D. Comparison of the control order regime with the proposed TEO scheme

Comparison between the control order regime and the proposed temporary exclusion order (TEO) scheme
Control order regime
Proposed TEO scheme
Legislation
Issuing authority
The Federal Court or Federal Circuit Court, on application by a senior AFP member with the consent of the Minister.
The Minister.
Test for making an order
The court is satisfied on the balance of probabilities:
• that making the order would substantially assist in preventing a terrorist act; or
• that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or
• that the person has engaged in a hostile activity in a foreign country; or
• that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or
• that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or
• that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or
• that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country
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.
Maximum duration
12 months (or 3 months for children).
Two years for TEO, 12 months for return permit.
Conditions that may be imposed
The obligations, prohibitions and restrictions that the court may impose on the person by the order are the following:
• a prohibition or restriction on the person being at specified areas or places;
• a prohibition or restriction on the person leaving Australia;
• a requirement that the person remain at specified premises between specified times each day, or on specified days, but for no more than 12 hours within any 24 hours;
• a requirement that the person wear a tracking device;
• a prohibition or restriction on the person communicating or associating with specified individuals;
• a prohibition or restriction on the person accessing or using specified forms of telecommunication or other technology (including the internet);
• a prohibition or restriction on the person possessing or using specified articles or substances;
• a prohibition or restriction on the person carrying out specified activities (including in respect of his or her work or occupation);
• a requirement that the person report to specified persons at specified times and places;
• a requirement that the person allow himself or herself to be photographed;
• a requirement that the person allow impressions of his or her fingerprints to be taken;
• a requirement that the person participate in specified counselling or education.
In addition to pre-entry conditions, the following post-entry conditions may be included in a return permit:
• that the person notify a specified person or body of the person’s principal place of residence in Australia, or (within 24 hours) any changes to that place of residence;
• that the person notify a specified person or body of the person’s place of employment in Australia, or (within 24 hours) any changes to that place of employment;
• that the person notify a specified person or body of the person’s place of education in Australia, or (within 24 hours) any changes to that place of education;
• that the person notify a specified person or body of any contact with specified individuals within 24 hours of the contact occurring;
• 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 they do not live in;
• that the person notify a specified person or body, within a specified period, if the person intends to leave, or leaves, Australia;
• that, if the person accesses or uses, or intends to access or use, specified forms of telecommunications or other technology in Australia, the person (within a specified period):
- notify a specified person or body; and/or
- provide a specified person or body with sufficient information to enable the specific telecommunications service, account or device to be identified;
• that the person notify a specified person or body, within a specified period, if the person intends to apply for an Australian travel document;
• that the person must surrender their existing Australian travel document, or is not permitted to apply for or obtain an Australian travel document.
Test for imposing conditions
The court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:
• protecting the public from a terrorist act; or
• preventing the provision of support for or the facilitation of a terrorist act; or
• preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.
In making this determination, the court must take into account the impact of the obligation, prohibition or restriction on the person’s circumstances (including the person’s financial and personal circumstances).
The Minister is satisfied that the imposition of the condition or (if more than one condition is imposed) the conditions taken together are reasonably necessary, and reasonably appropriate and adapted, for the purpose of one or more of the following:
• 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.
Children
An order may be made for a child aged 14 years or over; however, the maximum duration of such an order is 3 months.
In determining whether each obligation, prohibition and restriction to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account:
• as a paramount consideration in all cases—the objects of the Division (see section 104.1);
• as a primary consideration in the case where the person is 14 to 17 years of age—the best interests of the person.
In determining what is in the best interests of the child, the court must take into account:
• the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;
• the physical and mental health of the person;
• the benefit to the person of having a meaningful relationship with his or her family and friends;
• the right of the person to receive an education;
• the right of the person to practise his or her religion;
• any other matter the court considers relevant.
The control order and any variations must be served on at least one parent or guardian.
If a child does not have a lawyer, the court will appoint a lawyer to act for the child.
An order may be made for a child aged 14 years or over.
Before making a TEO in relation to a person aged 14 to 17 years, and before imposing a condition on a return permit for a person aged 14 to 17 years, the Minister must have regard to:
• the protection of the community as the paramount consideration; and
• the best interests of the person as a primary consideration.
Offence for non-compliance
Maximum penalty: Five years’ imprisonment.
Maximum penalty: Two years’ imprisonment
Monitoring
Regimes were introduced through the Counter-Terrorism Legislation Amendment Act (No. 1) 2016 to allow the AFP to monitor the compliance of individuals subject to a control order through search warrants, surveillance device warrants and telecommunications interception warrants. See PJCIS report titled Advisory Report on the Counter-Terrorism Legislation Amendment Bill (No.1) 2015.
There are no specific provisions for monitoring persons subject to post-entry conditions on a return permit. However, the Explanatory Memorandum (page 10) states that the notification requirements contained in some of the conditions are intended to ‘facilitate monitoring of persons subject to return permits by law enforcement and security agencies’.
Independent oversight
The AFP Commissioner must notify the Commonwealth Ombudsman of any control order monitoring warrant issued. The Ombudsman may conduct inspections to determine the extent of compliance by the AFP with the monitoring warrant legislation, and produce an annual report on the results.
There is no explicit independent oversight provided for in the Bill.
Judicial review
The initial control order is issued by the court in an ex parte proceeding. As soon as practicable but at least seven days after an order is made, a contested proceeding is held in which the court considers confirming, voiding or revoking of the order. A person subject to a control order may also apply to the court for the order to be revoked or varied.
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 temporary exclusion order or a return permit will have access to judicial review.
Transparency
The Minister must table an annual report on the operation of the regime. The report must include the number of control orders made, confirmed, voided, revoked and varied; particulars of any complaints, or AFP conduct or practices issues raised; the number of monitoring warrants issued and executed; the annual report on the Ombudsman’s inspection of AFP monitoring warrants; and specific reporting in relation to children.
There are no annual reporting or other specific transparency requirements.

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