Peter Khalil (Wills, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the committee's report entitled Review of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—On behalf of the PJCIS, it gives me great pleasure to present the committee's Review of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019. The TEO act establishes the TEO regime, with temporary exclusion orders to prevent the return of individuals to Australia without a return permit and return permits to enable pre-entry and post-entry conditions to be imposed on returning individuals. The committee finds that the TEO regime is operating as expected and is operationally effective, but the committee makes six recommendations to ensure that the TEO regime will continue to work as needed to protect Australia's national security.

The committee does note and did note that the High Court of Australia is the final arbiter of constitutional validity in Australia, and, as far as the committee is aware, there are no current matters relating to TEOs before the High Court. However, there are current proceedings before the High Court regarding the wider counterterrorism legal framework and the right to return to Australia. Therefore, the committee recommends that the Australian government consider the decisions of the High Court in current relevant cases related to the counterterrorism legislative framework and any associated impacts on the temporary exclusion order regime. In particular, the committee was aware of the question of whether the issuing authority be retained as a power of the minister or the regime be amended so that the TEO may only be issued by a court on an application by the minister. The committee recommends that, if there was a High Court decision that impacted the regime that would require additional legislative changes, such legislation be referred to the committee for inquiry.

Supporting a suggestion by the Inspector-General of Intelligence and Security, the committee recommends that the act be amended so that an assessment made by ASIO under paragraph 10(2)(b) of the act, or the grounds upon which such an assessment was made, must be provided to the minister. In making this recommendation, the committee notes the evidence from the Department of Home Affairs and ASIO that, as a matter of course, 10(2)(b) assessments are already provided to the minister—that is, the committee is recommending that existing best practice be made clear in law.

The committee notes a suggestion by the AFP that return permits could be served via alternative means, including text message or email, and that an additional provision could also be sought, allowing service of a return permit on the individual in person upon their arrival into Australia, where all other means, including email and text, have been exhausted. The committee recommends, therefore, that, in the event that personal service is not possible because it is not safe or practicable, the act be amended so that return permits can be served via alternative means, including email or text. Further, the committee recommends the service of a return permit on the individual may be made in person upon their arrival into Australia, where all other means, including email and text, have been exhausted.

Lastly, the committee makes recommendations that paragraph 10(2)(b) of the act remain as currently in force, that the act be amended so that it's clear that procedural fairness is not intended to apply to ASIO's assessments under 10(2)(b) of the act, and that section 29(1)(cc) of the Intelligence Services Act 2001 be amended so that, if the committee resolves to do so, it may commence, three years following the tabling of this report, a review of the Counterterrorism (Temporary Exclusion Orders) Act 2019.

On behalf of the committee, I would like to thank the deputy chair and all of the members of the committee for their very hard work on what are very technical but important matters for Australia's national security. Both the deputy chair—he's here in the chamber—and I understand the importance of these matters for Australia's national security, so I thank him for his good work, and I thank all of those who participated in the inquiry, made submissions and appeared in public hearings. I commend this report to the House.