2.1
This chapter sets out concerns raised by submitters and the answers to those concerns put forward by the Department of Home Affairs and the Australian Border Force, the Australian Security Intelligence Organisation (ASIO) and the Australian Federal Police (AFP). In addition, the chapter sets out concerns raised by civil society submitters and the answers to those concerns put forward by the Department of Home Affairs and the Australian Border Force, ASIO and AFP. The Committee notes that the powers and responsibilities put in place by the Act are variously referred to as the ‘TEO Regime’ (the Regime) (eg. by the Law Council of Australia) or the ‘scheme’ (eg. by the Department of Home Affairs). In this report the Committee has decided to use the term ‘Regime’.
2.2
The Committee notes that recommendation 17 of its Advisory report on the Counter Terrorism (Temporary Exclusion Orders) Bill 2019 (Advisory Report) recommended that the Committee be empowered to review the ‘continuing need for the temporary exclusion order scheme’. This is a different requirement than that which was eventually enacted by the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Act 2019 which inserted paragraph 29(1)(cc) into the Intelligence Services Act 2001 as follows:
(cc) to review, by the end of the period of 3 years beginning on the day the Counter‑Terrorism (Temporary Exclusion Orders) Act 2019 commenced, the operation, effectiveness and implications of that Act;
2.3
The operation and effectiveness of the scheme are uniquely the domain of the Government and agency submitters; being the Department of Home Affairs and the Australian Border Force, ASIO and AFP. It is difficult, if not impossible, for a civil society submitter who does not have access to security classified information to meaningfully comment on the operation or, indeed, effectiveness of the Regime. Noting this, this chapter will be dealing with the wider issues brought up by submitters under the broad rubric of ‘implications.’
2.4
Therefore, the chapter addresses the following issues:
Effectiveness of the Regime
Limitations in review rights
Safeguards for vulnerable persons.
2.5
In addressing these topics, the Committee notes that most of the chapter will deal with civil society submitters’ recommended changes to the Regime. Submissions by the Department of Home Affairs and the Australian Border Force, ASIO and AFP have not identified problems with the Regime and have not made any recommendations, although the AFP made one suggestion discussed below.
Necessity of the regime
2.6
The Department of Home Affairs and Australian Border Force submission set out that by delaying the return of Australians of counter-terrorism interest:
…the TEO and return permit scheme has provided security and law enforcement agencies with additional time to investigate and develop a contemporary threat picture in relation to that individual. This additional time has been particularly crucial in the case of individuals who have spent extended periods of time offshore in ungoverned spaces or been arrested for terrorism offences in foreign countries. In these cases, available information may be incomplete or fragmentary and agencies may require further information from foreign governments to complete assessments of the threat posed by the individual.
2.7
ASIO set out in its submission that, since 2012, around 230 Australians (or former Australians) have travelled to Syria and Iraq to join religiously motivated violent extremist (RMVE) groups. Around 50 of these people have returned to Australia and around 65 Australian adults remain offshore in internally displaced persons camps, Syrian Democratic Forces custody, or remain engaged with RMVE groups in the region.
2.8
To date eight TEOs have been made and five return permits have been issued since the TEO Act commenced on 30 July 2019.
Australians returning from these conflict zones are likely to maintain violent extremist ideologies, links to other extremists, and return to Australia with capabilities obtained on these battlefields. These individuals present a long-term threat to security.
And:
The Temporary Exclusion Orders (TEO) regime provides the Australian Government with an offshore-focused tool that allows the management of a foreign fighter’s return to Australia in circumstances where they may pose a security threat.
2.10
AFP echoed the Department of Home Affairs and Australian Border Force and ASIO’s view of TEOs:
Temporarily excluding an individual from entering Australia allows law enforcement and intelligence agencies to (a) complete a fulsome assessment of the individual’s activities whilst offshore to inform domestic threat and (b) put a plan in place to address the threat that individual may pose to Australians and Australia upon their return, including reporting obligations for up to 12 months when thresholds can be met.
2.11
The Australian Human Rights Commission’s (AHRC) primary position in relation to TEOs is that the Act should be repealed because:
…it is not necessary and, to the extent it applies to people not suspected of involvement in terrorism-related activity themselves, it is a disproportionate infringement of their right to enter their own country recognised by article 12(4) of the International Covenant on Civil and Political Rights (ICCPR).
2.12
Additionally, the AHRC suggested that the Government’s argument that the TEO regime was necessary in relation to ‘associates and facilitators and relatives that haven’t been doing active fighting in that conflict zone’ and in respect of whom there may be challenges in obtaining sufficient evidence of criminal conduct was unconvincing given:
the broad offences that attach to mere presence in the conflict zone in Syria and Iraq
the reduced threshold for the arrest of a person for such an offence
the ability of police to hold people for questioning before charging them with such an offence
the other measures in place to impose limits on the conduct of people in Australia, including control orders.
2.13
The University of New South Wales (UNSW) Law Society discussed the place of the regime in Australia’s expansive anti-terrorism legislation framework and raised concerns that the regime does not have ‘deradicalisation and reintegration’ programs similar to post-entry conditions in the UK.
2.14
Mr Benjamin Cronshaw set out the inherent tension between Australians ‘who may leave Australia to join terrorist groups overseas, and then return with the risk to support or perpetrate violent actions on Australian soil’ and ‘the presumption of innocence’ and ‘when, if ever, the right of entering Australia for citizens can be abridged and how that should be managed.’
Operation of the regime
2.15
Broadly speaking, submissions that referred to the operation and effectiveness of the regime were positive with very little suggestion for change.
2.16
Operationally the Department of Home Affairs and the Australian Border Force said that, in implementing the TEO and return permit regime, it has demonstrated it is valuable in managing the return of a broad range of individuals of ‘counter-terrorism interest’ by facilitating ‘a number of intended operational effects’:
keeping individuals of counter-terrorism interest offshore while agencies determine the risk they pose to the community;
allowing agencies to manage and prepare for the return of individuals; and
providing a notification mechanism to maintain awareness of individuals and manage risk posed by persons of counter-terrorism interest once onshore.
2.17
The following two text boxes set out case studies provided by the Department of Home Affairs and the Australian Border Force.
Box 2.1: Case study: Individual A
An Australian citizen, Individual A, departed Australia and was subsequently the subject of a TEO. The TEO prohibited Individual A from being able to hold, apply or obtain an Australian travel document. Separately, Individual A was subsequently detained by a foreign government and placed in immigration detention pending deportation.
A return permit was issued in relation to Individual A. Individual A was deported from the foreign country to a third country. Individual A’s subsequent return to Australia was managed in close consultation with the airline industry and relevant international partners to mitigate risk or disruption associated with the travel.
During the period Individual A was offshore and subject to the TEO and return permit, Australian Government agencies were able to obtain sufficient evidence to support a domestic prosecution. Individual A was arrested upon arrival into Australia and remains in custody.
Box 2.2: Case study: Individual B
An Australian citizen, Individual B, departed Australia in June 2015 to travel to Syria. Subsequently, Individual B was convicted in a foreign court of being a member of a terrorist organisation. Some years later, Individual B was released from prison subject to judicial controls, including a condition that prevented them from departing the country for a specified period. Individual B was subsequently subject to a TEO and return permit with post-entry conditions.
Individual B’s return travel to Australia was managed to mitigate risk. By the time Individual B returned to Australia, they had spent almost six years offshore. The post-entry conditions in their return permit facilitated continued awareness of Individual B by security and law enforcement agencies to determine the ongoing risk they posed and to implement measures to safeguard the community.
2.18
The AFP set out some operational issues in relation to the serving of return permits and suggested that:
To enhance the operational effectiveness of the legislation, the AFP suggests return permits could be served via alternative means (including text message or email). An additional provision could also be sought allowing service of a return permit on the individual in person, upon their arrival into Australia where all other means (including email and text) have been exhausted.
2.19
Given section 9 of the Act makes it an offence for a person to convey to Australia a person who is subject to a TEO it was not immediately clear as to how a person would be able to be conveyed to Australia such that a return permit could be served ‘on the individual in person, upon their arrival into Australia’ without the person conveying the subject of the TEO having committed an offence against section 9 of the Act. The Committee therefore sought further information on this proposal from the AFP.
2.20
In a supplementary submission the AFP provided the following response which has been set out in full:
A Commonwealth agency, in practice either the Australian Federal Police (AFP) or Australian Border Force (ABF), is responsible for the service of return permits on individuals. To date, all return permits have been served in accordance with subsection 15(5) of the Temporary Exclusion Orders Act 2019 (TEO Act).
Return permits are served on individuals located offshore if it is deemed safe and practicable to do so. Where an individual has not yet been served a return permit prior to their return to Australia, service is effected by either the ABF or AFP once the individual has arrived in Australia and before the individual is processed through immigration.
The AFP considers a further provision to allow alternative service (including by text message or email) complements the existing provision, by ensuring all reasonable attempts are made to serve the return permit on the individual. This alternative service option would be relied on when reasonable attempts at in person service have been exhausted while the individual is still offshore. Should such alternate service options also not result in the return permit being served on the individual, service will be effected by the ABF or AFP once the individual has arrived in Australia and before the individual is processed through immigration.
If an individual subject to a TEO attempted to return to Australia, without being granted a return permit, the individual would not be processed through immigration upon arrival and would be dealt with by law enforcement.
2.21
The Committee received a private briefing from the AFP on this issue on 7 March 2023. In addition, the AFP provided a classified supplementary submission on this issue.
Effectiveness of the regime
2.22
Only one submitter, the Department of Home Affairs and the Australian Border Force, gave evidence directly on the effectiveness of the regime:
While the implementation of the TEO Act has been demonstrably effective, practical challenges in obtaining information have impeded the scheme’s successful operation.
By design, the scheme is focused on offshore Australians of counter-terrorism interest. Many have spent substantial periods of time offshore. They may have been located for considerable periods in conflict zones or ungoverned spaces, or spent time in other areas outside the legitimate control of any government.
The complexities of gathering reliable evidence and intelligence in these regions are evident. They include the absence of established processes and procedures to obtain evidence and intelligence, practical difficulties in bilateral information exchanges, and lengthy delays in receiving relevant information. The cumulative effect of these challenges presents significant obstacles for agencies to develop an understanding of the contemporary threat a person may pose and implement associated risk mitigation measures, against the thresholds and within the timeframes currently provided for under the scheme.
Conflict zones and ungoverned spaces will continue to challenge agencies’ abilities to generate a comprehensive understanding of the threat posed by offshore Australians of counter-terrorism interest, implement required mitigation measures and effectively manage their return.
Implications
Issuing authority
2.23
Civil society submitters all recommended that the issuing authority for a TEO be a Court not, as currently provided by the Act, the Minister. The Committee notes that recommendation 7 of its Advisory Report recommended that:
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.
2.24
In its Government Response - Review of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 (Government Response) the Government accepted this recommendation ‘in principle’ but, rather than implementing an ‘issuing authority’ it amended the Bill to include the reviewing authority described in the previous chapter.
2.25
The Law Council of Australia supported ‘the adoption of a judicial authorisation model in the TEO Act’ and made the following recommendation for judicial rather than Ministerial issuing of TEOs:
Section 10 and related provisions of the TEO Act should be amended to provide that only superior court judges may issue TEOs (not the Minister for Home Affairs).
Further consideration (including of constitutional issues) should be given to whether that power should be conferred on superior courts, or on individual superior court judges who are appointed (by consent) as issuing authorities under the TEO Act in their personal capacities.
2.26
In the public hearing the Law Council added that:
…extreme urgency could be met by allowing the minister the power to impose an interim order but that it would lapse if it were not immediately brought before a court and the court made its own decision about whether an order should be made.
2.27
ASIO and the Department of Home Affairs each had concerns with the concept of an interim TEO. In a further submission the Department of Home Affairs, incorporating a response from ASIO, provided further evidence around the Law Council’s proposal to involve an interim TEO that could be made by the Minister and valid for a period until the application for a TEO could be brought before a Court. They noted that the Law Council suggested that valid period would be seven to 14 days:
Given the subject of a TEO would be located overseas, potentially in a conflict zone, a period of seven to 14 days would unlikely be enough time for the Department and partner agencies to collect, analyse, and assess relevant information and evidence to inform an application to a Court for a TEO.
2.28
The UNSW Law Society specifically recommended that the decision to impose a Temporary Exclusion Order should be made by a Court.
2.29
In the public hearing the Department of Home Affairs sought to contextualise that the authorisation process for TEOs as part of a:
…cascading regime, where you have perhaps at the top prosecutions, then control orders and then TEOs, each with quite different consequences. The TEO regime is where you ultimately have the consequence of conditions attached to people's presence in Australia, and at that level it was seen at the time the TEO regime was made that ministerial authorisation was the appropriate authorisation.
Issuing grounds
2.30
Some of the major concerns set out by witnesses were in relation to the grounds for issuing a TEO. As noted in Chapter 1, paragraphs 10(1)(a) – (d) of the Act provide that the Minister may make a TEO 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; and
d.
a return permit is not in force in relation to a person.
2.31
Additionally, Subsection 10(2) provides that one of the following two conditions must be met:
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 the 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 (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 (within the meaning of that Act).
Concerns about paragraph 10(2)(a)
2.32
Recommendation 12 of the Committee’s Advisory Report recommended that paragraph 10(2)(a) of the Bill be amended so that the Minister must not make a TEO 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.
2.33
The Government Response noted this recommendation but did not implement it, stating that:
Paragraph 10(2)(a) is intended to provide the Minister some flexibility to prioritise urgent or high risk cases, including where ASIO has not already provided an assessment in relation to a person.
2.34
The AHRC referred supportively to the Committee’s recommendation pointing out that the issuing of a TEO under paragraph 10(2)(a) ‘does not even require {a person} to have engaged in any alleged criminal conduct or any conduct adverse to Australia’s interests at all.’ In addition the Commission criticised the Government Response in the following way:
The utility of a TEO scheme should not be judged on how many people it applies to, but on whether the range of people it applies to is appropriate. In assessing whether the scope is appropriate, regard should be had to both the stated objectives of the scheme and to Australia’s human rights obligations.
Concerns about paragraph 10(2)(b)
2.35
Recommendation 12 of the Committee’s Advisory Report recommended that paragraph 10(2)(b) be deleted. The Government Response noted this recommendation but did not implement it. The Government Response stated that the intent of paragraph 10(2)(b) is to provide for:
…the making of a TEO based on a consistent form of assessment of terrorism threat by ASIO. Where ASIO provides intelligence/advice in relation to the making of a TEO, this will be a communication within section 17(1)(b) of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and not a security assessment to which Part IV of the ASIO Act applies. The Government has amended the Bill to make clear that the making of a TEO is not prescribed administrative action for the purposes of Part IV of the ASIO Act, in line with the Inspector-General of Intelligence and Security’s comment that this aspect of the Bill would ‘benefit from greater clarity’.
2.36
The Inspector-General of Intelligence and Security (IGIS) explained that the safeguards and review mechanisms that apply in relation to Part IV security assessments do not apply to TEO ASIO assessments - including:
a requirement for ASIO to comply with binding determinations that prescribe matters that are to be taken into account, the manner in which those matters are to be taken into account, and matters that are not to be taken into account, in the making of assessments;
a requirement for an adverse or qualified security assessment to be accompanied by a statement of the grounds for the assessment;
a requirement for the subject of an adverse or qualified security assessment to be notified within 14 days of the assessment being furnished, unless the Minister certifies that he or she is satisfied that withholding of notice is ‘essential to the security of the nation’;
a requirement for the subject of an adverse or qualified security assessment to be given a copy of the statement of grounds, unless the Minister has certified that he or she is satisfied that disclosure of the statement of grounds, or a particular part of the statement of grounds, would be ‘prejudicial to the interests of security’; and
an ability for the subject of an adverse or qualified security assessment to seek merits review of ASIO’s assessment by the Security Division of the Administrative Appeals Tribunal.
2.37
Given that the IGIS’ inspections in relation to the TEO regime ‘have primarily focused on assessments produced by ASIO for the purpose of paragraph 10(2)(b) of the TEO Act’ it offered its observations informed by its inspections.
2.38
In relation to the threshold for making of a TEO under paragraph 10(2)(b) of the TEO Act the IGIS observed that there is no requirement for ASIO’s assessment to be provided to the Minister, only that the Minister is satisfied that an assessment has taken place. The Minister therefore is not required to be provided with contextual information in relation to ASIO’s assessment ‘including the degree of risk or the strength of the evidence that ASIO has relied upon’. The IGIS submitted that:
As a matter of propriety, such contextual information would more fully inform the Minister’s decision on whether or not to make a TEO.
2.39
The IGIS set out the differences between the TEO regime and the information provided to the Minister for Part IV security assessments:
ASIO must provide a statement of the grounds for a security assessment to the relevant agency and must also provide that statement of grounds to the subject. The Minister may direct that the statement of grounds be redacted or withheld, or that the subject not be notified of the assessment, on the basis of security. This necessitates the statement of grounds being provided to the Minister to inform these decisions.
2.40
Pointing out that an independent reviewing authority may only review information that was in front of the Minister at the time of a TEO decision, the IGIS argued that the meaningfulness of that independent review may be reduced if the Minister is not provided with a copy of ASIO’s assessment or relevant contextual information. Additionally, the reviewing authority is not empowered to review the basis of ASIO’s assessment. The IGIS therefore suggested that the Committee:
…may wish to consider whether it is appropriate that there is no requirement for an assessment made by ASIO under paragraph 10(2)(b) of the TEO Act, or the grounds upon which such an assessment was made, to be provided to the Minister.
2.41
Importantly, the Inspector-General further set out the impact that the drafting of section 10(2)(b) has on its ‘oversight perspective’. For the IGIS there was an issue as to whether or not procedural fairness applied to ASIO assessments provided under section 10(2)(b) and that IGIS officers:
…would normally regard a failure to provide procedural fairness on the part of an agency that was obliged to provide procedural fairness as a matter which goes at least to propriety and in some circumstances also to legality. But it isn't clear that ASIO at its level has to comply with procedural fairness. As I said, normally it would, but there's this curious aspect that the minister doesn't have to. So I suppose if we were to have a list of things that in our oversight interest, and I stress no further than that, might be clarified if the legislation were to be reviewed, clarifying this aspect of procedural fairness, yes or no, whichever policy choice might be made, would be of assistance to this office.
2.42
The Law Council submitted that paragraph 10(2)(b) enables TEOs to be issued in response to security threats which are additional to the specific terrorism-related activities listed in paragraph 10(2)(a) and that no information has been placed on the public record about the nature of those additional threats, and why the power to issue a TEO is considered a necessary and proportionate response to them.
2.43
The Law Council commented that:
It's the vagueness of it and the fact the security assessment might not even be provided to the minister, let alone to the reviewing authority, where the basis for the assessment seems opaque, and it makes a bit of a mockery of the preceding section, 10(2)(a), which attempts to go into some level of specificity. If there's a security problem with this person by which the necessity and proportion demands such an order be issued, why can't that be specified, not in some vaguely framed way as 10(2)(b)?
2.44
At the public hearing the Department of Home Affairs and ASIO confirmed that, although it was not legislatively required, as a matter of practice security assessments were provided to the Minister.
2.45
The issuance of TEOs under paragraph 10(2)(b) was commented on by the Director-General of ASIO who stated that:
…when we [ASIO} provide the minister with our intelligence assessment of whether someone is directly or indirectly a risk to security, as in the case of politically motivated violence, that is classified information that we provide to the minister. So I acknowledge in terms of that level, others can see that as opaque because it's not available to anyone else, because it's a classified intelligence assessment.
2.46
The Department of Home Affairs and ASIO addressed the issue around procedural fairness in relation to a section 10(2)(b) assessment in the public hearing. The Director-General of Security argued that instituting procedural fairness would have the operationally negative consequence of alerting individuals of concern and the Department of Home Affairs stated that:
…the risk in prewarning individuals of security concern or of terrorism concern that they were being considered for a TEO might actually provoke the behaviour the act is intended to manage, which is to return to Australia without conditions and without necessarily proper notice for the police and security agencies.
Limitations of review rights
2.47
Section 27 provides that the Administrative Decisions (Judicial Review) Act 1977 (ADJR) does not apply to decisions made under the Act. The Law Council of Australia submitted that its preference remained for there to be full statutory judicial review and merits review rights of all decisions in relation to TEOs and return permits.
2.48
Specifically, the Law Council submitted that the following decisions should be reviewable under the ADJR and merits reviewable by the AAT (ideally in the Security Division, having regard to the established procedures for taking classified evidence of the kind likely to arise in decisions about TEOs):
a decision to issue a TEO;
a decision to refuse to revoke a TEO;
a decision to impose a condition on a return permit;
a decision to vary a condition on a return permit;
a decision to refuse to vary a return permit; and
a decision to refuse to revoke a return permit.
Constitutionality
2.49
A number of submitters raised concerns in relation to the constitutionality of the Regime. These included concerns that there are no constitutional heads of power to support the Regime, and that the review process for TEOs is unconstitutional.
2.50
Although not entirely analogous, the discussion around constitutionality of the Regime was conducted with the High Court of Australia’s decision in Alexander v Minister for Home Affairs &Anor [2022] HCA 19 (the Alexander case) in mind. The Alexander case concerned the validity of s 36B of the Australian Citizenship Act 2007 (Cth). Section 36B empowered the Minister for Home Affairs to determine that a person ceases to be an Australian citizen if satisfied, among other matters, that the person engaged in certain proscribed conduct, including engaging in foreign incursions and recruitment, which demonstrated that the person had repudiated his or her allegiance to Australia. A majority of the High Court held that:
s 36B of the Citizenship Act was supported by the aliens power, but that it was invalid on the basis that it reposed in the Minister the exclusively judicial function of adjudging and punishing criminal guilt. Some members of the majority reasoned that it was open to Parliament under s 51(xix) of the Constitution to make a law for the exclusion of a person from membership of the body politic for conduct inimical to Australia's interests, so as thereby to make that person an alien. But some members of the majority held that the principal purpose of s 36B was to effect retribution for conduct deemed so reprehensible as to be incompatible with the shared values of the Australian community; and the substantive effect of the Minister's determination under s 36B(1) was to deprive the plaintiff of his entitlement to enter and live at liberty in Australia. This purpose and effect of the law was punitive in character; and in accordance with Ch III of the Constitution, the power to determine the facts which enlivened s 36B was exercisable exclusively by a court that is part of the federal judicature. Two Justices reached the same conclusion that s 36B had a punitive character; it conferred power on the Minister to cease citizenship as a sanction for past conduct, akin to historical forms of punishment, with significant consequences for the individual.
2.51
In the public hearing the Law Council of Australia cited two grounds upon which the Regime could be found to be unconstitutional:
Firstly, there's a very respectable argument that the minister is exercising judicial power and the initial decision by the minister is in breach of the Constitution. Secondly, the review provisions, which are delegated to an individual, are also judicial powers, reviewing the decision of the minister. So there are constitutional issues with the current structure, and I think that's pretty much recognised in the Act itself, which, at section 30, says that, in the event that the review process is struck down, the initial decision can remain.
2.52
In its submission the Law Council expressed concern that the review process for TEOs under section 14 of the Act raises an unacceptably high degree of constitutional risk, because it may purport to impermissibly invest non-judicial officers with the judicial power of the Commonwealth. The Law Council suggested that the Committee seek assurances from the Government with respect to matters of constitutional risk arising from the section 14 review mechanism.
2.53
In the public hearing, after a discussion of constitutional issues, the AHRC stated that constitutional issues could be addressed by having:
The orders issued by a court in the first place and to remove the review mechanism that is currently in the act that allows a review by bodies that are not courts.
2.54
In the public hearing the Department of Home Affairs distinguished the TEO regime from Alexander arguing that the circumstances in Alexander related to a loss of citizenship which was a ‘permanent state of affairs’ whilst the TEO Regime was related to:
…the suspension of the right to return only until somebody asks for permission to return and then the imposition of conditions on return, which we know from the operation of control order provisions is something that is constitutionally sound.
2.55
The Committee is aware of other ongoing High Court proceedings in train at the time of this report, related to the wider counter-terrorism legislative framework and its interplay with citizenship and the right to return to Australia. These proceedings and in particular, any further consideration of wider questions of constitutionality, may have influence on the TEO regime.
Safeguards for vulnerable persons
2.56
Subsection 10(3) provides that, if the person is 14 to 17 years of age, the Minister must, before making a TEO, have regard to:
a.
the protection of the community as the paramount consideration, and
b.
the best interests of the person as a primary consideration.
2.57
Subsection 10(4) provides that, in determining what is in the best interests of a person for the purposes of paragraph (3)(b), the Minister must take into account the following matters:
a.
the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;
b.
the physical and mental health of the person;
c.
the benefit to the person of having a meaningful relationship with his or her family and friends;
d.
the right of the person to receive an education;
e.
the right of the person to practise his or her religion; and
f.
any other matter the Minister considers relevant.
2.58
However, Subsection 10(5) provides that the Minister must take into account the matters in subsection (4):
a.
only to the extent that the matters are known to the Minister; and
b.
only to the extent that the matters are relevant.
2.59
The drafting of this section implements recommendation 4 of the Committee’s Advisory Report.
2.60
A number of submitters held that TEOs should not be able to be imposed on children and, if this was not accepted, suggested a number of safeguards for children subject to a TEO.
2.61
The UNSW Law Society submitted that, if it was not possible to exclude 14-17 years olds from the Regime:
Better protections to alleviate the harmful impacts of a Temporary Exclusion Order must be facilitated with the consultation of mental health professionals.
Gender specific counselling be provided for any emotional distress that may be caused in the aftermath of imposing a TEO, by trained child helpline staff and psychologists specialising in youth mental health and trauma.
Special consideration should be given for children with mental or cognitive disabilities, and as such as the age threshold should be increased for them.
2.62
The Law Council of Australia explained that it continued to hold the view that TEOs should not be available in relation to children but, noting that the Committee had previously accepted that TEOs should be available in relation to children, recommended that the list of factors in subsection 10(4) that must be assessed in considering the child’s best interests should be expanded to include:
whether the child has a physical or an intellectual, cognitive or developmental disability, not only their ‘physical and mental health’ per paragraph 10(4)(b);
the child’s developmental status, including evidence of any developmental delays in speech, literacy or other aspects of cognitive development, not only their ‘maturity’ per paragraph 10(4)(a); and
whether the child belongs to a minority group, not only potentially as part of a generalised assessment of the child’s ‘background’ per paragraph 10(4)(a) or ‘any other matter the Minister considers relevant’ per paragraph 10(4)(f); and
the assessment of the child’s best interests must be conducted on the basis of sufficient evidence to make an informed and accurate assessment of the child’s circumstances, not merely to the extent that those matters are known to, and are regarded as relevant by, the Minister, as is presently required under subsection 10(5); and
if insufficient evidence is provided to inform a credible assessment, then it should not be possible to issue the TEO in relation to the child. In this event, any security risk presented by the child’s return to Australia should be managed using the extensive suite of existing powers available to security agencies, as well as non-intrusive and non-coercive measures to support the child’s reintegration to the community.
2.63
The issue of the protection of the community as the paramount consideration and its interaction with the best interests of the person (ie. a 14- to 17-year-old) as a primary consideration was discussed in the public hearing.
2.64
The AHRC explained that its position was that the best interests of the child should be a primary consideration. They explained that although the words 'primary consideration' are in the Act, this is effectively a secondary consideration because the protection of the community is a paramount consideration:
We would say protection of the community and the best interests of the child, where it's an order in relation to a child, should both be primary considerations and one should not be seen to be inherently more significant than the other.
2.65
It was put to the AHRC that there could not be two primary considerations; that one consideration must take precedence over another. The AHRC stated that its position was that both the protection of the community and the best interests of the child could be primary considerations.
2.66
The Department of Home Affairs, when given the opportunity to comment on the discussions around TEOs in relation to persons 14-17 years of age, pointed out that the provisions had not been used in relation to children of that age and, apart from describing the existing provisions, did not make further comment.