1.1
This review is undertaken pursuant to section 29(1)(cc) of the
Intelligence Services Act 2001
which provides that it is a function of the Parliamentary Joint Committee on Intelligence and Security (the Committee) to review, by the end of the period of 3 years beginning on the day the
Counter
‑
Terrorism (Temporary Exclusion Orders) Act 2019
(the Act) commenced, the operation, effectiveness and implications of that Act.
The end of 3 years from when the Act commenced was 31 July 2022.
Legislative history
The Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and PJCIS recommendations
1.2
On 21 February 2019, the then 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 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.
1.4
The Committee tabled its report on the Bill on 3 April 2019. It supported the intention of the Bill and was convinced that the existing powers available to authorities—including powers of arrest and prosecution, powers to obtain control orders and powers to cancel passports—do not fully respond to the risk posed by suspected terrorist supporters returning to Australia in an uncontrolled and unmonitored manner. However, it noted submitter concerns that the Bill lacked sufficient accountability measures and may be vulnerable to constitutional challenge. The Committee therefore tabled its report
Advisory report on the Counter Terrorism (Temporary Exclusion Orders) Bill 2019
(Advisory Report) supporting the passage of the Bill with 19 recommendations.
1.5
Recommendation 19 of the Advisory Report recommended that the ‘Bill be amended to require the Parliamentary Joint Committee on Intelligence and Security to commence a review of the continuing need for the temporary exclusion order scheme within three years of the scheme’s commencement’ and stated that the Committee was making the recommendation:
noting that the Bill is a response to a contemporary issue involving Australian citizens who have participated in or supported the conflict in Syria and Iraq, and seek to return home following the collapse of Islamic State’s territorial control. The statutory review will allow the situation to be reassessed after an initial period of operation to determine whether a temporary exclusion order scheme continues to be necessary.
1.6
The Bill lapsed at the conclusion of the 45
th
Parliament but was passed in the 46
th
Parliament
receiving assent on 30 July 2019.
1.7
The
Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Act 2019
,
described as an Act to deal with consequential matters arising from the enactment of the
Counter-Terrorism (Temporary Exclusion Orders) Act 2019
and for related purposes, inserted paragraph 29(1)(cc) into the
Intelligence Services Act 2001
adding to the functions of the Committee as follows:
(cc) to review, by the end of the period of 3 years beginning on the day the
Counter
‑
Terrorism (Temporary Exclusion Orders) Act 2019
commenced, the operation, effectiveness and implications of that Act;
1.8
This wording is discussed further in Chapter 2.
Conduct of the review
1.9
The Committee commenced its review on Friday 6 August and requested submissions by 29 November 2021. At the conclusion of the 46
th
Parliament the Committee had received 8 submissions.
1.10
At the commencement of the 47
th
Parliament the Committee resolved to continue the review.
1.11
At the completion of the
review period the Committee had received 8 submissions and 4 supplementary submissions. Appendix A sets out a list of submissions.
1.12
The Committee held a public hearing on 17 October 2022 and a private briefing on 7 March 2023. Appendix B sets out a list of witnesses appearing at the public hearing.
Report structure
1.13
The report contains three chapters:
this introduction which outlines the provisions under review;
a chapter looking at the operation, effectiveness and implications of the TEO Act; and
a chapter setting out the Committee’s comment.
The Counter-Terrorism (Temporary Exclusion Orders) Act 2019
1.14
The Act establishes:
‘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
1.15
Paragraphs 10(1)(a) – (d) of the Act provide that the Minister may make a TEO in relation to a person if:
a.
the person is located outside Australia;
b.
the person is an Australian citizen;
c.
the person is at least 14 years of age; and
d.
a return permit is not in force in relation to a person.
1.16
Additionally, Subsection 10(2) provides that 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 an activity described in paragraph (a) of the definition of
terrorist organisation
in subsection 102.1(1) of the
Criminal Code
;
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).
Additional considerations for children
1.17
Subsection 10(3) provides that, 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
Subsection 10(4) provides that, in determining what is in the best interests of a person for the purposes of paragraph (3)(b), the Minister must take into account the following matters:
a.
the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;
b.
the physical and mental health of the person;
c.
the benefit to the person of having a meaningful relationship with his or her family and friends;
d.
the right of the person to receive an education;
e.
the right of the person to practise his or her religion;
f.
any other matter the Minister considers relevant.
1.19
However, Subsection 10(5) provides that the Minister must take into account the matters in subsection (4):
a.
only to the extent that the matters are known to the Minister; and
b.
only to the extent that the matters are relevant.
Mandatory requirements for an order
1.20
Subsection 10(6) specifies that a TEO must:
b.
specify the name of the person to whom the order relates;
c.
state that the criteria in subsection (2) have been met;
d.
specify the period during which the order is to be in force, which must end within two years of the order being made;
e.
where applicable, specify whether the person must surrender their Australian travel document;
f.
specify whether the person is permitted to apply for an Australian travel document; and
g.
specify whether the person to whom the order relates is permitted to obtain an Australian travel document; and
h.
set out the effect of the following sections:
i.
section 8 (offence to enter Australia if temporary exclusion order is in force);
ii.
sections 11 and 12 (about revoking a temporary exclusion order);
iii.
sections 15 and 18 (about return permits); and
i.
state that the person may have review rights in relation to the decision to make the order.
1.21
Subsection 10(7) provides that paragraph (6)(d) does not prevent the making of another temporary exclusion order in relation to the same person.
1.22
Subsection 10(8) provides that, as soon as practicable after a TEO comes into force, the Minister must cause such steps to be taken as are, in the opinion of the Minister, reasonable and practicable:
a.
to bring to the attention of the person the content of the order; and
b.
if the person to whom the order relates is 14 to 17 years of age—to bring to the attention of a parent or guardian of the person the content of the order.
Revoking an order
1.23
Section 11 sets out that the Minister may revoke a TEO, either on his or her own initiative or on application by the person to whom the order relates.
1.24
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
1.25
Section 8 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.
1.26
Section 9 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
.
Reviewing authority
1.27
Section 14 sets up a regime where a reviewing authority must review the making of a TEO. Immediately after making a TEO in relation to a person, the Minister must refer the decision (the TEO decision) to make the order to a reviewing authority.
1.28
Subsection 14(2) provides that the referral must include:
a.
a written statement of reasons for the TEO decision; and
b.
all of the material relating to the TEO decision that was before the Minister at the time the TEO decision was made – unless the material is, in the Minister’s opinion, contrary to the public interest to disclose.
1.29
Subsection 14(4) provides that the reviewing authority must, as soon as is reasonably practicable:
a.
review the TEO decision; and
b.
decide whether, in the opinion of the reviewing authority, one or more of the following subparagraphs apply to the TEO decision:
i.
the making of the decision was an improper exercise of the power to make the decision;
ii.
the decision was induced or affected by fraud;
iii.
if the TEO was made on the basis of paragraph 10(2)(a)—there was no material before the Minister from which the Minister could form the state of mind required by that paragraph.
1.30
Subsection 14(5) provides that for ‘the purposes of
subparagraph (4)(b)(i)’
the making of the decision is an improper exercise of the power to make the decision if:
a.
the Minister took an irrelevant consideration into account; or
b.
the Minister failed to take a relevant consideration into account; or
c.
the decision was made for a purpose other than a purpose for which the power to make the decision was conferred; or
d.
the decision was made in bad faith; or
e.
the decision was made at the direction or behest of another person; or
f.
the decision was made in accordance with a rule or policy without regard to the merits of the particular case; or
g.
the decision was so unreasonable that no reasonable person could have made it; or
h.
the decision was made in such a way that the result of the decision is uncertain; or
i.
the decision was otherwise an abuse of the power to make the decision.
1.31
Subsection 14(6) provides that the reviewing authority must conduct a review of a TEO decision:
a.
in the absence of the person (the affected person) to whom the TEO relates; and
b.
without the affected person having been notified of the review; and
c.
without the affected person having been given an opportunity to make any representations to the reviewing authority.
1.32
Subsection 14(7) provides that, if, in the opinion of the reviewing authority, one or more of subparagraphs (4)(b)(i) to (iii) apply to the TEO decision, the effect of reviewing authority decision is:
a.
the TEO decision is taken never to have been made; and
b.
if the person to whom the TEO decision relates has been notified of the making of the order—the Minister must cause such steps to be taken as are, in the opinion of the Minister, reasonable and practicable:
i.
to bring to the attention of the person the reviewing authority’s decision; and
ii.
if the person is 14 to 17 years of age—to bring to the attention of a parent or guardian of the person the reviewing authority’s decision.
1.33
Subsection 14(8) provides that if:
a.
a return permit has been issued to a person in relation to whom a temporary exclusion order applies; and
b.
the order is taken never to have been made;
the return permit is taken never to have been issued.
1.34
Subsection 14(9) provides that as soon as reasonably practicable after completing a review of a TEO decision, the reviewing authority must return the TEO decision material to the Minister.
1.35
Subsection 14(10) provides that nothing in the reviewing authority section prevents the making of another TEO in relation to the same person.
1.36
The appointment of the reviewing authority is provided for in section 23. Most relevantly the Attorney-General may, in writing, appoint as a reviewing authority:
a.
a former Justice of the High Court; or
b.
a former judge or justice of a court created by the Parliament; or
c.
a former judge of the Supreme Court of a State or Territory; or
i.
holds an appointment to the Administrative Appeals Tribunal as Deputy President or senior member (of any level); and
ii.
is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or a Territory; and
iii.
has been enrolled for at least 5 years.
Return permits
1.37
Section 15 provides that the Minister must give a return permit to a person subject to a TEO if the person:
a.
has applied to the Minister for the permit, or
b.
the person is to be, or is being, deported or extradited to Australia.
1.38
The Minister may also give a return permit to a person if he or she ‘considers it is appropriate to do so’.
1.39
The Minister may impose one or more conditions on a return permit, including both pre-entry and post-entry conditions. These conditions are discussed below.
1.40
Section 18 sets out in detail the requirements in relation to an application for a return permit.
Pre-entry conditions
1.41
Subsection 16(9) provides that any of the following pre-entry conditions may be included in a return permit:
a.
that the person must not enter Australia during a specified period, which must end no later than the earlier of:
i.
the end of the period reasonably necessary to assess the risk posed by the entry of the person to Australia and to make appropriate arrangements for that entry; and
ii.
12 months after the permit is issued to the person;
b.
that the person must enter Australia within a specified period, which must not end more than 3 months after the permit is issued to the person;
c.
that the person must enter Australia on a specified date, which must not be later than 3 months after the permit is issued to the person;
d.
that the person enter Australia in a specified manner.
Post-entry conditions
1.42
Subsection 16(10) provides that any of the following post-entry conditions may be included in a return permit:
a.
that the person notify a specified person or body of the person’s principal place of residence in Australia;
b.
that the person notify a specified person or body of any change to the person’s principal place of residence in Australia within 24 hours of the change occurring;
c.
that the person notify a specified person or body of the person’s place of employment in Australia;
d.
that the person notify a specified person or body of any change to the person’s place of employment in Australia within 24 hours of the change occurring;
e.
that the person notify a specified person or body of the person’s place of education in Australia;
f.
that the person notify a specified person or body of any change to the person’s place of education in Australia within 24 hours of the change occurring;
g.
that the person notify a specified person or body of any contact with specified individuals (whether within or outside Australia) within 24 hours of the contact occurring;
h.
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 is not the State or Territory in which the person’s principal place of residence is located;
i.
that the person notify a specified person or body, within a specified period, if the person intends to leave, or leaves, Australia;
j.
that, if the person accesses or uses, or intends to access or use, specified forms of telecommunication or other technology in Australia, the person do either or both of the following within a specified period of the access or use, or intended access or use, occurring:
i.
notify a specified person or body of the use or access, or intended use or access;
ii.
provide a specified person or body with sufficient information to enable the specific telecommunications service, account or device to be identified;
k.
that the person notify a specified person or body, within a specified period, if the person intends to apply for an Australian travel document;
l.
if the person has an Australian travel document—that the person must surrender the document to a specified person or body;
m.
that the person is not permitted to apply for an Australian travel document;
n.
that the person is not permitted to obtain an Australian travel document.
Requirements relating to imposing conditions
1.43
Subsection 16(3) provides that, before the Minister imposes a condition mentioned in subsection (9) or (10) on a return permit, the Minister must be satisfied that the imposition of the condition and (if more than one condition is imposed) the conditions taken together are reasonably necessary, and reasonably appropriate and adapted, for the purpose of one or more of the following:
a.
preventing a terrorist act;
b.
preventing training from being provided to, received from or participated in with a listed terrorist organisation;
c.
preventing the provision of support for, or the facilitation of, a terrorist act;
d.
preventing the provision of support or resources to an organisation that would help the organisation engage in an activity described in paragraph (a) of the definition of
terrorist organisation
in subsection 102.1(1) of the
Criminal Code
.
Additional considerations for children
1.44
Subsection 16(5) provides that, 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.
Mandatory requirements for a return permit
1.45
Subsection 15(4) specifies that a return permit must:
b.
specify the name of the person to whom the permit relates; and
c.
specify the day the permit comes into force and the period it remains in force, which must not end more than 12 months after the person enters Australia; and
d.
specify the conditions (if any) imposed on the permit; and
e.
if one or more conditions are imposed on the permit—specify, for each condition, the period during which the condition is in force, which must not end after the permit ceases to be in force; and
f.
set out the effect of the following sections:
i.
sections 17 and 18 (about varying and revoking a return permit);
ii.
section 20 (offence for failing to comply with conditions of permit);
iii.
section 22 (offence for providing false or misleading information or documents); and
g.
state that the person may have review rights in relation to the decision to issue the permit.
1.46
Subsection 16(5) states that the Minister must cause a copy of the return permit to be served personally on the person to whom it relates and, if the person to whom the permit relates is 14 to 17 years of age—on a parent or guardian of the person.
Varying and revoking a return permit
1.47
Section 17 sets out the conditions under which a Minister may vary a return permit.
Offences for non-compliance with conditions on a return permit
1.48
Section 20 makes it an offence, punishable by up to two years’ imprisonment if a return permit is in force in relation to the person; and a condition mentioned in subsection 16(9) or (10) is imposed on the return permit; and the person fails to comply with the condition.
1.49
Section 21 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
in contravention of a condition imposed on a return permit that is in force in relation to the second person.
Other matters
Exclusion of procedural fairness
The Minister is not required to observe any requirements of procedural fairness in exercising a power under this Act.
The Administrative Decisions (Judicial Review) Act 1977 does not apply to decisions under this Act
1.51
Section 27 provides that the
Administrative Decisions (Judicial Review) Act 1977
(ADJR)
does not apply to decisions made under this Act.
Interaction with the Australian Security Intelligence Organisation Act 1979
1.52
Section 28, enacted for the avoidance of doubt, provides that neither a temporary exclusion order nor a return permit constitutes prescribed administrative action for the purposes of the
Australian Security Intelligence Organisation Act 1979
.
Interaction with the Passports Act
1.53
Section 29 provides that, i
f a temporary exclusion order specifies one or more of the following:
a.
that the person must surrender an Australian travel document to a specified person or body;
b.
that the person is not permitted to apply for an Australian travel document;
c.
that the person is not permitted to obtain an Australian travel document;
the person is taken, for the purposes of section 12 of the
Australian Passports Act 2005
, to be prevented from travelling internationally.
Oversight
1.54
Section 31 provides that the Minister must provide an annual report to the Parliament on the exercise of power under the TEO and return permit scheme.
1.55
In addition to the requirement for the PJCIS to review the TEO and return permit scheme within three years, the Independent National Security Legislation Monitor also has a statutory function to review the operation, effectiveness and implications of the scheme.
Use of TEOs
1.56
The submission from the Department of Home Affairs and Australian Border Force set out the number of TEOs having been as follows:
Eight TEOs have been made and five return permits have been issued since the TEO Act commenced on 30 July 2019. Each of the eight TEOs provided agencies with sufficient time to develop a contemporary threat picture, and identify and apply the most appropriate risk mitigation measure. It is worth noting that COVID-19 related international travel restrictions have been in place for much of the period the scheme has been in force, which may have limited or prevented the attempted departure or return to Australia of persons of counter-terrorism interest.
The majority of the cohort that has been subject to the TEO and return permit scheme, and the anticipated future cohort, share certain characteristics:
extended periods of time located offshore;
time spent located in conflict zones or ungoverned spaces; and
information gaps on the extent of their involvement in terrorist activities or the threat they may pose.
Members of this cohort include individuals who have been detained or investigated for terrorism offences in foreign countries, where there is limited information available to Australian agencies regarding the specifics of the alleged offences.