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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COUNTER-TERRORISM (TEMPORARY EXCLUSION ORDERS) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Hon. Peter Dutton MP)
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Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
OUTLINE
The Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 (the Bill) introduces a
temporary exclusion order scheme to delay Australians of counter-terrorism interest from
re-entering Australia until appropriate protections are in place.
FINANCIAL IMPACT STATEMENT
The financial impact of the temporary exclusion order scheme is low. Any costs will be met
from within existing resources.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the Bill
and assesses that the Bill is compatible with Australia's human rights obligations. A copy of
the Statement of Compatibility with Human Rights is at Attachment A.
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COUNTER-TERRORISM (TEMPORARY EXCLUSION ORDERS) BILL 2019
Notes on individual sections
Part 1--Preliminary
Section 1 Short title
1. Section 1 provides for the short title of the Act to be the Counter-Terrorism
(Temporary Exclusion Orders) Act 2019.
Section 2 Commencement
2. Subsection 2(1) provides that each provision of this Act specified in column 1 of the
table commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its terms.
3. Table item 1 provides that this Act will commence on the day this Act receives Royal
Assent.
4. A note explains that this table relates only to the provisions of this Act as originally
enacted. It will not be amended to deal with any later amendments of this Act.
5. Subsection 2(2) provides that any information in column 3 of the table is not part of
this Act. Information may be inserted in this column, or information in it may be
edited, in any published version of this Act.
Section 3 Simplified outline of this Act
6. Section 3 provides for the simplified outline of the Act. The outline is included to
assist in understanding the substantive provisions. The outline is not intended to be
comprehensive.
Section 4 Definitions
7. New section 4 contains definitions of the following terms, Australian travel
document, listed terrorist organisation, return permit, reviewing authority,
temporary exclusion order and terrorist act, for the purposes of this Act.
8. The term Australian travel document has the meaning given by the Australian
Passports Act 2005.
9. The terms listed terrorist organisation and terrorist act have the same meaning as in
section 100.1 of the Criminal Code.
10. The term return permit is defined to mean a permit issued to a person who is subject
to a temporary exclusion order, by the Minister to return to Australia, under
subsections 15(1) or 15(2).
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11. The term reviewing authority is defined to mean a person appointed under section 23
of this Bill.
12. The term temporary exclusion order is defined to mean an order made by the
Minister under the new subsection 10(1).
Section 5 Act extends to external Territories
13. Section 5 provides that this Act extends to every external Territory.
Section 6 Act extends to things outside Australia
14. Section 6 provides that the Act extends to acts, omissions, matters and things outside
Australia.
Section 7 This Act binds the Crown
15. Section 7 provides that the Act binds the Crown in each of its capacities but does not
make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
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Part 2--Temporary exclusion orders and return permits
16. Part 2 sets out the framework for temporary exclusion orders and return permits.
Division 1-Temporary exclusion orders
17. Division 1 of part 2 sets out the provisions relating to temporary exclusion orders.
Section 8 Prohibition on entering Australia if a temporary exclusion order is in
force
18. Section 8 creates an offence for a person who has a temporary exclusion order in force
to enter Australia. The section provides that a person commits an offence if:
(a) a temporary exclusion order is in force in relation to the person; and
(b) the person enters Australia.
19. Section 8 intends to create an offence for every instance a person subject to a
temporary exclusion order enters Australia.
20. The offence created by section 8 is subject to the principles set out in Part 2.2 of the
Criminal Code.
21. The offence does not specify that a return permit must not be in force, as a temporary
exclusion order is taken to be revoked if a return permit is in force (section 11).
22. The penalty for this offence is 2 years imprisonment.
Section 9 Prohibition on permitting use of a vessel or aircraft by a person in
relation to whom a temporary exclusion order is in force
23. Section 9 contains an offence provision.
24. Subsection 9(1) creates an offence for an owner, charterer, lessee, operator, agent or
master of a vessel, or master of a vessel or pilot in charge of an aircraft, where:
(a) the person permits the vessel or aircraft to be used to convey a person (the second
person) who is the subject of a temporary exclusion order to Australia, and
(b) the person knows that a temporary exclusion order is in force in relation to the
second person.
25. This offence only applies in circumstances where the person knowingly permits the
vessel or aircraft to be used to convey a person to Australia who is the subject of a
temporary exclusion order. The offences will not capture persons or transport service
providers who are unaware and have no knowledge of the fact a temporary exclusion
order is in place in relation to that person.
26. Subsection 9(2) provides the offence in subsection (1) does not apply if the second
person is being deported or extradited to Australia. This will ensure the offence does
not apply where a person in control of a vessel or aircraft is conveying the person to
Australia because the person is being deported or extradited to Australia.
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27. This offence provision will act as a deterrent to prevent people in control of vessels or
aircraft from facilitating a person who is the subject of a temporary exclusion order
returning to Australia.
28. As with the offence in section 8, it is not necessary to specify that a return permit
must not be in force for an offence to be committed.
29. Subsection 9(3) provides the offence in subsection (1) has Category A extended
geographical jurisdiction under section 15.1 of the Criminal Code meaning it extends
to the actions of Australian citizens outside of Australia.
30. The penalty for this offence is 2 years imprisonment. Section 4B of the Crimes Act
1914 applies in respect of pecuniary penalties for natural persons and bodies
corporate, respectively.
Section 10 Making a temporary exclusion order
31. Section 10 sets out the basis upon which the Minister may make a temporary
exclusion order.
32. Subsection 10(1) provides that the Minister may make a temporary exclusion order 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 the person.
33. The minimum age requirement of 14 years is consistent with Division 104 of the
Criminal Code, which relates to control orders.
34. Subsection 10(2) sets out two circumstances under which the Minister may make a
temporary exclusion order. The subsection provides that the Minister must not make a
temporary exclusion order in relation to a person unless either:
(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 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
to be directly or indirectly a risk to security (within the meaning in the Australian
Security Intelligence Organisation Act 1979) for reasons related to politically
motivated violence (within the meaning of that Act).
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35. The circumstances set out in paragraphs 10(2)(a) and (b) are mutually exclusive.
Paragraph (a) enables the Minister to take preventative steps in the absence of an
assessment by the Australian Security Intelligence Organisation relating to the person.
36. Subsection 10(3) provides that, where a person is 14 to 17 years of age, the Minister
must take into account the protection of the community as the paramount
consideration and the best interests of the person as a primary consideration before
making a temporary exclusion order in relation to the person. This is consistent with
Division 104 of the Criminal Code, which relates to control orders. This subsection,
taken together with subsection 10(4), provides additional safeguards for children
recognising their particular vulnerability, consistent with Australia's international
obligations, and protection of the Australian community.
37. Subsection 10(4) sets out the matters that the Minister must take into account when
determining what is in the best interests of the person for the purposes of subsection
10(3) as follows:
(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 practice his or her religion;
(f) any other matter the Minister considers relevant.
38. The matters listed in subsection 10(4) are consistent with section 104.4(2A) of the
Criminal Code, which relates to control orders. This subsection, when taken with
subsection 10(3) provides additional safeguards for children recognising their
particular vulnerability, consistent with Australia's international obligations, and
protection of the Australian community.
39. Subsection 10(4) gives effect to recommendation 4 of the 'Advisory report on the
Counter Terrorism (Temporary Exclusion Orders) Bill 2019' (the Committee report)
tabled in Parliament by the Parliamentary Joint Committee on Intelligence and
Security (the Committee) on 3 April 2019.
40. Subsection 10(5) clarifies that the Minister must only take into account the matters set
out in subsection 10(4) to the extent the matters are known to the Minister, and to the
extent the matters are relevant.
41. Subsection 10(6) sets out how the Minister must make a temporary exclusion order.
Specifically, this subsection provides that the order must:
(a) be in writing;
(b) specify the name of the person to whom the order relates;
(c) state that the criteria in subsection 10(2) for the making of the order have been
met;
(d) specify the period the order is to be in force, which must not end more than
2 years after the day the order is made; and
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(e) if the person to whom the order relates has an Australian travel document -
specify whether the person must surrender the document to a specified person or
body; and
(f) specify whether the person to whom the order relates is permitted to apply for an
Australian travel document; and
(g) specify whether the person to whom the order relates is permitted to obtain an
Australian travel document; and
(h) set out the effect of the following sections:
(i) section 8 (offence to enter Australia if a temporary exclusion order is in
force);
(ii) sections 11 and 12 (about revoking temporary exclusion order);
(iii) sections 15 and 18 (the circumstances in which the Minister may issue a
return permit and the application process for applying for a return permit);
(i) state that the person may have review rights in relation to the decision to make the
order.
42. The requirements under subsection 10(6) provide transparency about the nature of the
order, to the person who is the subject of the order. The subsection also explicitly
states that the person must be advised that he or she may have review rights in relation
to the order, which gives effect to recommendation 5 of the Committee report. This is
consistent with similar requirements in the Criminal Code in relation to control orders
and preventative detention orders.
43. Subsection 10(7) provides that paragraph (6)(d) does not prevent the Minister from
making another temporary exclusion order in relation to the same person. This allows
the Minister to make further temporary exclusion orders at the expiration of the first
one if grounds for making the order under this section continue to exist. This is
similar to section 104.16 of the Criminal Code.
44. Subsection 10(8) requires the Minister to take such steps as are reasonable and
practicable after the order comes into force, in the opinion of the Minister, to bring to
the person's attention the content of the order, and if the person to whom the order
relates is 14 to 17 years of age, the attention of a parent or guardian as well. Under
this subsection, 'reasonable and practicable steps', could include, for example,
electronic means of communication. This subsection is intended to allow the Minister
flexibility to choose the most reasonable and practical means of notification where the
person is overseas, including potentially in a conflict zone.
45. Paragraph 10(8)(b), which provides that the Minister take such steps as are reasonable
and practicable so that the content of the order be brought to the attention of a parent
or guardian where the subject of the temporary exclusion order is 14 to 17 years of
age, gives effect to part of recommendation 4 of the Committee report, recognising
the particular vulnerability of children, consistent with Australia's international
obligations.
46. Subsection 10(9) clarifies that a temporary exclusion order made by the Minister is
not a legislative instrument for the purposes of the Legislation Act 2003.
Section 11 Revoking a temporary exclusion order
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47. Section 11 sets out that the Minister may revoke a temporary exclusion order.
Subsection 11(1) provides that the Minister may revoke a temporary exclusion order.
This would include circumstances where the Minister considers the grounds for
making the order no longer exist.
48. Subsection 11(2) provides that the Minister may revoke a temporary exclusion order
under subsection 11(1) on the Minister's own initiative or on application by, or on
behalf of, the person to whom the order relates.
49. Note 2 after subsection 11(2) makes it clear that the process for how to apply for the
revocation of a temporary exclusion order is set out in section 12.
50. Subsection 11(3) requires the Minister to, as soon as practicable after revoking a
temporary exclusion order, take such steps as are reasonable and practicable, in the
Minister's opinion, to bring to the attention of the person the revocation of the order
and if the person to whom the order relates is 14 to 17 years of age, the attention of a
parent or guardian as well, recognising the particular vulnerability of children,
consistent with Australia's international obligations. This gives effect to part of
recommendation 4 of the Committee report.
51. Subsection 11(4) confirms that the revocation of a temporary exclusion order under
subsection (1) takes effect when the Minister revokes the order.
52. Subsection 11(5) provides that a temporary exclusion order in relation to a person is
taken to be revoked if a return permit is issued to the person. Under this subsection,
the revocation takes effect immediately after the return permit is issued.
53. Subsection 11(6) provides that this section does not prevent the Minister from making
another temporary exclusion order in relation to the person. For example, if after
revoking the order, and provided the person is still located outside Australia, new or
further information comes to light which warrants making a temporary exclusion
order, the Minister can issue another temporary exclusion order under section 10.
Section 12 Application to revoke a temporary exclusion order
54. Section 12 provides certainty to applicants about how to apply for the revocation of a
temporary exclusion order by setting out the form and manner by which a person may
apply for the revocation of a temporary exclusion order.
55. Subsection 12(1) provides that a person may make an application, either orally or in
writing to the Minister or the Department.
56. Subsection 12(2) provides that the Minister may, in writing, authorise any person,
whether in or outside Australia, to receive applications on behalf of the Minster or
Department for the purposes of subsection (1).
57. Subsection 12(3) sets out the information that the application must include
the following information about the person to whom the temporary exclusion order
relates:
a) the person's full name;
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b) the person's date and place of birth;
c) the person's contact details; and
d) a statement specifying the reasons why the person seeks to have the temporary
exclusion order revoked.
58. However, subsection 12(4) provides that if the person making the application does not
have the information set out in subsection 12(3) then the person must explain why
they do not have that information in the application. This provision recognises that a
person making an application on behalf of another person to whom a temporary
exclusion order is in force may not have access to the required information, and that
this should not preclude the Minister from considering the application.
59. Subsection 12(5) sets out the information that must be provided by the person making
the application, if that person is not the person to whom the temporary exclusion order
relates:
(a) the person's full name;
(b) the person's contact details;
(c) the person's relationship to the person to whom the application relates; and
(d) a statement that the person to whom the application relates has consented to the
person making the application on their behalf.
60. Subsection 12(5) requires this information to be provided to ensure the claims being
put forward on behalf of an individual subject to a temporary exclusion order are
genuine.
61. A note after subsection 12(5) makes it clear that sections 137.1 and 137.2 of the
Criminal Code create offences for providing false or misleading information or
documents.
Section 13 Period for which a temporary exclusion order is in force
62. Section 13 sets out when a temporary exclusion order comes into force and the period
for which it remains in force.
63. Subsection 13(1) provides that a temporary exclusion order comes into force
immediately after a reviewing authority makes a decision under section 14 that none
of subparagraphs 14(2)(b)(i) to (iii) apply to the decision to issue the temporary
exclusion order, unless subsection 13(2) applies. If the reviewing authority decides
that one of subparagraphs 14(2)(b)(i) to (iii) do apply, the temporary exclusion order
is taken to never have been made. If subsection 13(2) applies, the order comes into
force immediately after it is made (i.e. before being reviewed under section 14).
64. Subsection 13(2) applies if the Minister is satisfied that it is necessary, due to urgent
circumstances, that the temporary exclusion order come into force immediately.
Urgent circumstances may include, for example, where the person's return is
imminent and the Minister becomes aware of that fact. This provision recognises the
evolving threat environment and unique challenges posed by each Australian of
counter-terrorism interest, and provides the Minister with the discretion to temporarily
delay the person's entry into Australia prior to review by the reviewing authority.
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65. The operation of subsections 13(1) and (2) balances oversight of the Minister's
decision to make a temporary exclusion order with the need to ensure that decisions
affecting national security and community safety can become operative immediately
in urgent circumstances.
66. A note to subsection 13(1) provides that if subsection 13(2) does not apply and the
reviewing authority makes a decision that one or more of subparagraphs
14(2)(b)(i) to (iii) apply to the decision to make the temporary exclusion order, then
the order is taken to have never been made.
67. For clarity, a decision by the reviewing authority that one or more of subparagraphs
14(2)(b)(i) to (iii) apply to the decision to make the temporary exclusion order, which
results in that order being taken never to have been made, does not prevent the
Minster from making an order against the same person at a later date.
68. Subsection 13(3) provides that a temporary exclusion order remains in place until the
earlier of the following circumstances take place:
(a) the period specified in the order itself (under paragraph 10(6)(d)) ends;
(b) the order is revoked under section 11.
Section 14 Reviewing authority must review the making of a temporary exclusion
order
69. Section 14 establishes that the reviewing authority must review each decision made
by the Minister to make a temporary exclusion order in relation to a person.
70. 'Reviewing authority' is defined in subsection 4(1) of this Act, and means a person
appointed under section 23 of this Act.
71. Section 14 provides a mechanism for the Minister's decision to make a temporary
exclusion order to be independently reviewed and provides further accountability in
the temporary exclusion order scheme. Section 14 also gives effect in principle to
recommendation 7 of the Committee report.
72. Subsection 14(1) provides that the Minister must immediately refer the decision to
make a temporary exclusion order to a reviewing authority.
73. Subsection 14(2) provides that the referral by the Minister to a reviewing authority
must be accompanied by:
(a) a written statement of reasons for making a temporary exclusion order; and
(b) all of the material relating to the decision to make the temporary exclusion order
that was before the Minister at the time the decision to make the order was made.
74. This ensures that the reviewing authority is able to meaningfully review the Minister's
decision to make a temporary exclusion order.
75. Subsection 14(3) provides that the Minister is not required to provide any material to
the reviewing authority under subsection 14(2) that, in the Minister's opinion, it
would not be in the public interest to disclose. This enables the Minister to avoid the
risk of inadvertent disclosure of sensitive national security information through the
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review process. When deciding to withhold particular information from the reviewing
authority, the Minister must balance the protection of sensitive information against the
risk of the reviewing authority determining that one of the factors in subsection 14(4)
had been made out and that the temporary exclusion order should be taken never to
have been made.
76. Subsection 14(4) provides that the reviewing authority must review, as soon as
reasonably practicable, any referral of a temporary exclusion order decision and
determine whether any of the following applies:
(a) the making of the decision to make the temporary exclusion order was an
improper exercise of the power given by the Act;
(b) the decision was induced or affected by fraud;
(c) if the temporary exclusion order was made on the basis of paragraph 10(2)(a)--
there was no material before the Minister from which the Minister could form the
state of mind required by that paragraph.
77. Subsection 14(5) provides that an improper exercise of the power to make the
decision for the purposes of subparagraph 14(4)(b)(i) has occurred if:
(a) the Minister took an irrelevant consideration into account; or
(b) the Minister failed to take a relevant consideration into account; or
(c) the decision was made for a purpose other than a purpose for which the power to
make the decision was conferred; or
(d) the decision was made in bad faith; or
(e) the decision was made at the direction or behest of another person; or
(f) the decision was made in accordance with a rule or policy without regard to the
merits of the particular case; or
(g) the decision that was so unreasonable that no reasonable person could have so
made it;
(h) or
(i) the decision was made in such a way that the result of the decision is uncertain; or
(j) the decision was otherwise an abuse of the power to make the decision.
78. Subsection 14(5) defines what would constitute an improper exercise of power under
subsection 14(4), and mirrors subsection 5(2) of the Administrative Decisions
(Judicial Review) Act 1977. The review authority is required to consider the legality
of the Minister's temporary exclusion order decision rather than its merits.
79. Subsection 14(6) provides that the reviewing authority must conduct a review of the
temporary exclusion order decision:
(a) in the absence of the person to whom the temporary exclusion order relates;
(b) without the person having been notified of the review; and
(c) without the person having been given an opportunity to make any representations
to the reviewing authority.
80. Subsection 14(6) recognises that providing advance notice to an individual that they
are being considered for a temporary exclusion order would frustrate the policy intent
of the Bill. Advance notice may prompt the individual to seek immediate return to
Australia in a manner that poses safety risks for the Australian community.
Accordingly, subsection 14(6) requires the reviewing authority to consider the
temporary exclusion order decision in the absence of the person to whom the order is
sought, without prior notification or representations.
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81. Subsection 14(7) provides that if the reviewing authority decides that
subparagraphs 4(b)(i)-(iii) apply to the Minister's decision to make a temporary
exclusion order:
(a) the order is taken to have never been made; and
(b) if the person to whom the TEO decision relates has been notified of the making of
the order--the Minister must cause such steps, as the Minister considers
reasonable and practicable, to be taken to bring the reviewing authority's decision
to the attention of the person to whom the temporary exclusion order decision
related, and if that person is 14 to 17 years of age, to bring the reviewing
authority's decision to the attention of their parent or guardian as well.
82. A note after subsection 14(7) provides that if none of subparagraphs 14(4)(b)(i) to (iii)
apply the decision to make a temporary exclusion order, and the order has not already
come into force as a result of urgent circumstances under paragraph 13(4)(b), then the
temporary exclusion order comes into force immediately after the reviewing authority
complete their review (see paragraph 13(1)(a).
83. Subsection 14(8) provides that if a return permit has been issued and the temporary
exclusion order is taken never to have been made by operation of paragraph 14(7)(a),
then the return permit is also taken never to have been issued. This subsection
captures the situation contemplated by subsection 13(2), where the Minister may
make a temporary exclusion order without first having it reviewed by the reviewing
authority due to urgent circumstances. In such a situation, a return permit may be
issued prior to the decision to make a temporary exclusion order being reviewed.
84. Subsection 14(9) provides that after completing a review of the decision to make the
temporary exclusion order, the reviewing authority must return the material used to
review the decision (as referred to in paragraph 14(2)(b)) to the Minister as soon as
reasonably practicable.
85. Subsection 14(10) makes it clear that nothing in section 14 of the Bill prevents the
Minister making another temporary exclusion order in relation to the same person.
Division 2-Return permits
86. Division 2 of Part 2 sets out matters in relation to return permits.
Section 15 Issuing a return permit
87. Section 15 sets out the circumstances in which the Minister must issue a return permit,
the time period in which the return permit must be issued, the form and contents of the
permit and how the permit must be served.
88. Subsection 15(1) sets out two circumstances in which the Minister must issue a return
permit to a person. The first circumstance is where the person has applied to the
Minister, or an application has been made on the person's behalf. The second
circumstance is where the person is to be, or is being, deported or surrendered to
Australia pursuant to an extradition request. The Minister must issue a return permit
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to a person in these circumstances. This section does not provide the Minister with the
discretion to refuse to issue a return permit where a person has applied for one.
89. Subsection 15(2) provides additional discretion to the Minister to issue a return
permit. Under this subsection, the Minister has discretion to issue a return permit if
the Minister considers it appropriate to do so. If neither paragraph 15(1)(a) or (b) are
satisfied and the Minister considers it appropriate under the circumstances to issue a
return permit, the Minister may do so under this subsection. An example of a situation
where the Minister may elect to do so could be if the person is in a place where a
natural disaster has struck and is unable to make an application, the Minister may
issue a return permit to allow the person to be evacuated and return to Australia.
90. Subsection 15(3) sets out the time for issuing a return permit and provides that the
permit must be issued:
(a) if the person applied for the permit under paragraph 15(1)(a) - within a reasonable
period after the Minister received the application;
(b) if the person is to be, or is being, deported to Australia or surrendered to Australia
pursuant to an extradition request--within a reasonable period after the Minister
becomes aware of that fact; or
(c) if the Minister decides, under subsection (2), to issue a return permit to the
person--within a reasonable period after the Minister makes the decision.
91. Subsection 15(3) provides further certainty about the operation of the scheme and
gives effect to recommendation 2 of the Committee report.
92. Subsection 15(4) sets out the requirements for the form and contents of a return
permit. A return permit must:
(a) be in writing; and
(b) specify the name of the person to whom the permit relates; and
(c) specify the day the permit comes into force and the period it remains in force,
which must not end more than 12 months after the person enters Australia; and
(d) specify the conditions (if any) imposed on the permit; and
(e) if one or more conditions are imposed on the permit--specify, for each condition,
the period during which the condition is in force, which must not end after the
permit ceases to be in force; and
(f) set out the effect of the following sections:
(i) section 17 and 18 (about varying and revoking a return permit);
(ii) section 20 (offence for failing to comply with conditions of permit);
(iii) section 22 (offence for providing false information or documents);
(g) state that the person may have review rights in relation to the decision to issue the
permit.
93. Subsection 15(4) gives effect, in part, to recommendation 5 of the Committee report.
94. Subsection 15(5) provides that the Minister must cause a copy of the return permit to
be served personally on the person to whom the order relates, and if that person is 14
to 17 years of age, on a parent or guardian of the person as well. This subsection gives
effect, in part, to recommendation 4 of the Committee Report.
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95. Subsection 15(6) provides that the Minister must only comply with paragraph
15(5)(b) where it is reasonably practicable to do so. This acknowledges that there may
be situations where it is not reasonably practical to provide personal service of a
return permit to a person.
96. When taken together, subsections 15(5) and (6) ensure that the affected person is
aware that a return permit has been issued and the conditions attached.
Section 16 Conditions on a return permit
97. Section 16 sets out the conditions which may be placed on a return permit.
Subsection 16(1) enables the Minister to impose one or more of the conditions set out
in subsections 16(9) and (10) on a return permit.
98. The conditions set out in subsections 16(9) and (10) are exhaustive. This is restricts
the Minister to imposing only conditions that have been appropriately contemplated,
scrutinised and approved by the law-making process.
99. Subsection 16(2) makes it clear that the Minister may impose a condition at the time
the return permit is issued or at a later time.
100. Subsection 16(3) sets out the matters that the Minister must be satisfied of in order to
impose a condition on a return permit. The Minister must be satisfied that the
imposition of the condition and (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:
(a) preventing a terrorist act;
(b) preventing training from being provided to, received from or participated in with a
listed terrorist organisation;
(c) preventing the provision of support for, or the facilitation of, a terrorist act;
(d) 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.
101. Subsection 16(4) requires the Minister to have regard to the impact of imposing a
condition on the person's personal circumstances, particularly the impact on any
dependants of the person who are under 18. The Minister must have regard to the
impact of each individual condition and the impact of the conditions taken together
before imposing the conditions.
102. The requirements in subsections 16(3) and (4) give effect to recommendation 3 of the
Committee report, and ensure that the conditions imposed are subject to careful
consideration by the Minister.
103. Where the return permit relates to a person who is 14 to 17 years of age,
subsection 16(5) requires the Minister to have regard to the protection of the
community as the paramount consideration and the best interests of the minor as a
primary consideration before imposing any conditions on the return permit. The
subsection provides additional safeguards for children recognising their particular
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vulnerability, consistent with Australia's international obligations, and protection of
the Australian community. This is consistent with Division 104 of the Criminal Code,
which relates to control orders.
104. Subsection 16(6) sets out the matters that the Minister must have regard to in
determining what is in the best interests of the person for the purposes of paragraph
16(5)(b):
(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;
(f) any other matter the Minister considers relevant.
105. Taken together, subsections 16(5) and (6) give effect to part of recommendation 4 of
the Committee report, and provide additional safeguards for minors recognising their
particular vulnerability, consistent with Australia's international obligations, and the
protection of the Australian community.
106. Subsection 16(7) provides that the Minister must only take into account the matters in
subsection 16(6) to the extent such matters are known to the Minister and are relevant.
107. Subsection 16(8) sets out matters that the Minister must consider before imposing a
condition on a return permit that would prevent a person from entering Australia for a
period of time:
(a) whether the person has a lawful right to remain, or to enter and remain, in a
country other than Australia during that period;
(b) if the person has no lawful right to remain, or to enter and remain in a country
other than Australia during that period--the likelihood of the person being
detained, mistreated or harmed if the person cannot enter Australia until the end of
that period.
108. The Minister is only required to consider the matters set out in subsection 16(8) to the
extent that they are known to the Minister.
109. Subsection 16(8), when taken together with subsection 16(4) (and for persons 14 to 17
years of age, subsections 16(5) and (6)) ensures that the individual circumstances of a
person are taken into account before certain conditions are imposed on a return
permit, especially the likelihood of a person being detained or being unable to leave a
dangerous conflict zone to seek safety in a third country. It gives effect, in part, to
recommendation 1 of the Committee report.
110. Subsection 16(9) sets out the pre-entry conditions that may be imposed by the
Minister on a return permit. These conditions may require:
(a) that the person must not enter Australia during a specified period, which must end
no later than the earlier of:
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(i) the end of the period reasonably necessary to assess the risk posed by the
entry of the person to Australia and to make appropriate arrangements for
that entry; and
(ii) 12 months after the permit is issued to the person;
(b) that the person must enter Australia within a specified period, which must not end
more than 3 months after the permit is issued to the person;
(c) that the person enter Australia on a specified date, which must not be later than 3
months after the permit is issued to the person;
(d) that the person enter Australia in a specified manner.
111. The amount of time that is reasonably necessary to assess the risk posed by the entry
of the subject of a temporary exclusion order into Australia, and make appropriate
arrangements, will vary based on the circumstances of each individual.
112. Subparagraph 16(9)(a)(i) gives effect to recommendation 6 of the Committee's report.
The Bill does not preclude a person to whom the return permit applies from
requesting a specific date to enter Australia. However, the ultimate decision rests with
the Minister, who may specify the exact date and flight on which the person is to
return under the permit.
113. Subsection 16(10) sets out the post-entry conditions that may be imposed by the
Minister as part of a return permit. The conditions are imposed to protect the public
from a terrorist act, or prevent the provision of support for, or the facilitation of,
terrorism or terrorism-related activities. These conditions may require:
(a) that the person notify a specified person or body of the person's principal place of
residence in Australia;
(b) that the person notify a specified person or body of any change to the person's
principal place of residence in Australia within 24 hours of the change occurring;
(c) that the person notify a specified person or body of the person's place of
employment in Australia;
(d) that the person notify a specified person or body of any change to the person's
place of employment in Australia within 24 hours of the change occurring;
(e) that the person notify a specified person or body of the person's place of education
in Australia;
(f) that the person notify a specified person or body of any change to the person's
place of education in Australian within 24 hours of the change occurring;
(g) that the person notify a specified person or body of any contact with specified
individuals (whether within or outside Australia) within 24 hours of the contact
occurring;
(h) 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 is not the State or
Territory in which the person's principal place of residence is located;
(i) that the person notify a specified person or body, within a specified period, if the
person intends to leave, or leaves, Australia;
(j) that, if the person accesses or uses, or intends to access or use, specified forms of
telecommunication or other technology in Australia, the person do either or both
of the following within a specified period of the access or use, or intended access
or use, occurring:
(i) notify a specified person or body of the access, or intended use or access;
(ii) provide a specified person or body with sufficient information to enable
the specific telecommunications service, account or device to be identified.
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(k) that the person notify a specified person or body, within a specified period, if the
person intends to apply for an Australian travel document;
(l) if the person has an Australian travel document--that the person must surrender
the document to a specified person or body;
(m) that the person is not permitted to apply for an Australian travel document;
(n) that the person is not permitted to obtain an Australian travel document.
114. The notification requirements under subsection 16(10) facilitate monitoring of a
person subject to return permits by law enforcement and security agencies. For
paragraph 16(10)(j), a once-off notification to the specified person is sufficient in
relation to each service, account or device. Without limiting this paragraph, examples
of the types of information about telecommunication devices that may be required
under this paragraph include phone numbers, international mobile equipment identity
(IMEI) numbers, subscriber identity module (SIM) cards, email and social media
accounts, and computers or tablet devices.
115. Subsection 16(11) provides that if a condition is imposed that requires the person to
notify a specified person or body of a particular matter, the return permit may specify
either or both of the following:
(a) the manner in which the person or body is to be notified;
(b) any documents or information that must be provided to the person or body to
substantiate the relevant matter.
Section 17 Varying and revoking a return permit
116. Section 17 empowers the Minister to vary or revoke a return permit.
117. Subsection 17(1) provides that the Minister may:
a) vary a return permit to do one or more of the following:
(i) vary the period during which the return permit is in force, which must not
end more than 12 months after the person enters Australia;
(ii) remove a condition imposed on the permit;
(iii) impose a new condition in accordance with section 16; or
b) revoke the return permit.
118. Subsection 17(2) provides the Minister may vary or revoke a return permit either on
the Minister's own initiative or on application by, or on behalf of, the person to whom
the return permit relates.
119. A note after subsection 17(2) clarifies that section 18 sets out how an application to
vary or revoke a return permit can be made.
120. Subsection 17(3) clarifies that a variation or revocation takes effect at the time when
the Minister varies or revokes the return permit.
121. Where the Minister varies a return permit to change the period during which the
permit is in force or imposes a new condition, subsection 17(4) requires the Minister
to cause a copy of the return permit as varied to be served personally on the person to
whom it relates. Paragraph 17(4)(b) clarifies that if the person to whom the permit
relates is 14 to 17 years of age, then the varied return permit must also be served
personally on a parent or guardian of the person. However, subsection 17(5) clarifies
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that the Minister only needs to comply with the requirement in paragraph 17(4)(b) to
personally serve the amended return permit on a parent or guardian where it is
reasonably practicable to do so.
122. Subsection 17(6) provides that where the Minister revokes a return permit, or revokes
a condition on a return permit, the Minister must, as soon as practicable after revoking
the return permit or the condition, cause reasonable and practicable steps to be taken
to bring the revocation to the attention of the person who was subject to the return
permit, and, if the person was 14 to 17 years old, to the attention of the person's
parent or guardian.
Section 18 Making an application for a return permit
123. Section 18 sets out the form and manner for an application for a return permit, or an
application for a return permit to be varied or revoked.
124. Subsection 18(1) provides that a person may make an application, either orally or in
writing to the Minister or Department.
125. Subsection 18(1) provides the option of oral or written applications in recognition of
the potential practical difficulties that a person in a conflict zone may have in
communicating with the Minister or Department.
126. Subsection 18(2) provides that the Minister may, in writing, authorise any person,
whether in or outside Australia, to receive applications on behalf of the Minster or
Department for the purposes of subsection 18(1).
127. Subsection 18(2) provides flexibility for the Minister to authorise other persons to
receive applications. This will provide the ability for individuals subject to a
temporary exclusion order to make a return permit application through different
avenues, recognising that in some circumstances it may not be practical to make an
application directly to the Minister or Department.
128. Subsection 18(3) sets out the information that must be included about the person to
whom the application relates, if the person is located outside Australia at the time the
application is made:
(a) the person's full name;
(b) the person's date and place of birth;
(c) the person's contact details;
(d) if the application is for the issue of a return permit - the following information in
relation to each child (if any) of the person:
(i) whether the child is deceased or alive.
(ii) the full name of the child;
(iii) the date and place of birth of the child;
(iv) if the child is alive - the location of the child.
129. Subsection 18(4) sets out the information that must be included about the person to
whom the application relates if the person is located within Australia at the time the
application is made:
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(a) the person's full name;
(b) the person's date and place of birth;
(c) the person's current residential address in Australia;
(d) the person's contact details.
130. However, subsection 18(5) sets out that if a person does not have the information
required by subsections 18(3) and (4), then the application must explain why that
information cannot be provided.
131. Subsection 18(5) provides that if the application is for the variation of a return permit,
the application must be accompanied by:
(a) a statement that specifies the variation requested to be made; and
(b) the reasons why the person to whom the application relates is seeking to have the
permit varied in the manner requested.
132. The Bill contemplates scenarios where the individual requests for particular return
permit conditions to be included. For instance, they may request that the return permit
specify a particular timeframe in which they return to Australia.
133. Subsection 18(6) sets out that if the application is for the variation of a return permit,
the application must be accompanied by a statement that specifies the variation
requested to be made and the reasons why the person to whom the application relates
is seeking to have the return permit varied.
134. Subsection 18(7) sets out that if the application is for the revocation of a return
permit, the application must be accompanied by a statement that specifies the reasons
why the person to whom the application relates is seeking to have the return permit
revoked.
135. Subsection 18(8) sets out the information that must be provided by the person making
the application if the application is made on behalf of someone else:
(a) the person's full name;
(b) the person's contact details;
(c) the person's relationship to the person to whom the application relates; and
(d) a statement that the person to whom the application relates has consented to the
person making the application on their behalf.
136. A note after subsection 18(7) makes it clear that sections 137.1 and 137.2 of the
Criminal Code create offences for providing false or misleading information or
documents.
137. Section 18 provides certainty to applicants about the minimum requirements for how
to apply for a return permit and gives effect to recommendation 8 of the Committee
report.
Section 19 Period for which a return permit is in force
138. Section 19 clarifies the period a return permit is in force. Section 19 sets out that a
return permit comes into force on the day specified in the return permit and remains in
force until the earliest of the following occurs:
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(a) the period specified for the purposes of paragraph 15(4)(c) ends;
(b) if the period is varied under subparagraph 17(1)(a)(i)--the end of that period;
(c) the permit is revoked under paragraph 17(1)(b).
Section 20 Consequences for failing to comply with return permit conditions
139. Section 20 provides a person commits an offence where they fail to comply with the
conditions of their return permit.
140. Under subsection 20(1), a person commits an offence if a return permit is in force, the
return permit sets out a condition imposed under subsection 16(9) or (10), and the
person fails to comply with the condition. The maximum penalty for breach of a
condition is 2 years' imprisonment.
141. Subsection 20(2) provides that section 15.2 of the Criminal Code applies to offences
against this section. Section 15.2 of the Criminal Code (extended geographical
jurisdiction category B) will apply to extend the application of the offence in
section 20 to locations outside Australia for Australian citizens and residents.
142. Under subsection 20(2), an example of a breach could be where a condition to board a
particular flight is imposed and the person enters Australia on a different flight.
Defences under the Criminal Code and the common law remain available. For
instance, section 10.1 of the Criminal Code establishes a defence for circumstances
where the conditions of a return permit cannot be complied with for reasons outside
the person's control and which they could not reasonably be expected to guard
against. This would likely apply in circumstances where a return permit specified that
an individual must be returned to Australia on a particular flight, and the flight had to
be cancelled due to bad weather or mechanical difficulties.
Section 21 Permitting use of a vessel or aircraft by person in contravention of return
permit conditions
143. Subsection 21(1) creates an offence for an owner, charterer, lessee, operator, agent or
master of a vessel or aircraft, or a master of a vessel or a pilot in charge of an aircraft,
where:
(a) the person permits the vessel or aircraft to be used to convey a person (the second
person) to Australia, and
(b) the person does so knowing that the second person is entering Australia in
contravention of a condition of a return permit that is in force in relation to the
second person.
144. This offence only applies in circumstances where the person knowingly permits the
vessel or aircraft to be used to convey a person to Australia in contravention of the
conditions of a return permit. The offences will not capture persons or transport
service providers who are unaware and have no knowledge of the fact a return permit
condition is in place in relation to that person.
145. In addition, any prosecution of this offence will occur in accordance with established
criminal justice procedures. For instance, section 10.1 of the Criminal Code
establishes a defence for circumstances where the physical element of an offence,
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such as ensuring a vessel or aircraft is used to return the subject of a return permit in
line with specified conditions, cannot be complied with for reasons outside the
transport service providers' control and which they could not reasonably be expected
to guard against. This would likely apply in circumstances where a return permit
specified that an individual must be returned to Australia on a particular flight, and the
flight had to be cancelled due to bad weather or mechanical difficulties.
146. Subsection 21(2) provides the offence in subsection (1) does not apply if the second
person is being deported or extradited to Australia. This will ensure the offence does
not apply where a person in control of a vessel or aircraft is conveying the person to
Australia in contravention of a condition in a return permit because the person is
being deported or extradited to Australia.
147. A note under subsection 21(2) clarifies that the defendant bears an evidential burden
in relation to the matter in subsection 21(2).
148. Subsection 21(3) provides the offence in subsection (1) has Category A extended
geographical jurisdiction under section 15.1 of the Criminal Code, meaning it extends
to the actions of Australian citizens outside of Australia.
149. The maximum penalty for this offence is 2 years' imprisonment. Section 4B of the
Crimes Act 1914 applies in respect of pecuniary penalties for natural persons and
bodies corporate, respectively.
Section 22 Consequences for providing false or misleading information or
documents
150. Section 22 creates an offence for providing false information in purported compliance
with a condition.
151. Subsection 22(1) provides that a person commits an offence if the person gives
information or produces a document to a person or body, the person does so in
response to a condition imposed on a return permit issued to the person, and the
person does so knowing that the information or document is false or misleading. This
subsection requires the person to knowingly provide the false or misleading
information. The maximum penalty for this offence is 2 years' imprisonment.
152. Subsection 22(2) qualifies the application of subsection (1) so that the offence does
not apply if the information provided is not false or misleading in a material
particular.
153. A note under subsection (2) provides that the defendant bears an evidential burden in
relation to the matter in this subsection and refers to subsection 13.3(3) of the
Criminal Code. This means that the defendant would have to prove that the
information provided was not false or misleading in a material particular to be
absolved of liability under this section.
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Part 3--Other matters
Section 23 Reviewing authority
154. Section 23 sets out how a reviewing authority is appointed, and who is eligible to be
appointed as a reviewing authority.
155. Subsection 23(1) provides that the Attorney-General may appoint a reviewing
authority in writing and sets out who the Attorney-General may appoint as a
reviewing authority:
(a) a former Justice of the High Court; or
(b) a former judge or justice of a court created by the Parliament; or
(c) a former judge of the Supreme Court of a State or Territory; or
(d) a person who:
(i) holds an appointment to the Administrative Appeals Tribunal as Deputy
President or senior member (of any level); and
(ii) is enrolled as a legal practitioner of a federal court or of the Supreme Court
of a State or a Territory; and
(iii) has been enrolled for at least 5 years.
156. Subsection 23(2) makes it clear that any person who is currently a judge or justice of
any court is not eligible for appointment as a reviewing authority under
subsection 23(1). This also makes it clear that the review is not judicial in nature.
157. Subsection 23(3) sets out when a person's appointment as a reviewing authority under
subsection 23(1) ceases to have effect. Their appointment ceases when the person
ceases to be a person whom the Attorney-General could appoint under
subsection 23(1) (for example, the person ceases to be enrolled as a legal practitioner),
or the Attorney-General revokes the appointment in writing.
158. Subsection 23(4) provides that a power conferred on a reviewing authority by this Act
is conferred on the reviewing authority in their personal capacity, and if the reviewing
authority is a serving member of the Administrative Appeals Tribunal, not as a
member of the Tribunal.
159. Subsection 23(5) provides that the reviewing authority need not accept the power
conferred. This ensures that a reviewing authority can only be appointed if they wish
to be so.
160. Subsection 23(6) provides that a reviewing authority has, in relation to performing
functions or exercising powers under this Act, the same protection and immunity as a
Justice of the High Court has in relation to proceedings in the High Court.
Section 24 Protection of information provided to a reviewing authority
161. Section 24 sets out the information protection obligations a reviewing authority has in
relation to information received in their capacity as a reviewing authority.
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162. Subsection 24(1) provides that a person who is, or has been, a reviewing authority
commits an offence if they disclose any information provided under subsection 14(2)
of the Bill.
163. A note after subsection 24(1) provides that disclosing information provided under
subsection 14(2) carries a penalty of 2 years.
164. Subsection 24(2) provides that subsection (1) does not apply if the disclosure of the
information is for the purposes of giving effect to this Act.
165. A note after subsection 24(2) provides that the defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
166. Subsection 24(3) provides that for the purposes of subsection (2) if the disclosure of
the information is in civil proceedings for judicial review of a decision made under
this Act, then the disclosure is for the purposes of giving effect to this Act.
167. This section is enacted to ensure that reviewing authorities have clarity surrounding
their obligations in regards to information received in their capacity as reviewing
authorities.
Section 25 Delegation
168. Section 25 sets out the functions or powers that the Minister may delegate, and to
whom he or she may delegate them.
169. Subsection 25(1) provides that the Minister may delegate all or any of the Minister's
functions or powers under this Act to the Secretary of the Department administering
the Act or an SES employee or acting SES employee within that Department.
170. Notes 1 and 2 after subsection 25(1) advise that the expressions SES employee and
acting SES employee are defined in section 2B of the Acts Interpretation Act 1901,
and sections 34AA to 34A of that Act contain provisions relating to delegations.
171. Subsection 25(2) sets out the functions and powers which the Minister may not
delegate, being the Minister's functions and powers under the following provisions:
(a) subsection 10(1) (making a temporary exclusion order);
(b) subsection 11(1) (revoking a temporary exclusion order);
(c) subsection 15(1) (mandatory issue of a return permit);
(d) subsection 15(2) (discretion to issue a return permit);
(e) subsection 16(1) (imposing conditions on a return permit);
(f) subsection 17(1) (varying or revoking a return permit).
172. Subsection 25(3) provides that the delegate must comply with any written directions
of the Minister when exercising a delegated function or power.
Section 26 Exclusion of procedural fairness
173. Section 26 provides that the Minister is not required to observe any requirements of
procedural fairness in exercising a power under this Act. However, the person who is
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the subject of a temporary exclusion order or a return permit will have access to
judicial review.
174. Procedural fairness requirements, specifically enabling the potential subject of a
temporary exclusion order to respond to allegations made against them, can frustrate
the policy intention of this Bill by providing advance notice that they are being
considered for a temporary exclusion order. Such a requirement may also be
practically difficult to implement in circumstances where that individual is overseas,
potentially in conflict zones.
Section 27 Administrative Decisions (Judicial Review) Act 1977 does not apply to
certain decisions under this Act
175. Subsection 27 provides that the Administrative Decisions (Judicial Review) Act 1977
does not apply to decisions made under the provisions of the Bill.
176. Review under the Administrative Decisions (Judicial Review) Act 1977 is excluded by
this section as it largely replicates the review that is already undertaken by the
reviewing authority. Nevertheless, judicial review of both the Minister's temporary
exclusion order decision and the review authority's consideration is available under
section 75(v) of the Constitution and section 39B of the Judiciary Act 1903.
Section 28 Interaction with the Australian Security Intelligence Organisation Act 1979
177. Section 28 clarifies the interaction between this Act and the Australian Security
Intelligence Organisation Act 1979 (the ASIO Act).
178. Subsection 28(1) clarifies that neither a temporary exclusion order nor a return permit
constitutes prescribed administrative action for the purposes of the ASIO Act.
Subsection 28(2) clarifies that section 28 is enacted for the avoidance of doubt.
Section 29 Interaction with the Australian Passports Act 2005
179. Section 29 clarifies the interaction between this Act and the Australian Passports Act
2005.
180. Specifically, subsection 29(1) provides that a person is taken, for the purposes of
section 12 of the Australian Passports Act 2005, to be prevented from travelling
internationally if a temporary exclusion order specifies one or more of the following:
(a) the person must surrender an Australian travel document to a specified person or
body;
(b) the person is not permitted to apply for an Australian travel document;
(c) the person is not permitted to obtain an Australian travel document.
181. Subsection 29(2) provides that if a return permit imposes a condition set out in
paragraph 16(10)(l), (m) or (n) the person is taken, for the purposes of section 12 of
the Australian Passports Act 2005, to be prevented from travelling internationally
while the condition is in force.
182. Subsection 29(3) clarifies this provision was enacted for the avoidance of doubt.
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Section 30 Severability
183. Section 30 provides that if section 14 is not a valid law of the Commonwealth then it
is the intention of Parliament that this Act operate as if that section had never been
enacted, and the Act will apply as if subsections 13(1) and (2) were omitted and
replaced with:
(1) A temporary exclusion order in relation to a person comes into force
immediately after the Minister makes the temporary exclusion order in relation
to the person.
Section 31 Annual report on operation of Act
184. Section 31 provides the Minister must, as soon as practicable after the end of each
financial year, cause a report to be prepared on the operation of the Act during that
year. Subsection 31(4) requires the Minister to table the report before each House of
Parliament within 15 sitting days of the Minister receiving the report. Section 31 is
consistent with similar requirements contained in the Criminal Code, such as the
requirement to prepare and table similar annual reports for preventative detention
orders and continuing detention orders.
185. Subsection 31(2) sets out the matters that must be included in the report.
186. Subsection 31(3) provides that where the Minister is satisfied that disclosure of
information set out in the report is likely to prejudice national security, the
information is not to be included in the report and instead must be provided to the
Committee. This strikes the appropriate balance between protecting sensitive national
security information and ensuring the transparent operation of the temporary
exclusion order scheme.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Overview of the Bill
1. Since 2014, the number of Australians travelling to join terrorist organisations overseas has
increased significantly. This has driven the need to reform Australia's approach to managing
individuals who may represent a threat to public safety. The collapse of the Islamic State's
territorial control complicates the threat environment as more Australians participating in or
supporting the conflict, leave the conflict zone and, may seek to return home. The purpose of this
Bill is to ensure that if these Australians do return, it is with forewarning and carefully managed
by authorities.
2. This Bill creates the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 which
introduces a single, explicit source of legislative power for the Government to control the return
of Australian citizens of counter-terrorism interest from overseas conflict zones. The temporary
exclusion order (TEO) scheme will enable greater control over the return of these Australians by
providing a streamlined mechanism to impose conditions, specifically notification requirements,
and facilitate the monitoring of the individuals who may pose a threat to the Australian
community.
3. The Bill was first introduced into the House of Representatives and referred to the Parliamentary
Joint Committee on Intelligence and Security (the Committee) on 21 February 2019. The
Committee's advisory report on the Bill, tabled in Parliament on 3 April 2019, made 19
recommendations in relation to the Bill, including that it be passed subject to implementation of
the other 18 recommendation. The Bill has been amended in response to the PJCIS advisory
report, including to enhance safeguards and accountability measures.
4. The scheme comprises two key components. The first is to prohibit the return of Australians of
counter-terrorism interest without forewarning. The Minister will have the power to make a TEO
in relation to a person which would prohibit the person's return to Australia until issued a return
permit. Importantly, the Bill does not permanently prohibit entry into Australia, and a person is
entitled to be issued a return permit if they apply. This will prevent Australians of
counter-terrorism interest returning without warning or adequate protections in place.
5. The TEO ability to delay a person's return to Australia will enable authorities to assess the threat
posed by the person and make appropriate arrangements for their return.
6. The second component will enable the Minister to impose conditions in a return permit to control
when and how the individual can return to Australia. These conditions ensure that the person will
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arrive into the hands of authorities with no surprises. The Bill also provides that a return permit
may specify conditions with which the individual must comply once in Australia. The conditions
specified under a return permit will assist law enforcement and security agencies to monitor the
whereabouts, activities and associations of an individual. This will be achieved by requiring the
individual to provide timely notification to authorities and enable early intervention in response to
a threat to public safety.
7. The Bill introduces a number of measures which support the controlled return of relevant
individuals. Section 8 creates an offence for an individual who is the subject of a TEO to return to
Australia without a return permit, carrying a maximum penalty of two years imprisonment.
Section 9 creates an offence for a person who is the owner, charterer, lessee, operator, agent or
master/pilot of a vessel or aircraft to knowingly permit the vessel or aircraft to be used to convey
the subject of a TEO to Australia where a return permit is not in force. This offence carries a
maximum penalty of two years imprisonment and does not apply if the second person is being
deported or extradited to Australia.
8. Section 10 outlines the grounds by which a Minister may make a TEO. To be eligible for a TEO,
the person must be located outside Australia, be an Australian citizen, be at least 14 years of age
and not have a return permit in force against them. Subsection 10(2) outlines two circumstances in
which the Minister may make a TEO. First, a TEO may be issued where the Minister suspects on
reasonable grounds that making the TEO would substantially assist in one or more of:
(a) preventing a terrorist act
(b) preventing training from being provided to, received from or participated in with a listed
terrorist organisation
(c) preventing the provision of support for or the facilitation of a terrorist act; or
(d) preventing the provision of support or resources to an organisation that is directly or
indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.
9. Second, subsection 10(2)(b) states the Minister may also issue a TEO if the person has been
assessed by 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. Subsection 10(4) sets out the form requirements for making a TEO while
subsection 10(5) clarifies that there is no limit on the number of TEOs that may be made in
relation to one individual if the individual continues to pose a risk to the Australian community.
10. Subsection 10(3) states that if the person is 14 to 17 years of age, the Minister must, before
making a TEO, have regard to the protection of the community as the paramount consideration
and the best interests of the person as a primary consideration. The best interests of the person is
defined by subsection 10(4), which states that the Minister must take into account multiple
matters, including the child's age, sex and health. Subsection 10(5) only requires the Minister to
take into account these matters to the extent that are relevant and known to the Minister.
Subsection 10(6) states that as soon as practicable after a TEO is made the Minister must cause
steps to be taken that are reasonable and practicable, in the Minister's opinion, to bring to the
attention of the person the subject of the order.
11. Section 11 states that the Minster may, on his or her own initiative or on application by the
subject of the TEO, revoke the TEO. As soon as practicable after the revocation is made the
Minister must cause steps to be taken that are reasonable and practicable, in the Minister's
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opinion, to bring to the attention of the person the revocation of the order. A revocation takes
effect when the Minister revokes the TEO.
12. Subsection 11(5) states that a TEO in relation to a person is taken to be revoked if a return permit
is issued to that person. The revocation takes effect immediately after the return permit is issued.
13. Section 12 sets out how a person may apply to have a TEO revoked. Subsection 12(3) lists the
information which must be included in the application. Further, an application for the revocation
of a TEO may be made on behalf of the relevant person.
14. Section 12 provides that a TEO takes effect immediately after it has been affirmed by the
reviewing authority that the making of the TEO was lawful. Where the Minister is satisfied that a
TEO must come into force immediately after it is made due to urgent circumstances, the
reviewing authority subsequently conducts the review and will either affirm the TEO remains in
force or, if the decision was unlawful, the TEO will be taken to have never been made.
15. Section 14 provides that immediately after making a TEO, the Minister must refer the decision to
a reviewing authority. A 'reviewing authority' is defined in section 4 of the Bill as meaning the
person appointed under section 23 of the Act. Section 23 provides the Attorney-General may, in
writing, appoint a person who satisfies the criteria in that section to be a reviewing authority.
16. Subsection 14(2) requires the Minister's referral to the reviewing authority to include a written
statement of reasons and all of the material that was before the Minister at the time the TEO
decision was made. There is an exclusion to this requirement where disclosure of information
would be contrary to the public interest.
17. Subsection 14(4) requires the reviewing authority to review the TEO decision and decide whether
one or more of the criteria listed in subparagraphs 14(4)(i) to (iii) applies in relation to the TEO
decision. Subsection 14(7) provides that if, in the opinion of the reviewing authority, one or more
of the criteria in subparagraphs 14(4)(i) to (iii) applies, the TEO decision is taken to have never
been made. Consequentially, subsection 14(8) provides that, if a return permit has been issued, the
return permit is also taken to have never been issued.
18. Subsection 14(6) provides that the reviewing authority must conduct a review of the temporary
exclusion order decision:
(a) in the absence of the person to whom the TEO relates;
(b) without the person having been notified of the review; and
(c) without the person having been given an opportunity of making any representations to the
reviewing authority.
19. Subsection 14(10) clarifies that nothing in section 14 of the Bill prevents the making of another
TEO in relation to the same person.
20. The second aspect of the scheme contained in Division 2 of the Bill concerns the return to
Australia of persons in relation to whom a TEO has been made.
21. Section 15(1) provides that where a TEO is in force, the Minister must issue a return permit to the
relevant person if that person applies or if the person is being deported or extradited to Australia.
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This section does not provide the Minister with the discretion to refuse to issue a return permit
where a person has applied for one.
22. Subsection 15(2) states that where a TEO is already in force in relation to a person, the Minister
may issue a return permit if they consider it appropriate.
23. To implement Recommendation 2 of the Committee's report, the Government has amended the
Bill to require the Minister to issue a return permit to a person 'within a reasonable period' upon
receipt of an application or when a person is being deported or extradited to Australia.
24. Subsection 15(5) requires the Minister to serve a copy of the return permit on the person to whom
it relates. If the person is 14 to 17 years of age, the Minister must, where reasonably practicable to
do so, also serve the return permit on the person's parent or guardian.
25. Section 15(4)(g) provides that a return permit must set out that the person may have a right of
review.
26. Section 16 sets out the requirements in relation to any conditions which may be included in a
return permit. Subsection 16(1) provides that the Minister may impose one or more of the
conditions set out in subsections 16(9) and (10) on a return permit.
27. The list of conditions set out in subsections 16(9) and (10) are exhaustive. This is designed to
restrict the Minister to only imposing conditions that have been appropriately contemplated,
scrutinised and approved by the law-making process.
28. Subsection 16(2) makes it clear that the Minister may impose a condition at the time the return
permit is issued or at a later time.
29. To implement Recommendation 1 of the Committee, subsection 16(8) requires the Minister,
before imposing a condition on a return permit, to consider, the extent known:
(a) whether the person has a lawful right to remain, or to enter and remain, in a country other
than Australia before the start of the specified period or until the specified date; and
(b) if the person has no lawful right to enter or remain in a country other than Australia until the
start of the specified period or until the specified date--the likelihood of the person being
detained, mistreated or harmed if the person cannot enter Australia until the start of the
specified period or until the specified date.
30. Further, subsection 16(4) requires the Minister, when imposing 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. The Minister's paramount
consideration when imposing or varying conditions in a return permit is community safety. This
measure implements Recommendation 3 of the Committee's advisory report.
31. To implement Recommendation 4 of the Committee's advisory report, section 16(6) of the Bill
requires that, in determining the best interests of the child, the Minister must 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 Division 104 of Part 5.3 in Chapter 5 of the Criminal Code
when determining the best interests of the child in relation to a control order. This includes the
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child's age, maturity, sex, background, physical and mental health, right to receive an education,
and other matters. Read together with section 16(7), the Minister is only required to take into
account these matters to the extent which are known to him and are relevant. The Minister must
also provide 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.
32. Relevantly, subsections 10(3) and 16(5) provides that if the person is 14 to 17 years of age, the
Minister must, before making a TEO or imposing a condition under a return permit in relation to
that person, have regard to the protection of the community as a paramount consideration and the
best interests of the person as a primary consideration.
33. Subsection 16(9) and (10) set out the conditions the Minister may include in a return permit. The
conditions in 16(9) sets out the conditions the Minister may impose in relation to the individual's
entry into Australia ('pre-entry conditions') and subsection 16(10) sets out the conditions the
Minister may impose in relation after the person returns to Australia ('post-entry conditions'). The
relevant pre-entry conditions are:
(a) that the person not enter Australia during a specified period, which must not end more than 12
months after the permit is issued to the person;
(b) that the person must enter Australia within a specified period, which must not end more than
3 months after the permit is issued to the person;
(c) that the person must enter Australia on a specified date, which must not be later than 3
months after the permit is issued to the person;
(d) that the person enter Australia in a specified manner, for example on a particular date and
flight.
34. To implement recommendation 6 of the Committee's advisory report, subsection 16(9) provides
that the specified period during which a person cannot enter Australia must be no longer than is
reasonable necessary to enable authorities to assess the threat posed by the person and make
appropriate arrangements for their return. This period must end no more than 12 months after the
permit is issued to the person.
35. Subsection 16(10) sets out a range of post-entry conditions that the subject of a return permit may
be subject to. They involve the person:
(e) notifying a specified person or body of their principal place of residence in Australia;
(a) notifying a specified person or body of any changes in the principal place of residence in
Australia within 24 hours;
(b) notifying a specified person or body of their principal place of employment in Australia;
(c) notifying a specified person or body of any changes in the principal place of employment in
Australia within 24 hours;
(d) notifying a specified person or body of their principal place of education in Australia;
(e) notifying a specified person or body of any changes in the principal place of education in
Australia within 24 hours;
(f) notifying a specified person or body of any contact with specified individuals (whether within
or outside Australia) within 24 hours of the contact occurring;
(g) notifying a specified person or body of intentions to enter, or entry into another State or
Territory that is not where their principal place of residence is located;
(h) notifying a specified person or body of intentions to leave, or travel outside Australia;
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(i) notifying a specified person or body of access or use, or intentions to access or use, specified
forms of telecommunication or other technology;
(j) notifying a specified person or body of intentions to apply for an Australian travel document;
(k) if the person has an Australian travel document - that it must be surrendered to a specified
person or body;
(l) that the person is not permitted to apply for an Australian travel document; and
(m) that the person is not permitted to obtain an Australian travel document.
36. Subsection 16(11) provides that if a condition is imposed that requires the person to notify a
specified person or body of a particular matter, the return permit may specify either or both of the
following:
(a) the manner in which the person or body is to be notified;
(b) any documents or information that must be provided to the person or body to substantiate the
relevant matter.
37. When imposing one or more of pre-entry or post-entry conditions, subsection 16(3) the Minister
must be satisfied that the conditions, taken together, are reasonably necessary, and reasonably
appropriate and adapted, for the purpose of:
(a) preventing a terrorist act;
(b) preventing training from being provided to, received from or participated in with a listed
terrorist organisation;
(c) preventing the provision of support for or the facilitation of a terrorist act; or
(d) preventing the provision of support or resources to an organisation that is directly or
indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.
38. Section 17 allows the Minister, on their own initiative or on application by the person to whom
the return permit relates, to vary or revoke the return permit. If the Minister varies a return permit
to vary the period during which the permit is in force, or to impose a new condition under the
permit, the Minister must cause a copy of the return permit as varied to be served personally on
the person to whom it relates; and if the person to whom the permit relates is 14 to 17 years of
age--on a parent or guardian of the person.
39. Section 18 provides that an application for a return permit may be made orally or in writing to the
Minister or the Department, and sets out the information that should be included in the
application, including in circumstances where the application is made on behalf of someone else.
40. Section 19 provides the period for which a return permit is in force, which is on the day specified
in the permit. Section 19 also provides that a return permit remains in force until a specified
period ends or the return permit is revoked.
41. Section 20 creates offences for failing to comply with pre-entry and post-entry conditions. Both
offences carry a maximum penalty of two years' imprisonment.
42. Section 21 creates a new offence for an owner, charterer, lessee, operator, agent or master of a
vessel, or master of a vessel or pilot in charge of an aircraft, where the person permits the vessel
or aircraft to be used to convey a person (the second person) to Australia, and the person does so
knowing that the second person is entering Australia in contravention of a condition of a return
permit that is in force in relation to the second person. Subsection 21(2) provides this offence does
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not apply if the second person is being deported or extradited to Australia. The penalty for this
offence is up to 2 years' imprisonment.
43. Section 22 creates a new offence for a person who is the subject of a return permit to knowingly
give information or produce a document in response to pre-entry or post-entry conditions, which
is false or misleading. This offence carries a maximum penalty of two years' imprisonment.
44. Section 23 of the Bill provides for the reviewing authority to be appointed by the
Attorney-General in writing. Section 23 provides some further criteria around who may be
appointed.
45. Section 24 provides that a reviewing authority commits an offence if it discloses information
provided to the reviewing authority for the purpose of conducting the review of the TEO decision
in accordance with subsection 14(2), except where the information is disclosed for the purposes of
the provisions in the Bill. A note at the end of subsection (1) provides that the penalty for sch an
offence is two years imprisonment.
46. Section 25 provides that the Minister may delegate functions and powers of the Bill to the
Secretary of the Department or an SES or acting SES employee of the Department. Subsection
25(2) prohibits certain functions and powers being delegated, including the making and
revocation of TEOs and return permits.
47. Section 26 of this Bill states that the Minister is not required to observe any requirements of
procedural fairness in exercising a power under this Bill.
48. Section 27 clarifies that decisions made under the provisions of the Bill are not subject to review
under the Administrative Decisions (Judicial Review) Act 1977.
49. Section 28 clarifies the interaction between the provisions of this Bill and the Australian Security
Intelligence Organisation Act 1979. Specifically, neither a TEO nor a return permit constitute
prescribed administrative action for the purposes of that Act.
50. Section 29 clarifies the interaction between the provisions of this Bill and the Australian
Passports Act 2005. Specifically, section 29 provides that a person is taken, for the purposes of
s12 of the Australian Passports Act 2005, to be prevented from travelling internationally if either
the TEO, or a condition in a return permit, specifies one of more of the following:
(a) that the person must surrender an Australian travel document to a specified person or body;
(b) that the person is not permitted to apply for an Australian travel document;
(c) that the person is not permitted to obtain an Australian travel document.
51. Section 30 provides that if section 14 is not a valid law of the Commonwealth then it is the
intention of Parliament that this Act operate as if that section had never been enacted, and the Act
will apply as if subsections 13(1) and (2) were omitted and replaced with:
(1) A temporary exclusion order in relation to a person comes into force immediately after
the Minister makes the temporary exclusion order in relation to the person
52. To improve transparency and accountability of the TEO scheme, section 31 of the Bill requires
the Minister to table an annual report to the Parliament on the exercise of powers under the
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temporary exclusion order regime. This implements Recommendation 14 of the Committee's
advisory report.
Human rights implications
Right to enter one's own country - Article 12(4) ICCPR
53. Article 12(4) of the ICCPR provides that no one shall be arbitrarily deprived of the right to
enter his own country.
54. TEOs will not exclude the subject of a TEO from entering Australia permanently. Rather the
scheme is designed to ensure the individual's return to Australia occurs in a planned and
controlled manner, enabling effective management of the risks they may pose to the
Australian community.
55. This is reflected in section 12(1) of the Bill, which requires the Minister to issue a return
permit to a person subject to a TEO if the subject has applied to the Minister for a return
permit, or if the person is being deported or extradited to Australia. The Minister also retains a
broad discretion under section 12 if the Minister considers it appropriate to do so. This ensures
that a person's controlled return to Australia can be facilitated even if they are unable to
comply with form requirements.
56. Importantly, any limitation to an individual's right to enter Australia is not arbitrary. The
preconditions for issuing a TEO and return permit are provided for by law, are predictable,
and are justified by being reasonable, necessary and proportionate. Further, the Minister
cannot make a TEO unless the Minister suspects on reasonable grounds that making the order
would substantially assist in one of the purposes listed in section 10(2)(a) or if the person has
been assessed by ASIO to be a direct or indirect risk to security for reasons related to
politically motivate violence. Importantly, the Minister must issue a return permit upon
application. A person must be allowed to return no later than the end of the period reasonably
necessary to assess the risk posed and to make appropriate arrangements for their entry, or
within 12 months, whichever event occurs earlier. The Bill's emphasis on issuing a return
permit expeditiously seeks to constrain the extent to which an individual's right to enter their
own country is limited.
57. Additionally, for persons 14 to 17 years of age, before making a TEO in relation to that
person, 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. This
requirement provides additional safeguards for minors in recognition of their particular
vulnerability.
58. The concept of 'terrorist act' is already clearly established in the Criminal Code and the
requirement that the Minister may only issue a TEO with a suspicion based on reasonable
grounds incorporates an objective test which 'precludes the arbitrary exercise of many
statutory powers.'1
1
George v Rockett (1990) 170 CLR 104, 115.
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59. The temporary restriction on an individual's ability to enter Australia is reasonable, as the
measures in the Bill are intended to promote national security by managing the return of
Australians from conflict zones overseas and may pose a threat to the safety of the Australian
community.
60. The over-arching objective of the proposed TEO regime is to protect Australians from the
threat of terrorism. As individuals seek to return to Australia from conflict zones overseas, it is
crucial that law enforcement agencies are able to manage their return and ensure they do not
pose a threat to the Australian community. Thus, any limitation on the right of a person to
enter his or her own country is not arbitrary and is reasonable, necessary and proportionate to
the protection of national security and public order.
Rights relating to the family unit - Article 17 and 23 ICCPR
61. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful attacks on his
honour and reputation, and everyone has the right to the protection of the law against such
interference or attacks.
62. Article 23(1) of the ICCPR provides that the family is the natural and fundamental group unit
of society and is entitled to protection by society and the State.
63. The restrictions imposed by the proposed TEO regime on entering Australia may constitute
interference with a TEO subject's family, to the extent that it prevents or limits the ability of
the TEO subject to unite with family members and vice versa. While Australia's obligation
may not be engaged with respect to the TEO subject on account of their location outside the
territory and jurisdiction of Australia, it would be engaged with respect to members of the
TEO subject's family in Australia.
64. Nevertheless, any interference with the rights relating to the family unit would not be unlawful
or arbitrary. The TEO scheme is an appropriate response to the genuine threat to Australia's
security posed by a person who has been either assessed by ASIO to be a direct or indirect risk
to security, or in circumstances where a TEO would substantially assist to prevent a terrorist
act, prevent training from being provided to, received from or participated in with a listed
terrorist organisation or prevent the provision of support for or the facilitation of a terrorist act.
65. Overall, the TEO scheme is designed to manage threats posed by individuals who have
participated in or supported conflicts overseas and seek to return to Australia. To the extent
that the rights of a TEO subject's family members may be limited by the subject's exclusion
from return, this limitation is reasonable and proportionate to achieve the legitimate objective
of protecting public order and national security.
66. The Minister must issue a return permit if a person subject to a TEO applies, or a person
applies on their behalf. This ensures that any limitations on the rights to a family unit are
constrained to those required to protect national security and public order without amounting
to a permanent restriction on the rights relating to the family unit.
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67. Section 12A(4) of the Bill requires the Minister, when issuing a return permit, to have regard
to the person's personal circumstances including the impact on any dependents under 18 years
of age. This requirement ensures the impact on the family unit that a return permit may have is
considered and appropriately balanced against the protection of the public order and national
security.
The best interests of the child - Article 3 CRC
68. Article 3 of the CRC provides:
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.
69. To the extent the child concerned is within Australia's jurisdiction, the Bill would engage
Article 3 of the CRC. Where a child may pose a threat to the Australian community, the
Government must balance the protection of the Australian community with the best interests
of the child. The Bill enables this balance. When exercising the power to issue a TEO or
return permit, the Minister must take into account as a primary consideration the best interests
of the child in circumstances where the subject of the TEO would be 14 to 17 years of age. In
determining the best interests of the child, the Minister must take into account their age,
maturity, sex and background, physical and mental health, their right to receive an education
and their right to practise his or her religion. These safeguards supports other rights in the
CRC, including the child's right to practise their religion (Article 30), the right to an education
(Article 28) and right to the highest attainable standard of health (Article 24).
70. Australia is required to take into account the best interests of the child as a primary
consideration, not the only primary consideration. Further, the Minister may only issue a TEO
where it would substantially assist to prevent the circumstances outlined in subsections 10(2),
or if the person has been assessed by ASIO as being a risk to security. The circumstances
include prevention of a terrorist act or the support or facilitation of a terrorist act or preventing
the training with or the provision of support or resources to a terrorist organisation listed under
subsection 102.2(1) of the Criminal Code. This clearly limits the circumstances in which a
TEO would impact the best interests of a child to scenarios where there is a clear risk to
community safety. Where a child poses a threat to the Australian community, it is appropriate
that the legitimate objective of protecting the Australian community is the paramount
consideration with the best interests of the child being a primary consideration.
Family reunification - Article 10 CRC
71. Article 10(1) of the CRC states that applications by a child or his or her parents to enter or leave a
State for the purpose of family reunification shall be dealt with in a positive, humane and
expeditious manner.
72. Article 10(2) of the CRC states that a child whose parents reside in different States shall have the
right to maintain on a regular basis, save in exceptional circumstances personal relations and
direct contacts with both parents. Toward that end, States are expected to respect the right of the
child and their parents to leave and enter their own country.
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73. However, although Article 10 of the CRC places obligations on State Parties to deal with
applications by a child or his or her parents to enter or leave a State to be with their family in a
positive, humane and expeditious manner, there is no right to family reunification under
international law. Rather the obligation is to deal with such application positively, humanely
and expeditiously. Section 16(5) of the Bill requires the Minister, when issuing a return
permit, to have regard to the person's personal circumstances including the impact on any
dependents under 18 years of age. This requirement ensures the impact on the family unit that
a return permit may have is considered and appropriately balanced against the protection of
national security and the public order.
74. Subsection 15(3) of the Bill requires the Minister to issue a return permit within a reasonable
period. This requirement indirectly ensures that decisions, which will inform the contents of a
return permit, such as operational arrangements, will be made within a reasonable period. This
subsection promotes an expeditious decision-making process. Although applying to all return
permits, this requirement ensures that separated family units affected by the Bill are reunified
within a reasonable period of time.
75. Subsection 16(9) of the Bill requires that the Minister must not prohibit the entry of a person
subject to a return permit longer than the period reasonably necessary to assess the risk posed
by the entry of the person to Australia and to make appropriate arrangements for that entry.
This period of time is limited to 12 months. This requirement ensures that the person's risk is
assessed at a reasonable speed and therefore promotes an expeditious decision-making
process. Although applying to all return permits, this requirement ensures that separated
family units affected by the Bill are reunified within a reasonable period of time.
76. Ultimately, the right to family reunification is subject to restrictions that are prescribed by law and
necessary to protect the national security, public order, public health or morals or the rights and
freedoms of others. As outlined above, conditions relating to TEOs and return permits are clearly
prescribed by law and designed to protect the Australian community, where necessary.
Right to participation - Article 12 CRC
77. Article 12 of the CRC provides:
(1) States Parties shall assure to the child who is capable of forming his or her own views the right
to express those views freely in all matters affecting the child, the views of the child being given
due weight in accordance with the age and maturity of the child.
(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any
judicial and administrative proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with the procedural rules of national
law.
78. Section 26 of this Bill states that the Minister is not required to observe any requirements of
procedural fairness in exercising a power under this Bill. This limitation on the child's right to be
heard is necessary and proportionate in the circumstances, given the complexity and fluidity of
the present threat environment and the need for law enforcement and intelligence agencies to
flexibly respond to the threats posed by Australians returning from conflict zones overseas.
Procedural fairness requirements, specifically enabling the potential subject of a TEO to respond
to allegations made against them, can frustrate the policy intention of this Bill by providing
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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.
79. Nevertheless, the Bill does provide options for the subject of a TEO to seek its revocation, and the
subject of a return permit to seek its varying or revocation. This provides an opportunity for the
child or its representatives to express its views on matters affecting the child, in accordance with
Article 12.
Right to liberty and security of person - Article 9 ICCPR
80. Article 9(1) of the ICCPR states that everyone has the right to liberty and security of the person.
No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are established by law.
81. Rather than imposing restrictive conditions on the subject of the TEO upon their entry to
Australia, subsection 16(10) allows for the imposition of notification requirements that are
reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the
public from a terrorist act or preventing the provisions of support for or the facilitation of a
terrorist act. In and of themselves, these notification requirements do not amount to a deprivation
of liberty or security of the person.
82. While the subject of a TEO will not be subject to detention as a result of this Bill, it creates a new
offence for failing to comply with post-entry conditions, with individuals being liable for a
maximum penalty of 2 years imprisonment. The subject of a TEO would only be imprisoned
under this offence after a trial, which would be subject to relevant safeguards in the criminal
justice system.
Fair trial and fair hearing rights - Article 14 ICCPR
83. Article 14(1) of the ICCPR provides that in the determination of any criminal charge against
them, or of his or her rights and obligations in a suit of law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established by law.
Additionally, Article 14(2) provides that everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according to law.
84. Likewise to the extent that the TEO scheme engages Article 14 of the ICCPR, the reviewing
authority's consideration of whether or not the Minister's decision to issue a TEO should be
upheld, based on whether it was an improper exercise of the power to make a decision, the
decision was affected by fraud or there was no material before the Minister that could support
making a TEO decision under paragraph 10(2)(a).
85. This measure seeks to provide opportunities for independent and impartial review of the
Minister's decision to issue a TEO, while recognising that it may be practically difficult to hold a
hearing, where the subject of the TEO is outside Australia and may be in a remote location.
Further, delay in issuing a TEO can pose a risk to the Australian community. Nevertheless, the
availability of the reviewing authority does not preclude the subject of a TEO from seeking
judicial review of the decision. To the extent that this may limit fair trial and fair hearing rights, it
is necessary and proportionate in the circumstances, given the complexity and fluidity of the
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present threat environment and the need for law enforcement and intelligence agencies to flexibly
respond to the threats posed by Australians returning from conflict zones overseas.
86. Section 26 of this Bill states that the Minister is not required to observe any requirements of
procedural fairness in exercising a power under this Bill, including the decision to issue a TEO or
return permit. To the extent that this may limit fair trial and fair hearing rights, it is necessary and
proportionate in the circumstances, given the complexity and fluidity of the present threat
environment and the need for law enforcement and intelligence agencies to flexibly respond to the
threats posed by Australians returning from conflict zones overseas. Procedural fairness
requirements, specifically enabling the potential subject of a TEO to respond to allegations made
against them, can frustrate the policy intention of this 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.
87. However, as discussed above, the prosecution of each of these offences would be subject to
relevant safeguards in the criminal justice system meaning there would be no limitation of the
rights established by Article 14 of the ICCPR.
Right to freedom of movement - Article 12(1) ICCPR
88. Article 12(1) of the ICCPR states that everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement and freedom to choose his residence.
However, Article 12(3) makes it clear that this right is subject to any restrictions imposed by law
and necessary to protect national security and public order.
89. Rather than imposing restrictive conditions on the subject of the TEO upon their entry to
Australia, subsection 16(10) imposes notification requirements that are reasonably necessary and
reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act or
preventing the provisions of support for or the facilitation of a terrorist act. To the extent that the
notification requirements in section 16(10) limit the right to freedom of movement, this is a
permissible limitation that is necessary to protect public order and the national security of
Australia by assisting law enforcement and security agencies to monitor the whereabouts,
activities and associations of a person and intervene early to address any threats to public safety.
Right to privacy - Article 17 ICCPR
90. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
91. Subsection 16(10) establishes a number of post-entry conditions requiring the subject of a return
permit to notify a specified person or body of their principal place of residence in Australia
(including any changes to their principal place of residence within 24 hours), place of
employment and/or education in Australia (and changes), contact with specified individuals
whether within or outside Australia, use or access to specified forms of telecommunication or
other technology and to other specified movements. These conditions engage the right to privacy,
however the ICCPR permits specific limitations on privacy where it is lawful and not arbitrary.
This Bill clearly prescribes, under law, the conditions that must be met for an individual to be
subject to the conditions under 16(10) meaning the measures are clearly lawful.
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92. In order for an interference with the right to privacy to be permissible, the interference must be
authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular
circumstances. The United Nations Human Rights Committee has interpreted the requirement of
'reasonableness' to imply that any interference with privacy must be proportionate to a legitimate
end and be necessary in the circumstances of any given case. In this case, the legitimate end is
the protection of national security and public safety by preventing a terrorist act, preventing
training from being provided to, received from or participated in with a listed terrorist
organisation or preventing the provision of support for or the facilitation of a terrorist act and
preventing the provision of support or resources to an organisation that would help it engage an
activity described in paragraph (a) of the definition of terrorist organisation in subsection 102.1(1)
of the Criminal Code. The conditions specified under a return permit will assist law enforcement
and security agencies to monitor the whereabouts, activities and associations of a person and
intervene early to address any threats to public safety.
93. The Minister has discretion, to impose one or more of the conditions outlined in section 16 when
issuing a return permit. However, the Minister may not impose a condition or conditions on a
return permit unless satisfied that the condition or conditions are reasonably necessary and
reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act or
preventing the provisions of support for or the facilitation of a terrorist act.2
94. The interference with the right to privacy is proportionate to the threat posed by the subjects of a
TEO or return permit and appropriately limited with the conditions relate to notification
requirements rather than restrictions. For instance, the subjects of a return permit are required to
notify specified person or body that they have had contact with specified individuals rather than
being restricted from engaging with them altogether.
Right to freedom of expression - Article 19 ICCPR
95. Article 19 of the ICCPR provides that all persons shall have the right to freedom of expression.
This right includes the freedom to seek, receive and impart information and ideas of all kinds,
through any media of a person's choice. The Bill engages the right to freedom of expression to the
extent that the post-entry conditions, especially the requirements to notify of contact with
specified individuals or specified movements can indirectly limit freedom of expression.
96. Article 19(3) provides that the right to freedom of expression may be subject to restrictions for
specified purposes provided in the right, including the protection of national security or public
order where such restrictions are provided by law (that is, set down in formal legislation or an
equivalent unwritten norm of common law) and are necessary for attaining one of these purposes.
97. To the extent that the notification requirements in section 16 limit the right to freedom of
expression, this is a permissible limitation that is necessary to protect the public order and
national security of Australia by supporting law enforcement and intelligence agencies to better
identify threats and intervene early to prevent a terrorist act, training from being provided to,
received from or participated in with a listed terrorist organisation or the provision of support for
or the facilitation of a terrorist act.
Right to freedom of association - Article 22 ICCPR
2
Subsection 330.5(6).
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98. Article 22 states that everyone shall have the right to freedom of association with others, subject
to restrictions prescribed by law and necessary in a democratic society in the interests of a
national security or public safety.
99. The Bill engages the right to freedom of association to the extent that the post-entry conditions,
especially the requirements to notify of contact with specified individuals or specified movements
can indirectly limit the right to freedom of association.
100. Any restrictions to the right to freedom of association is clearly prescribed in this Bill,
meaning it is a lawful restriction on the right. To the extent that the notification requirements in
subsection 16(10) limit the right to freedom of association, this is a permissible limitation that is
necessary to protect the public order and national security of Australia by assisting law
enforcement and security agencies to monitor the whereabouts, activities and associations of a
person and intervene early to address any threats to public safety.
101. These notification requirements are clearly necessary for the protection of national security
and public safety, specifically to enable law enforcement and intelligence agencies to better
identify threats and intervene early to prevent a terrorist act, prevent training from being provided
to, received from or participated in with a listed terrorist organisation or prevent the provision of
support for or the facilitation of a terrorist act.
Right to work- Article 6 ICESCR
102. Article 6 of ICESCR states that everyone has the right to the opportunity to gain his or her
living by work which is freely chosen or accepted. The Bill engages this right to the extent that
the post-entry conditions, especially the requirement to provide notification of an individual's
place of employment, may indirectly limit this right by discouraging them from seeking work.
103. The Bill engages the right to work to the extent that the post-entry conditions, especially the
requirements to notify the specified person or body of the principal place of employment, can
discourage the subject of the control permit from seeking employment. To the extent that the
notification requirements in subsection 16(10) indirectly limit the right to work, this is a
permissible limitation that is solely for the purpose of protecting the public from a terrorist act and
upholding public order and national security. Specifically, the conditions specified under a return
permit will assist law enforcement and security agencies to monitor the whereabouts, activities
and associations of a person and intervene early to address any threats to public safety.
104. Preserving public safety and national security promotes the general welfare in a democratic
society and a permissible limitation on the right to work under Article 4 of the ICESCR. The
requirement that the subject of a return permit be required to notify a specified person or body of
their place of employment is compatible with the right to employment.
Right to education - Article 13 ICESCR and Article 28 CRC
105. Article 13 of the ICESCR states that everyone has the right to education and Article 28 of the
CRC recognises that children have a right to education. The Bill engages the right to education to
the extent that the post-entry conditions, especially the requirements to notify the specified person
or body of the principal place of education, can discourage the subject of the control permit from
fully participating in educational opportunities.
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106. Article 4 of the ICESCR provides that this right may be limited under law and only in so far
as this may be compatible with the nature of these rights and solely for the purpose of promoting
the general welfare in a democratic society. Protecting the public from a terrorist act and
upholding public order and national security is central to the general welfare in a democratic
society. Any limitation to the right to education is permissible as it promotes the general welfare
of society.
107. Where the subject of a TEO is aged between 14 and 17 years of age, subsection 10(4) requires
the Minister to have regard to the impact that issuing a TEO would have upon their ability to
receive an education. This consideration promotes the child's right to an education, which is
appropriately balanced against the paramount consideration of protecting community safety.
Right to participation in cultural life - Article 15 ICESCR and Article 31 CRC
108. Article 15 of the ICESCR states that everyone has the right to take part in cultural life, enjoy
the benefits of scientific progress and benefit from the protection of the moral and material
interests resulting from any scientific, literary or artistic production of which he is the author.
Similarly, Article 31 of the CRC states that States shall respect and promote the right of the child
to participate fully in cultural and artistic life.
109. However, Article 4 of the ICESCR recognises that it is permissible to limit this right for the
purposes of promoting the general welfare in a democratic society. A central aspect of promoting
general welfare in a democratic society is protecting the community from the threat of terrorism,
including the prevention of a terrorist act, preventing training from being provided to, received
from or participated in with a listed terrorist organisation or prevent the provision of support for
or the facilitation of a terrorist act. The conditions specified under a return permit will assist law
enforcement and security agencies to monitor the whereabouts, activities and associations of a
person and intervene early to address any threats to public safety and support national security.
Oversight and accountability safeguards
110. The Bill introduces a range of oversight mechanisms which ensure that where the TEO
scheme engages human rights, they are appropriately balanced with national security and
community safety interests and any limitations of these rights are reasonable, necessary and
proportionate. These oversight measures include the following.
(a) Requiring the Minister to table an Annual Report in Parliament setting out a range of factors
about the operation of the TEO scheme, including the number of TEOs and return permits
made and revoked, the nature of return permit conditions and the number of persons subject
to a return permit who have entered Australia.
(b) Enabling the Committee to monitor and review the exercise of powers under the Bill. The
Committee is also required to review, by three years after the date of commencement, the
operation and effectiveness of the TEO scheme.
(c) Enabling 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.
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111. Each of these measures enhance the transparency of the TEO scheme and the PJCIS and
INSLM reviews ensure that the operation of the TEO scheme is periodically and thoroughly
reviewed by an objective third party. They are intended to encourage public scrutiny of the
operation of the TEO scheme and protect the human rights that are engaged by the TEO scheme.
Conclusion
112. This Bill is compatible with human rights, and to the extent that it may limit some human
rights, those limitations are reasonable, necessary and proportionate in light of the Bill's objective
and purpose to protect the Australian community.
Hon Peter Dutton MP, Minister for Home Affairs