The following key issues were raised during the Committee’s review of the Bill:
the necessity of and rationale for a TEO scheme,
the constitutional validity of the Bill,
comparisons to similar powers, including the United Kingdom’s TEO scheme and the Australian control order regime,
the absence of judicial authorisation under the proposed TEO scheme,
matters in relation to the threshold test for the making of a TEO,
matters in relation to return permits issued under the TEO scheme,
the exclusion of procedural fairness, and limitations on the ability to seek independent review,
the relationship between the Bill and Australia’s international obligations, including in relation to the right to enter one’s own country and the rights of children,
the offence provisions included in the Bill, and
accountability and oversight measures.
These issues are considered below, along with the Committee’s comments and recommendations.
Necessity and rationale
The Government’s rationale for introducing the Bill was outlined in Chapter 1.
Several contributors to the inquiry, all of whom opposed passage of the Bill, questioned the utility and the necessity of the proposed TEO scheme. For example, the Australian Human Rights Commission submitted that the new powers in the Bill did not appear to ‘fill a gap in Australia’s national security protection’. The Commission considered that ‘the claimed necessity for the Bill must be assessed in light of the many powers already in force which allow security and law enforcement agencies to mitigate risk to the community’, including
the cancellation of passports of persons who travel abroad,
investigation and prosecution of people suspected of engaging in foreign conflicts or terrorist conduct,
warrants to conduct surveillance of persons reasonably suspected of posing a risk to security,
warrants to investigate people reasonably suspected of engaging in criminal conduct, and
control orders obtained under Division 104 of the Criminal Code.
At the public hearing, the Department of Home Affairs explained:
The situation now is very different to the situation four years ago. The caliphate has diminished, the last of the fighting is about to end and the foreign fighters are now in a position where they are looking to return. So it is a very different situation. This is a new tool that we are looking to bring in to manage, in a controlled way, the return of some very dangerous people that will come back to Australia.
The Department noted that agencies do not currently have tools to manage the return of foreign fighters, unless they have the evidence ‘right now’ to be able to prosecute. The Bill would enable authorities to
manage their return and control their return to allow law enforcement and security agencies the ability to manage them appropriately and gather the evidence that they may need to put in place prosecution control orders, for example, so that they do not pose a threat when they’re in Australia.
The Department added that, currently, such persons may return to Australia with ‘very little notice’.
While it is ultimately up to the High Court of Australia to determine the constitutional validity of any legislation, the Parliament has a responsibility to ensure that the legislation it passes accords with the Constitution and is considered to be able to withstand challenge.
Several participants in the inquiry suggested that the Bill, as introduced, may be vulnerable to challenge on constitutional grounds. These grounds may be summarised as follows:
The requirement for a person subject to a TEO to obtain a return permit from the Minister, which may prevent the person from being allowed to return to Australia for up to 12 months, could conflict with the constitutional ‘right of abode’ for Australian citizens.
The issuing of a TEO by the Minister, without any requirement for judicial authorisation, could be considered an Executive exercise of judicial power, in breach of the constitutional separation of powers.
At the public hearing, the President of the Law Council of Australia, Mr Arthur Moses SC, added that the Bill may be unconstitutional because of the precedent it would set:
The High Court, in our view, has said that such a power does not exist for the executive to stop an Australian citizen returning home, and there is good reason for that. If you look to proposed section 10(2), it could be misused. You can take out the word ‘terrorism’ and put in there ‘Muslim’ or ‘Jew’ or a reference to a former member of the ADF who was fighting in a particular zone. At the fiat of the executive, a citizen of this country could be deprived entry. That is not constitutional.
In responding to these concerns, the Department of Home Affairs indicated that it had received advice from the Solicitor-General in relation to the constitutionality of the Bill. The Department declined to provide a copy of that advice, or a summary of the advice, in writing. However, at the public hearing, the Department indicated that the ‘better argument’ in relation to separation of powers was that ‘there is not a constitutional problem’; and noted that the constitutional right of abode is ‘not a right that can’t be modified by statute’. The Department did not indicate whether – in the view of the Solicitor-General – the Bill infringed the constitutional right of abode. Government members of the Committee note that the Department did not regard the provision of this information as within its role.
The Department advised that ‘defence’ and ‘foreign affairs’ are the constitutional heads of power for the exclusion components of the Bill, and ‘defence’ is the head of power for the obligations component.
Comparison to similar powers
The United Kingdom temporary exclusion order scheme
The TEO scheme proposed in the Bill is intended to be based upon the existing TEO scheme in the United Kingdom (UK), which was introduced in 2015. A table comparing the existing UK scheme and the proposed Australian scheme is included at Appendix C.
Some participants in the inquiry commented on differences between the UK scheme, which requires the permission of a court for a TEO be made, and the proposed Australian scheme, which has no such requirement. The Australian Human Rights Commission drew attention to the UK scheme as an example of how the Bill—if the Parliament did not accept the Commission’s recommendation that it not be passed—could be ‘redrafted in [a] way that would impinge on human rights to a significantly lesser extent’.
A number of differences between the existing UK scheme and the proposed Australian scheme are discussed in more detail below.
Commenting on the differences between the two schemes, the Department of Home Affairs advised:
The TEO scheme proposed in this Bill has been developed with Australia’s unique security environment and domestic legal settings in mind. Certain provisions, such as the exclusion of persons under the age of 14 years old, are modelled on existing preventative counter-terrorism tools (such as control orders).
The control order regime
The TEO scheme in the Bill shares a number of features with the existing control order regime in Division 104 of the Criminal Code, including similarly worded threshold tests for the making of an order and imposition of conditions, and similar age limits and protections for children. However, the proposed scheme is also different in many ways, including in relation to judicial oversight and review, the way in which the threshold test is applied to conditions, police monitoring powers and transparency mechanisms. A table comparing the two regimes is included at Appendix D.
Some of these differences were commented on by submitters to the inquiry. These matters are addressed in more detail in the discussion below.
Judicial authorisation for a TEO
As outlined in Chapter 1, the Bill proposes that a TEO will be made through a decision of the Minister, subject to certain conditions being met. The Bill does not include a role for the judiciary in making or authorising a TEO to be made, or in the imposition of conditions on a return permit.
Several participants in the inquiry raised concern about the degree of power the Bill vested in the Executive, and expressed their preference for a judicial or otherwise independent decision-maker. The Law Council of Australia and the Australian Human Rights Commission, for example, recommended that TEOs be made by a court rather than the Minister.
At the public hearing, the Department of Home Affairs gave the following rationale for the Bill’s lack of requirement for judicial authorisation:
The bill has been drafted with a ministerial discretion rather than a judicial discretion so that it sets itself apart from the processes that we have got, for example, under the control order regime, which is a time-consuming and resource-intensive process. This is intended to cover the period when people are in another jurisdiction for a shorter period after their arrival into Australia. The necessity to have judicial decision-making processes involved in that wasn’t seen as necessary.
Dr Rebecca Ananian-Welsh, Dr Jessie Blackbourn and Dr Nicola McGarrity considered that
the strict separation of powers under the Commonwealth Constitution is likely to prohibit a federal court from issuing a TEO in the absence of a full hearing, which is not a practicable option in the circumstances.
As their primary recommendation, Ananian-Welsh et al recommended that the Minister be required to apply to a retired judge for a TEO, similar to the existing requirements for preventative detention orders and ASIO questioning and detention warrants. As an alternative, they recommended a retired judge be required to confirm the decision of the Minister, applying the principles applicable on an application for judicial review.
Threshold test for making a TEO
As noted in Chapter 1, the Bill provides that the Minister will be able to made a TEO on either of two grounds. In summary:
the Minister suspects on reasonable grounds that the order would substantially assist in preventing a terrorism-related act from occurring (proposed section 10(2)(a)), or
the person has been assessed by ASIO to be (directly or indirectly) a risk to security for reasons related to politically motivated violence (proposed section 10(2)(b)).
The two grounds are intended to be ‘mutually exclusive’, meaning that the Minister may issue a TEO in the absence of an ASIO assessment.
Orders made on the basis of Minister’s suspicion
A number of submitters expressed concern about the breadth of the grounds upon which a TEO could be issued under proposed section 10(2)(a). These concerns included:
the lack of a requirement for the Minister to suspect wrongdoing on the part of the individual, in contrast to the UK scheme which requires the person to suspected of having been involved in terrorism-related activity while abroad,
the lack of requirement for the person to have fought in or travelled to a conflict zone or a ‘declared area’, or to have joined or associated with a terrorist organisation while abroad,
the ‘broad scope’ and ‘speculative nature’ of the grounds, and their potential application to persons who have never been convicted of an offence,
the ability for a TEO to be issued on the basis of only the suspicion of the Minister (on reasonable grounds).
At the public hearing, the Department of Home Affairs explained that the Minister would rely on information from both law enforcement and security agencies in making his or her decision. The Department considered that it was necessary for the Minister to be able to act without a formal ASIO assessment due to the timeframes that may be involved:
[N]ot every single individual offshore has indeed been assessed in a formal way by ASIO. The time frames associated with the return of an individual we are trying to manage here—this is about managing persons and not having them turn up at our doorstep in a limited time, which results in the lack of an ability to actually manage them whilst they’re onshore—can mean in some circumstances that the minister will have to rely upon information which is before him in relation to law enforcement and ASIO as opposed to it being a formal assessment that has been put together by ASIO specifically in relation to the purpose of the TEO, which could create some delays. I think it’s about providing flexibility to the minister and to the regime to be able to react in relation to what might be somewhat urgent circumstances.
The Department further explained that the lack of a requirement for the Minister to suspect that the person was involved in a criminal offence was due to the ‘limited information that can be in place, in relation to individuals who are largely operating offshore, in a conflict zone’. It added that the TEO scheme was a ‘forward-looking’ regime that concerned ‘managing future risk’, although a person’s past acts may be relevant.
The Australian Federal Police (AFP) noted the challenges of obtaining evidence from conflict zones and translating intelligence information into an evidentiary format. The AFP explained that the scheme would not be used for the 28 Australians overseas who were already subject to arrest warrants. However, in cases where they did not have an arrest warrant, managing the return of individuals would give the AFP ‘some latitude and some time to assess what evidence we can and determine whether or not we can issue an arrest warrant in relation to that person’.
Orders made on the basis of an assessment by ASIO
The second of the two grounds upon which a TEO could be issued mirrors language used in the ‘character test’ for the refusal or cancellation of the visa of a non-citizen under section 501 of the Migration Act 1958.
Ananian-Welsh et al argued that the Bill’s extension of the character test to Australian citizens ‘ignores the particular legal position of citizens, in terms of their rights and the reciprocal responsibilities of the State’. They also noted procedural issues, including that ASIO: would ‘not be required to be satisfied to a particular standard of proof’; would be able to take into account information that would not satisfy ‘traditional evidentiary rules’; and would not be required to disclose the reasons for the decision, or the information upon which it is based, to the affected person. Ananian-Welsh et al therefore recommended that the TEO scheme be limited to the first basis (Minister’s suspicion on reasonable grounds).
The Law Council of Australia suggested that the option in the Bill for the Minister to rely on an assessment by ASIO would amount to the Minister ‘rubberstamping what ASIO says about something without even checking it’.
In contrast to the character test in the Migration Act 1958, the Bill and its Explanatory Memorandum are silent as to whether an assessment by ASIO under proposed section 10(2)(b) would be considered a formal ‘security assessment’ under the ASIO Act. In its submission, however, the Department of Home Affairs advised that the assessment by ASIO would not constitute a ‘security assessment’, as ‘the making of a TEO is not prescribed administrative action’. The Department added:
If ASIO provides intelligence/advice in relation to the making of a TEO, this will be a communication under Part III of the ASIO Act, rather than a security assessment under Part IV of the ASIO Act.
The Inspector-General of Intelligence and Security suggested that this aspect of the Bill would ‘benefit from greater clarity’.
The Inspector-General observed that the grounds for issuing a TEO under proposed paragraph 10(2)(b) ‘encompasses a wider range of activities than the terrorism activities set out in proposed paragraph 10(2)(a)’. She noted that while neither the Bill nor its Explanatory Memorandum directly address whether a ‘security assessment’ is required to be furnished, if there was no such requirement then the advice provided by ASIO to the Minister would not be subject to review by the Administrative Appeals Tribunal. The Inspector-General considered that this ‘could create a disparity in the way that advice by ASIO is provided in relation to Australian citizens in other contexts, such as under the Australian Passports Act 2005’.
At the public hearing, the Inspector-General also observed that, as there was no proposed exemption from the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) for the Act created by the TEO Bill, the assessments made by ASIO for the purpose of proposed section 10(2)(b) may be subject to judicial review under that Act. This would differ from security assessments made under the ASIO Act, which are exempt from the ADJR Act. Security assessments under the ASIO Act are instead subject to review by the security appeals division of the Administrative Appeals Tribunal using standing special procedures.
In a supplementary submission, the Department of Home Affairs confirmed:
If ASIO advice is relevant in an application for judicial review, ASIO would claim public interest immunity over all classified information to protect the information from disclosure.
Effect of an order on individual circumstances
Some participants in the inquiry raised concerns as to the effect that the making of a TEO may have on an individual in their current circumstances overseas. These concerns included:
that a person subject to a TEO may be required to surrender their Australian travel document, and be prevented from subsequently applying for or obtaining such a document. If the person did not have a passport issued by another country, they would be ‘effectively trapped’ for extended periods in their current location, which may be a dangerous conflict zone, and
that the person may be ‘forced to remain in a country where they are not entitled to stay, or where they are not safe’. Such a person may be subject to ‘detention, mistreatment or harm resulting from unrest in the country they are in’.
The Law Council of Australia recommended that there be a requirement for the person to have citizenship or residency status, or other permission to be in a different country for the duration of the order.
In response to a written question on this matter, the Department of Home Affairs advised that the rules developed for the purpose of the TEO scheme ‘will provide additional clarity regarding how the Minister may take into account the person’s individual circumstances’. The Department also advised:
A person located in a foreign country is subject to the laws and practices of that jurisdiction. The TEO scheme does not prevent foreign governments from deporting individuals subject to a TEO and a return permit must be granted in that circumstance. Nor does it prevent a person from seeking the assistance of, or refuge in, another country.
Ongoing or periodic review by the Minister
Ananian-Welsh et al pointed out that, unlike the UK’s TEO scheme, there is no requirement for the Minister to ‘keep under review’ whether a TEO continues to be necessary to protect the public from the risk of terrorism. They recommended that a similar provision be included in the Bill.
The Australian Human Rights Commission similarly recommended that the Minister be required to ‘review periodically’ any TEO, and the conditions imposed on any return permits, to determine whether they remain necessary and proportionate.
Addressing why the TEO Bill does not include a requirement for the Minister to ‘keep under review’ whether a TEO remains necessary, the Department of Home Affairs pointed to proposed section 11 in the Bill, which provides that
the Minister may, on the Minister’s own initiative or on application by the person to whom the order relates, revoke a TEO at any time. The purpose of this section is to take into account situations where the person’s circumstances change, including when the security risk posed by the person no longer exists.
The Bill states that the Minister must give a person a return permit if the person has ‘applied to the Minister, in a form and manner specified by the rules for the purposes of this paragraph, for the permit’.
The Law Council of Australia expressed concern that ‘the circumstances in which the Minister would be required to issue a Return Permit under proposed paragraph 12(1)(a) would defined by legislative instrument’. It considered that the requirements ‘would be more appropriately set out in the Bill’.
The Department of Home Affairs argued that it is ‘not uncommon’ for the form and manner of an application to be prescribed in legislative instrument, and this ‘provides for greater flexibility than prescription under the primary legislation, while ensuring parliamentary oversight through the ability to disallow the legislative instrument’. The Department added:
The rules in relation to subsection 12(1) will balance the requirement for the person to provide sufficient information to inform the giving of a return permit and any condition that may be imposed, with the practical realities which may apply to a person offshore, including a person located in a conflict zone.
The rules will take into account the varying circumstances of persons who may apply for a return permit, including:
the location of the person offshore
the person’s ability to access communications
any representatives of the person (e.g. family or legal representatives), whether in Australia or overseas, and
any security concerns and implications, including for Australian mission staff.
The Department also noted that the Minister will have the discretion, under subsection 12(2), to issue a return permit in circumstances where a person has not applied for one in the proper manner—for example, due to urgent circumstances or limited access to communication.
Timeframe for return
The Bill does not specify the timeframe within which a return permit must be issued by the Minister on receipt of a valid application.
The Bill enables the Minister to impose a pre-entry condition on a return permit that specifies that the person must not enter Australia during a specific period, which must not end more than 12 months after the permit is given to the person. Alternatively, the permit may require entry on a specified date, or within a specified period, which must not be later than three months after the permit is given to the person.
These provisions are in contrast to the UK’s TEO scheme. Under the UK scheme, the Home Secretary must issue a permit to return within a ‘reasonable period’ of the application being made. Further, the time at which (or period within which) the person is permitted to return ‘must fall within a reasonable period after the application is made’—although an ultimate time limit is not specified.
Ananian-Welsh et al recommended that the Bill include an equivalent provision for a return permit to be issued within a ‘reasonable time’, and that in the case of a person being deported to Australia, that the permit be required to be issued ‘as soon as practicable’. Ananian-Welsh et al further recommended that the return time in the permit be required to be ‘as soon as practicable’, with the ultimate time limit (12 months) retained.
Threshold test for conditions
As noted in Chapter 1, the Bill proposes that when imposing pre-entry or post-entry conditions on a return permit, the Minister must be satisfied that the imposition of the conditions is ‘reasonably necessary, and reasonably appropriate and adapted’ for the purpose of preventing terrorism-related acts from occurring.
This test is similar to the test applied by a court in assessing each of the obligations, prohibitions and restrictions to be included in a control order. However, unlike the equivalent provisions in the control order regime, the Bill requires the Minister to reach this level of satisfaction in relation to the conditions ‘taken together’, rather than assessing each one individually. The Bill also does not include an equivalent to the requirement in the control order regime for the court to consider ‘the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances)’.
The Department of Home Affairs referred to the requirement in the TEO Bill as a ‘holistic assessment’ of the conditions. It noted, as an example, that
a range of notification requirements taken together may be effective in preventing support for terrorism, whereas one requirement by itself may not be very effective. However, a range of notification requirements may also be burdensome for the person to comply with. The holistic assessment ensures that the conditions imposed are proportionate in addressing the risks posed by the person.
The Law Council of Australia recommended that the Minister be required to justify each individual condition as reasonably necessary, appropriate and adapted. The Australian Human Rights Commission recommended that no conditions be imposed unless they are individually and collectively demonstrated to be necessary and proportionate to the Bill’s objectives.
In written response to these concerns, the Department of Home Affairs advised that
[i]n determining whether conditions imposed under a return permit are reasonably appropriate and adapted, the Minister would consider the overall impact on a person’s individual circumstances of imposing any requirements.
… A requirement that the Minister separately consider the impact of each individual condition on a person’s individual circumstances is unlikely to make a significant difference, as the range of conditions that may be imposed on a return permit are significantly less restrictive and onerous than the conditions which may be imposed under a control order.
In its response, the Department’s focused on consideration of the impact of post-entry conditions (such as notification requirements) on individuals, but did not address the consideration of the impact of pre-entry conditions (such as the period in which the person—and any dependents—may be prevented from returning to Australia).
In some respects, the UK’s TEO scheme enables a narrower range of obligations to be imposed upon person upon their return. For example, while the UK scheme may require a person to notify police of changes to their place of residence, the Australian scheme provides for a broader range of notification requirements including changes to the person’s place of employment or education, use of specified forms of technology, contact with specified individuals, and any planned interstate or overseas travel.
However, under the UK scheme, a permit to return may also include a requirement for the person to ‘to attend appointments with specified persons or persons of specified descriptions’ and to ‘comply with any reasonable directions given by the Secretary of State that relate to matters about which the individual is required to attend an appointment’.
Ananian-Welsh et al noted that such appointments may include a religious or other counsellor conducting a de-radicalisation program. They recommended that a similar provision be included in the Bill in order to ‘actively assist in the reintegration of returnees to Australia’.
In its response to this matter, the Department of Home Affairs did not address why the TEO scheme differed from the UK scheme, but noted that
[a]n obligation to participate in counselling or education (subject to the person’s agreement) is already provided for under the control order regime.
Procedural fairness and review of decisions
As noted in Chapter 1, proposed section 17 of the Bill expressly provides that the Minister is not required to observe any requirements of procedural fairness in exercising a power under the TEO scheme. The Bill’s Statement of Compatibility with Human Rights indicates that procedural fairness requirements which enable the potential subject of a TEO to respond to allegations made against them
can frustrate the policy intention of the 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.
Procedural fairness is a common law duty that is similar to, and often used interchangeably with, natural justice. According to the Australian Law Reform Commission, procedural fairness traditionally involves two requirements: the fair hearing rule and the rule against bias:
The hearing rule requires a decision maker to afford a person an opportunity to be heard before making a decision affecting their interests. … The rule against bias ensures that the decision maker can be objectively considered to be impartial and not to have pre-judged a decision.
The Commission notes that the content of the rule against bias is ‘flexible, and determined by reference to the standards of the hypothetical observer who is fair minded and informed of the circumstances’. The fair hearing rule ‘varies according to statutory context’, but generally requires:
Prior notice that a decision that may affect a person’s interests will be made. This has been referred to as a ‘fundamental’ or ‘cardinal’ aspect of procedural fairness.
Disclosure of the ‘critical issues’ to be addressed, and of information that is credible, relevant and significant to the issues.
A substantive hearing—oral or written—with a reasonable opportunity to present a case. Whether an oral hearing should be provided will depend on the circumstances. The ‘crucial question is whether the issues can be presented and decided fairly by written submissions alone’. In some circumstances, there may be a duty to allow a person to be legally represented at a hearing.
In response to a written question, the Department of Home Affairs confirmed that its concerns about procedural fairness were limited to requirements that may alert a person to the Minister’s intention to make a TEO, as well as ‘practical difficulties’ that may ‘impact on the Minister’s ability to make a TEO urgently to prevent a person from returning to Australian without adequate forewarning’. The Department did not raise concerns about any requirements for the Minister to act without bias, for the person to be informed about the grounds upon which the TEO was issued, or for the person to make representations to the Minister or initiate judicial review after the issue of an order.
The proposed exclusion of procedural fairness from the Minister’s powers under the TEO scheme is similar to existing provisions in the Migration Act 1958, under which rules of natural justice do not apply to the Minister’s refusal or cancellation of visas on character grounds.
A number of participants in the inquiry expressed concern about the Bill’s exclusion of procedural fairness. The Australian Human Rights Commission noted, for example, that excluding procedural fairness means the Minister
does not have to allow a person an opportunity to make representations about any decision, or proposed decision, under these provisions, including about whether any material the Minister relies on is accurate,
does not have to provide an affected person with all relevant information, and
does not have to act without bias.
The Law Council of Australia suggested that if the policy intention of the Bill will be ‘frustrated’ without the exclusion of procedural fairness, then ‘this indicates that the desired policy settings are not compatible with the rule of law’.
Judicial and merits review
Despite the Bill’s exclusion of procedural fairness, a person who is the subject of a TEO or return permit will still have access to judicial review.
Judicial review is concerned with the lawfulness of a decision, and differs from merits review which is concerned with a person or body—other than the primary decision maker—considering the facts, law and policy underlying the original decision, and substituting a fresh decision where the new decision is correct or preferable.
The Department of Home Affairs advised:
Review may be sought by filing proceedings for judicial review in the Federal Court or High Court or by making an application for review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) in the Federal Court or Federal Circuit Court.
The ADJR Act provides that a person who is ‘aggrieved by a decision’ to which the Act applies may apply to the Federal Court or the Federal Circuit Court for judicial review of the decision on any one or more of the following grounds:
that a breach of the rules of natural justice occurred in connection with the making of the decision,
that procedures that were required by law to be observed in connection with the making of the decision were not observed,
that the person who purported to make the decision did not have jurisdiction to make the decision,
that the decision was not authorized by the enactment in pursuance of which it was purported to be made,
that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made,
that the decision involved an error of law, whether or not the error appears on the record of the decision,
that the decision was induced or affected by fraud,
that there was no evidence or other material to justify the making of the decision,
that the decision was otherwise contrary to law.
Ananian-Welsh et al noted that, notwithstanding that there is a constitutionally-mandated ‘minimum standard judicial review’ on the basis of ‘jurisdictional error’, a person subject to a TEO would ‘face considerable practical hurdles’:
These include the breadth of the criteria upon which the Minister’s decision is made, the need to establish grounds of review despite having limited or no information as to the reasons for the decision, and procedural fairness being excluded as a potential ground of review.
The Law Council of Australia similarly submitted that the opportunity for judicial review for a person subject to a TEO would be ‘limited and inadequate’. Specifically, the Law Council noted that
the person will be outside of Australia when the order is made and prevented from returning to Australia to access judicial review, to seek legal advice or to obtain support from family members;
the Minister’s powers are extensive in scope, broadly defined and concern matters of national security upon which the courts have little choice but to defer to the Executive and its agencies;
TEOs are not subject to procedural fairness guarantees or any other safeguards or prescribed criteria that could be relied upon by an applicant to challenge a TEO; and
the person subject to a TEO is not entitled to reasons and, even if information was requested, meaningful information is unlikely to be provided because of claims concerning the impact on national security.
The Law Council and the Australian Human Rights Commission both recommended that the Bill be amended to include procedural fairness requirements, and to enable merits review of the decision to issue an order.
Ananian-Welsh et al recommended that the Bill be amended to require that a person subject to a TEO
be informed not only of the content of a TEO, but also of their rights of review, including the process and requirements involved, and the grounds of the order—to the extent permitted by national security.
It should be noted that the existing control order and preventative detention order regimes in the Criminal Code require a summary of the grounds on which the order is made to be set out in the order. Information is not required to be included in the summary if it is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
In response to written questions, the Department of Home Affairs advised:
A person subject to a TEO may apply for reasons for decision under section 13 of the ADJR Act. The reasons may not contain some information if the Attorney-General certifies that disclosure of information would be contrary to the public interest. Preliminary discovery may be sought under the Federal Court Rules, with access to sensitive information governed by such orders as the court may make on application by the Commonwealth.
The Department added that, for both TEOs and return permits, a person may apply to the Minister seeking revocation of a TEO:
Under administrative law, the Minister must take into account any information provided by the person in support of an application for variation or revocation. The Minister’s decision is subject to judicial review.
Right to enter one’s own country
Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) provides that ‘no one shall be arbitrarily deprived of the right to enter his own country’.
The Bill’s Statement of Compatibility with Human Rights emphasises that the proposed TEO scheme would ‘not exclude the subject of a TEO from entering Australian permanently’, as the Minister must give a return permit to a person who applies. The Statement also stresses that any limitation to an individual’s right to enter Australia is not ‘arbitrary’, because the preconditions for issuing a TEO and return permit are provided by law, predictable, and ‘justified by being reasonable, necessary and proportionate’.
A number of submitters to the inquiry disagreed with this assessment. These submitters cited observations of the United Nations Human Rights Committee that the reference to ‘arbitrariness’ in the context of Article 12(4) is intended to
guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.
In particular, submitters expressed concern that the operation of the Bill could be considered ‘arbitrary’ due to the broad grounds and low threshold upon which a TEO may be issued, the lack of requirement to consider the status of the individual in the other country, and the lack of an independent decision-maker, procedural fairness or merits review.
Submitters also noted that although a TEO issued under the Bill would be in effect for a maximum of two years, there is no limit to the number of successive orders that may be issued in relation to the same person. The Law Council of Australian noted that there is nothing in the Bill that limits the possibility of an ‘indefinite series of TEOs’ being made against a person, particularly given that the Minister may revoke a return permit at any time on his or her own initiative.
Rights of children
Article 3 of the Convention on the Rights of the Child states:
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.
Under the TEO scheme proposed in the Bill, children as young as 14 years could be subject to a TEO. This is consistent with the minimum age for a person to be subject to a control order under Division 104 of the Criminal Code.
Some participants in the inquiry were opposed to any inclusion of children in the TEO scheme.
Primary and paramount considerations
For persons aged between 14 and 17 years, the Bill provides that the Minister must, before making a TEO or imposing a condition on a return permit, have regard to
the protection of the community as the paramount consideration, and
the best interests of the person as a primary consideration.
This wording is almost identical to proposed new subsection 15AA(3AA) of the Crimes Act 1914, contained in the Counter-Terrorism Legislation Amendment Bill 2019 (CTLA Bill), which is currently before the Parliament. That subsection would require a court, when determining whether exceptional circumstances exist to justify bail in relation to terrorism offences, to consider the best interests of the child as a primary consideration and the protection of the community as the paramount consideration. The Explanatory Memorandum to the CTLA Bill states that the provisions respond to issues considered by the Independent National Security Legislation Monitor (INSLM) during his recent review into the prosecution and sentencing of children for terrorism.
Multiple submitters expressed concern about the Bill’s use of the terms ‘primary’ and ‘paramount’ in the TEO Bill. The Immigration Advice and Rights Centre, for example, considered that ‘by introducing a consideration that is to be regarded as “paramount” the Bill undermines the appropriate priority and weight that ought to be given to the best interests of a child’. The Australian Human Rights Commission considered that placing the protection of the community as the paramount consideration was ‘incompatible’ with recognising the best interests of the child as a primary consideration. The Commission recommended that, if the Bill applies to children, the best interests of the child and the protection of the community should both be primary considerations.
Additional protections in the control order regime
The Bill’s special requirements in relation to children are partially modelled off the approach taken in the control order regime in Division 104 of the Criminal Code. In November 2016, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 lowered the minimum age for a person to be subject to a control order to 14 years, and introduced the current requirement for the Minister to consider the objects of the Division as the paramount consideration and the best interests of the child as a primary consideration. These amendments were consistent with a recommendation made by the Committee in its review of the Bill.
It should be noted that the control order regime also includes other special provisions for persons aged 14 to 17, including
a maximum duration of three months per order (compared to 12 months for adults),
mandatory considerations that the court must take into account in determining the best interests of the child,
a requirement for reasonable steps to be taken to serve a copy of the order, and any revocation or variations, personally on at least one parent or guardian of the child, and
a requirement for the court to appoint a lawyer to act for the child in relation to control order proceedings, if the child does not have a lawyer and has not refused a lawyer previously appointed.
The Law Council of Australia noted these differences, and recommended that, if the TEO scheme is to apply to children, appropriate special rules should apply in a similar manner to control orders (and preventative detention orders). It suggested that the Bill should at least include a requirement for the child’s guardian to be notified that an order was made.
In response to a written question, the Department of Home Affairs advised that the Minister ‘would take into account’ the child’s age when determining the duration of a TEO and the period in which a return permit is to be in force. It added that the Minister ‘must consider the person’s age and personal circumstances in determining any pre-entry or post-entry conditions, including when the person may return’. Although only discussing post-entry conditions, the Department noted that the conditions that may be imposed on a return permit are ‘far less onerous’ than those that may be imposed under a control order. It also noted that, unlike the process for confirming control orders, the TEO scheme does not require involvement of a court or complex legal proceedings.
Children of TEO subjects
In addition to children aged 14 years and above who may be the subject of a control order, the Australian Human Rights Commission noted that a TEO or return permit may affect children whose parents are the subject of a TEO. The Commission considered that the Bill would impinge on the rights of the child to family relations and family life, and the rights of the child to be heard in relation to all decisions affecting them, which are also protected under the Convention on the Rights of the Child.
Duty of states to readmit nationals
As noted in Chapter 1, the Bill provides that the Minister must issue a return permit to a person subject to a TEO if the person is being deported to Australia.
Despite this provision, the Peter McMullin Centre on Statelessness argued that the Bill ‘does not account for the rights of states to expel Australian nationals whom Australia has an obligation to admit’. The Centre noted that the Minister would have the power to ‘unilaterally’ defer the deportation of an Australian by imposing a condition on a return permit that ‘the person must not enter Australia during a specified period’. The Centre concluded that the Bill is ‘inconsistent with the fundamental duty of states to readmit nationals’ who are expelled from other states.
The Department of Home Affairs argued that the Bill does not prevent foreign governments from deporting individuals subject to a TEO:
Rather it aims to ensure that Australian security and law enforcement agencies are ready for the person’s return and are able to put in place security arrangements. This will necessarily require negotiation with the relevant country to determine appropriate pre-entry conditions to be stipulated under a return permit. If a person is deported contrary to conditions in their TEO or return permit, the offences in sections 9 and 15 of the Bill for owners and operators of a vessel or aircraft who permit the person to travel will not apply.
As summarised earlier in this report, the Bill contains offences (carrying a maximum penalty of two years’ imprisonment) in relation to
individuals who enter Australia while a TEO is in force, who fail to comply with the conditions of return permit, or who provide false or misleading information in response to a condition, and
third party owners, charterers, lessees, operators, agents, masters or pilots of vessels or aircraft who knowingly convey an individual to Australia while a TEO is in force, or in contravention of a return permit.
The Bill requires the Minister, as soon as practicable after making a TEO in relation to a person, 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 content of the order’. A return permit, on the other hand, must be served personally on the person to whom it relates—although, if the return permit is varied or revoked, only reasonable and practicable steps are required to be taken to inform the person. This flexibility is intended to take into account that the person is overseas, and potentially in a conflict zone.
Submitters raised concerns that there is no requirement for a TEO, or a variation or revocation of a return permit, to be effectively received or brought to the subject’s attention for it to enter into force. The Law Council of Australia and the Australian Human Rights Commission both recommended that, in any prosecution for a breach of the offence provisions, the prosecution be required to prove knowledge of the existence of the order or return permit conditions.
It should be noted that, although no fault elements are specified for the offences relating to individuals subject to a TEO or return permit, the default fault elements under the Criminal Code will apply. For example, under the offence in proposed section 8 (entering Australia if a TEO is in force) the prosecution would need to prove intention in relation to the act of entering Australia, and recklessness with respect to the fact that a TEO was in force at the relevant time. Additionally, if the person had not been made aware of the order or return permit, the defence of ‘mistake or ignorance of fact’ would likely be available.
The equivalent scheme in the UK does not include offences for third parties. At the public hearing, the Committee asked the Department of Home Affairs to explain why these additional offences were seen as necessary in the proposed Australian scheme. The Department advised that assisting a person of counter-terrorism interest to board a plane to Australia, outside the requirements of the permit, was ‘assisting and facilitating the movement of a potential terrorist’. The offence was included in the Bill to ‘put a hindrance to potential people-smuggling or the facilitation of terrorists moving outside of the permit requirements’.
Accountability and oversight
Several participants in the inquiry commented on the absence of accountability and oversight measures in the Bill. Aside from suggestions concerning procedural fairness and judicial review (discussed above), improvements suggested by contributors included
amending the Independent National Security Legislation Monitor Act 2010 (INSLM Act) to enable the INSLM to review the TEO scheme, and
the addition of reporting obligations to the Parliament.
In her submission, the Inspector-General of Intelligence and Security noted that her office’s oversight would focus on the analytic integrity of advice given by ASIO under proposed subsection 10(2). She noted that oversight of the Minister’s decisions would not fall within the jurisdiction of her office.
The Law Council of Australia noted the absence of provision for complaint to the Commonwealth Ombudsman.
At the public hearing, the Department of Home Affairs advised that there were no particular reasons why annual reporting requirements were not included in the Bill.
The Department was also asked whether any thought had been given to whether a sunset clause should be included, to enable the legislation to expire after the current circumstances had been managed. The Department responded that, while the Bill responds to ‘one particular moment in time’, there will be other circumstances where there will be foreign fighters offshore. However, there was ‘no reason a sunset clause hasn’t been put in at the moment’.
The Committee supports the intention of the Bill to provide the Government with greater control over the return of Australian foreign fighters—and their families and associates—to Australia.
The Committee accepts that a temporary exclusion order regime may assist authorities in the current environment, in which a number of Australian citizens who have previously supported terrorist organisations are looking to return to Australia following the collapse of the so-called Islamic State caliphate. Without denying the right of all Australian citizens to enter their own country, a TEO scheme will enable Australian authorities to manage the risk to the broader community by controlling the timing in which, and the means by which, these citizens return. For returnees who are not already subject to arrest and prosecution upon their arrival, the scheme will also provide authorities with a mechanism to monitor their activities while the level of threat they may pose to the community is assessed.
The Committee was convinced that existing powers available to authorities—including powers of arrest and prosecution, powers to obtain control orders and powers to cancel passports—do not fully respond to the risk posed by suspected terrorist supporters returning to Australia in an uncontrolled and unmonitored manner.
The Committee notes, however, concerns raised during the inquiry that there are insufficient safeguards and accountability measures in the Bill, and that some aspects of the Bill lack clarity. The Committee also notes concerns that the Bill, as introduced, may be vulnerable to constitutional challenge. The Committee therefore makes the following recommendations to enhance the Bill’s clarity, protection of individual rights and review mechanisms, and to strengthen its ability to withstand challenge on constitutional grounds, without compromising the operational effectiveness of the scheme.
In making these recommendations, the Committee recognises the need for the TEO scheme to be flexible and responsive to urgent situations, while at the same time including safeguards and accountability measures that ensure public confidence in the integrity of the scheme.
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.