The Committee recommends that the Bill be amended to require the Minister, before making a temporary exclusion order that requires the person to surrender their Australian passport or to be prevented from applying for or obtaining a new Australian passport in accordance with subclause 10(4) of the Bill, to have regard (to the extent that information is available) to
whether the person has a lawful ability to stay in their current location for the duration of the order,
whether the person has a lawful ability to enter a third country (for example, due to holding a passport or residency visa for that third country), and
the likelihood of the person being detained, mistreated or harmed if the person has no lawful ability to stay in their current location, and no lawful ability to enter a third country, for the duration of the order.
While not restricting the ability for the Minister to issue an order, this will ensure the individual circumstances of the person are taken into account, including the likelihood of a person being detained or being unable to escape a dangerous conflict zone to seek safety in a third country.
The Committee recommends that the Bill be amended to require the Minister to give a return permit to a person ‘as soon as practicable’ upon receipt of an application or when a person is to be deported to Australia.
The Committee recommends that the Bill be amended to require the Minister, when imposing or varying the 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 and a holistic basis.
This will more closely align the Minister’s imposition of conditions on a return permit with the matters that a court must have regard to when imposing conditions under the existing control order regime, and also ensure the potential impact of conditions on the children of return permit applicants are taken into account.
The Committee recommends that the Bill’s special requirements in relation to children aged 14 to 17—requiring the Minister, before making a temporary exclusion order or imposing a condition on a return permit, to have regard to the protection of the community as the paramount consideration and the best interests of the person as a primary consideration—be retained.
To enhance these protections, the Committee additionally recommends that, in determining the best interests of the child, the Minister be required to 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 the Criminal Code when determining the bests 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.
The Minister should also be required to give 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.
The Committee recommends that the Bill be amended to require a temporary exclusion order to set out
that the issuing authority is satisfied of the matters mentioned in section 10,
a summary of the grounds on which the order is made, excluding information that is likely to prejudice national security, and
the person’s rights of review in relation to the order and any return permit that is made.
This will align with similar requirements in the Criminal Code in relation to control orders and preventative detention orders.
The Committee recommends that clause 12(5)(a) of the Bill be amended so that the specified period during which a person cannot enter Australia must be no longer than is reasonably necessary to enable authorities to assess the threat posed by the person and make appropriate arrangements for their return.
The Committee recommends that the Bill be amended so that:
subject to the third dot point below, consistent with the preventive detention order regime, a temporary exclusion order may only be issued by an ‘issuing authority’ (being a judge, a retired judge or a senior member of the Administrative Appeals Tribunal) on application by the Minister,
the issuing authority must approve any condition set out in a return permit, and
in respect of urgent situations, the Minister may issue a temporary exclusion order, or impose a condition in a return permit, without the approval of an issuing authority, provided that:
the Minister obtain the approval of an issuing authority for the temporary exclusion order as soon as reasonably practicable, and
if the issuing authority does not approve of the temporary exclusion order, the Minister must immediately revoke the order.
The Committee recommends that the Bill be amended so that:
the circumstances in which the Minister would be required to issue a return permit under paragraph 12(1)(a), and
the form and manner in which a person is required to apply for a return permit
are set out exhaustively in the Bill itself rather than being defined by legislative instrument.
The Committee recommends that section 19 of the Bill be deleted and that the detailed procedures in relation to the issuing of a temporary exclusion order, the revocation of a temporary exclusion order, the revocation and modification of temporary exclusion orders, and return permits be developed and included in the Bill itself.
The Committee recommends that the Bill be amended to clarify that a person may seek judicial review of a decision of the Minister to grant or refuse an application for a return permit.
The Committee recommends that the Bill be amended so that, in any prosecution for a breach of an offence provision under the Bill, the prosecution must prove that the defendant had knowledge of the existence of the temporary exclusion order or of the relevant return permit condition (as applicable).
The Committee recommends that
proposed section 10(2)(a) of the Bill be amended so that the Minister must not make a temporary exclusion order in respect of a person unless the Minister reasonably suspects that
the person is, or has been, involved in terrorism-related activities outside Australia, and
making the order would substantially assist in preventing the provision of support for, or the facilitation of, a terrorist act; and
proposed section 10(2)(b) be deleted.
The Committee recommends that the Bill be amended so that the Minister may not, on the Minister’s own initiative, revoke a return permit unless the Minister has also decided to revoke the temporary exclusion order in respect of which the return permit relates.
To improve transparency and accountability, the Committee recommends that the Bill be amended to require the Minster to table an annual report to the Parliament on the exercise of powers under the temporary exclusion order regime. At a minimum, the report should include
the number of temporary exclusion orders made and revoked,
the number of return permits granted, refused, varied and revoked,
the number of Australian citizens entering Australia under a return permit,
the total number of times each category of pre-entry and post-entry condition has been imposed on a return permit, and
information on any charges laid under the offence provisions of the Bill.
In the event of sensitivities regarding the public release of parts of this information, the classified data should be provided separately to the Parliamentary Joint Committee on Intelligence and Security.
The Committee recommends that the Intelligence Services Act 2001 be amended to provide that it is a function of the Parliamentary Joint Committee on Intelligence and Security to monitor and review the exercise of powers under the Bill.
This will ensure the Committee is able to request briefings and examine issues in a similar manner to its monitor and review functions for other counter-terrorism powers available to law enforcement and security agencies, including control orders, preventative detention orders and police stop, search and seizure powers.
The Committee recommends that the Independent National Security Legislation Monitor Act 2010 (INSLM Act) be amended to include, in the definition of ‘counter-terrorism and national security legislation’, the Act that is created by the Bill.
This will enable 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.
To enhance the Committee’s oversight of the scheme, and consistent with a recommendation of the 2017 Independent Intelligence Review, the INSLM Act should also be amended to enable the INSLM to provide the Committee with a copy of any report at the same time it is provided to the responsible Minister. The INSLM should be empowered to brief the Committee on his or her findings.
The Committee recommends that the Bill be amended to require the Parliamentary Joint Committee on Intelligence and Security to commence a review of the continuing need for the temporary exclusion order scheme within three years of the scheme’s commencement.
The Committee makes this recommendation noting that the Bill is a response to a contemporary issue involving Australian citizens who have participated in or supported the conflict in Syria and Iraq, and seek to return home following the collapse of Islamic State’s territorial control. The statutory review will allow the situation to be reassessed after an initial period of operation to determine whether a temporary exclusion order scheme continues to be necessary.
The Committee recommends that, following the consideration of the other recommendations listed in this report, the Government obtain legal advice from the Solicitor-General, or equivalent, on the constitutional validity of the final form of the Bill.
This recommendation is consistent with a previous recommendation of the Committee that was made in relation to the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016.
The Committee recommends that, following implementation of the recommendations in this report, the Bill be passed by the Parliament.