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Counter-Terrorism (Temporary Exclusion Orders) Bill 2019

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2019

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Counter-Terrorism (Temporary Exclusion Orders) Bill 2019    

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for Home Affairs,

the Hon. Peter Dutton MP)



Counter-Terrorism (Temporary Exclusion Orders) Bill 2019

OUTLINE

The Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 (the Bill) introduces a temporary exclusion order scheme to delay Australians of counter-terrorism interest from re-entering Australia until appropriate protections are in place. 

 

financial impact statement

 

The financial impact of the temporary exclusion order scheme is low.  Any costs will be met from within existing resources.



 

statement OF COMPATIBILITY with Human rights

 

A Statement of Compatibility with Human Rights has been completed in relation to the Bill and assesses that the Bill is compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A .

COUNTER-TERRORISM (TEMPORARY EXCLUSION ORDERS) BILL 2019

Notes on individual sections

Part 1­ Preliminary

Section 1         Short title

1.                   Section 1 provides for the short title of the Act to be the Counter-Terrorism (Temporary Exclusion Orders) Act 2019.

 

Section 2         Commencement

2.                   Subsection 2(1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

3.                   Table item 1 provides that this Act will commence on the day this Act receives Royal Assent.

 

4.                   A note explains that this table relates only to the provisions of this Act as originally enacted.  It will not be amended to deal with any later amendments of this Act.

 

5.                   Subsection 2(2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

 

Section 3         Simplified outline of this Act

6.                   Section 3 provides for the simplified outline of the Act. The outline is included to assist in understanding the substantive provisions.  The outline is not intended to be comprehensive. 

 

Section 4         Definitions

7.                   New section 4 contains definitions of the following terms, Australian travel document, listed terrorist organisation, return permit, reviewing authority, temporary exclusion order and terrorist act , for the purposes of this Act.

 

8.                   The term Australian travel document has the meaning given by the Australian Passports Act 2005.

 

9.                   The terms listed terrorist organisation and terrorist act have the same meaning as in section 100.1 of the Criminal Code .

 

10.               The term return permit is defined to mean a permit issued to a person who is subject to a temporary exclusion order, by the Minister to return to Australia, under subsections 15(1) or 15(2).

 

11.               The term reviewing authority is defined to mean a person appointed under section 23 of this Bill.

 

12.               The term temporary exclusion order is defined to mean an order made by the Minister under the new subsection 10(1).

 

Section 5         Act extends to external Territories

13.               Section 5 provides that this Act extends to every external Territory.

 

Section 6         Act extends to things outside Australia

14.               Section 6 provides that the Act extends to acts, omissions, matters and things outside Australia.

 

Section 7         This Act binds the Crown

15.               Section 7 provides that the Act binds the Crown in each of its capacities but does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.

 



 

Part 2 Temporary exclusion orders and return permits

16.               Part 2 sets out the framework for temporary exclusion orders and return permits.

 

Division 1-Temporary exclusion orders

 

17.               Division 1 of part 2 sets out the provisions relating to temporary exclusion orders.

 

Section 8         Prohibition on entering Australia if a temporary exclusion order is in force

18.               Section 8 creates an offence for a person who has a temporary exclusion order in force to enter Australia. The section provides that a person commits an offence if:

(a)     a temporary exclusion order is in force in relation to the person; and

(b)    the person enters Australia. 

 

19.               Section 8 intends to create an offence for every instance a person subject to a temporary exclusion order enters Australia.

 

20.               The offence created by section 8 is subject to the principles set out in Part 2.2 of the Criminal Code .

 

21.               The offence does not specify that a return permit must not be in force, as a temporary exclusion order is taken to be revoked if a return permit is in force (section 11).

 

22.               The penalty for this offence is 2 years imprisonment.

 

Section 9         Prohibition on permitting use of a vessel or aircraft by a person in relation to whom a temporary exclusion order is in force

23.               Section 9 contains an offence provision.

 

24.               Subsection 9(1) creates an offence for an owner, charterer, lessee, operator, agent or master of a vessel, or master of a vessel or pilot in charge of an aircraft, where:

(a)      the person permits the vessel or aircraft to be used to convey a person (the second person) who is the subject of a temporary exclusion order to Australia, and

(b)     the person knows that a temporary exclusion order is in force in relation to the second person.

 

25.               This offence only applies in circumstances where the person knowingly permits the vessel or aircraft to be used to convey a person to Australia who is the subject of a temporary exclusion order. The offences will not capture persons or transport service providers who are unaware and have no knowledge of the fact a temporary exclusion order is in place in relation to that person.

 

26.               Subsection 9(2) provides the offence in subsection (1) does not apply if the second person is being deported or extradited to Australia. This will ensure the offence does not apply where a person in control of a vessel or aircraft is conveying the person to Australia because the person is being deported or extradited to Australia.

 

27.               This offence provision will act as a deterrent to prevent people in control of vessels or aircraft from facilitating a person who is the subject of a temporary exclusion order returning to Australia. 

 

28.               As with the offence in section 8, it is not necessary to specify that a return permit must not be in force for an offence to be committed.

 

29.               Subsection 9(3) provides the offence in subsection (1) has Category A extended geographical jurisdiction under section 15.1 of the Criminal Code meaning it extends to the actions of Australian citizens outside of Australia.

 

30.               The penalty for this offence is 2 years imprisonment. Section 4B of the Crimes Act 1914 applies in respect of pecuniary penalties for natural persons and bodies corporate, respectively.

 

Section 10       Making a temporary exclusion order

31.               Section 10 sets out the basis upon which the Minister may make a temporary exclusion order.

 

32.               Subsection 10(1) provides that the Minister may make a temporary exclusion order 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 the person.

 

33.               The minimum age requirement of 14 years is consistent with Division 104 of the Criminal Code, which relates to control orders.

 

34.               Subsection 10(2) sets out two circumstances under which the Minister may make a temporary exclusion order. The subsection provides that the Minister must not make a temporary exclusion order in relation to a person unless either:

(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 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 to be directly or indirectly a risk to security (within the meaning in the Australian Security Intelligence Organisation Act 1979 ) for reasons related to politically motivated violence (within the meaning of that Act).

 

35.               The circumstances set out in paragraphs 10(2)(a) and (b) are mutually exclusive.  Paragraph (a) enables the Minister to take preventative steps in the absence of an assessment by the Australian Security Intelligence Organisation relating to the person.

 

36.               Subsection 10(3) provides that, where a person is 14 to 17 years of age, the Minister must take into account the protection of the community as the paramount consideration and the best interests of the person as a primary consideration before making a temporary exclusion order in relation to the person. This is consistent with Division 104 of the Criminal Code , which relates to control orders. This subsection, taken together with subsection 10(4), provides additional safeguards for children recognising their particular vulnerability, consistent with Australia’s international obligations, and protection of the Australian community.

 

37.               Subsection 10(4) sets out the matters that the Minister must take into account when determining what is in the best interests of the person for the purposes of subsection 10(3) as follows:

(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 practice his or her religion;

(f)     any other matter the Minister considers relevant.

 

38.               The matters listed in subsection 10(4) are consistent with section 104.4(2A) of the Criminal Code , which relates to control orders. This subsection, when taken with subsection 10(3) provides additional safeguards for children recognising their particular vulnerability, consistent with Australia’s international obligations, and protection of the Australian community.

 

39.               Subsection 10(4) gives effect to recommendation 4 of the ‘Advisory report on the Counter Terrorism (Temporary Exclusion Orders) Bill 2019’ (the Committee report) tabled in Parliament by the Parliamentary Joint Committee on Intelligence and Security (the Committee) on 3 April 2019.

 

40.               Subsection 10(5) clarifies that the Minister must only take into account the matters set out in subsection 10(4) to the extent the matters are known to the Minister, and to the extent the matters are relevant.

 

41.               Subsection 10(6) sets out how the Minister must make a temporary exclusion order.  Specifically, this subsection provides that the order must:

(a)     be in writing;

(b)    specify the name of the person to whom the order relates;

(c)     state that the criteria in subsection 10(2) for the making of the order have been met;

(d)    specify the period the order is to be in force, which must not end more than 2 years after the day the order is made; and

(e)     if the person to whom the order relates has an Australian travel document - specify whether the person must surrender the document to a specified person or body; and

(f)     specify whether the person to whom the order relates 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 a temporary exclusion order is in force);

                                       (ii)       sections 11 and 12 (about revoking temporary exclusion order);

                                     (iii)       sections 15 and 18 (the circumstances in which the Minister may issue a return permit and the application process for applying for a return permit);

(i)      state that the person may have review rights in relation to the decision to make the order.

 

42.               The requirements under subsection 10(6) provide transparency about the nature of the order, to the person who is the subject of the order. The subsection also explicitly states that the person must be advised that he or she may have review rights in relation to the order, which gives effect to recommendation 5 of the Committee report. This is consistent with similar requirements in the Criminal Code in relation to control orders and preventative detention orders.

 

43.               Subsection 10(7) provides that paragraph (6)(d) does not prevent the Minister from making another temporary exclusion order in relation to the same person. This allows the Minister to make further temporary exclusion orders at the expiration of the first one if grounds for making the order under this section continue to exist. This is similar to section 104.16 of the Criminal Code .

 

44.               Subsection 10(8) requires the Minister to take such steps as are reasonable and practicable after the order comes into force, in the opinion of the Minister, to bring to the person’s attention the content of the order, and if the person to whom the order relates is 14 to 17 years of age, the attention of a parent or guardian as well. Under this subsection, ‘reasonable and practicable steps’, could include, for example, electronic means of communication. This subsection is intended to allow the Minister flexibility to choose the most reasonable and practical means of notification where the person is overseas, including potentially in a conflict zone.

 

45.               Paragraph 10(8)(b), which provides that the Minister take such steps as are reasonable and practicable so that the content of the order be brought to the attention of a parent or guardian where the subject of the temporary exclusion order is 14 to 17 years of age, gives effect to part of recommendation 4 of the Committee report, recognising the particular vulnerability of children, consistent with Australia’s international obligations.

 

46.               Subsection 10(9) clarifies that a temporary exclusion order made by the Minister is not a legislative instrument for the purposes of the Legislation Act 2003 .

 

Section 11       Revoking a temporary exclusion order

47.               Section 11 sets out that the Minister may revoke a temporary exclusion order. Subsection 11(1) provides that the Minister may revoke a temporary exclusion order. This would include circumstances where the Minister considers the grounds for making the order no longer exist.

 

48.               Subsection 11(2) provides that the Minister may revoke a temporary exclusion order under subsection 11(1) on the Minister’s own initiative or on application by, or on behalf of, the person to whom the order relates. 

 

49.               Note 2 after subsection 11(2) makes it clear that the process for how to apply for the revocation of a temporary exclusion order is set out in section 12.

 

50.               Subsection 11(3) requires the Minister to, as soon as practicable after revoking a temporary exclusion order, take such steps as are reasonable and practicable, in the Minister’s opinion, to bring to the attention of the person the revocation of the order and if the person to whom the order relates is 14 to 17 years of age, the attention of a parent or guardian as well, recognising the particular vulnerability of children, consistent with Australia’s international obligations. This gives effect to part of recommendation 4 of the Committee report.

 

51.               Subsection 11(4) confirms that the revocation of a temporary exclusion order under subsection (1) takes effect when the Minister revokes the order.

 

52.               Subsection 11(5) provides that a temporary exclusion order in relation to a person is taken to be revoked if a return permit is issued to the person. Under this subsection, the revocation takes effect immediately after the return permit is issued.

 

53.               Subsection 11(6) provides that this section does not prevent the Minister from making another temporary exclusion order in relation to the person. For example, if after revoking the order, and provided the person is still located outside Australia, new or further information comes to light which warrants making a temporary exclusion order, the Minister can issue another temporary exclusion order under section 10.

 

Section 12       Application to revoke a temporary exclusion order

54.               Section 12 provides certainty to applicants about how to apply for the revocation of a temporary exclusion order by setting out the form and manner by which a person may apply for the revocation of a temporary exclusion order.

 

55.               Subsection 12(1) provides that a person may make an application, either orally or in writing to the Minister or the Department.

 

56.               Subsection 12(2) provides that the Minister may, in writing, authorise any person, whether in or outside Australia, to receive applications on behalf of the Minster or Department for the purposes of subsection (1).

 

57.               Subsection 12(3) sets out the information that the application must include

the following information about the person to whom the temporary exclusion order relates:

a)       the person’s full name;

b)       the person’s date and place of birth;

c)       the person’s contact details; and

d)      a statement specifying the reasons why the person seeks to have the temporary exclusion order revoked.

 

58.               However, subsection 12(4) provides that if the person making the application does not have the information set out in subsection 12(3) then the person must explain why they do not have that information in the application. This provision recognises that a person making an application on behalf of another person to whom a temporary exclusion order is in force may not have access to the required information, and that this should not preclude the Minister from considering the application.

 

59.               Subsection 12(5) sets out the information that must be provided by the person making the application, if that person is not the person to whom the temporary exclusion order relates:

(a)     the person’s full name;

(b)    the person’s contact details;

(c)     the person’s relationship to the person to whom the application relates; and

(d)    a statement that the person to whom the application relates has consented to the person making the application on their behalf.

 

60.               Subsection 12(5) requires this information to be provided to ensure the claims being put forward on behalf of an individual subject to a temporary exclusion order are genuine.

 

61.               A note after subsection 12(5) makes it clear that sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

 

Section 13       Period for which a temporary exclusion order is in force

62.               Section 13 sets out when a temporary exclusion order comes into force and the period for which it remains in force.

 

63.               Subsection 13(1) provides that a temporary exclusion order comes into force immediately after a reviewing authority makes a decision under section 14 that none of subparagraphs 14(2)(b)(i) to (iii) apply to the decision to issue the temporary exclusion order , unless subsection 13(2) applies. If the reviewing authority decides that one of subparagraphs 14(2)(b)(i) to (iii) do apply, the temporary exclusion order is taken to never have been made.  If subsection 13(2) applies, the order comes into force immediately after it is made (i.e. before being reviewed under section 14).

 

64.               Subsection 13(2) applies if the Minister is satisfied that it is necessary, due to urgent circumstances, that the temporary exclusion order come into force immediately. Urgent circumstances may include, for example, where the person’s return is imminent and the Minister becomes aware of that fact. This provision recognises the evolving threat environment and unique challenges posed by each Australian of counter-terrorism interest, and provides the Minister with the discretion to temporarily delay the person’s entry into Australia prior to review by the reviewing authority.

 

65.               The operation of subsections 13(1) and (2) balances oversight of the Minister’s decision to make a temporary exclusion order with the need to ensure that decisions affecting national security and community safety can become operative immediately in urgent circumstances. 

 

66.               A note to subsection 13(1) provides that if subsection 13(2) does not apply and the reviewing authority makes a decision that one or more of subparagraphs 14(2)(b)(i) to (iii) apply to the decision to make the temporary exclusion order, then the order is taken to have never been made.

 

67.               For clarity, a decision by the reviewing authority that one or more of subparagraphs 14(2)(b)(i) to (iii) apply to the decision to make the temporary exclusion order, which results in that order being taken never to have been made, does not prevent the Minster from making an order against the same person at a later date.

 

68.               Subsection 13(3) provides that a temporary exclusion order remains in place until the earlier of the following circumstances take place:

(a)     the period specified in the order itself (under paragraph 10(6)(d)) ends;

(b)    the order is revoked under section 11.

 

Section 14       Reviewing authority must review the making of a temporary exclusion order

69.               Section 14 establishes that the reviewing authority must review each decision made by the Minister to make a temporary exclusion order in relation to a person.

 

70.               ‘Reviewing authority’ is defined in subsection 4(1) of this Act, and means a person appointed under section 23 of this Act.

 

71.               Section 14 provides a mechanism for the Minister’s decision to make a temporary exclusion order to be independently reviewed and provides further accountability in the temporary exclusion order scheme. Section 14 also gives effect in principle to recommendation 7 of the Committee report.

 

72.               Subsection 14(1) provides that the Minister must immediately refer the decision to make a temporary exclusion order to a reviewing authority.

 

73.               Subsection 14(2) provides that the referral by the Minister to a reviewing authority must be accompanied by:

(a)      a written statement of reasons for making a temporary exclusion order; and

(b)    all of the material relating to the decision to make the temporary exclusion order that was before the Minister at the time the decision to make the order was made.

 

74.               This ensures that the reviewing authority is able to meaningfully review the Minister’s decision to make a temporary exclusion order.

 

75.               Subsection 14(3) provides that the Minister is not required to provide any material to the reviewing authority under subsection 14(2) that, in the Minister’s opinion, it would not be in the public interest to disclose.  This enables the Minister to avoid the risk of inadvertent disclosure of sensitive national security information through the review process. When deciding to withhold particular information from the reviewing authority, the Minister must balance the protection of sensitive information against the risk of the reviewing authority determining that one of the factors in subsection 14(4) had been made out and that the temporary exclusion order should be taken never to have been made.

 

76.               Subsection 14(4) provides that the reviewing authority must review, as soon as reasonably practicable, any referral of a temporary exclusion order decision and determine whether any of the following applies:

(a)     the making of the decision to make the temporary exclusion order was an improper exercise of the power given by the Act;

(b)    the decision was induced or affected by fraud;

(c)     if the temporary exclusion order 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.

 

77.               Subsection 14(5) provides that an improper exercise of the power to make the decision for the purposes of subparagraph 14(4)(b)(i) has occurred 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 that was so unreasonable that no reasonable person could have so made it;

(h)    or

(i)      the decision was made in such a way that the result of the decision is uncertain; or

(j)      the decision was otherwise an abuse of the power to make the decision.

 

78.               Subsection 14(5) defines what would constitute an improper exercise of power under subsection 14(4), and mirrors subsection 5(2) of the Administrative Decisions (Judicial Review) Act 1977 . The review authority is required to consider the legality of the Minister’s temporary exclusion order decision rather than its merits.

 

79.               Subsection 14(6) provides that the reviewing authority must conduct a review of the temporary exclusion order decision:

(a)     in the absence of the person to whom the temporary exclusion order relates;

(b)    without the person having been notified of the review; and

(c)     without the person having been given an opportunity to make any representations to the reviewing authority.

 

80.               Subsection 14(6) recognises that providing advance notice to an individual that they are being considered for a temporary exclusion order would frustrate the policy intent of the Bill. Advance notice may prompt the individual to seek immediate return to Australia in a manner that poses safety risks for the Australian community. Accordingly, subsection 14(6) requires the reviewing authority to consider the temporary exclusion order decision in the absence of the person to whom the order is sought, without prior notification or representations.

 

81.               Subsection 14(7) provides that if the reviewing authority decides that subparagraphs 4(b)(i)-(iii) apply to the Minister’s decision to make a temporary exclusion order:

(a)     the order is taken to have never 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, as the Minister considers reasonable and practicable, to be taken to bring the reviewing authority’s decision to the attention of the person to whom the temporary exclusion order decision related, and if that person is 14 to 17 years of age, to bring the reviewing authority’s decision to the attention of their parent or guardian as well.

 

82.               A note after subsection 14(7) provides that if none of subparagraphs 14(4)(b)(i) to (iii) apply the decision to make a temporary exclusion order, and the order has not already come into force as a result of urgent circumstances under paragraph 13(4)(b), then the temporary exclusion order comes into force immediately after the reviewing authority complete their review (see paragraph 13(1)(a).

 

83.               Subsection 14(8) provides that if a return permit has been issued and the temporary exclusion order is taken never to have been made by operation of paragraph 14(7)(a), then the return permit is also taken never to have been issued. This subsection captures the situation contemplated by subsection 13(2), where the Minister may make a temporary exclusion order without first having it reviewed by the reviewing authority due to urgent circumstances. In such a situation, a return permit may be issued prior to the decision to make a temporary exclusion order being reviewed.

 

84.               Subsection 14(9) provides that after completing a review of the decision to make the temporary exclusion order, the reviewing authority must return the material used to review the decision (as referred to in paragraph 14(2)(b)) to the Minister as soon as reasonably practicable.

 

85.               Subsection 14(10) makes it clear that nothing in section 14 of the Bill prevents the Minister making another temporary exclusion order in relation to the same person.

 

Division 2-Return permits

86.               Division 2 of Part 2 sets out matters in relation to return permits.

 

Section 15       Issuing a return permit

87.               Section 15 sets out the circumstances in which the Minister must issue a return permit, the time period in which the return permit must be issued, the form and contents of the permit and how the permit must be served.

 

88.               Subsection 15(1) sets out two circumstances in which the Minister must issue a return permit to a person. The first circumstance is where the person has applied to the Minister, or an application has been made on the person’s behalf. The second circumstance is where the person is to be, or is being, deported or surrendered to Australia pursuant to an extradition request. The Minister must issue a return permit to a person in these circumstances. This section does not provide the Minister with the discretion to refuse to issue a return permit where a person has applied for one. 

 

89.               Subsection 15(2) provides additional discretion to the Minister to issue a return permit. Under this subsection, the Minister has discretion to issue a return permit if the Minister considers it appropriate to do so. If neither paragraph 15(1)(a) or (b) are satisfied and the Minister considers it appropriate under the circumstances to issue a return permit, the Minister may do so under this subsection. An example of a situation where the Minister may elect to do so could be if the person is in a place where a natural disaster has struck and is unable to make an application, the Minister may issue a return permit to allow the person to be evacuated and return to Australia.

 

90.               Subsection 15(3) sets out the time for issuing a return permit and provides that the permit must be issued:

(a)     if the person applied for the permit under paragraph 15(1)(a) - within a reasonable period after the Minister received the application;

(b)    if the person is to be, or is being, deported to Australia or surrendered to Australia pursuant to an extradition request—within a reasonable period after the Minister becomes aware of that fact; or

(c)     if the Minister decides, under subsection (2), to issue a return permit to the person—within a reasonable period after the Minister makes the decision.

 

91.               Subsection 15(3) provides further certainty about the operation of the scheme and gives effect to recommendation 2 of the Committee report.

 

92.               Subsection 15(4) sets out the requirements for the form and contents of a return permit. A return permit must:

(a)     be in writing; and

(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)       section 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 information or documents);

(g)    state that the person may have review rights in relation to the decision to issue the permit.

 

93.               Subsection 15(4) gives effect, in part, to recommendation 5 of the Committee report.

 

94.               Subsection 15(5) provides that the Minister must cause a copy of the return permit to be served personally on the person to whom the order relates, and if that person is 14 to 17 years of age, on a parent or guardian of the person as well. This subsection gives effect, in part, to recommendation 4 of the Committee Report.

 

95.               Subsection 15(6) provides that the Minister must only comply with paragraph 15(5)(b) where it is reasonably practicable to do so. This acknowledges that there may be situations where it is not reasonably practical to provide personal service of a return permit to a person.

 

96.               When taken together, subsections 15(5) and (6) ensure that the affected person is aware that a return permit has been issued and the conditions attached.

 

Section 16       Conditions on a return permit

 

97.               Section 16 sets out the conditions which may be placed on a return permit. Subsection 16(1) enables the Minister to impose one or more of the conditions set out in subsections 16(9) and (10) on a return permit.

 

98.               The conditions set out in subsections 16(9) and (10) are exhaustive. This is restricts the Minister to imposing only conditions that have been appropriately contemplated, scrutinised and approved by the law-making process.

 

99.               Subsection 16(2) makes it clear that the Minister may impose a condition at the time the return permit is issued or at a later time.

 

100.           Subsection 16(3) sets out the matters that the Minister must be satisfied of in order to impose a condition 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 .

 

101.           Subsection 16(4) requires the Minister to have regard to the impact of imposing a condition on the person’s personal circumstances, particularly the impact on any dependants of the person who are under 18. The Minister must have regard to the impact of each individual condition and the impact of the conditions taken together before imposing the conditions.

 

102.           The requirements in subsections 16(3) and (4) give effect to recommendation 3 of the Committee report, and ensure that the conditions imposed are subject to careful consideration by the Minister.

 

 

103.           Where the return permit relates to a person who is 14 to 17 years of age, subsection 16(5) requires the Minister to have regard to the protection of the community as the paramount consideration and the best interests of the minor as a primary consideration before imposing any conditions on the return permit. The subsection provides additional safeguards for children recognising their particular vulnerability, consistent with Australia’s international obligations, and protection of the Australian community. This is consistent with Division 104 of the Criminal Code , which relates to control orders.

 

104.           Subsection 16(6) sets out the matters that the Minister must have regard to in determining what is in the best interests of the person for the purposes of paragraph 16(5)(b):

(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. 

 

105.           Taken together, subsections 16(5) and (6) give effect to part of recommendation 4 of the Committee report, and provide additional safeguards for minors recognising their particular vulnerability, consistent with Australia’s international obligations, and the protection of the Australian community.

 

106.           Subsection 16(7) provides that the Minister must only take into account the matters in subsection 16(6) to the extent such matters are known to the Minister and are relevant.

 

107.           Subsection 16(8) sets out matters that the Minister must consider before imposing a condition on a return permit that would prevent a person from entering Australia for a period of time:

(a)     whether the person has a lawful right to remain, or to enter and remain, in a country other than Australia during that period;

(b)    if the person has no lawful right to remain, or to enter and remain in a country other than Australia during that period—the likelihood of the person being detained, mistreated or harmed if the person cannot enter Australia until the end of that period.

 

108.           The Minister is only required to consider the matters set out in subsection 16(8) to the extent that they are known to the Minister.

 

109.           Subsection 16(8), when taken together with subsection 16(4) (and for persons 14 to 17 years of age, subsections 16(5) and (6)) ensures that the individual circumstances of a person are taken into account before certain conditions are imposed on a return permit, especially the likelihood of a person being detained or being unable to leave a dangerous conflict zone to seek safety in a third country. It gives effect, in part, to recommendation 1 of the Committee report.

 

110.           Subsection 16(9) sets out the pre-entry conditions that may be imposed by the Minister on a return permit.  These conditions may require:

(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 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.

 

111.           The amount of time that is reasonably necessary to assess the risk posed by the entry of the subject of a temporary exclusion order into Australia, and make appropriate arrangements, will vary based on the circumstances of each individual.

 

112.           Subparagraph 16(9)(a)(i) gives effect to recommendation 6 of the Committee’s report. The Bill does not preclude a person to whom the return permit applies from requesting a specific date to enter Australia. However, the ultimate decision rests with the Minister, who may specify the exact date and flight on which the person is to return under the permit.

 

113.           Subsection 16(10) sets out the post-entry conditions that may be imposed by the Minister as part of a return permit.  The conditions are imposed to protect the public from a terrorist act, or prevent the provision of support for, or the facilitation of, terrorism or terrorism-related activities. These conditions may require:

(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 Australian 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 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.

 

114.           The notification requirements under subsection 16(10) facilitate monitoring of a person subject to return permits by law enforcement and security agencies. For paragraph 16(10)(j), a once-off notification to the specified person is sufficient in relation to each service, account or device. Without limiting this paragraph, examples of the types of information about telecommunication devices that may be required under this paragraph include phone numbers, international mobile equipment identity (IMEI) numbers, subscriber identity module (SIM) cards, email and social media accounts, and computers or tablet devices.

 

115.           Subsection 16(11) provides that if a condition is imposed that requires the person to notify a specified person or body of a particular matter, the return permit may specify either or both of the following:

(a)      the manner in which the person or body is to be notified;

(b)    any documents or information that must be provided to the person or body to substantiate the relevant matter.

 

Section 17       Varying and revoking a return permit

 

116.           Section 17 empowers the Minister to vary or revoke a return permit.

 

117.           Subsection 17(1) provides that the Minister may:

a)  vary a return permit to do one or more of the following:

                                         (i)       vary the period during which the return permit is in force, which must not end more than 12 months after the person enters Australia;

                                       (ii)       remove a condition imposed on the permit;

                                     (iii)       impose a new condition in accordance with section 16; or

 b) revoke the return permit.

 

118.           Subsection 17(2) provides the Minister may vary or revoke a return permit either on the Minister’s own initiative or on application by, or on behalf of, the person to whom the return permit relates.

 

119.           A note after subsection 17(2) clarifies that section 18 sets out how an application to vary or revoke a return permit can be made.

 

120.           Subsection 17(3) clarifies that a variation or revocation takes effect at the time when the Minister varies or revokes the return permit.

 

121.           Where the Minister varies a return permit to change the period during which the permit is in force or imposes a new condition, subsection 17(4) requires the Minister to cause a copy of the return permit as varied to be served personally on the person to whom it relates. Paragraph 17(4)(b) clarifies that if the person to whom the permit relates is 14 to 17 years of age, then the varied return permit must also be served personally on a parent or guardian of the person. However, subsection 17(5) clarifies that the Minister only needs to comply with the requirement in paragraph 17(4)(b) to personally serve the amended return permit on a parent or guardian where it is reasonably practicable to do so.

 

122.           Subsection 17(6) provides that where the Minister revokes a return permit, or revokes a condition on a return permit, the Minister must, as soon as practicable after revoking the return permit or the condition, cause reasonable and practicable steps to be taken to bring the revocation to the attention of the person who was subject to the return permit, and, if the person was 14 to 17 years old, to the attention of the person’s parent or guardian.

 

Section 18       Making an application for a return permit

 

123.           Section 18 sets out the form and manner for an application for a return permit, or an application for a return permit to be varied or revoked.

 

124.           Subsection 18(1) provides that a person may make an application, either orally or in writing to the Minister or Department.

 

125.           Subsection 18(1) provides the option of oral or written applications in recognition of the potential practical difficulties that a person in a conflict zone may have in communicating with the Minister or Department.

 

126.           Subsection 18(2) provides that the Minister may, in writing, authorise any person, whether in or outside Australia, to receive applications on behalf of the Minster or Department for the purposes of subsection 18(1).

 

127.           Subsection 18(2) provides flexibility for the Minister to authorise other persons to receive applications. This will provide the ability for individuals subject to a temporary exclusion order to make a return permit application through different avenues, recognising that in some circumstances it may not be practical to make an application directly to the Minister or Department.

 

128.           Subsection 18(3) sets out the information that must be included about the person to whom the application relates, if the person is located outside Australia at the time the application is made:

(a)     the person’s full name;

(b)    the person’s date and place of birth;

(c)     the person’s contact details;

(d)    if the application is for the issue of a return permit - the following information in relation to each child (if any) of the person:

                                         (i)             whether the child is deceased or alive.

                                       (ii)             the full name of the child;

                                     (iii)             the date and place of birth of the child;

                                     (iv)             if the child is alive - the location of the child.

 

129.           Subsection 18(4) sets out the information that must be included about the person to whom the application relates if the person is located within Australia at the time the application is made:

(a)     the person’s full name;

(b)    the person’s date and place of birth;

(c)     the person’s current residential address in Australia;

(d)    the person’s contact details.

 

130.           However, subsection 18(5) sets out that if a person does not have the information required by subsections 18(3) and (4), then the application must explain why that information cannot be provided.

 

131.           Subsection 18(5) provides that if the application is for the variation of a return permit, the application must be accompanied by:

(a)     a statement that specifies the variation requested to be made; and

(b)    the reasons why the person to whom the application relates is seeking to have the permit varied in the manner requested.

 

132.           The Bill contemplates scenarios where the individual requests for particular return permit conditions to be included. For instance, they may request that the return permit specify a particular timeframe in which they return to Australia.

 

133.           Subsection 18(6) sets out that if the application is for the variation of a return permit, the application must be accompanied by a statement that specifies the variation requested to be made and the reasons why the person to whom the application relates is seeking to have the return permit varied.

 

134.           Subsection 18(7) sets out that if the application is for the revocation of a return permit, the application must be accompanied by a statement that specifies the reasons why the person to whom the application relates is seeking to have the return permit revoked.

 

135.           Subsection 18(8) sets out the information that must be provided by the person making the application if the application is made on behalf of someone else:

(a)     the person’s full name;

(b)    the person’s contact details;

(c)     the person’s relationship to the person to whom the application relates; and

(d)    a statement that the person to whom the application relates has consented to the person making the application on their behalf.

 

136.           A note after subsection 18(7) makes it clear that sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

 

137.           Section 18 provides certainty to applicants about the minimum requirements for how to apply for a return permit and gives effect to recommendation 8 of the Committee report.

 

Section 19        Period for which a return permit is in force

 

138.           Section 19 clarifies the period a return permit is in force. Section 19 sets out that a return permit comes into force on the day specified in the return permit and remains in force until the earliest of the following occurs:

(a)     the period specified for the purposes of paragraph 15(4)(c) ends;

(b)    if the period is varied under subparagraph 17(1)(a)(i)—the end of that period;

(c)     the permit is revoked under paragraph 17(1)(b).

 

Section 20       Consequences for failing to comply with return permit conditions

 

139.           Section 20 provides a person commits an offence where they fail to comply with the conditions of their return permit.

 

140.           Under subsection 20(1), a person commits an offence if a return permit is in force, the return permit sets out a condition imposed under subsection 16(9) or (10), and the person fails to comply with the condition. The maximum penalty for breach of a condition is 2 years’ imprisonment.

 

141.           Subsection 20(2) provides that section 15.2 of the Criminal Code applies to offences against this section. Section 15.2 of the Criminal Code (extended geographical jurisdiction ­category B) will apply to extend the application of the offence in section 20 to locations outside Australia for Australian citizens and residents.

 

142.           Under subsection 20(2), an example of a breach could be where a condition to board a particular flight is imposed and the person enters Australia on a different flight. Defences under the Criminal Code and the common law remain available. For instance, section 10.1 of the Criminal Code establishes a defence for circumstances where the conditions of a return permit cannot be complied with for reasons outside the person’s control and which they could not reasonably be expected to guard against. This would likely apply in circumstances where a return permit specified that an individual must be returned to Australia on a particular flight, and the flight had to be cancelled due to bad weather or mechanical difficulties.

 

Section 21       Permitting use of a vessel or aircraft by person in contravention of return permit conditions

 

143.           Subsection 21(1) creates an offence for an owner, charterer, lessee, operator, agent or master of a vessel or aircraft, or a master of a vessel or a pilot in charge of an aircraft, where:

(a)      the person permits the vessel or aircraft to be used to convey a person (the second person) to Australia, and

(b)     the person does so knowing that the second person is entering Australia in contravention of a condition of a return permit that is in force in relation to the second person.

 

144.           This offence only applies in circumstances where the person knowingly permits the vessel or aircraft to be used to convey a person to Australia in contravention of the conditions of a return permit. The offences will not capture persons or transport service providers who are unaware and have no knowledge of the fact a return permit condition is in place in relation to that person.

 

145.           In addition, any prosecution of this offence will occur in accordance with established criminal justice procedures. For instance, section 10.1 of the Criminal Code establishes a defence for circumstances where the physical element of an offence, such as ensuring a vessel or aircraft is used to return the subject of a return permit in line with specified conditions, cannot be complied with for reasons outside the transport service providers’ control and which they could not reasonably be expected to guard against. This would likely apply in circumstances where a return permit specified that an individual must be returned to Australia on a particular flight, and the flight had to be cancelled due to bad weather or mechanical difficulties.

 

146.           Subsection 21(2) provides the offence in subsection (1) does not apply if the second person is being deported or extradited to Australia. This will ensure the offence does not apply where a person in control of a vessel or aircraft is conveying the person to Australia in contravention of a condition in a return permit because the person is being deported or extradited to Australia.

 

147.           A note under subsection 21(2) clarifies that the defendant bears an evidential burden in relation to the matter in subsection 21(2).

 

148.           Subsection 21(3) provides the offence in subsection (1) has Category A extended geographical jurisdiction under section 15.1 of the Criminal Code , meaning it extends to the actions of Australian citizens outside of Australia.

 

149.           The maximum penalty for this offence is 2 years’ imprisonment. Section 4B of the Crimes Act 1914 applies in respect of pecuniary penalties for natural persons and bodies corporate, respectively.

 

Section 22       Consequences for providing false or misleading information or documents

 

150.           Section 22 creates an offence for providing false information in purported compliance with a condition.

 

151.           Subsection 22(1) provides that a person commits an offence if the person gives information or produces a document to a person or body, the person does so in response to a condition imposed on a return permit issued to the person, and the person does so knowing that the information or document is false or misleading. This subsection requires the person to knowingly provide the false or misleading information. The maximum penalty for this offence is 2 years’ imprisonment.

 

152.           Subsection 22(2) qualifies the application of subsection (1) so that the offence does not apply if the information provided is not false or misleading in a material particular.

 

153.           A note under subsection (2) provides that the defendant bears an evidential burden in relation to the matter in this subsection and refers to subsection 13.3(3) of the Criminal Code . This means that the defendant would have to prove that the information provided was not false or misleading in a material particular to be absolved of liability under this section.

 



 

Part 3 ­Other matters

 

Section 23       Reviewing authority

 

154.           Section 23 sets out how a reviewing authority is appointed, and who is eligible to be appointed as a reviewing authority.

 

155.           Subsection 23(1) provides that the Attorney-General may appoint a reviewing authority in writing and sets out who the Attorney-General may 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

(d)    a person who:

                                         (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. 

 

156.           Subsection 23(2) makes it clear that any person who is currently a judge or justice of any court is not eligible for appointment as a reviewing authority under subsection 23(1). This also makes it clear that the review is not judicial in nature.

 

157.           Subsection 23(3) sets out when a person’s appointment as a reviewing authority under subsection 23(1) ceases to have effect. Their appointment ceases when the person ceases to be a person whom the Attorney-General could appoint under subsection 23(1) (for example, the person ceases to be enrolled as a legal practitioner), or the Attorney-General revokes the appointment in writing.

 

158.           Subsection 23(4) provides that a power conferred on a reviewing authority by this Act is conferred on the reviewing authority in their personal capacity, and if the reviewing authority is a serving member of the Administrative Appeals Tribunal, not as a member of the Tribunal.

 

159.           Subsection 23(5) provides that the reviewing authority need not accept the power conferred. This ensures that a reviewing authority can only be appointed if they wish to be so.

 

160.           Subsection 23(6) provides that a reviewing authority has, in relation to performing functions or exercising powers under this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

 

Section 24       Protection of information provided to a reviewing authority

 

161.           Section 24 sets out the information protection obligations a reviewing authority has in relation to information received in their capacity as a reviewing authority.

 

162.           Subsection 24(1) provides that a person who is, or has been, a reviewing authority commits an offence if they disclose any information provided under subsection 14(2) of the Bill.

 

163.           A note after subsection 24(1) provides that disclosing information provided under subsection 14(2) carries a penalty of 2 years.

 

164.           Subsection 24(2) provides that subsection (1) does not apply if the disclosure of the information is for the purposes of giving effect to this Act.

 

165.           A note after subsection 24(2) provides that the defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).

 

166.           Subsection 24(3) provides that for the purposes of subsection (2) if the disclosure of the information is in civil proceedings for judicial review of a decision made under this Act, then the disclosure is for the purposes of giving effect to this Act.

 

167.           This section is enacted to ensure that reviewing authorities have clarity surrounding their obligations in regards to information received in their capacity as reviewing authorities.

 

Section 25       Delegation

 

168.           Section 25 sets out the functions or powers that the Minister may delegate, and to whom he or she may delegate them.

 

169.           Subsection 25(1) provides that the Minister may delegate all or any of the Minister’s functions or powers under this Act to the Secretary of the Department administering the Act or an SES employee or acting SES employee within that Department.

 

170.           Notes 1 and 2 after subsection 25(1) advise that the expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901 , and sections 34AA to 34A of that Act contain provisions relating to delegations.

 

171.           Subsection 25(2) sets out the functions and powers which the Minister may not delegate, being the Minister’s functions and powers under the following provisions:

(a)     subsection 10(1) (making a temporary exclusion order);

(b)    subsection 11(1) (revoking a temporary exclusion order);

(c)     subsection 15(1) (mandatory issue of a return permit);

(d)    subsection 15(2) (discretion to issue a return permit);

(e)     subsection 16(1) (imposing conditions on a return permit);

(f)     subsection 17(1) (varying or revoking a return permit).

 

172.           Subsection 25(3) provides that the delegate must comply with any written directions of the Minister when exercising a delegated function or power.

 

Section 26       Exclusion of procedural fairness

 

173.           Section 26 provides that the Minister is not required to observe any requirements of procedural fairness in exercising a power under this Act. However, the person who is the subject of a temporary exclusion order or a return permit will have access to judicial review.

 

174.           Procedural fairness requirements, specifically enabling the potential subject of a temporary exclusion order 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 temporary exclusion order. Such a requirement may also be practically difficult to implement in circumstances where that individual is overseas, potentially in conflict zones.

 

Section 27       Administrative Decisions (Judicial Review) Act 1977 does not apply to certain decisions under this Act

 

175.           Subsection 27 provides that the Administrative Decisions (Judicial Review) Act 1977 does not apply to decisions made under the provisions of the Bill.

 

176.           Review under the Administrative Decisions (Judicial Review) Act 1977 is excluded by this section as it largely replicates the review that is already undertaken by the reviewing authority. Nevertheless, judicial review of both the Minister’s temporary exclusion order decision and the review authority’s consideration is available under section 75(v) of the Constitution and section 39B of the Judiciary Act 1903 .

 

Section 28       Interaction with the Australian Security Intelligence Organisation Act 1979

 

177.           Section 28 clarifies the interaction between this Act and the Australian Security Intelligence Organisation Act 1979 (the ASIO Act).

 

178.           Subsection 28(1) clarifies that neither a temporary exclusion order nor a return permit constitutes prescribed administrative action for the purposes of the ASIO Act. Subsection 28(2) clarifies that section 28 is enacted for the avoidance of doubt.

 

Section 29       Interaction with the Australian Passports Act 2005

 

179.           Section 29 clarifies the interaction between this Act and the Australian Passports Act 2005 .

 

180.           Specifically, subsection 29(1) provides that a person is taken, for the purposes of section 12 of the Australian Passports Act 2005 , to be prevented from travelling internationally if a temporary exclusion order specifies one or more of the following:

(a)     the person must surrender an Australian travel document to a specified person or body;

(b)    the person is not permitted to apply for an Australian travel document;

(c)     the person is not permitted to obtain an Australian travel document.

 

181.           Subsection 29(2) provides that if a return permit imposes a condition set out in paragraph 16(10)(l), (m) or (n) the person is taken, for the purposes of section 12 of the Australian Passports Act 2005 , to be prevented from travelling internationally while the condition is in force.

 

182.           Subsection 29(3) clarifies this provision was enacted for the avoidance of doubt.

 

Section 30       Severability

 

183.           Section 30 provides that if section 14 is not a valid law of the Commonwealth then it is the intention of Parliament that this Act operate as if that section had never been enacted, and the Act will apply as if subsections 13(1) and (2) were omitted and replaced with:

(1)    A temporary exclusion order in relation to a person comes into force immediately after the Minister makes the temporary exclusion order in relation to the person.

 

Section 31       Annual report on operation of Act

 

184.           Section 31 provides the Minister must, as soon as practicable after the end of each financial year, cause a report to be prepared on the operation of the Act during that year. Subsection 31(4) requires the Minister to table the report before each House of Parliament within 15 sitting days of the Minister receiving the report. Section 31 is consistent with similar requirements contained in the Criminal Code , such as the requirement to prepare and table similar annual reports for preventative detention orders and continuing detention orders.

 

185.           Subsection 31(2) sets out the matters that must be included in the report.

 

186.           Subsection 31(3) provides that where the Minister is satisfied that disclosure of information set out in the report is likely to prejudice national security, the information is not to be included in the report and instead must be provided to the Committee. This strikes the appropriate balance between protecting sensitive national security information and ensuring the transparent operation of the temporary exclusion order scheme.

 



 

Attachment A

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Counter-Terrorism (Temporary Exclusion Orders) Bill 2019

 

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Overview of the Bill

1.       Since 2014, the number of Australians travelling to join terrorist organisations overseas has increased significantly. This has driven the need to reform Australia’s approach to managing individuals who may represent a threat to public safety. The collapse of the Islamic State’s territorial control complicates the threat environment as more Australians participating in or supporting the conflict, leave the conflict zone and, may seek to return home. The purpose of this Bill is to ensure that if these Australians do return, it is with forewarning and carefully managed by authorities.

 

2.       This Bill creates the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 which introduces a single, explicit source of legislative power for the Government to control the return of Australian citizens of counter-terrorism interest from overseas conflict zones. The temporary exclusion order (TEO) scheme will enable greater control over the return of these Australians by providing a streamlined mechanism to impose conditions, specifically notification requirements, and facilitate the monitoring of the individuals who may pose a threat to the Australian community.

 

3.       The Bill was first introduced into the House of Representatives and referred to the Parliamentary Joint Committee on Intelligence and Security (the Committee) on 21 February 2019. The Committee’s advisory report on the Bill, tabled in Parliament on 3 April 2019, made 19 recommendations in relation to the Bill, including that it be passed subject to implementation of the other 18 recommendation. The Bill has been amended in response to the PJCIS advisory report, including to enhance safeguards and accountability measures.

 

4.       The scheme comprises two key components. The first is to prohibit the return of Australians of counter-terrorism interest without forewarning. The Minister will have the power to make a TEO in relation to a person which would prohibit the person’s return to Australia until issued a return permit. Importantly, the Bill does not permanently prohibit entry into Australia, and a person is entitled to be issued a return permit if they apply. This will prevent Australians of counter-terrorism interest returning without warning or adequate protections in place.

 

5.       The TEO ability to delay a person’s return to Australia will enable authorities to assess the threat posed by the person and make appropriate arrangements for their return.

 

6.       The second component will enable the Minister to impose conditions in a return permit to control when and how the individual can return to Australia. These conditions ensure that the person will arrive into the hands of authorities with no surprises. The Bill also provides that a return permit may specify conditions with which the individual must comply once in Australia. The conditions specified under a return permit will assist law enforcement and security agencies to monitor the whereabouts, activities and associations of an individual. This will be achieved by requiring the individual to provide timely notification to authorities and enable early intervention in response to a threat to public safety.

 

7.       The Bill introduces a number of measures which support the controlled return of relevant individuals. Section 8 creates an offence for an individual who is the subject of a TEO to return to Australia without a return permit, carrying a maximum penalty of two years imprisonment. Section 9 creates an offence for a person who is the owner, charterer, lessee, operator, agent or master/pilot of a vessel or aircraft to knowingly permit the vessel or aircraft to be used to convey the subject of a TEO to Australia where a return permit is not in force. This offence carries a maximum penalty of two years imprisonment and does not apply if the second person is being deported or extradited to Australia.

 

8.       Section 10 outlines the grounds by which a Minister may make a TEO. To be eligible for a TEO, the person must be located outside Australia, be an Australian citizen, be at least 14 years of age and not have a return permit in force against them. Subsection 10(2) outlines two circumstances in which the Minister may make a TEO. First, a TEO may be issued where the Minister suspects on reasonable grounds that making the TEO would substantially assist in one or more of:

(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; or

(d)    preventing the provision of support or resources to an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.

 

9.       Second, subsection 10(2)(b) states the Minister may also issue a TEO if the person has been assessed by 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. Subsection 10(4) sets out the form requirements for making a TEO while subsection 10(5) clarifies that there is no limit on the number of TEOs that may be made in relation to one individual if the individual continues to pose a risk to the Australian community.

 

10.   Subsection 10(3) states that if the person is 14 to 17 years of age, the Minister must, before making a TEO, have regard to the protection of the community as the paramount consideration and the best interests of the person as a primary consideration. The best interests of the person is defined by subsection 10(4), which states that the Minister must take into account multiple matters, including the child’s age, sex and health. Subsection 10(5) only requires the Minister to take into account these matters to the extent that are relevant and known to the Minister. Subsection 10(6) states that as soon as practicable after a TEO is made the Minister must cause steps to be taken that are reasonable and practicable, in the Minister’s opinion, to bring to the attention of the person the subject of the order.

 

11.   Section 11 states that the Minster may, on his or her own initiative or on application by the subject of the TEO, revoke the TEO. As soon as practicable after the revocation is made the Minister must cause steps to be taken that are reasonable and practicable, in the Minister’s opinion, to bring to the attention of the person the revocation of the order. A revocation takes effect when the Minister revokes the TEO.

 

12.   Subsection 11(5) states that a TEO in relation to a person is taken to be revoked if a return permit is issued to that person. The revocation takes effect immediately after the return permit is issued.

 

13.   Section 12 sets out how a person may apply to have a TEO revoked. Subsection 12(3) lists the information which must be included in the application. Further, an application for the revocation of a TEO may be made on behalf of the relevant person.

 

14.   Section 12 provides that a TEO takes effect immediately after it has been affirmed by the reviewing authority that the making of the TEO was lawful. Where the Minister is satisfied that a TEO must come into force immediately after it is made due to urgent circumstances, the reviewing authority subsequently conducts the review and will either affirm the TEO remains in force or, if the decision was unlawful, the TEO will be taken to have never been made.

 

15.   Section 14 provides that immediately after making a TEO, the Minister must refer the decision to a reviewing authority. A ‘reviewing authority’ is defined in section 4 of the Bill as meaning the person appointed under section 23 of the Act. Section 23 provides the Attorney-General may, in writing, appoint a person who satisfies the criteria in that section to be a reviewing authority.

 

16.   Subsection 14(2) requires the Minister’s referral to the reviewing authority to include a written statement of reasons and all of the material that was before the Minister at the time the TEO decision was made. There is an exclusion to this requirement where disclosure of information would be contrary to the public interest.

 

17.   Subsection 14(4) requires the reviewing authority to review the TEO decision and decide whether one or more of the criteria listed in subparagraphs 14(4)(i) to (iii) applies in relation to the TEO decision. Subsection 14(7) provides that if, in the opinion of the reviewing authority, one or more of the criteria in subparagraphs 14(4)(i) to (iii) applies, the TEO decision is taken to have never been made. Consequentially, subsection 14(8) provides that, if a return permit has been issued, the return permit is also taken to have never been issued.

 

18.   Subsection 14(6) provides that the reviewing authority must conduct a review of the temporary exclusion order decision:

(a)     in the absence of the person to whom the TEO relates;

(b)    without the person having been notified of the review; and

(c)     without the person having been given an opportunity of making any representations to the reviewing authority.

 

19.    Subsection 14(10) clarifies that nothing in section 14 of the Bill prevents the making of another TEO in relation to the same person.

 

20.   The second aspect of the scheme contained in Division 2 of the Bill concerns the return to Australia of persons in relation to whom a TEO has been made.

 

21.   Section 15(1) provides that where a TEO is in force, the Minister must issue a return permit to the relevant person if that person applies or if the person is being deported or extradited to Australia. This section does not provide the Minister with the discretion to refuse to issue a return permit where a person has applied for one. 

 

22.   Subsection 15(2) states that where a TEO is already in force in relation to a person, the Minister may issue a return permit if they consider it appropriate.

 

23.   To implement Recommendation 2 of the Committee’s report, the Government has amended the Bill to require the Minister to issue a return permit to a person ‘within a reasonable period’ upon receipt of an application or when a person is being deported or extradited to Australia.

 

24.   Subsection 15(5) requires the Minister to serve a copy of the return permit on the person to whom it relates. If the person is 14 to 17 years of age, the Minister must, where reasonably practicable to do so, also serve the return permit on the person’s parent or guardian.

 

25.   Section 15(4)(g) provides that a return permit must set out that the person may have a right of review.

 

26.   Section 16 sets out the requirements in relation to any conditions which may be included in a return permit. Subsection 16(1) provides that the Minister may impose one or more of the conditions set out in subsections 16(9) and (10) on a return permit.

 

27.   The list of conditions set out in subsections 16(9) and (10) are exhaustive. This is designed to restrict the Minister to only imposing conditions that have been appropriately contemplated, scrutinised and approved by the law-making process.

 

28.   Subsection 16(2) makes it clear that the Minister may impose a condition at the time the return permit is issued or at a later time.

 

29.   To implement Recommendation 1 of the Committee, subsection 16(8) requires the Minister, before imposing a condition on a return permit, to consider, the extent known:

(a)     whether the person has a lawful right to remain, or to enter and remain, in a country other than Australia before the start of the specified period or until the specified date; and

(b)    if the person has no lawful right to enter or remain in a country other than Australia until the start of the specified period or until the specified date—the likelihood of the person being detained, mistreated or harmed if the person cannot enter Australia until the start of the specified period or until the specified date.

 

30.   Further, subsection 16(4) requires the Minister, when imposing conditions on a return permit to have regard to the impact of the conditions on the person’s individual circumstances, including in relation to their dependents (if any), and be satisfied that the conditions are ‘reasonably necessary, and reasonably appropriate and adapted’ on an individual. The Minister’s paramount consideration when imposing or varying conditions in a return permit is community safety. This measure implements Recommendation 3 of the Committee’s advisory report.

 

31.   To implement Recommendation 4 of the Committee’s advisory report, section 16(6) of the Bill requires that, in determining the best interests of the child, the Minister must take into account (to the extent that information is available) the same matters that a court is required to take into account under section 104.4(2A) of Division 104 of Part 5.3 in Chapter 5 of the Criminal Code when determining the best interests of the child in relation to a control order. This includes the child’s age, maturity, sex, background, physical and mental health, right to receive an education, and other matters. Read together with section 16(7), the Minister is only required to take into account these matters to the extent which are known to him and are relevant. The Minister must also provide the child’s parent or guardian a copy of each document and notification that is required under the Bill to be given to the child.

 

32.   Relevantly, subsections 10(3) and 16(5) provides that if the person is 14 to 17 years of age, the Minister must, before making a TEO or imposing a condition under a return permit in relation to that person, have regard to the protection of the community as a paramount consideration and the best interests of the person as a primary consideration.

 

33.   Subsection 16(9) and (10) set out the conditions the Minister may include in a return permit. The conditions in 16(9) sets out the conditions the Minister may impose in relation to the individual’s entry into Australia (‘pre-entry conditions’) and subsection 16(10) sets out the conditions the Minister may impose in relation after the person returns to Australia (‘post-entry conditions’). The relevant pre-entry conditions are:

(a)     that the person not enter Australia during a specified period, which must not end more than 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, for example on a particular date and flight.

 

34.   To implement recommendation 6 of the Committee’s advisory report, subsection 16(9) provides that the specified period during which a person cannot enter Australia must be no longer than is reasonable necessary to enable authorities to assess the threat posed by the person and make appropriate arrangements for their return. This period must end no more than 12 months after the permit is issued to the person.

 

35.   Subsection 16(10) sets out a range of post-entry conditions that the subject of a return permit may be subject to. They involve the person:

(e)     notifying a specified person or body of their principal place of residence in Australia;

(a)     notifying a specified person or body of any changes in the principal place of residence in Australia within 24 hours;

(b)    notifying a specified person or body of their principal place of employment in Australia;

(c)     notifying a specified person or body of any changes in the principal place of employment in Australia within 24 hours;

(d)    notifying a specified person or body of their principal place of education in Australia;

(e)     notifying a specified person or body of any changes in the principal place of education in Australia within 24 hours;

(f)     notifying a specified person or body of any contact with specified individuals (whether within or outside Australia) within 24 hours of the contact occurring;

(g)     notifying a specified person or body of intentions to enter, or entry into another State or Territory that is not where their principal place of residence is located;

(h)    notifying a specified person or body of intentions to leave, or travel outside Australia;

(i)      notifying a specified person or body of access or use, or intentions to access or use,  specified forms of telecommunication or other technology;

(j)      notifying a specified person or body of intentions to apply for an Australian travel document;

(k)    if the person has an Australian travel document - that it must be surrendered to a specified person or body;

(l)      that the person is not permitted to apply for an Australian travel document; and

(m) that the person is not permitted to obtain an Australian travel document.

 

36.   Subsection 16(11) provides that if a condition is imposed that requires the person to notify a specified person or body of a particular matter, the return permit may specify either or both of the following:

(a)     the manner in which the person or body is to be notified;

(b)    any documents or information that must be provided to the person or body to substantiate the relevant matter.

 

37.   When imposing one or more of pre-entry or post-entry conditions, subsection 16(3) the Minister must be satisfied that the conditions, taken together, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of:

(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; or

(d)    preventing the provision of support or resources to an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.

 

38.   Section 17 allows the Minister, on their own initiative or on application by the person to whom the return permit relates, to vary or revoke the return permit. If the Minister varies a return permit to vary the period during which the permit is in force, or to impose a new condition under the permit, the Minister must cause a copy of the return permit as varied 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.

 

39.   Section 18 provides that an application for a return permit may be made orally or in writing to the Minister or the Department, and sets out the information that should be included in the application, including in circumstances where the application is made on behalf of someone else.

 

40.    Section 19 provides the period for which a return permit is in force, which is on the day specified in the permit. Section 19 also provides that a return permit remains in force until a specified period ends or the return permit is revoked.

 

41.   Section 20 creates offences for failing to comply with pre-entry and post-entry conditions. Both offences carry a maximum penalty of two years’ imprisonment.

 

42.   Section 21 creates a new offence for an owner, charterer, lessee, operator, agent or master of a vessel, or master of a vessel or pilot in charge of an aircraft, where the person permits the vessel or aircraft to be used to convey a person (the second person) to Australia, and the person does so knowing that the second person is entering Australia in contravention of a condition of a return permit that is in force in relation to the second person. Subsection 21(2) provides this offence does not apply if the second person is being deported or extradited to Australia. The penalty for this offence is up to 2 years’ imprisonment.

 

43.   Section 22 creates a new offence for a person who is the subject of a return permit to knowingly give information or produce a document in response to pre-entry or post-entry conditions, which is false or misleading. This offence carries a maximum penalty of two years’ imprisonment.

 

44.   Section 23 of the Bill provides for the reviewing authority to be appointed by the Attorney-General in writing. Section 23 provides some further criteria around who may be appointed.

 

45.   Section 24 provides that a reviewing authority commits an offence if it discloses information provided to the reviewing authority for the purpose of conducting the review of the TEO decision in accordance with subsection 14(2), except where the information is disclosed for the purposes of the provisions in the Bill. A note at the end of subsection (1) provides that the penalty for sch an offence is two years imprisonment.

 

46.   Section 25 provides that the Minister may delegate functions and powers of the Bill to the Secretary of the Department or an SES or acting SES employee of the Department. Subsection 25(2) prohibits certain functions and powers being delegated, including the making and revocation of TEOs and return permits.

 

47.   Section 26 of this Bill states that the Minister is not required to observe any requirements of procedural fairness in exercising a power under this Bill.

 

48.     Section 27 clarifies that decisions made under the provisions of the Bill are not subject to review under the Administrative Decisions (Judicial Review) Act 1977.

 

49.   Section 28 clarifies the interaction between the provisions of this Bill and the Australian Security Intelligence Organisation Act 1979 . Specifically, neither a TEO nor a return permit constitute prescribed administrative action for the purposes of that Act.

 

50.   Section 29 clarifies the interaction between the provisions of this Bill and the Australian Passports Act 2005 . Specifically, section 29 provides that a person is taken, for the purposes of s12 of the Australian Passports Act 2005 , to be prevented from travelling internationally if either the TEO, or a condition in a return permit, specifies one of 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.

 

51.   Section 30 provides that if section 14 is not a valid law of the Commonwealth then it is the intention of Parliament that this Act operate as if that section had never been enacted, and the Act will apply as if subsections 13(1) and (2) were omitted and replaced with:

(1)                A temporary exclusion order in relation to a person comes into force immediately after the Minister makes the temporary exclusion order in relation to the person

 

52.   To improve transparency and accountability of the TEO scheme, section 31 of the Bill requires the Minister to table an annual report to the Parliament on the exercise of powers under the temporary exclusion order regime. This implements Recommendation 14 of the Committee’s advisory report.

 

Human rights implications

Right to enter one’s own country - Article 12(4) ICCPR

53.   Article 12(4) of the ICCPR provides that no one shall be arbitrarily deprived of the right to enter his own country.

 

54.   TEOs will not exclude the subject of a TEO from entering Australia permanently. Rather the scheme is designed to ensure the individual’s return to Australia occurs in a planned and controlled manner, enabling effective management of the risks they may pose to the Australian community.

 

55.   This is reflected in section 12(1) of the Bill, which requires the Minister to issue a return permit to a person subject to a TEO if the subject has applied to the Minister for a return permit, or if the person is being deported or extradited to Australia. The Minister also retains a broad discretion under section 12 if the Minister considers it appropriate to do so. This ensures that a person’s controlled return to Australia can be facilitated even if they are unable to comply with form requirements.

 

56.   Importantly, any limitation to an individual’s right to enter Australia is not arbitrary. The preconditions for issuing a TEO and return permit are provided for by law, are predictable, and are justified by being reasonable, necessary and proportionate. Further, the Minister cannot make a TEO unless the Minister suspects on reasonable grounds that making the order would substantially assist in one of the purposes listed in section 10(2)(a) or if the person has been assessed by ASIO to be a direct or indirect risk to security for reasons related to politically motivate violence. Importantly, the Minister must issue a return permit upon application. A person must be allowed to return no later than the end of the period reasonably necessary to assess the risk posed and to make appropriate arrangements for their entry, or within 12 months, whichever event occurs earlier. The Bill’s emphasis on issuing a return permit expeditiously seeks to constrain the extent to which an individual’s right to enter their own country is limited.

 

57.   Additionally, for persons 14 to 17 years of age, before making a TEO in relation to that person, the Minister must have regard to the protection of the community as the paramount consideration, and the best interests of the person as a primary consideration.  This requirement provides additional safeguards for minors in recognition of their particular vulnerability.

 

58.   The concept of ‘terrorist act’ is already clearly established in the Criminal Code and the requirement that the Minister may only issue a TEO with a suspicion based on reasonable grounds incorporates an objective test which ‘precludes the arbitrary exercise of many statutory powers.’ [1]

 

59.   The temporary restriction on an individual’s ability to enter Australia is reasonable, as the measures in the Bill are intended to promote national security by managing the return of Australians from conflict zones overseas and may pose a threat to the safety of the Australian community. 

 

60.   The over-arching objective of the proposed TEO regime is to protect Australians from the threat of terrorism. As individuals seek to return to Australia from conflict zones overseas, it is crucial that law enforcement agencies are able to manage their return and ensure they do not pose a threat to the Australian community. Thus, any limitation on the right of a person to enter his or her own country is not arbitrary and is reasonable, necessary and proportionate to the protection of national security and public order.

 

Rights relating to the family unit - Article 17 and 23 ICCPR 

61.   Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation, and everyone has the right to the protection of the law against such interference or attacks.

 

62.   Article 23(1) of the ICCPR provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

 

63.   The restrictions imposed by the proposed TEO regime on entering Australia may constitute interference with a TEO subject’s family, to the extent that it prevents or limits the ability of the TEO subject to unite with family members and vice versa. While Australia’s obligation may not be engaged with respect to the TEO subject on account of their location outside the territory and jurisdiction of Australia, it would be engaged with respect to members of the TEO subject’s family in Australia.

 

64.   Nevertheless, any interference with the rights relating to the family unit would not be unlawful or arbitrary. The TEO scheme is an appropriate response to the genuine threat to Australia’s security posed by a person who has been either assessed by ASIO to be a direct or indirect risk to security, or in circumstances where a TEO would substantially assist to prevent a terrorist act, prevent training from being provided to, received from or participated in with a listed terrorist organisation or prevent the provision of support for or the facilitation of a terrorist act.

65.   Overall, the TEO scheme is designed to manage threats posed by individuals who have participated in or supported conflicts overseas and seek to return to Australia. To the extent that the rights of a TEO subject’s family members may be limited by the subject’s exclusion from return, this limitation is reasonable and proportionate to achieve the legitimate objective of protecting public order and national security.

66.   The Minister must issue a return permit if a person subject to a TEO applies, or a person applies on their behalf. This ensures that any limitations on the rights to a family unit are constrained to those required to protect national security and public order without amounting to a permanent restriction on the rights relating to the family unit.

67.   Section 12A(4) of the Bill requires the Minister, when issuing a return permit, to have regard to the person’s personal circumstances including the impact on any dependents under 18 years of age. This requirement ensures the impact on the family unit that a return permit may have is considered and appropriately balanced against the protection of the public order and national security.

The best interests of the child - Article 3 CRC

68.     Article 3 of the CRC provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

69.   To the extent the child concerned is within Australia’s jurisdiction, the Bill would engage Article 3 of the CRC. Where a child may pose a threat to the Australian community, the Government must balance the protection of the Australian community with the best interests of the child.  The Bill enables this balance. When exercising the power to issue a TEO or return permit, the Minister must take into account as a primary consideration the best interests of the child in circumstances where the subject of the TEO would be 14 to 17 years of age. In determining the best interests of the child, the Minister must take into account their age, maturity, sex and background, physical and mental health, their right to receive an education and their right to practise his or her religion. These safeguards supports other rights in the CRC, including the child’s right to practise their religion (Article 30), the right to an education (Article 28) and right to the highest attainable standard of health (Article 24). 

70.   Australia is required to take into account the best interests of the child as a primary consideration, not the only primary consideration. Further, the Minister may only issue a TEO where it would substantially assist to prevent the circumstances outlined in subsections 10(2), or if the person has been assessed by ASIO as being a risk to security. The circumstances include prevention of a terrorist act or the support or facilitation of a terrorist act or preventing the training with or the provision of support or resources to a terrorist organisation listed under subsection 102.2(1) of the Criminal Code . This clearly limits the circumstances in which a TEO would impact the best interests of a child to scenarios where there is a clear risk to community safety. Where a child poses a threat to the Australian community, it is appropriate that the legitimate objective of protecting the Australian community is the paramount consideration with the best interests of the child being a primary consideration.

Family reunification - Article 10 CRC

71.   Article 10(1) of the CRC states that applications by a child or his or her parents to enter or leave a State for the purpose of family reunification shall be dealt with in a positive, humane and expeditious manner.

 

72.   Article 10(2) of the CRC states that a child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Toward that end, States are expected to respect the right of the child and their parents to leave and enter their own country.

73.   However, although Article 10 of the CRC places obligations on State Parties to deal with applications by a child or his or her parents to enter or leave a State to be with their family in a positive, humane and expeditious manner, there is no right to family reunification under international law.  Rather the obligation is to deal with such application positively, humanely and expeditiously. Section 16(5) of the Bill requires the Minister, when issuing a return permit, to have regard to the person’s personal circumstances including the impact on any dependents under 18 years of age. This requirement ensures the impact on the family unit that a return permit may have is considered and appropriately balanced against the protection of national security and the public order.

74.   Subsection 15(3) of the Bill requires the Minister to issue a return permit within a reasonable period. This requirement indirectly ensures that decisions, which will inform the contents of a return permit, such as operational arrangements, will be made within a reasonable period. This subsection promotes an expeditious decision-making process. Although applying to all return permits, this requirement ensures that separated family units affected by the Bill are reunified within a reasonable period of time. 

75.   Subsection 16(9) of the Bill requires that the Minister must not prohibit the entry of a person subject to a return permit longer than 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. This period of time is limited to 12 months. This requirement ensures that the person’s risk is assessed at a reasonable speed and therefore promotes an expeditious decision-making process. Although applying to all return permits, this requirement ensures that separated family units affected by the Bill are reunified within a reasonable period of time.

76.   Ultimately, the right to family reunification is subject to restrictions that are prescribed by law and necessary to protect the national security, public order, public health or morals or the rights and freedoms of others. As outlined above, conditions relating to TEOs and return permits are clearly prescribed by law and designed to protect the Australian community, where necessary.

Right to participation - Article 12 CRC

 

77.   Article 12 of the CRC provides:

 

(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 

(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

78.   Section 26 of this Bill states that the Minister is not required to observe any requirements of procedural fairness in exercising a power under this Bill. This limitation on the child’s right to be heard is necessary and proportionate in the circumstances, given the complexity and fluidity of the present threat environment and the need for law enforcement and intelligence agencies to flexibly respond to the threats posed by Australians returning from conflict zones overseas. Procedural fairness requirements, specifically enabling the potential subject of a TEO to respond to allegations made against them, can frustrate the policy intention of this Bill by providing advance notice that they are being considered for a TEO and may be practically difficult to implement in circumstances where that individual is overseas, potentially in conflict zones.

 

79.   Nevertheless, the Bill does provide options for the subject of a TEO to seek its revocation, and the subject of a return permit to seek its varying or revocation. This provides an opportunity for the child or its representatives to express its views on matters affecting the child, in accordance with Article 12.

Right to liberty and security of person - Article 9 ICCPR

80.   Article 9(1) of the ICCPR states that everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

 

81.   Rather than imposing restrictive conditions on the subject of the TEO upon their entry to Australia, subsection 16(10) allows for the imposition of notification requirements that are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act or preventing the provisions of support for or the facilitation of a terrorist act. In and of themselves, these notification requirements do not amount to a deprivation of liberty or security of the person.

 

82.   While the subject of a TEO will not be subject to detention as a result of this Bill, it creates a new offence for failing to comply with post-entry conditions, with individuals being liable for a maximum penalty of 2 years imprisonment. The subject of a TEO would only be imprisoned under this offence after a trial, which would be subject to relevant safeguards in the criminal justice system.

Fair trial and fair hearing rights - Article 14 ICCPR

83.   Article 14(1) of the ICCPR provides that in the determination of any criminal charge against them, or of his or her rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.  Additionally, Article 14(2) provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

84.   Likewise to the extent that the TEO scheme engages Article 14 of the ICCPR, the reviewing authority’s consideration of whether or not the Minister’s decision to issue a TEO should be upheld, based on whether it was an improper exercise of the power to make a decision, the decision was affected by fraud or there was no material before the Minister that could support making a TEO decision under paragraph 10(2)(a).

85.   This measure seeks to provide opportunities for independent and impartial review of the Minister’s decision to issue a TEO, while recognising that it may be practically difficult to hold a hearing, where the subject of the TEO is outside Australia and may be in a remote location. Further, delay in issuing a TEO can pose a risk to the Australian community.  Nevertheless, the availability of the reviewing authority does not preclude the subject of a TEO from seeking judicial review of the decision. To the extent that this may limit fair trial and fair hearing rights, it is necessary and proportionate in the circumstances, given the complexity and fluidity of the present threat environment and the need for law enforcement and intelligence agencies to flexibly respond to the threats posed by Australians returning from conflict zones overseas.

86.   Section 26 of this Bill states that the Minister is not required to observe any requirements of procedural fairness in exercising a power under this Bill, including the decision to issue a TEO or return permit. To the extent that this may limit fair trial and fair hearing rights, it is necessary and proportionate in the circumstances, given the complexity and fluidity of the present threat environment and the need for law enforcement and intelligence agencies to flexibly respond to the threats posed by Australians returning from conflict zones overseas. Procedural fairness requirements, specifically enabling the potential subject of a TEO to respond to allegations made against them, can frustrate the policy intention of this Bill by providing advance notice that they are being considered for a TEO and may be practically difficult to implement in circumstances where that individual is overseas, potentially in conflict zones.

87.   However, as discussed above, the prosecution of each of these offences would be subject to relevant safeguards in the criminal justice system meaning there would be no limitation of the rights established by Article 14 of the ICCPR.

Right to freedom of movement - Article 12(1) ICCPR

88.   Article 12(1) of the ICCPR states that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. However, Article 12(3) makes it clear that this right is subject to any restrictions imposed by law and necessary to protect national security and public order.

 

89.   Rather than imposing restrictive conditions on the subject of the TEO upon their entry to Australia, subsection 16(10) imposes notification requirements that are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act or preventing the provisions of support for or the facilitation of a terrorist act. To the extent that the notification requirements in section 16(10) limit the right to freedom of movement, this is a permissible limitation that is necessary to protect public order and the national security of Australia by assisting law enforcement and security agencies to monitor the whereabouts, activities and associations of a person and intervene early to address any threats to public safety.

Right to privacy - Article 17 ICCPR

90.   Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

 

91.   Subsection 16(10) establishes a number of post-entry conditions requiring the subject of a return permit to notify a specified person or body of their principal place of residence in Australia (including any changes to their principal place of residence within 24 hours), place of employment and/or education in Australia (and changes), contact with specified individuals whether within or outside Australia, use or access to specified forms of telecommunication or other technology and to other specified movements. These conditions engage the right to privacy, however the ICCPR permits specific limitations on privacy where it is lawful and not arbitrary. This Bill clearly prescribes, under law, the conditions that must be met for an individual to be subject to the conditions under 16(10) meaning the measures are clearly lawful.

 

92.   In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ to imply that any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances of any given case.  In this case, the legitimate end is the protection of national security and public safety by preventing a terrorist act, preventing training from being provided to, received from or participated in with a listed terrorist organisation or preventing the provision of support for or the facilitation of a terrorist act and preventing the provision of support or resources to an organisation that would help it engage an activity described in paragraph (a) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code . The conditions specified under a return permit will assist law enforcement and security agencies to monitor the whereabouts, activities and associations of a person and intervene early to address any threats to public safety.

 

93.   The Minister has discretion, to impose one or more of the conditions outlined in section 16 when issuing a return permit.  However, the Minister may not impose a condition or conditions on a return permit unless satisfied that the condition or conditions are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act or preventing the provisions of support for or the facilitation of a terrorist act. [2]

 

94.   The interference with the right to privacy is proportionate to the threat posed by the subjects of a TEO or return permit and appropriately limited with the conditions relate to notification requirements rather than restrictions. For instance, the subjects of a return permit are required to notify specified person or body that they have had contact with specified individuals rather than being restricted from engaging with them altogether.

Right to freedom of expression - Article 19 ICCPR

95.   Article 19 of the ICCPR provides that all persons shall have the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, through any media of a person’s choice. The Bill engages the right to freedom of expression to the extent that the post-entry conditions, especially the requirements to notify of contact with specified individuals or specified movements can indirectly limit freedom of expression.

 

96.   Article 19(3) provides that the right to freedom of expression may be subject to restrictions for specified purposes provided in the right, including the protection of national security or public order where such restrictions are provided by law (that is, set down in formal legislation or an equivalent unwritten norm of common law) and are necessary for attaining one of these purposes.

 

97.   To the extent that the notification requirements in section 16 limit the right to freedom of expression, this is a permissible limitation that is necessary to protect the public order and national security of Australia by supporting law enforcement and intelligence agencies to better identify threats and intervene early to prevent a terrorist act, training from being provided to, received from or participated in with a listed terrorist organisation or the provision of support for or the facilitation of a terrorist act.

Right to freedom of association - Article 22 ICCPR

98.   Article 22 states that everyone shall have the right to freedom of association with others, subject to restrictions prescribed by law and necessary in a democratic society in the interests of a national security or public safety.

 

99.   The Bill engages the right to freedom of association to the extent that the post-entry conditions, especially the requirements to notify of contact with specified individuals or specified movements can indirectly limit the right to freedom of association.

 

100.           Any restrictions to the right to freedom of association is clearly prescribed in this Bill, meaning it is a lawful restriction on the right. To the extent that the notification requirements in subsection 16(10) limit the right to freedom of association, this is a permissible limitation that is necessary to protect the public order and national security of Australia by assisting law enforcement and security agencies to monitor the whereabouts, activities and associations of a person and intervene early to address any threats to public safety.

 

101.           These notification requirements are clearly necessary for the protection of national security and public safety, specifically to enable law enforcement and intelligence agencies to better identify threats and intervene early to prevent a terrorist act, prevent training from being provided to, received from or participated in with a listed terrorist organisation or prevent the provision of support for or the facilitation of a terrorist act.

Right to work- Article 6 ICESCR

102.           Article 6 of ICESCR states that everyone has the right to the opportunity to gain his or her living by work which is freely chosen or accepted. The Bill engages this right to the extent that the post-entry conditions, especially the requirement to provide notification of an individual’s place of employment, may indirectly limit this right by discouraging them from seeking work.

 

103.           The Bill engages the right to work to the extent that the post-entry conditions, especially the requirements to notify the specified person or body of the principal place of employment, can discourage the subject of the control permit from seeking employment. To the extent that the notification requirements in subsection 16(10) indirectly limit the right to work, this is a permissible limitation that is solely for the purpose of protecting the public from a terrorist act and upholding public order and national security. Specifically, the conditions specified under a return permit will assist law enforcement and security agencies to monitor the whereabouts, activities and associations of a person and intervene early to address any threats to public safety.

 

104.           Preserving public safety and national security promotes the general welfare in a democratic society and a permissible limitation on the right to work under Article 4 of the ICESCR. The requirement that the subject of a return permit be required to notify a specified person or body of their place of employment is compatible with the right to employment.

Right to education - Article 13 ICESCR and Article 28 CRC

105.           Article 13 of the ICESCR states that everyone has the right to education and Article 28 of the CRC recognises that children have a right to education. The Bill engages the right to education to the extent that the post-entry conditions, especially the requirements to notify the specified person or body of the principal place of education, can discourage the subject of the control permit from fully participating in educational opportunities.

 

106.           Article 4 of the ICESCR provides that this right may be limited under law and only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. Protecting the public from a terrorist act and upholding public order and national security is central to the general welfare in a democratic society. Any limitation to the right to education is permissible as it promotes the general welfare of society.

 

107.           Where the subject of a TEO is aged between 14 and 17 years of age, subsection 10(4) requires the Minister to have regard to the impact that issuing a TEO would have upon their ability to receive an education. This consideration promotes the child’s right to an education, which is appropriately balanced against the paramount consideration of protecting community safety.

 

Right to participation in cultural life - Article 15 ICESCR and Article 31 CRC

108.           Article 15 of the ICESCR states that everyone has the right to take part in cultural life, enjoy the benefits of scientific progress and benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. Similarly, Article 31 of the CRC states that States shall respect and promote the right of the child to participate fully in cultural and artistic life.

 

109.           However, Article 4 of the ICESCR recognises that it is permissible to limit this right for the purposes of promoting the general welfare in a democratic society. A central aspect of promoting general welfare in a democratic society is protecting the community from the threat of terrorism, including the prevention of a terrorist act, preventing training from being provided to, received from or participated in with a listed terrorist organisation or prevent the provision of support for or the facilitation of a terrorist act. The conditions specified under a return permit will assist law enforcement and security agencies to monitor the whereabouts, activities and associations of a person and intervene early to address any threats to public safety and support national security.

 

Oversight and accountability safeguards

110.           The Bill introduces a range of oversight mechanisms which ensure that where the TEO scheme engages human rights, they are appropriately balanced with national security and community safety interests and any limitations of these rights are reasonable, necessary and proportionate. These oversight measures include the following.

(a)     Requiring the Minister to table an Annual Report in Parliament setting out a range of factors about the operation of the TEO scheme, including the number of TEOs and return permits made and revoked, the nature of return permit conditions and the number of persons subject to a return permit who have entered Australia.

(b)    Enabling the Committee to monitor and review the exercise of powers under the Bill. The Committee is also required to review, by three years after the date of commencement, the operation and effectiveness of the TEO scheme.

(c)     Enabling the Independent National Security Legislation Monitor (INSLM) to review the operation, effectiveness, and implications of the temporary exclusion order scheme on his or her own initiative at any time.

 

111.           Each of these measures enhance the transparency of the TEO scheme and the PJCIS and INSLM reviews ensure that the operation of the TEO scheme is periodically and thoroughly reviewed by an objective third party. They are intended to encourage public scrutiny of the operation of the TEO scheme and protect the human rights that are engaged by the TEO scheme.

Conclusion

112.           This Bill is compatible with human rights, and to the extent that it may limit some human rights, those limitations are reasonable, necessary and proportionate in light of the Bill’s objective and purpose to protect the Australian community.

 

Hon Peter Dutton MP, Minister for Home Affairs

 

 




[1] George v Rockett (1990) 170 CLR 104, 115.

[2] Subsection 330.5(6).