1.1
On 22 November 2018, the Prime Minister, the Hon Scott Morrison MP, and the Minister for Home Affairs, the Hon Peter Dutton MP, announced that a new temporary exclusion order regime would be introduced to ‘enable authorities to delay, and then monitor and control’ the return and re-entry of Australian foreign fighters into the community. The Prime Minister explained that the new scheme would be based on the existing scheme for temporary exclusion orders in the United Kingdom.
1.2
On 21 February 2019, the Minister for Home Affairs introduced the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 (the Bill) into the House of Representatives. In his second reading speech, the Minister stated that the Bill is intended to ‘provide greater control over returning Australians of counter-terrorism interest, including foreign fighters’. He noted:
Terrorism remains a global challenge, and Australia will continue to work closely with our international partners to manage this constantly evolving threat. 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.
1.3
On the same day, the Minister wrote to the Parliamentary Joint Committee on Intelligence and Security (the Committee) to refer the Bill for inquiry and report. In his letter, the Minister for Home Affairs explained:
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.
… In light of the evolving terrorism threat, the Bill will allow Australian authorities to delay and manage the arrival of people returning from the conflict zone before they even reach our shores, and monitor their movements and activities once they do return, to mitigate any risks they pose to the Australian community.
Conduct of the inquiry
1.4
The Chair of the Committee, Mr Andrew Hastie MP, announced the inquiry by media release on 22 February 2019 and invited submissions from interested members of the public by 8 March 2019. Details of the inquiry were uploaded to the Committee’s website, www.aph.gov.au/pjcis.
1.5
The Committee received eight submissions and one supplementary submission. A list of submissions received is at Appendix A.
1.6
Several submitters expressed concern about the relatively short timeframe for submissions to the inquiry.
1.7
The Committee held a public hearing on 15 March 2019 in Canberra. A list of witnesses appearing at the public hearing can be found at Appendix B.
1.8
Copies of submissions, the transcript from the public hearing and links to the Bill and Explanatory Memorandum, can be accessed at the Committee’s website.
Report structure
1.9
This report comprises two chapters:
The remainder of Chapter 1 provides an outline of the Bill and its rationale.
Chapter 2 discusses issues raised in evidence to the inquiry, and includes the Committee’s comments and recommendations.
Rationale for the Bill
1.10
The Bill’s Explanatory Memorandum notes that, since 2014, the number of Australians travelling to join terrorist organisations overseas has ‘increased significantly’, driving a need to reform Australia’s approach to managing individuals who may represent a threat to public safety. The rationale for the Bill is related to the anticipated return of some of these individuals as a result of the military defeat of Islamic State:
The collapse of the Islamic State’s territorial control complicates the threat environment as more Australians participating in or supporting the conflict, leave the conflict zone and seek to return home. The purpose of this Bill is to ensure that if these Australians do return, it is with forewarning and carefully managed by authorities.
1.11
The Explanatory Memorandum goes on to state that the Bill will introduce
a single, explicit source of legislative power for the Government to control the return of an Australian citizen from overseas conflict zones. The Temporary Exclusion Order (TEO) scheme will enable greater control over the return of these Australians by providing a streamlined mechanism to impose conditions, specifically notification requirements, and facilitate the monitoring of the individuals who may pose a threat to the Australian community.
1.12
In summary, the Bill aims to:
1
control the return of individuals who may pose a threat to Australia, and
2
enable the Minister to impose conditions on individuals once they have returned to Australia to ‘manage the risk the may pose to the community’.
The Bill in detail
1.13
The Bill contains provisions to establish:
‘temporary exclusion orders’ (TEOs) to prevent the return of individuals to Australia without a return permit, and
‘return permits’ to enable pre-entry and post-entry conditions to be imposed on returning individuals.
Temporary exclusion orders
Test for making an order
1.14
The Bill provides that the Minister may make a TEO in relation to a person if
the person is located outside Australia,
the person is an Australian citizen,
the person is at least 14 years of age, and
a return permit is not in force in relation to a person.
1.15
Additionally, one of the following two conditions must be met:
a.
The Minister suspects on reasonable grounds that making the order would substantially assist in one or more of the following:
i.
preventing a terrorist act,
ii.
preventing training from being provided to, received from or participated in with a listed terrorist organisation,
iii.
preventing the provision of support for, or the facilitation of, a terrorist act,
iv.
preventing the provision of support or resources to an organisation that would help the organisation engage in preparing, planning, assisting in or fostering the doing of a terrorist act.
or
b.
the person has been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security (within the meaning of the Australian Security Intelligence Organisation Act 1979) for reasons related to politically motivated violence (within the meaning of that Act).
1.16
The Explanatory Memorandum clarifies that the above two circumstances are ‘mutually exclusive’, in that paragraph (a) enables the Minister to
take preventative steps in the absence of an assessment by [ASIO] in relation to the person, in order to protect Australians from a potential terrorist threat.
Additional considerations for children
1.17
If the person is 14 to 17 years of age, the Minister must, before making a TEO, have regard to
(a) the protection of the community as the paramount consideration, and
(b) the best interests of the person as a primary consideration.
1.18
The Explanatory Memorandum notes that these additional considerations are consistent with Division 104 of the Criminal Code, which relates to control orders, and recognises the ‘particular vulnerability’ of children.
Mandatory requirements for an order
1.19
The Bill specifies that a TEO must:
specify the name of the person to whom the order relates,
specify the period during which the order is to be in force, which must end within two years of the order being made,
where applicable, specify whether the person must surrender their Australian travel document,
specify whether the person is permitted to apply for an Australian travel document, and
set out the effect of certain sections of the Bill relating to the offence for entering Australia when a TEO is in force, the revocation of TEOs and return permits.
1.20
The Minister must, as soon as practicable after a TEO is made,
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 the content of the order.
1.21
The Minister is not prevented from making successive orders in relation to the same person.
Revoking an order
1.22
The Minister may revoke a TEO, either on his or her own initiative or on application by the person to whom the order relates.
1.23
If a return permit is issued in relation to the person, the TEO is immediately taken to be revoked.
Offences for non-compliance with an order
1.24
The Bill makes it an offence, punishable by up to two years’ imprisonment, for a person to enter Australia while a TEO is in force in relation to the person.
1.25
The Bill also makes it an offence, punishable by up to two years’ imprisonment, for an owner, charterer, lessee, operator, agent, master or pilot of a vessel or aircraft to permit that vessel or aircraft to convey to Australia a person who is subject to a TEO. This offence only applies if the owner, charterer, lessee, operator, agent, master or pilot knows that the person is subject to a TEO, and does not apply if the person subject to the TEO is being deported or extradited to Australia.
Return permits
1.26
The Bill provides that the Minister must give a return permit to a person subject to a TEO if the person:
has applied to the Minister for the permit, in a form and manner specified in the rules, or
the person is to be, or is being, deported to Australia.
1.27
Under proposed subsection 12(2), the Minister may also give a return permit to a person if he or she ‘considers it is appropriate to do so’. The Explanatory Memorandum states that an example of situation where the Minister may elect to give a return permit under subsection 12(2) could be
[i]f the person is in a place where a natural disaster has struck and is unable to apply in the prescribed form and manner, the Minister may issue a return permit to allow the person to be evacuated and return to Australia.
1.28
The Minister may impose one or more conditions on a return permit, including both pre-entry and post-entry conditions.
Pre-entry conditions
1.29
The Bill provides that any of the following pre-entry conditions may be included in a return permit:
that the person must not enter Australia during a specified period, ending within 12 months of the permit being given,
that the person must enter Australia within a specified period, within three months of the permit being given,
that the person must enter Australia on a specified date, within three months of the permit being given,
that the person enter Australia in a specified manner.
1.30
The Explanatory Memorandum notes that, although the person subject to a TEO can request a specific date they wish to enter Australia,
the ultimate decision rests with the Minister, who may specify the exact date and flight on which the person is to return under the permit. The ability of the Minister to delay a person’s return to Australia by up to 12 months is necessary is certain circumstances, to enable authorities to assess the threat posed by the person and make appropriate arrangements for their return.
Post-entry conditions
1.31
The Bill provides that any of the following post-entry conditions may be included in a return permit:
that the person notify a specified person or body of the person’s principal place of residence in Australia, or (within 24 hours) any changes to that place of residence,
that the person notify a specified person or body of the person’s place of employment in Australia, or (within 24 hours) any changes to that place of employment,
that the person notify a specified person or body of the person’s place of education in Australia, or (within 24 hours) any changes to that place of education,
that the person notify a specified person or body of any contact with specified individuals within 24 hours of the contact occurring,
that the person notify a specified person or body, within a specified period, if the person intends to enter, or enters, a State or Territory that they do not live in,
that the person notify a specified person or body, within a specified period, if the person intends to leave, or leaves, Australia,
that, if the person accesses or uses, or intends to access or use, specified forms of telecommunications or other technology in Australia, the person (within a specified period)
notify a specified person or body, and/or
provide a specified person or body with sufficient information to enable the specific telecommunications service, account or device to be identified,
that the person notify a specified person or body, within a specified period, if the person intends to apply for an Australian travel document,
that the person must surrender their existing Australian travel document, or is not permitted to apply for or obtain an Australian travel document.
1.32
The Explanatory Memorandum notes that the above conditions are ‘not restrictive on the person’ and are ‘imposed purely to protect the public from a terrorist act, or prevent the provision of support for, or the facilitation of, terrorism or terrorism-related activities’. It explains that the notification requirements contained in some of the conditions are intended to ‘facilitate monitoring of persons subject to return permits by law enforcement and security agencies’. However, there are no specific monitoring powers provided for in the Bill.
Test for imposing conditions
1.33
The Bill requires the Minister to be satisfied that the imposition of the conditions on a return permit (taken together) are ‘reasonably necessary, and reasonably appropriate and adapted’ for the purpose of:
preventing a terrorist act;
preventing training from being provided to, received from or participated in with a listed terrorist organisation;
preventing the provision of support for, or the facilitation of, a terrorist act;
preventing the provision of support or resources to an organisation that would help the organisation engage in preparing, planning, assisting in or fostering the doing of a terrorist act.
1.34
The Explanatory Memorandum notes that the above test does not require the Minister to justify imposing each individual condition. Rather, the Minister is ‘only required to be satisfied that the conditions imposed as a whole are reasonably necessary, and reasonably appropriate and adapted for one or more of the listed purposes’.
1.35
This test uses similar wording to the existing test used by a court for the imposition of conditions under the control order regime in Division 104 of the Criminal Code. However, in that regime, the issuing court must be satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted for the purposes of the order.
Additional considerations for children
1.36
If the person is 14 to 17 years of age, the Minister must, before imposing a condition on the permit, have regard to
(a) the protection of the community as the paramount consideration, and
(b) the best interests of the person as a primary consideration.
1.37
The Explanatory Memorandum notes that these additional considerations are consistent with Division 104 of the Criminal Code, which relates to control orders, and recognises the ‘particular vulnerability’ of children.
Mandatory requirements for a return permit
1.38
The Bill specifies that a return permit must:
specify the name of the person to whom the permit relates,
specify the period during which the permit is to be in force, which must end more than 12 months after the person enters Australia,
specify the conditions (if any) imposed on the permit,
specify, for each condition (if any), the period during which the condition is in force,
set out the effect of certain sections of the Bill relating to varying and revoking permits, and offences for non-compliance with a permit or for providing false information or documents, and the revocation of TEOs and return permits.
1.39
The Minister must cause a copy of the return permit to be served personally on the person to whom it relates.
Varying and revoking a return permit
1.40
The Minister may vary or revoke a return permit, either on his or her own initiative, or on application by the persons to whom the permit relates.
1.41
The Minister must, as soon as practicable after varying or revoking a return permit,
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 the variation or revocation of the permit.
Offences for non-compliance with conditions on a return permit
1.42
The Bill makes it an offence, punishable by up to two years’ imprisonment, for a person to fail to comply with a condition imposed on a return permit. The Explanatory Memorandum states that an example of non-compliance could be ‘where a condition to board a particular flight is imposed and the person enters Australia on a different flight’. The Explanatory Memorandum also notes that defences under the Criminal Code and the common law remain available, including for circumstances where the conditions of a return permit cannot be complied with for reasons outside the person’s control (such as a cancelled flight).
1.43
Secondly, the Bill makes it an offence, punishable by up to two years’ imprisonment, for an owner, charterer, lessee, operator, agent, master or pilot of a vessel or aircraft to permit that vessel or aircraft to convey a person to Australia in contravention of a condition of the person’s return permit. This offence only applies if the owner, charterer, lessee, operator, agent, master or pilot knows that the person is entering Australia in contravention of a condition of a return permit, and does not apply if the person is being deported or extradited to Australia.
1.44
Thirdly, the Bill makes it an offence for a person to knowingly provide false or misleading information or documents to a specified person or body in response to a condition imposed on their return permit. There is an exception to the offence if the information or document provided is not false or misleading in a ‘material particular’.
Other matters
Exclusion of procedural fairness
1.45
Proposed section 17 states:
The Minister is not required to observe any requirements of procedural fairness in exercising a power under this Act.
1.46
The Bill’s Statement of Compatibility with Human Rights explains:
This limitation on the fair trial and fair hearing rights is necessary and proportionate in the circumstances, given the complexity and fluidity of the present threat environment and the need for law enforcement and intelligence agencies to flexibly respond to the threats posed by Australians returning from conflict zones overseas. 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 and may be practically difficult to implement in circumstances where that individual is overseas, potentially in conflict zones.
1.47
The Explanatory Memorandum states that, despite this exclusion, ‘the person who is the subject of a temporary exclusion order or a return permit will have access to judicial review’.
Interaction with the Passports Act
1.48
For the avoidance of doubt, proposed section 18 clarifies the intended interaction between the Bill and the Australian Passports Act 2005. Specifically, the proposed section clarifies that a person is taken to be ‘prevented from travelling internationally’ if a TEO or a return permit specifies that
the person must surrender their Australian travel document,
the person is not permitted to apply for an Australian travel document, or
the person is not permitted to obtain an Australian travel document.
Rules
1.49
Proposed section 19 allows the Minister to, by legislative instrument, make rules as required or permitted by the Act, or as ‘necessary or convenient’ for the carrying out or giving effect to the Act.