3.1
The statutory requirement before the Committee was to review the operation, effectiveness and implications of the TEO Act. As was touched on in Chapter 2 the first two of these review elements can only be judged on information that is solely within the control of Departments or agencies. On that basis, subject to further discussion below, the Committee finds that the Act is operating as expected and is operationally effective.
3.2
This finding has been made in the context where, according to evidence given by ASIO at the time of its submission, around 65 Australian adults remained offshore in internally displaced persons camps, Syrian Democratic Forces custody, or remain engaged with RMVE groups in the region. Nevertheless, as stated by the Department of Home Affairs, only eight TEOs have been made and five return permits have been issued since the TEO Act commenced on 30 July 2019.
Issuing authority for a TEO
3.3
Much of the Committee’s consideration was taken up with the matter of who or what body should issue a TEO. This consideration occurred following the Committee’s prior recommendation that TEOs be issued by an ‘issuing authority’ (being a judge, a retired judge or a senior member of the Administrative Appeals Tribunal) on application by the Minister with a mechanism in respect of urgent situations.
3.4
The Committee notes that the provision of a reviewing authority was proposed by the Government to alleviate the Committee’s concerns, though submitters have told the Committee that they hold concerns about the reviewing authority’s constitutional validity.
3.5
The one decision that is available to the Committee, although not entirely analogous, is the High Court of Australia’s decision in Alexander v Minister for Home Affairs &Anor [2022] HCA 19 (the Alexander case) and the Committee draws attention to the evidence from the Department of Home Affairs distinguishing the TEO regime from Alexander arguing that the circumstances in Alexander related to a loss of citizenship which was a ‘permanent state of affairs’ whilst the TEO Regime was related to:
…the suspension of the right to return only until somebody asks for permission to return and then the imposition of conditions on return, which we know from the operation of control order provisions is something that is constitutionally sound.
The Committee accepts this distinction.
3.6
The Committee notes that the High Court of Australia is the final arbiter of constitutional validity in Australia. As far as the Committee is aware, there are no current matters relating to TEOs before the High Court. However, there are current proceedings before the High Court regarding the wider counter-terrorism legal framework and the right to return to Australia.
3.7
Therefore, the Committee recommends that the Australian Government take into account the decisions of the High Court in current relevant cases related to the counter-terrorism legislative framework and any associated impacts on the Temporary Exclusion Order regime, including but not limited to the question of whether the issuing authority be retained as a power of the Minister or the Regime be amended so that a Temporary Exclusion Order may only be issued by a Court on application by the Minister. If there was a High Court decision that impacted the Regime that would require additional legislative changes the Committee recommends that such legislation be referred to the Committee for inquiry.
3.8
The Committee recommends that the Australian Government take into account the decisions of the High Court, in current relevant cases related to the counter-terrorism legislative framework and any associated impacts on the Temporary Exclusion Order regime, including but not limited to the question of whether the issuing authority be retained as a power of the Minister or the Regime be amended so that a Temporary Exclusion Order may only be issued by a Court on application by the Minister. If there was a High Court decision that impacted the Regime that would require additional legislative changes the Committee recommends that such legislation be referred to the Committee for inquiry.
Criteria used to grant a TEO
3.9
Whereas the Committee’s Advisory Report addressed paragraphs 10(2)(a) and (b) in one recommendation, the Committee’s thinking on the criteria to grant a TEO has evolved and, as such, the following comments separately on these paragraphs.
Paragraph 10(2)(a)
3.10
The Committee considered closely the differing views presented to it regarding the conditions under which a Minister may make a TEO. The chief difference is that some support the Act as is and others have submitted that the threshold for the issuing of a TEO should be more specific; such as the Law Council of Australia’s suggested threshold, that an act should have already been committed, rather than a TEO being issued in consideration of a potential act.
3.11
The Committee notes that recommendation 12 of its Advisory Report addressed paragraph 10(2)(a) as follows:
Recommendation 12
2.125 The Committee recommends that
proposed section 10(2)(a) of the Bill be amended so that the Minister must not make a temporary exclusion order in respect of a person unless the Minister reasonably suspects that
the person is, or has been, involved in terrorism-related activities outside Australia, and
making the order would substantially assist in preventing the provision of support for, or the facilitation of, a terrorist act...
3.12
The Government Response to the Advisory Report addressed this recommendation in the following way:
The Government notes this recommendation.
As with comparable counter-terrorism powers, the Bill enables the Minister to take into account a range of information from a variety of sources, including security and law enforcement agencies, in considering whether to make a TEO. The Bill provides that the Minister may make a TEO in one of two circumstances:
first, the threshold in paragraph 10(2)(a) means that a TEO can be made by the Minister to assist in preventing terrorism-related acts from occurring; or
second, the Minister may make a TEO where the person has been assessed by the Australian Security Intelligence Organisation (ASIO) to be a direct or indirect risk to security for reasons related to politically motivated violence.
Implementing the recommendation to require the Minister to suspect the person is or has been involved in terrorism-related activities outside Australia would restrict the operation of the scheme to high risk individuals only. Proposed section 10(2) would set out a two-part test which will be significantly harder to make out, thus reducing the number of individuals eligible for a TEO and undermining the utility of the scheme.
Paragraph 10(2)(a) is intended to provide the Minister some flexibility to prioritise urgent or high risk cases, including where ASIO has not already provided an assessment in relation to a person.
3.13
The Committee notes submitters’ concerns that the current issuing criteria in paragraph 10(2)(a) are too broad but is persuaded by the Government’s argument that the Minister should have flexibility to prioritise urgent or high-risk cases where ASIO has not already provided an assessment.
Paragraph 10(2)(b)
3.14
The Committee notes that in its Advisory Report it recommended that paragraph 10(2)(b) be deleted from the Bill. The Government responded in the following terms:
The intent of paragraph 10(2)(b) is to provide for the making of a TEO based on a consistent form of assessment of terrorism threat by ASIO.
Where ASIO provides intelligence/advice in relation to the making of a TEO, this will be a communication within section 17(1)(b) of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and not a security assessment to which Part IV of the ASIO Act applies. The Government has amended the Bill to make clear that the making of a TEO is not prescribed administrative action for the purposes of Part IV of the ASIO Act, in line with the Inspector-General of Intelligence and Security’s comment that this aspect of the Bill would ‘benefit from greater clarity’.
3.15
The Committee accepts that ASIO would not produce an assessment on an individual leading to the imposition of a TEO if it did not have the requisite intelligence to do so. The Committee specifically notes the concern of the Director-General of Security when he stated that ‘protecting sources and methods is absolutely critical’.
3.16
The Committee recommends that the grounds for requesting a TEO under paragraph 10(2)(b) remain in force. The Committee makes this recommendation for the avoidance of doubt noting that it stands in contrast to the recommendation in its Advisory Report.
3.17
The Committee recommends that paragraph 10(2)(b) of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 remain as currently in force.
IGIS suggestions re section 10(2)(b) of the Act
3.18
The IGIS made two suggestions to the Committee that were set out in the previous chapter. The Committee supports the first of these suggestions and recommends that the Act be amended so that an assessment made by ASIO under paragraph 10(2)(b) of the Act, or the grounds upon which such an assessment was made, must be provided to the Minister. In making this recommendation the Committee notes the evidence from the Department of Home Affairs and ASIO that, as a matter of course, the 109(2)(b) assessments are already provided to the Minister.
3.19
The Committee recommends that the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 be amended so that an assessment made by ASIO under paragraph 10(2)(b) of the Act, or the grounds upon which such an assessment was made, must be provided to the Minister.
3.20
The second suggestion made by the IGIS, that the Committee make recommendations as to whether the requirements of procedural fairness are intended to apply to ASIO’s assessments under paragraph 10(2)(b) of the TEO Act, and if so, the content of those requirements, has been considered carefully by the Committee.
3.21
The proposition that procedural fairness should apply to ASIO’s assessments under paragraph 10(2)(b) must be weighed against the evidence that doing so may ‘tip-off’ a person of interest and could, in the words of the Department of Home Affairs ‘actually provoke the behaviour the Act is intended to manage’. In addition the Committee notes that TEOs are a suspension of the right of return for an individual, not a permanent cancellation of someone’s rights. In weighing these matters the Committee has concluded that procedural fairness should not apply to ASIO’s assessments under paragraph 10(2)(b). This seems to be the intent of the legislation as it stands.
3.22
Indeed, as quoted in the Government Response, this greater clarity was, in the Government’s opinion, already provided to assist the IGIS.
3.23
However, to further assist the IGIS, the Committee recommends that, insofar as it is needed, the Act be amended to make clear that procedural fairness should not apply to ASIO’s assessments under paragraph 10(2)(b).
3.24
The Committee recommends that, for the avoidance of doubt and to assist the Inspector General of Intelligence and Security, the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 be amended so that it is clear that procedural fairness is not intended to apply to ASIO’s assessments under paragraph 10(2)(b) of the Act.
This recommendation should be actioned in conjunction with the Office of the Inspector-General of Intelligence and Security to provide the clarity requested.
AFP suggestion re service of return permits
3.25
The Committee notes the suggestion by the AFP that:
To enhance the operational effectiveness of the legislation, the AFP suggests return permits could be served via alternative means (including text message or email). An additional provision could also be sought allowing service of a return permit on the individual in person, upon their arrival into Australia where all other means (including email and text) have been exhausted.
3.26
In classified evidence to the Committee, it became clear that the current service requirements have been appropriate in all cases and the suggestions by the AFP were made in the context of possible future scenarios in the event that personal service is not possible because it is not safe or practicable.
3.27
As set out in Chapter 2, it was not immediately clear how this would work in relation to the offence provision contained in section 9 of the Act.
3.28
The Committee notes that the wording of section 9 states that it is an offence 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. The words ‘convey to Australia’ may be understood to refer to Australian soil rather than the technical legal concept of a person only being in Australia once they have passed immigration controls.
3.29
If the AFP’s suggestion was to go ahead, on the Committee’s reading of its proposal, there would need to be a process allowing a person to convey a person subject to a TEO not having been served with a return permit to Australia without running afoul of the offence provision in section 9. Once that issue is addressed the Committee is supportive of an amendment as suggested by the AFP but only in the event that personal service is not possible because it is not safe or practicable.
3.30
The Committee notes that the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 expressly provides that service of Return Permits must be effected by personal service. However, in the event that personal service is not possible because it is not safe or practicable, the Committee recommends that the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 be amended so that return permits can be served via alternative means (including email or text message).
Further, the Committee recommends that service of a return permit on the individual may be made in person upon their arrival into Australia where all other means (including email and text) have been exhausted.
Any such amending language must take into account the offence provision in section 9 of the Act and must make clear the circumstances in which a person may legally convey a person to Australia where a Temporary Exclusion Order is in place and a return permit has not been served, but it is known that one will be lawfully served on the individual upon their arrival into Australia.
Safeguards for vulnerable persons
3.31
The Committee considered the issue of safeguards for vulnerable people in the context that the TEO provisions had not been used in relation to persons 14-17 years of age and that the Act includes safeguards recommended by the Committee in Recommendation 4 of its Advisory Report. In relation to the discussion around the paramount and primary considerations in the Act the Committee considered whether the protection of the community and the best interests of a person 14-17 years of age could both be primary considerations.
3.32
The Committee is aware that, as one example, section 60CC of the Family Law Act 1975 provides for two primary considerations in how a court determines what is in a child’s best interests. The Committee notes, however, that even in this case, section 60CC(2A) provides that greater weight should be given to one consideration over another (‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.’) This is analogous to the Regime in indicating that some hierarchy of consideration is practically necessary. On that basis the Committee is satisfied with the paramount and primary considerations formula.
3.33
The Committee noted and considered the additional protections in relation to TEOs for persons aged 14-17 proposed by the Law Council of Australia and the UNSW Law Society. At this time, noting that TEOs have not been used in relation to such persons, the Committee is satisfied that the current matters that must be assessed are satisfactory but notes, as set out below, its ongoing monitoring of the Regime.
3.34
The preceding recommendations have been made by the Committee with the interests of legality, transparency, and proportionality at the forefront of its consideration. These considerations have been balanced with the need to keep a Regime that is efficient and operationally effective in place with the highest protection to classified sources and methods that is possible in a democracy.
3.35
The Committee notes that one of its functions is to monitor and review the exercise of powers under the Counter‑Terrorism (Temporary Exclusion Orders) Act 2019 by the Minister administering that Act. In carrying out this function the matters brought to the Committee’s attention, such as the impact the Regime has on persons aged 14-17 years, will be of particular interest and focus of the Committee going forward.
3.36
In keeping with the oversight focus of the Committee it is important that it have the opportunity to further review the TEO Regime. The Committee therefore recommends that it be enabled to review the Act three years following the tabling of this report.
3.37
The Committee recommends that section 29(1) (cc) of the Intelligence Services Act 2001 be amended so that if the Committee resolves to do so—it may commence, three years following the tabling of this report, a review of the Counter Terrorism (Temporary Exclusion Orders) Act 2019.
Mr Peter Khalil MP
Chair
14 April 2023