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:
- 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
- acts that:
- 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
- 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
- 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
- acts that:
- are offences punishable
under the Crimes (Internationally Protected Persons) Act 1976; or
- 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:
- 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;
- 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;
- 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
- 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.