ASIO to the Minister would not be subject to review by the Administrative Appeals Tribunal (as it would be if it were provided in the form of a security assessment). We note that this could create a disparity in the way that advice by ASIO is provided in relation to Australian citizens in other contexts, such as that under the Australian Passports Act 2005. The Committee may wish to examine this aspect further.[72]

If ASIO furnishes an adverse or qualified security assessment to an agency in relation to an individual under Part IV of the ASIO Act, the individual must generally be notified in writing within 14 days of that assessment and informed of his or her right to apply to the AAT for review.[73] To the extent that the findings of the AAT on such a review do not confirm ASIO’s assessment, those findings are to be taken as superseding that assessment for the purposes of any prescribed administrative action to which the assessment is relevant.[74]

Duration of TEOs and ability to issue successive TEOs

A TEO will be required to specify the period during which it is in force, which must not end more than two years after the day the TEO is made.[75] This limit will not prevent the making of another TEO in relation to the same person.[76]

The two year maximum duration for each TEO is the same as that which applies under the UK scheme.[77]

The LCA suggested that a second TEO should only be able to be made in relation to the same person where ‘the court determines there are “exceptional circumstances” that would warrant’ such action.[78]

Other requirements for TEOs

A TEO must: be in writing; specify the name of the person to which it relates; set out the effect of clauses 8 (offence of entering Australia while a TEO if in force), 11 (revocation of a TEO) and 12 (return permits); and specify whether the person to whom it relates is permitted to apply for or obtain an Australian travel document. If the person has an Australian travel document, the TEO must specify whether the person must surrender that document to a specified person or body.[79]

Ananian-Welsh, Blackbourn and McGarrity considered that the Minister should be required to ‘take into account the fundamental human rights of the subject of the TEO and any dependents before cancelling their Australian travel document or restricting their ability to obtain another’.[80]

If the TEO specifies that the person is not permitted to apply for, or to obtain, an Australian travel document, or that the person must surrender an Australian travel document, the person will be taken, for the purposes of section 12 of the Australian Passports Act 2005, to be prevented from travelling internationally.[81]

As soon as practicable after making a TEO, the Minister ‘must cause such steps to be taken as are, in the opinion of the Minister, reasonable and practicable, to bring to the attention of the person [in relation to whom it is made] the content of the order’.[82] The Explanatory Memorandum states that this could include electronic means of communication, and that the provision:

... is intended to allow the Minister flexibility to choose the most reasonable and practical means of service in the circumstances of the person being overseas, including potentially in a conflict zone.[83]

Issue: when a TEO comes into force and notification requirements

As the AHRC pointed out, the proposed notification requirements in subclause 10(6) of the Bill may fall short of those under the UK scheme.[84]

The UK scheme provides that a TEO comes into force when notice of its imposition is given.[85] The Bill provides that a TEO must ‘specify the period during which it is in force’, which would appear to allow for a TEO to come into force as soon as it is made.[86]

UK regulations list the means by which notice may be given, including by hand, fax, postal service in which delivery or receipt is recorded, electronically, by document exchange, courier or collection by the person or a representative. They also provide that notice shall be deemed to have been given in certain circumstances.[87] The Bill requires only that ‘reasonable and practicable steps’ be taken to bring a TEO to the attention of the person on whom it is imposed. The LCA was concerned about the lack of a requirement of effective notification, and the AHRC suggested that all reasonably practicable steps be required to be taken to give notice of a TEO as soon as reasonably practicable.[88]

Revoking a TEO

The Minister may revoke a TEO on his or her own initiative or on application by the person to whom the TEO relates.[89]

A TEO is also taken to be revoked if a return permit is given to the person to whom the TEO relates.[90]

Issue: no requirement for the Minister to keep the need for a TEO under review

While the Minister may revoke a TEO on his or her own initiative, there is no explicit obligation on the Minister to keep under review whether the TEO remains necessary and appropriate. The UK scheme requires the Home Secretary to keep under review whether the TEO remains necessary for purposes connected with protecting the UK public from a risk of terrorism.[91] The AHRC and Ananian-Welsh, Blackbourn and McGarrity suggested the inclusion of an equivalent requirement in the Bill.[92]

Offences

A person will commit an offence if the person:

• is reckless as to whether a TEO is in force in relation to the person and
• intentionally enters Australia.[93]

The maximum penalty for this offence will be imprisonment for two years and/or a fine of 120 penalty units (currently $25,200).[94]

It will also be an offence for the owner, charterer, lessee, operator, agent or master of a vessel or the owner, charterer, lessee, operator or pilot in charge of an aircraft to intentionally permit the vessel or aircraft to be used to convey a person subject to a TEO to Australia.[95] The offence will only apply if the person knew that a TEO was in force in relation to the other person.[96] There will be an exception to this offence if the person conveyed was being deported or extradited to Australia.[97] A defendant will bear an evidential burden in relation to the exception, meaning they would need to adduce or point to evidence that suggests a reasonable possibility that the exception applies.[98] The maximum penalty will be imprisonment for two years and/or a fine of 120 penalty units for an individual, or a fine of 600 penalty units for a body corporate (currently $126,000).[99]

Return permits

The Minister will be required to give a return permit to a person subject to a TEO if that person applies for one in a form and manner specified by the rules, or if the person is to be or is being deported to Australia.[100] In addition, the Minister may give a return permit to a person subject to a TEO if the Minister considers it appropriate to do so.[101] In either case, the Minister may impose conditions on the permit.[102]

Issue: no timeframe specified for issue of permit

The UK scheme requires the Home Secretary to issue a permit for return to an individual who has applied for one ‘within a reasonable period’ of the application being made.[103] The AHRC and Ananian-Welsh, Blackbourn and McGarrity suggested inclusion of an equivalent requirement in the Bill.[104]

Duration

A return permit must specify a period during which it is in force. That period must not end more than 12 months after the person enters Australia.[105]

Threshold for imposing conditions

The Minister will only be permitted to impose one or more conditions on a return permit if the Minister is satisfied that the condition is, or the conditions taken together are, reasonably necessary and reasonably appropriate and adapted for the purpose of preventing:

• a terrorist act
• training from being provided to, received from or participated in with a listed terrorist organisation
• the provision of support for, or the facilitation of, a terrorist act and/or
• the provision of support or resources to an organisation that would help the organisation to engage in an activity described in paragraph (a) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code (directly or indirectly engaging in, preparing, planning, assisting in or fostering the doing of a terrorist act).[106]

If the person is 14 to 17 years of age, the Minister will be also be required, before imposing a condition, to have regard to the protection of the community as the paramount consideration and the best interests of the person as a primary consideration.[107]

Issue: appropriateness of thresholds for imposition of conditions

The threshold test, and the additional requirement in relation to conditions imposed on young people, are similar to the matters of which a court must be satisfied and give consideration to when imposing obligations, prohibitions and restrictions on a person under a control order.^[108] However, for a control order, the court must be satisfied that each of the obligations, prohibitions and restrictions to be imposed on a person is reasonably necessary, and reasonably appropriate and adapted. In contrast, the Minister must only be satisfied that conditions imposed under a return permit, taken together, meet that threshold. The AHRC and LCA suggested that the threshold should be amended to require satisfaction about each of the conditions to be imposed both individually and as a whole.[109]

The concerns raised by stakeholders about the interests of the child being given less weight than the protection of the community (set out above under ‘Issue: TEOs in relation to persons 14–17 years of age’) also apply to the imposition of conditions under return permits.

Pre-entry conditions

Delayed entry

The Minister may require that the person given a return permit must not enter Australia during a specified period of no more than 12 months from when the permit is given to the person.[110] The Explanatory Memorandum states that the ability to delay a person’s return by up to 12 months is necessary in certain circumstances ‘to enable authorities to assess the threat posed by the person and make appropriate arrangements for their return’.[111]

Entry to Australia

The Minister may require that the person given a return permit:

• must enter Australia:
  • within a specified period of no more than three months after the permit is given to the person or
  • on a specified date no more than three months after the permit is given to the person and/or
  • in a specified manner.[112]

The Minister could require, for example, that the person enter Australia on a specific date and flight.[113]

Issue: time by which entry may be delayed

While agencies would need time to assess individuals and make arrangements for their return, 12 months is a significant period of time.

The AHRC recommended that ‘no significant further period of exclusion’ should be able to be imposed under a return permit.[114] Ananian-Welsh, Blackbourn and McGarrity suggested that in addition to a specific limit (such as the 12 months proposed in the Bill), the Bill should require return to be permitted as soon as practicable (similar to the requirement under the UK scheme that the permitted date of return ‘must fall within a reasonable period’ of the application for return being made).[115]

Post-entry conditions

The Minister may impose one or more of the conditions listed in subclause 12(6) with which the person returning under the permit must comply once he or she re-enters Australia. The return permit must specify the period during which each condition applies, which may not extend beyond the end date for the permit.[116] This will mean that a person may be subject to post-entry conditions for up to 12 months.[117]

Imposition of post-entry conditions under a return permit differs from the UK scheme, under which conditions are imposed under a separate notice following the individual’s return.[118] The proposed model will mean that an individual knows in advance the conditions to which they will be subject.

Most of the conditions that may be imposed are notification requirements, and some of them relate to the ability to hold, apply for and obtain Australian travel documents.

The notification-related conditions are summarised in the table below.[119] The permit may specify the manner in which the person must provide the required notification, and/or any documents or information that must be provided to substantiate the matter.[120]

In addition, the Minister may provide that:

• if the person has an Australian travel document, that he or she must surrender it to a specified person or body
• the person is not permitted to apply for an Australian travel document and/or
• the person is not permitted to obtain an Australian travel document.[121]

If one of the travel document conditions is imposed, the person will be taken, for the purposes of section 12 of the Australian Passports Act 2005, to be prevented from travelling internationally.[122]

Table 1: Permitted post-entry notification conditions

Matter/circumstance	Action required	Time within which notification must be provided
principal place of residence	notify specified person or body	n/a
place of employment	notify specified person or body	n/a
place of education	notify specified person or body	n/a
change to principal place of residence, place of employment and/or place of education	notify specified person or body	24 hours
any contact with specified individuals (within or outside Australia)	notify specified person or body	24 hours
if the person intends to enter, or enters, a state or territory other than the one in which his or her principal place of residence is located	notify specified person or body	period specified in permit
if the person intends to leave, or leaves, Australia	notify specified person or body	period specified in permit
if the person accesses or uses, or intends to access or use specified forms of telecommunication or other technology	notify specified person or body and/or provide a specified person or body with sufficient information to enable the specific service, account or device to be identified	period specified in permit
if the person intends to apply for an Australian travel document	notify specified person or body	period specified in permit

Whereas under a control order, a person may be prohibited or restricted from communicating with certain individuals or using specified forms of technology, a return permit may not place such restrictions on the person’s actions.[123] Instead, these permits may require the person to notify authorities of certain actions.

Other matters

A return permit must: be in writing; specify the name of the person to whom it relates; specify the period during which it and any conditions are to be in force; specify any conditions imposed; and set out the effect of clauses 13 (varying and revoking a permit), 14 (offence for failing to comply with conditions) and 16 (offence for providing false information and documents).[124]

The Minister must cause a copy of the permit to be served personally on the person to whom it relates.[125]

The Minister may vary or revoke a permit on his or her own initiative or on application by the person to whom the permit relates.[126]

Issue: notification requirements for variations and revocations

A variation or revocation under clause 13 will take effect immediately, yet as with a TEO, the Minister will only be required to ‘cause such steps to be taken as are, in the opinion of the Minister, reasonable and practicable’ to bring the variation or revocation to the individual’s attention.[127] It is possible that a permit could be varied or revoked after an individual has booked and paid for his or her return to Australia, and even while the individual is in transit.

It is also not entirely clear in what circumstances the Minister would revoke (as opposed to vary) a return permit on his or her own initiative, and the practical implications of such an action. If the Minister revokes a permit because he or she considers that the individual should not yet be permitted to return, the Minister would presumably impose another TEO on the individual, but would then be required to issue another return permit if the individual made a fresh application for one.

Issue: interaction with the control order regime

The Minister stated that after a period of further assessment following an individual’s return, police may apply for a control order in relation to the person.[128] While this may be a reasonable course of action in relation to some individuals, the Bill does not contain any provisions to prevent a person from being subject to both conditions under a return permit and obligations, prohibitions and restrictions under a control order at the same time. Consideration could be given to inclusion of a provision stating that if a control order is imposed on an individual, a return permit in force in relation to that individual is taken to be revoked, or a provision requiring the Minister to revoke a return permit if a control order is issued.

Offences

There will be three offences in relation to return permits.

The first two offences will mirror those described above for TEOs (and carry the same penalties), but apply in relation to conditions imposed under return orders.[129]

The third offence will apply where a person knowingly provides false or misleading information or documents in response to a condition imposed on a permit given to the person. An exception will apply (with the defendant bearing an evidential burden) if the information or document is not false or misleading in a material particular. This offence will carry the same maximum penalty as the others (imprisonment for two years and/or a fine of 120 penalty units).[130]

Issues common to TEOs and return permits

Necessity of the proposed orders

The Australian Government already has a significant suite of powers available to it to deal with the threats posed by foreign fighters, including passport suspension and cancellation; citizenship cessation powers; the control order regime; ASIO powers to investigate individuals of security concern and law enforcement powers to investigate suspected criminal conduct.[131] In that context, some stakeholders have questioned the necessity of the measures proposed in the Bill and argued that the Government has not provided sufficient justification for them.

The LCA stated:

... the Explanatory Memorandum to the Bill and Second Reading Speech do not adequately justify why a TEO scheme is a necessary, proportionate and legitimate response to the threat of terrorism in Australia. They do not address why the wide array of counter-terrorism powers already available are not able to meet the current national security needs of Australia.[132]

Similar sentiments were expressed by the AHRC, IARC and Professor Helen Irving.[133]

Ananian-Welsh, Blackbourn and McGarrity stated:

We submit that no evidence has been presented to demonstrate that the anti-terrorism legislation which Australia has enacted to date is inadequate and, furthermore, that the proposed TEOs scheme fills an identified gap. We are concerned that the TEOs scheme would be relied upon to circumvent the safeguards of the criminal justice system, which should be given primacy, and even the limited safeguards of the control orders regime.[134]

They also questioned whether TEOs could even prove to be counter-productive:

Refusal of entry into Australia on relatively flimsy grounds could further a person’s sense of injustice and heighten the risk of them, or those close to them, committing terrorist acts overseas or upon their return to Australia at some point in the future.[135]

The Department of Home Affairs was asked at a PJCIS hearing about what gap the Bill sought to fill. The Department responded that there is not currently a mechanism for the managed return of individuals of counter-terrorism interest in the absence of evidence to enable a prosecution.[136] While there is not currently a specific mechanism of that kind, passport cancellation and control orders used in combination would go some way towards managing the return of such individuals. If a person’s passport has been cancelled, the Department of Foreign Affairs and Trade can issue a short-term travel document to facilitate an individual’s return to Australia.[137]

Constitutional issues

Some organisations and legal academics have suggested that the Bill may not be constitutionally sound.

Professor Irving argued that Australian citizens have a constitutional right of abode, and that the Bill would breach that right.[138] She noted that in a 1988 case, the High Court stated:

The right of the Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or "clearance" from the Executive.[139]

Irving considered:

Notwithstanding that the Bill gives a citizen who is subject to a TEO the right to apply for and be granted a return permit, the Bill will make the citizen’s return to Australia dependent upon a ‘clearance’ from the Minister: the return permit may contain conditions, including on the date on which the person may return, and the person to whom it applies may be prevented from returning for up to twelve months from the issue of the permit.

The fact that the exclusion is temporary does not qualify the character of the Bill as a law that would prevent a citizen from exercising his or her right of abode.[140]

Irving and the LCA also contend that the Bill may breach the separation of powers. The LCA made this argument on the basis that a TEO may represent punishment imposed by the Executive for criminal conduct.[141] Irving submitted:

Nothing in the Bill suggests that the making of a TEO requires a prior judicial determination of guilt or even an application before a court or judicial officer. In making it an offence to enter Australia, the Bill will punish a person for what is, effectively, a pre-determination of guilt by the Executive, signified by a penalty (the imposition of the TEO), the breach of which is the only relevant demonstration of unlawful conduct.[142]

The Department of Home Affairs indicated that it had legal advice concerning the constitutionality of the Bill and that while it considered that a right of abode exists, ‘it's not a right that can't be modified by a statute’.[143]

Exclusion of procedural fairness

Clause 17 will provide that the Minister is not required to observe any requirements of procedural fairness in exercising a power under the Act. While the content of procedural fairness is not fixed, it generally involves two requirements being met—the fair hearing rule (which ‘requires a decision maker to afford a person an opportunity to be heard before making a decision affecting their interests’) and the rule against bias (which ‘ensures that the decision maker can be objectively considered to be impartial and not to have pre-judged a decision’).[144] In a practical sense, a key implication is that the Minister will not be obliged to give a person notice that he or she intends to make a TEO, impose a condition under a return permit, or revoke or vary a return permit; or an opportunity to present information that might be relevant to such a decision.

Several stakeholders objected to the exclusion of procedural fairness from a scheme that carries such significant consequences for individuals, and the Scrutiny of Bills Committee was concerned about this aspect of the Bill.[145] The Explanatory Memorandum provides limited justification for the exclusion. It notes that an individual subject to a TEO or a return permit will have access to judicial review, and states:

Procedural fairness requirements, specifically enabling the potential subject of a TEO to respond to allegations made against them, can frustrate the policy intention of this Bill by providing advance notice that they are being considered for a TEO. Such a requirement may also be practically difficult to implement in circumstances where that individual is overseas, potentially in conflict zones.[146]

The LCA noted that explanation and suggested that if providing procedural fairness would frustrate the policy intent of the Bill, ‘this indicates that the desired policy settings are not compatible with the rule of law’.[147]

Review of Ministerial decisions

A person subject to a TEO may apply to the Minister to have a TEO or a return permit revoked, and for a variation of a return permit.[148] However, as Ananian-Welsh, Blackbourn and McGarrity point out, the Bill does not set out how such an application may be made, or the process to be followed or matters to be considered by the Minister when determining such an application.[149]

Stakeholders were also concerned at the lack of access to independent review of ministerial decisions relating to TEOs and return permits. As noted above, the Explanatory Memorandum states that a person subject to a TEO or a return permit will have access to judicial review.[150] However, the LCA and Ananian-Welsh, Blackbourn and McGarrity consider that several aspects of the Bill will mean that such review will be ‘limited and inadequate’ because:

1. the person will be outside of Australia when the order is made and prevented from returning to Australia to access judicial review, to seek legal advice or to obtain support from family members;
2. the Minister's powers are extensive in scope, broadly defined and concern matters of national security upon which the courts have little choice but to defer to the Executive and its agencies;
3. TEOs are not subject to procedural fairness guarantees or any other safeguards or prescribed criteria that could be relied upon by an applicant to challenge a TEO; and
4. the person subject to a TEO is not entitled to reasons and, even if information was requested, meaningful information is unlikely to be provided because of claims concerning the impact on national security.[151]

The AHRC, LCA and the Scrutiny of Bills Committee considered that affected individuals should have access to full independent merits review (not just judicial review) of decisions relating to TEOs and return permits.[152] While judicial review is limited to consideration of whether a decision involved an error of law, merits review considers all evidence about the merits of a decision to determine whether the ‘correct or preferable’ decision was made.[153]

Lack of reporting requirements

The Bill will not require the Minister to report to Parliament on the use of the new TEO and return permit powers. This stands in contrast to annual or six-monthly reporting requirements that exist for the use of other counter-terrorism powers, including control orders, preventative detention orders and citizenship cessation on national security or counter-terrorism grounds.[154]

No provision for sunsetting or review of the proposed law

The Bill does not include a sunset clause for the new powers, nor will it require the new powers to be reviewed by the Independent National Security Legislation Monitor or the PJCIS after they have been in force for a certain period, to determine whether they remain appropriate and should be retained.[155] The Bill does not include an amendment to the definition of counter–terrorism and national security legislation in the Independent National Security Legislation Monitor Act 2010, meaning that the new laws are not brought within the scope of the Monitor’s review responsibilities more generally.

Rule making under the Act

Clause 19 will permit the Minister to make rules by legislative instrument to prescribe matters that are required or permitted to be prescribed by the Act, as well as matters that are necessary or convenient for carrying out or giving effect to the Act. Subclause 19(2) sets out certain limitations on this rulemaking power. The rules may not create offences or penalties, provide powers of arrest or detention, impose a tax, amend the Act or set amounts to be appropriated.

Concluding comments

The Australian Government already has a significant suite of powers available to it to deal with the threats posed by foreign fighters. The Bill would add to the existing framework by providing a specific mechanism to facilitate the managed return of individuals of counter-terrorism interest where there is insufficient evidence to support extradition and immediate prosecution.

Stakeholders have objected to the Bill on the grounds that the Government has not demonstrated the need for the new powers, that the Bill may not be constitutionally sound, and that it may be inconsistent with international human rights law and international obligations to exercise criminal jurisdiction over people suspected of engaging in terrorism.

Issues the Parliament may wish to consider in relation to the Bill include whether it should apply to minors (and if so, whether additional protections are required), whether the Minister is the appropriate issuing authority for TEOs and return permits, and whether additional safeguards and accountability mechanisms are required.