CTH Bill To Introduce Counter-Terrorism Temporary Exclusion Order Scheme For Australians Overseas

Friday 12 July 2019 @ 2.16 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On 22 November 2018, the Prime Minister, the Hon Scott Morrison MP, and the Minister for Home Affairs, the Hon Peter Dutton MP, announced that a new temporary exclusion order regime would be introduced to “enable authorities to delay, and then monitor and control” the return and re-entry of Australian foreign fighters into the community.

On 4 July 2019, the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 (the “Bill”) was introduced to Federal Parliament’s House of Representatives by Mr Dutton, where it is currently being considered. The Bill proposes to introduce a “temporary exclusion order scheme to delay Australians of counter-terrorism interest from re-entering Australia until appropriate protections are in place.”  The Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019 was also introduced at the same time, which makes amendments consequential to the main bill.

The Bill is the second iteration of the proposed changes, with an initial version of the main Bill (with the same title) being initially introduced into Parliament on 21 February 2019.  That Bill ("the first bill") was referred to the Parliamentary Joint Committee on Intelligence and Security, with an Advisory Report released by the Committee on 3 April 2019.  The Bill then lapsed upon the prorogation of Parliament prior to the election.

Overview of the Bill

According to the Bill’s Statement of Compatibility with Human Rights (“EM”), since 2014, the number of Australians travelling to join terrorist organisations overseas has increased significantly.  The Government says this increase has driven the need to reform Australia’s approach to managing individuals who may represent a threat to public safety, more so when they leave the conflict zone and may seek to return to Australia.

The purpose of the Bill is to ensure that if these Australians do return, the relevant authorities will be forewarned and able to monitor and manage the situation. If passed, the Bill would introduce:

“… 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.”

In his second reading speech, the Minister for Home Affairs said:

"Keeping Australian communities safe from those who seek to do us harm is, and will continue to be, the Australian government's No. 1 priority. This bill supports the government's commitment to keeping Australians safe. The bill introduces a temporary exclusion order (TEO) scheme to delay Australians of counterterrorism interest from re-entering Australia, until appropriate protections are in place.

Since 2012, around 230 Australians have travelled to Syria or Iraq to fight with or support extremist groups involved in conflict. Around 80 are still active in conflict zones.

The advice of Australia's national security agencies is that many Australians of counterterrorism concern, who have travelled to Iraq and Syria to engage in that conflict, are likely to seek to return to Australia in the very near future. This bill will ensure that law enforcement agencies can effectively manage these returns in a way which will reduce the threat to the Australian community."

The Bill has two main components.  The first would allow the Minister to make a temporary exclusion order (a "TEO") in regards to a person outside Australia.  The TEO would prevent the person returning to Australia unless they obtain a return permit.  The second component allows the Minister to impose conditions in a return permit to control "when and how the individual can return to Australia", as well as specifying conditions with which the person must comply once they return to Australia.

Parliamentary Review of the First Bill

In February 2019, the first version of the Bill was referred to the Parliamentary Joint Committee on Intelligence and Security (the "Committee"). The Committee made some 19 recommendations in relation to the Bill in their Advisory Report, which was presented on 3 April 2019.

In his second reading speech on the current Bill, the Minister for Home Affairs said:

"The bill was first introduced into parliament on 21 February 2019, and referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry. The government has reviewed the committee's report from this inquiry, and has substantially incorporated the committee's recommendations into the bill I introduce today. I thank the committee for its work, and take this opportunity to table the government's response to this inquiry."

In a submission to the Committee on the first Bill, the Law Council of Australia indicated they were opposed to the proposal. The Council said:

“… support the establishment of the proposed TEO scheme and recommends that the Bill should not be passed. It holds significant rule of law and human rights concerns in respect of the proposed TEO scheme … The Law Council also does not support the application of the Bill to children and considers that the laws may be inconsistent with Australia’s international human rights obligations.”

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