Title Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
Database Explanatory Memoranda
Date 15-04-2019 12:11 PM
Source House of Reps
System Id legislation/ems/r6311_ems_8d59d6e9-8c8b-4704-8314-69696a5b9ba8


Counter-Terrorism (Temporary Exclusion Orders) Bill 2019

2016-2017-2018-2019

 

 

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) is a stand-alone bill that introduces a temporary exclusion orders 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 Bill is nil.

 


 

statement OF COMPATIBILITY with Human rights

 

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are 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 1­Preliminary

Section1         Shorttitle

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                  A note explains that this table relates only to the provisions of this Act as originally enacted.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 outlines are 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, 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 given to a person who is subject to a temporary exclusion order, by the Minister to return to Australia, under subsections 12(1) or 12(2).

 

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

 

Section5         Act extends to external Territories

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

 

Section 6         Act extends to things outside Australia

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

 

Section 7         This Act binds the Crown

14.              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 2­Temporary exclusion orders and return permits

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

 

Section 8         Entering Australia if a temporary exclusion order is in force

16.              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.  

 

17.              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).

 

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

 

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

19.              Section 9 contains an offence provision.

 

20.              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.

 

(c)    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 TEO. The offences will not capture persons or transport service providers who are unaware and have no knowledge of the fact a TEO is in place in relation to that person.

 

21.              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 if being deported or extradited to Australia.

 

22.              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. 

 

23.              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.

 

24.              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.

 

25.              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

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

 

27.              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

(d)   A return permit is not in force in relation to the person.

 

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

 

29.              Subsection (2) sets out two circumstances under which the Minister may make the temporary exclusion order under subsection (1). 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).

 

30.              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, in order to protect Australians from a potential terrorist act.

 

31.              Subsection 10(3) provides that, where a person is between 14-17 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. The subsection provides additional safeguards for children recognising their particular vulnerability, consistent with Australia’s international obligations, and protection of the Australian community.

 

32.              Subsection 10(4) 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)    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

(d)   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

(e)    specify whether the person to whom the order relates is permitted to apply for an Australian travel document; and

(f)    specify whether the person to whom the order relates is permitted to obtain an Australian travel document; and

(g)   set out the effect of the following sections:

                                               (i)      section 8 (offence to enter Australia without a return permit if a temporary protection order is in force);

                                             (ii)      section 11 (the grounds on which the Minister may revoke the temporary exclusion order);

                                           (iii)      section 12 (the circumstances in which the Minister may give a return permit).

 

33.              The requirements under subsection 10(4) provide transparency about the nature of the order, to the person who is the subject of the order.

 

34.              Subsection 10(5) provides that paragraph (4)(c) does not prevent the Minister from making another temporary exclusion order in relation to the same person. This allows the Minister to issue 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.

 

35.              Subsection 10(6) requires the Minister to take such steps as are reasonable and practicable, in the opinion of the Minister, to bring to the person’s attention the content of the order. 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 service in the circumstances of the person being overseas, including potentially in a conflict zone.

 

36.              Subsection 10(7) 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

37.              Section 11 sets out the grounds upon which the Minister may revoke a temporary exclusion order.

 

38.              Subsection 11(1) provides that the Minister may revoke a temporary exclusion order on application by the person to whom the order relates or on the Minister’s own initiative. This would include circumstances where the Minister considers the grounds for making the order no longer exist, and no other grounds apply which would justify the making of the order.

 

39.              Subsection 11(2) 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.

 

40.              Subsection 11(3) confirms that the revocation of a temporary exclusion order under subsection (1) takes effect when the Minister revokes the order.

 

41.              Subsection 11(4) provides that a temporary exclusion order in relation to a person is taken to be revoked if a return permit is given to the person. Under this subsection, the revocation takes effect immediately after the return permit is given.

 

42.              Subsection 11(5) 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       Giving a return permit

43.              Section 12 sets out when the Minister must give a return permit and the conditions that may attach to it. Subsection 12(1) sets out two circumstances in which the Minister must give a return permit to a person. The first circumstance is where the person has applied to the Minister, in a specified form and manner specified by the rules for the permit. The second circumstance is where the person is to be, or is being, deported to Australia. For clarity, the Minister must give a return permit to a person in these circumstances. This section does not provide the Minister with the discretion to refuse to give a return permit where a person has applied for one. 

 

44.              Subsection 12(2) provides additional discretion to the Minister to give a return permit. Under this subsection, the Minister has discretion to give a return permit if the Minister considers it appropriate to do so. The effect of this subsection is, if neither paragraph 12(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 apply in the prescribed form and manner, the Minister may issue a return permit to allow the person to be evacuated and return to Australia.

 

45.              Subsection 12(3) provides that the Minister may impose one or more conditions set out in subsections (4) or (5) on a return permit.

 

46.              Where the return permit relates to a person between the ages of 14 and 17, subsection 12(4) 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.

 

47.              Subsection 12(5) 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 not end more than 12 months after the permit is given 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 given 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 given to the person;

(d)   that the person enter Australia in a specified manner.

Under this subsection, the Minister has discretion to impose one or more conditions. The subsection also enables the Minister to delay a person’s entry by up to a period of 12 months. At the same time, the person can also request a specific date they wish 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. The ability of the Minister to delay a person’s return to Australia by up to 12 months is necessary is certain circumstances, to enable authorities to assess the threat posed by the person and make appropriate arrangements for their return.

 

48.              Subsection 12(6) sets out the post-entry conditions that may be imposed by the Minister as part of a return permit.  The conditions are not restrictive on the person and are imposed purely to protect the public from a terrorist act, or prevent the provision of support for, or the facilitation of, terrorism or terrorism-related activities.

 

49.              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.

 

50.              The notification requirements under subsection 12(6) facilitate monitoring of persons subject to return permits by law enforcement and security agencies. For paragraph 12(6)(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.

 

51.              Subsection 12(7) 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.

 

52.              Subsection 12(8) sets out the test for imposing conditions under subsections 12(4) or (6). The subsection provides that a condition under subsections 12(5) or (6) can only be imposed on a return permit if the Minister is satisfied that imposing the condition or (if more than one condition is imposed) the conditions taken together are reasonably necessary and reasonably appropriate and adapted, for one or more of the following purposes:

(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, 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.  

 

53.              Under subsection 12(8), the Minister is not required to justify imposing each individual condition. The Minister is only required to be satisfied that the conditions imposed as a whole are reasonably necessary, and reasonably appropriate and adapted for one or more of the listed purposes. 

 

54.              Subsection 12(9) sets out the form and content the permit must take. Under this section, the permit must:

(a)    be in writing; and

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

(c)    specify the period during which the permit is to be 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 for which the condition is in force; and

(f)    set out the effect of sections 13, 14, 15 on travel documents.

 

55.              The requirements under subsection 12(9) ensure the person who is issued with a return permit is presented with a comprehensive permit which sets out their rights and obligations under the Act.

 

56.              Paragraph 12(9)(d) makes it clear that the Minister can choose not to impose any conditions. Paragraph 12(9)(e) also makes it clear that the conditions imposed under subsection 12(6) can be of varying duration. That is, if more than one condition is imposed, each can apply for a different duration, provided the duration does not end after the permit ceases to be in force.

 

57.              Subsection 12(10) requires the Minister to cause a copy of the return permit to be served personally on the person to whom the permit relates.

 

13        Varying and revoking a return permit

 

58.              Section 13 empowers the Minister to make variations to or revoke a return permit. This section sets out the grounds on which the Minister may do this.

 

59.              Subsection 13(1) provides that the Minister may, on the Minister’s own initiative or on application by the person to whom the return permit relates, vary or revoke a return permit.

 

60.              Subsection 13(2) provides the Minister with some flexibility in notifying the person of the variation or revocation of a return permit, in light of the possibility that the person may still be overseas and potentially in a conflict zone at the time. The subsection requires the Minister, as soon as practicable after varying or revoking a return permit under subsection 13(1), to cause such steps to be taken as are, in the opinion of the Minister, reasonable and practicable, to bring to the attention of the person the variation or revocation of the permit. Under this subsection, the Minister could, if the Minister considers it reasonable and practicable, address notice of the variation or revocation of the permit to the person’s principal place of residence or the address the person provided in their application, if the person applied for variation or revocation of the permit.

 

61.              Subsection 13(3) provides that the variation or revocation of a return permit under subsection 13(1) takes effect when the Minister varies or revokes the permit. 

 

14        Consequences for failing to comply with conditions of return permit

 

62.              Section 14 provides a person commits an offence where they fail to comply with the conditions of their return permit.

 

63.              Under this subsection, a person commits an offence if a return permit is in force, the permit sets out conditions imposed under subsection 12(5) or (6), and the person fails to comply with any of the conditions, for instance outside the timeframe specified in the return permit. The maximum penalty for non-compliance with a condition is 2 years’ imprisonment.

 

64.              Subsection 14(2) provides that section 12.5 of the Criminal Code applies to offences against this section. Section 15.2 of the Criminal Code (extended geographical jurisdication­category B) will apply to extend the application of the offence in section 14 to locations outside Australia for Australian citizens and residents.

 

65.              Under this subsection, an example of non-compliance could be where a condition to board a particular flight is imposed and the person enters Australia on a different flight. 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.

 

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

 

66.              Section 15 contains an offence provision.

 

67.              Subsection 15(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) 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.

 

68.  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.

 

69.  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.

 

70.              Subsection 15(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.

 

71.              Subsection 15(2) 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.

 

72.              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.

 

16        Consequences for providing false information or documents

 

73.              Section 16 creates an offence for providing false information in purported compliance with a condition. Subsection 16(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 given 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.  The penalty of 2 years’ imprisonment is appropriate as the provision of false or misleading information constitutes a failure to comply with a condition under a return permit.

 

74.              Subsection (2) however, 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.

 

75.              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 to be absolved of liability under this section.

 


 

Part 3­Other matters

 

Section 17       Exclusion of procedural fairness

 

76.              Section 17 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.

 

Section 18       Interaction with the Australian Passports Act 2005

 

77.              Section 18 clarifies the interaction between this Act and the Australian Passports Act 2005.

 

78.              Specifically, subsection 18(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.

 

79.              Subsection 18(2) provides a person is taken, for the purpose of section 12 of the Australian Passports Act 2005, to be prevented from travelling internationally where a return permit specifies one of the following conditions:

(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

 

80.              This provision was included to ensure users of the legislation are aware of the interaction with the Australian Passports Act 2005.

 

Section 19       Rules

 

81.              Section 19 sets out details of Rules the Minister may make.

 

82.              Subsection 19(1) empowers the Minister to make Rules by legislative instrument.  Under this subsection, the Minister may make rules prescribing matters required or permitted by this Act to be prescribed by the rules, or matters necessary or convenient to be prescribed for the carrying out or giving effect to this Act.

 

83.              Subsection 19(2) limits the breadth of matters the Minister may make rules about under subsection 19(1). Subsection 19(2) clarifies that the Minister may not make rules that:

(a)    create an offence or civil penalty;

(b)   provide powers of:

                                               (i)      arrest or detention; or

                                             (ii)      entry, search or seizure;

(c)    impose a tax;

(d)   set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e)    directly amend the text of this Act.


 

Attachment A

 

Statement of Compatibility with Human Rights

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

 

Criminal Code Amendment (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 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 an Australian citizen from overseas conflict zones. The Temporary Exclusion Order (TEO) scheme will enable greater control over the return of these Australians by providing a streamlined mechanism to impose conditions, specifically notification requirements, and facilitate the monitoring of the individuals who may pose a threat to the Australian community.

 

3.      The scheme comprises two key components. The first is to control the return of individuals who may pose a threat to Australia. The 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.

 

4.      The second aspect of the scheme is to enable the Minister to impose conditions on the individual once they have returned to Australia to manage the risk they may pose to the community. The conditions specified under a return permit will assist law enforcement and security agencies to monitor the whereabouts, activities and associations of a person, by requiring the person to provide timely notification to authorities and enable them to intervene early to respond to a threat to public safety.

 

5.      The Bill introduces a number of measures which supports 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. Subsection 9(2) provides the offence in subsection (1) does not apply if the second person is being deported or extradited to Australia. This offence carries a maximum penalty of two years imprisonment.

 

6.      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, an Australian citizen, at least 14 years of age and a return permit is not in force in relation to that person. 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

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

 

7.      Secondly, 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.

 

8.      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.

 

9.      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.

 

10.  Subsection 11(4) states that a TEO in relation to a person is taken to be revoked if a return permit is given to that person. The revocation takes effect immediately after the return permit is given.

 

11.  Section 12(1) provides that where a TEO is in force, the Minister must give a return permit to the relevant person if that person applies in a specified form and manner or if satisfied the permit should be given to facilitate the deportation of that person to Australia. This section does not provide the Minister with the discretion to refuse to give a return permit where a person has applied for one. 

 

12.  Subsection 12(2) clarifies that where a TEO is already in force in relation to a person, the Minister may give a return permit if they consider it appropriate to do so. This provision is intended to provide the Minister with a discretion to authorise their controlled return to Australia in circumstances where it is suitable to do so, for instance where the individual’s application has not complied with relevant form and manner requirements.

 

13.  Relevantly, sections 10(1) and 12(4) 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.

 

14.  The return permit sets out conditions for the individual’s entry into Australia (‘pre-entry conditions’) and remaining in 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 given 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 given 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 given to the person;

d.      that the person enter Australia in a specified manner, for example on a particular date and flight.

 

15.  Subsection 12(6) sets out a range of post-entry conditions that the subject of a return permit may be subject to. They involve the person:

a.       notifying a specified person or body of their principal place of residence in Australia

b.      notifying a specified person or body of any changes in the principal place of residence in Australia within 24 hours

c.       notifying a specified person or body of their principal place of employment in Australia

d.      notifying a specified person or body of any changes in the principal place of employment in Australia within 24 hours

e.       notifying a specified person or body of their principal place of education in Australia

f.       notifying a specified person or body of any changes in the principal place of education in Australia within 24 hours

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

h.      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;

i.        notifying a specified person or body of intentions to leave, or travel outside Australia

j.        notifying a specified person or body of access or use, or intentions to access or use,  specified forms of telecommunication or other technology;

k.      notifying a specified person or body of intentions to apply for an Australian travel document;

l.        if the person has an Australian travel document – that it must be surrendered 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

 

16.  Subsection 12(7) 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.

 

17.  When imposing one or more of pre-entry or post-entry conditions, subsection 12(8) 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

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.

 

18.  Subsection 12(10) requires the Minister to cause a copy of the return permit to be served personally on the person to whom it relates.

 

19.  Subsection 13 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. The Minister must cause such steps, as soon as reasonably practicable, as are reasonable and practicable to bring to the attention of the person the variation or revocation of the return permit.

 

20.  Subsection 14 creates new offences for failing to comply with pre-entry and post-entry conditions. Both offences carry a maximum penalty of two years’ imprisonment.

 

21.  Section 15 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 15(2) provides this offence does not apply if the second person is being deported or extradited to Australia. The penalty for this offence is 2 years imprisonment.

 

22.  Section 16 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.

 

23.  Section 17 of this Bill states that the Minister is not required to observe any requirements of procedural fairness in exercising a power under this Bill. Procedural fairness requirements, specifically enabling the potential subject of a TEO to respond to allegations made against them, can frustrate the policy intention of this Bill by providing advance notice that they are being considered for a TEO. Such a requirement may also be practically difficult to implement in circumstances where that individual is overseas, potentially in conflict zones.

 

24.  Section 18 clarifies the interaction between the provisions of this Bill and the Australian Passports Act 2005. Specifically, section 17 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.

 

25.  Section 19 states that the Minister may, but legislative instrument, make rules that prescribes matters required or permitted by this Bill or necessary or convenient for carrying out or giving effect to this Bill.

Human rights implications

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

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

 

27.  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.

 

28.  This is reflected in section 12(1) of the Bill, which requires that the Minister must give a return permit to a person subject to a TEO if the subject has applied to the Minister for a return permit, or the Minister is satisfied the permit should be given to the person to facilitate the deportation of the person to Australia. The Minister also retains a broad discretion under section 12 if he or she considers it appropriate to do so. This ensures that an Australian’s controlled return to Australia can be facilitated even if they are unable to comply with form requirements.

 

29.  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 and is predictable, and is justified by being reasonable, necessary and proportionate. Further, the Minister cannot make a TEO unless they suspect on reasonable grounds that making the order would substantially assist in one of the purposes listed in s 330.3(2)(a) or that the person has been assessed by ASIO to be direct or indirect risk to security for reasons related to politically motivate violence. Importantly, the Minister must issue a return permit upon application, which facilitates that Australian’s controlled return within 12 months.

 

30.  Additionally, for persons between 14 and 17 years of age the Minister must, before making a TEO in relation to that person 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.

 

31.  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]

 

32.  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. 

 

33.  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.

 

Right relating to the family unit – Article 17 and 23 ICCPR 

34.  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.

 

35.  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.

 

36.  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.

 

37.  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 Australia’s national security, or in circumstances where a TEO would 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.

38.  Overall, the TEO scheme is designed to manage threats posed by individuals who have been in or supporting conflicts overseas, leave the conflict zone and seek to return to Australia. To the extent that the rights of a TEO subject’s family members to non-interference with privacy or the family 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.

39.  Where a person subject to a TEO applies for a return permit, the Minister must give a return permit to the TEO subject to manage their return to Australia. This ensures that any limitations on the rights to a family unity are limited as required to protection national security and public order without amounting to a permanent restriction on the rights relating to the family unit.

The best interests of the child - Article 3 CRC

40.   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.

41.  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.

42.  Australia is required to take into account the best interests of the child as a primary consideration, not the only primary consideration. Where a child is 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

43.  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.

 

44.  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.

45.  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. 

46.  However, 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

 

  1. 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.

48.  Section 17 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.

 

49.  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

50.  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.

 

51.  Rather than imposing restrictive conditions on the subject of the TEO upon their entry to Australia, subsection 12(6) imposes notification requirements of conditions 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.

 

52.  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

53.  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.

54.  Section 17 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. This limitation on the fair trial and fair hearing rights is necessary and proportionate in the circumstances, given the complexity and fluidity of the present threat environment and the need for law enforcement and intelligence agencies to flexibly respond to the threats posed by Australians returning from conflict zones overseas. Procedural fairness requirements, specifically enabling the potential subject of a TEO to respond to allegations made against them, can frustrate the policy intention of this Bill by providing advance notice that they are being considered for a TEO and may be practically difficult to implement in circumstances where that individual is overseas, potentially in conflict zones.

55.  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

56.  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.

 

57.  Rather than imposing restrictive conditions on the subject of the TEO upon their entry to Australia, subsection 12(6) 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 12(6) limit the right to freedom of movement, this 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

58.  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.

 

59.  Subsection 12(6) 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 12(6) meaning the measures are clearly lawful.

 

60.  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.

 

61.  The Minister has discretion, to impose one or more of the conditions outlined in section 12(6) when issuing a return permit.  However, the Minister may not impose relevant conditions on a return permit unless satisfied that it is 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]

 

62.  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

63.  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.

 

64.  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.

 

65.  To the extent that the notification requirements in section 12(6) limit the right to freedom of expression, this 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

66.  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.

 

67.  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.

 

68.  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 section 12(6) limit the right to freedom of association, this 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.

 

69.  They 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

70.  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.

 

71.  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 section 12(6) indirectly limit the right to work, this 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.

 

72.  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 of the CRC

73.  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.

 

74.  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.

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

75.  Article 15 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.

 

76.  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.

Conclusion

77.  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).