C. Comparison of United Kingdom and Australian TEO schemes

Comparison between the UK and proposed Australian temporary exclusion order (TEO) schemes
United Kingdom TEO scheme
Proposed Australian TEO scheme
Legislation
Making of an order
The Home Secretary may impose a TEO on an individual if:
• the Home Secretary reasonably suspects that the individual is, or has been, involved in terrorism-related activities outside of the United Kingdom;
• the Home Secretary reasonably considers that it is necessary, for purposes connected with protecting members of the public in the United Kingdom from a risk of terrorism, for the TEO to be imposed;
• the Home Secretary reasonably considers that the individual is outside the United Kingdom;
• the individual has the right of abode in the United Kingdom; and
• the court gives the Home Secretary permission.*
* The Act also allows the Home Secretary to issue a TEO without the prior permission of the court in urgent circumstances, subject to immediate referral of the matter to the court for review.
The Minister may make a TEO in relation to a person if:
• the person is located outside Australia;
• the person is an Australian citizen;
• the person is at least 14 years of age; and
• a return permit is not in force in relation to a person.
Additionally, one of the following two conditions must be met:
• The Minister suspects on reasonable grounds that making the order would substantially assist in one or more of the following:
- preventing a terrorist act;
- preventing training from being provided to, received from or participated in with a listed terrorist organisation;
- preventing the provision of support for, or the facilitation of, a terrorist act;
- preventing the provision of support or resources to an organisation that would help the organisation engage in preparing, planning, assisting in or fostering the doing of a terrorist act. OR
• The person has been assessed by ASIO to be directly or indirectly a risk to security for reasons related to politically motivated violence.
Duration
Remains in force for two years, unless revoked.
Remains in force up to two years, unless revoked.
Travel documents
Any British passport held or applied for by the individual is invalidated during the time the TEO is in effect.
The TEO must specify whether the person must surrender their Australian travel document, and whether the person is permitted to apply for and obtain an Australian travel document.
Return permits
The individual may apply for a permit to return, and the Home Secretary must issue a permit within a “reasonable period”.
The Minister must give a return permit to a person who has applied for one in accordance with the rules, or who is being deported to Australia.
Return permit conditions
The permit to return must state the time at which, or period within which, the individual may return (which must be within a “reasonable period”), the manner in which the individual may return, and the place where the individual may arrive on return.
The Home Secretary may separately issue a notice imposing a range of post-return “permitted obligations”, including
• obligations to report to a police station at specified times and in a specified manner,
• obligations to attend appointments with specified persons or persons of specified descriptions,
• obligations to notify police of the individuals’ place of residence, and any changes to their place of residence.
The Minister may impose conditions on a return permit, including:
• pre-entry conditions, including that the person enter Australia only in a specified manner, on a specified date or within a specified period (ending within 12 months); and
• post-entry conditions, including notifying specified authorities of any changes to the person’s address, workplace or place of education; any contact with specified individuals; any intention to travel interstate or to leave Australia; any access to or use of specified forms of technology, including the particular service, account or device that is to be used; and any intention to apply for an Australian travel document. The person may also be required to surrender their passport, or be prevented from applying for or obtaining a new passport.
Offences
It is an offence for an individual subject to a TEO to return to the UK in contravention of the restrictions in their TEO, or to fail to comply with an obligation on return.
Maximum penalty: Five years’ imprisonment.
It is an offence for a person to enter Australia while a TEO is in force (i.e. without a return permit), to fail to comply with the
pre-entry or post-entry conditions on a return permit, or to provide false or misleading information.
It is also an offence for the third parties, such as owners and operators of vessels or aircraft, to knowingly convey a person to Australia in contravention of a TEO or the conditions of a return permit.
Maximum penalty: Two years’ imprisonment.
Children
No specific provisions.
A TEO may only be made in relation to persons aged over 14 years. For those aged between 14 and 17, the Minister must have regard to the best interests of the child as ‘a primary consideration’ before issuing an order or imposing a condition, although the protection of the community remains the ‘paramount consideration’.
Judicial review
An individual subject to a TEO may apply to the court to review the Home Secretary’s decisions, including in relation to the decision that the conditions for a TEO were met (or continue to be met), the decision to impose a TEO, and the decision to impose any of the permitted obligations on the individual.
The court has the power to quash the TEO or direct the Home Secretary to revoke it; and to quash or direct the Home Secretary to revoke the permitted obligations.
There are no specific judicial review provisions. The Bill provides that the Minister is not required to observe any requirements of procedural fairness in exercising a power under the scheme.
However, the Explanatory Memorandum states that a person who is the subject of a TEO or a return permit will have access to judicial review.
Transparency
The UK’s annual transparency report on the use of disruptive and investigatory powers in the UK reports the number of TEOs that were issued during a year.
There are no annual reporting or other specific transparency requirements.

 |  Contents  | 
Top