Senate debates

Thursday, 25 July 2019

Bills

Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019; In Committee

1:06 pm

Photo of Kristina KeneallyKristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

There are gaps in there. I was about to say that, Mr Chair. I seek leave to move items (1) to (40) on sheet 8710 together, noting that questions on items (23) and (39) will be put separately.

Leave granted.

In respect of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, I move items (1) to (40) on sheet 8710 together, noting that questions on items (23) and (39) will be put separately:

(1) Clause 3, page 2 (lines 14 to 17), omit the paragraph beginning "The Minister may make", substitute:

An issuing authority, on application by the Minister, may make an order (called a temporary exclusion order) that prevents a person from entering Australia for a specified period, which may be up to 2 years. An order cannot be made unless certain criteria are met, and it can be revoked.

(2) Clause 3, page 2 (lines 18 to 22), omit the paragraph beginning "The Minister must refer".

(3) Clause 3, page 3 (lines 6 and 7), omit "and is satisfied of specified matters", substitute ", is satisfied of specified matters and an issuing authority has approved the conditions".

(4) Clause 4, page 3 (after line 19), after the definition of Australian travel document, insert:

interim temporary exclusion order means an order made under subsection 12A(1).

issuing authority means a person appointed under section 23.

(5) Clause 4, page 3 (line 23), omit the definition of reviewing authority.

(6) Clause 4, page 3 (line 25), omit "subsection 10(1)", substitute "subsection 10(2)".

(7) Clause 8, page 5 (line 6), before "A person", insert "(1)".

(8) Clause 8, page 5 (after line 10), at the end of the clause, add:

(2) The fault element for paragraph (1) (a) is knowledge.

(9) Heading to clause 10, page 6 (line 4), omit "Making", substitute "Applying for, and making,".

(10) Clause 10, page 6 (line 5) to page 7 (line 21), omit subclauses 10(1) to (5), substitute:

(1) The Minister may apply to an issuing authority for a temporary exclusion order in relation to a person only if:

(a) subsection (3) applies in relation to the person; and

(b) the Minister meets the requirements of subsections (4), (5) and (5A).

(2) An issuing authority may make a temporary exclusion order in relation to a person only if:

(a) subsection (3) applies in relation to the person; and

(b) the issuing authority meets the requirements of subsections (4), (5) and (5A).

(3) This subsection applies to a person if:

(a) the person is located outside Australia; and

(b) the person is an Australian citizen; and

(c) the person is at least 14 years of age; and

(d) a return permit is not in force in relation to the person.

(4) The Minister or issuing authority meets the requirements of this subsection if the Minister or issuing authority is satisfied, on reasonable grounds, that making the order would substantially assist in 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.

(5) The Minister or issuing authority meets the requirements of this subsection if the Minister or issuing authority is satisfied, on reasonable grounds, that the person has:

(a) committed, prepared to commit or instigated a terrorist act; or

(b) facilitated the commission, preparation or instigation of a terrorist act; or

(c) given encouragement to the commission, preparation or instigation of a terrorist act; or

(d) given support or assistance to individuals who are known or believed by the person to be involved in conduct falling within paragraph (5) (a).

(5A) The Minister or issuing authority meets the requirements of this subsection if the Minister or issuing authority, before applying for, or making, a temporary exclusion order in relation to a person, has regard to the following:

(a) in a case where the person is 14 to 17 years of age:

  (i) the protection of the community as the paramount consideration; and

  (ii) the best interests of the person as a primary consideration;

(b) in every case:

  (i) whether the person has a lawful right to remain, or to enter and remain, in a country other than Australia during that period; and

  (ii) 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.

(5B) In determining what is in the best interests of a person for the purposes of subparagraph (5A) (a) (ii), the Minister or issuing authority must take into account the following matters:

(a) the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;

(b) the physical and mental health of the person;

(c) the benefit to the person of having a meaningful relationship with his or her family and friends;

(d) the right of the person to receive an education;

(e) the right of the person to practise his or her religion;

(f) any other matter the Minister or issuing authority considers relevant.

(11) Clause 10, page 7 (line 22), omit "the Minister", substitute "the issuing authority".

(12) Clause 10, page 8 (lines 9 and 10), omit paragraph 10(6) (i), substitute:

  (i) state the judicial review rights in relation to the decision to make the order and any related return permit; and

(j) state the grounds for deciding that the criteria in subsection (2) for the making of the order have been met (excluding any information that is likely to prejudice national security).

(13) Clause 10, page 8 (lines 14 and 15), omit "the Minister must cause such steps to be taken as are, in the opinion of the Minister,", substitute "the issuing authority must provide a copy of the order to the Minister and the Minister must cause such steps to be taken as are".

(14) Page 8 (after line 21), after clause 10, insert:

10A Contents of applications for a temporary exclusion order

An application by the Minister under subsection 10(1) for a temporary exclusion order in relation to a person must:

(a) be made either:

  (i) in writing (other than writing by means of an electronic communication); or

  (ii) if the Minister considers it necessary because of urgent circumstances, orally in person or by telephone, or by fax, email or other electronic means of communication; and

(b) set out the facts and other grounds on which the Minister considers the temporary exclusion order should be made; and

(c) specify the period for which the temporary exclusion order should remain in force and set out the facts and other grounds on which the Minister considers that the order should remain in force for that period; and

(d) set out the information that the Minister has about the person's age; and

(e) set out the outcomes and particulars of all previous applications for temporary exclusion orders made in relation to the person; and

(f) set out the outcomes and particulars of all previous applications for variations of temporary exclusion orders made in relation to the person; and

(g) set out the outcomes of all previous applications for revocations of temporary exclusion orders made in relation to the person; and

(h) set out any other matter the Minister considers relevant.

(15) Clause 11, page 8 (line 23), after "The Minister", insert "or an issuing authority".

(16) Clause 11, page 8 (line 25), after "the Minister's", insert "or the issuing authority's".

(17) Clause 11, page 8 (after line 29), after subclause 11(2), insert:

(2A) If an issuing authority revokes a temporary exclusion order under subsection (1), the issuing authority must notify the Minister as soon as practicable after revoking the order.

(18) Clause 11, page 8 (line 31) to page 9 (line 1), omit "the Minister must cause such steps to be taken as are, in the opinion of the Minister,", substitute "or being notified of the revocation of a temporary exclusion order under subsection (2A), the Minister must cause such steps to be taken as are".

(19) Clause 11, page 9 (line 9), after "the Minister", insert "or issuing authority".

(20) Clause 12, page 9 (after line 19), after subclause 12(1), insert:

(1A) As soon as practicable after an application is made under subsection (1), the Minister or Department must provide a copy of the application to the issuing authority who made the temporary exclusion order, or if the issuing authority is unavailable, another issuing authority.

(1B) If the Minister or Department gives a copy of the application to another issuing authority, the Minister or Department must cause such steps to be taken as are necessary to ensure that the other issuing authority has all the information that the issuing authority who issued the temporary exclusion order had when the order was issued.

(21) Page 10 (after line 15), after clause 12, insert:

12A Interim temporary exclusion orders

(1) If the Minister is satisfied that, because of urgent circumstances, it is necessary that a temporary exclusion order in relation to a person comes into force immediately, the Minister may make an order (an interim temporary exclusion order) under this subsection.

(2) The Minister must not make an interim temporary exclusion order under subsection (1) in relation to a person unless:

(a) subsection 10(3) applies in relation to the person; and

(b) the Minister meets the requirements of subsections 10(4), (5) and (5A).

(3) If the Minister makes an interim temporary exclusion order, the Minister must, as soon as practicable, apply for a temporary exclusion order in relation to the person under subsection 10(1).

(4) For the purposes of applying the other provisions of this Act in relation to an interim temporary exclusion order until a decision is made on the related application under subsection (3) of this section:

(a) the interim temporary exclusion order is taken to be a temporary exclusion order made under subsection 10(2); and

(b) any reference to an issuing authority is taken to be a reference to the Minister.

(22) Clause 13, page 10 (line 16) to page 11 (line 5), omit clause 13, substitute:

13 Period for which a temporary exclusion order etc. is in force

(1) A temporary exclusion order in relation to a person comes into force immediately after an issuing authority makes the temporary exclusion order in relation to the person.

(2) A temporary exclusion order in relation to a person remains in force until the earlier of the following occurs:

(a) the period specified for the purposes of paragraph 10(6) (d) ends;

(b) the order is revoked under section 11.

(3) An interim temporary exclusion order comes into force immediately after the Minister makes the interim temporary exclusion order in relation to the person.

(4) An interim temporary exclusion order in relation to a person remains in force until the earlier of the following occurs:

(a) an issuing authority makes a decision on the related application made by the Minister under subsection 12A(3);

(b) the Minister issues a return permit to the person under subsection 15(1).

(24) Clause 15, page 14 (line 10), omit the note, substitute:

Note 1: See section 18 for how an application for a return permit can be made.

Note 2: There are judicial review rights in relation to decisions under this subsection.

(25) Clause 15, page 14 (lines 19 to 25), omit "within a reasonable period" (wherever occurring), substitute "as soon as practicable".

(26) Clause 16, page 17 (lines 7 to 10), omit subclause 16(7).

(27) Clause 16, page 17 (line 14), omit "(to the extent known to the Minister)".

(28) Clause 16, page 17 (after line 22), after subclause 16(8), insert:

(8A) Before the Minister imposes a condition mentioned in subsection (9) or (10) on a return permit, the Minister must request, in writing, the approval of an issuing authority to impose the condition.

(8B) A request under subsection (8A) must set out the facts and other grounds on which the Minister considers the condition should be imposed on the return permit.

(8C) In considering whether to approve the condition, subsections (3) to (8) are taken to apply to the issuing authority in the same way as those subsections apply in relation to the Minister.

(8D) To avoid doubt, the Minister must not impose the condition if the issuing authority does not approve the condition.

(29) Clause 17, page 20 (lines 18 and 19), omit ", in the opinion of the Minister,".

(30) Clause 17, page 20 (after line 24), at the end of the clause, add:

(7) Subsections 16(3) to (8D) are taken to apply to a decision under subparagraph (1) (a) (i) of this section to vary the period during which the permit is in force in the same way as those subsections apply to a condition imposed on a permit under that section.

(31) Clause 20, page 22 (after line 32), at the end of clause 20, add:

(3) The fault element for paragraph (1) (a) is knowledge.

(32) Heading to clause 23, page 25 (line 3), omit "Reviewing authority", substitute "Issuing authority".

(33) Clause 23, page 25 (line 5) to page 26 (line 2), omit "a reviewing authority" (wherever occurring), substitute "an issuing authority".

(34) Clause 23, page 26 (lines 3 to 8), omit "reviewing authority" (wherever occurring), substitute "issuing authority".

(35) Clause 23, page 26 (line 10), omit "A reviewing authority", substitute "An issuing authority".

(36) Heading to clause 24, page 26 (line 14), omit "a reviewing authority", substitute "an issuing authority".

(37) Clause 24, page 26 (line 16), omit "a reviewing authority", substitute "an issuing authority".

(38) Clause 25, page 27 (line 13), omit "making", substitute "applying for".

(40) Clause 31, page 29 (lines 12 to 16), omit paragraphs 31(2) (c) and (d).

These amendments to the Counter-Terrorism (Temporary Exclusion Orders) Bill ensure that the bill conforms to the unanimous and bipartisan recommendations of the Labor and government members of the Parliamentary Joint Committee on Intelligence and Security. They do no more than that and they do no less than that. Indeed, I have listened closely to the conversation between Senator Patrick, Senator McKim and Minister Reynolds and note that one of the amendments that we are moving does in fact address the very questions that Senators Patrick and McKim have been pursuing with the minister.

I do want to speak briefly to each of the recommendations of the intelligence and security committee that the government has failed to implement and set out how the amendments that I am moving seek to give effect to those recommendations. I will seek to do this as briefly as possible, noting that these are highly complex matters. The first recommendation of the committee was to amend the bill to require the minister, before making a temporary exclusion order which would require the person to either surrender their Australian passport or be prevented from applying for a new Australian passport, to have regard to, to the extent that the information is available, whether the person has a lawful ability to stay in their current location for the duration of the order; whether the person has a lawful ability to enter a third country—for example, due to holding a passport or residency visa for that third country—and the likelihood of that person being detained, mistreated or harmed if the person has no lawful ability to stay in their current location and no lawful ability to enter a third country for the duration of the order.

The government say they have implemented this recommendation, but that is simply not the case. I wonder whether the government has misunderstood the committee's recommendation, because what it has done is put those considerations at the point of imposing a return permit rather than at the point of imposing the temporary exclusion order. The committee, which was chaired by Liberal member Andrew Hastie and is dominated by Liberal members, including Liberal senators, specifically recommended that these matters be considered before the minister imposed the TEO.

Why would the reasons say that these matters should be considered at the point of a return permit but not at the point of issuing a temporary exclusion order? It makes me wonder whether the government understands the difference between a temporary exclusion order and a return permit. It would be good if the government had agreed to Senator Patrick's motion earlier and, indeed, the request that I had made that this bill be referred back to the Parliamentary Joint Committee on Intelligence and Security, because we could actually interrogate the government and officials and have an iterative process that might have allowed us to come to a better conclusion. However, the Minister for Home Affairs has simply said he won't be taking advice from this committee any longer. That is what he said in the House yesterday. It's the 'my way or the highway' approach to national security that the minister now seeks to implement. The government has claimed it has implemented the first recommendation. That is, in a very literal sense, not true. Amendment (10) would implement the committee's recommendation.

The second recommendation of the committee was to amend the bill to require the minister to give a return permit to a person as soon as practicable. The committee recommended that it be as soon as practicable. The government says it has implemented recommendation No. 2. No, it has not. It has changed it to say 'within a reasonable period'. That is not the same as 'as soon as practicable'. Amendment (25) seeks to give implementation to that recommendation.

Recommendations Nos 3 and 12 from the committee would have seen the bill amended to prevent the making of a temporary exclusion order unless the decision-maker:

… reasonably suspects that

      This recommendation, recommendation No. 12, would have also prevented the minister from acting as nothing more than a rubber stamp for a security assessment. These recommendations were rejected by the government. That's particularly telling, because over the last few days we've heard from the government that the targets of this bill are people who have been fighting with groups like the Islamic State group in Syria, but that directly contradicts what Home Affairs told the committee in public hearings. The department told the committee that any person who is known to have engaged in active fighting in conflict zones in Syria or Iraq or both would not be subject to a temporary exclusion order and that such a person would be allowed to come back to Australia, arrested at the airport, put on trial and held in jail. The department actually said that if an arrest warrant is out a temporary exclusion order is not required. They said that in hearings. The government has to be honest about what this bill actually does and the problem that it's seeking to address. The rejection of this particular amendment illustrates the fact that today the government has not been straightforward about those matters.

      The second part of these recommendations would have prevented the minister from acting as a rubber stamp. We know that this minister gets things wrong. He got it wrong on Neil Prakash. The intelligence and security committee quite sensibly proposed an amendment that would require the minister to turn his mind to the task of issuing an exclusion order. It is disappointing that the government has sought to reject recommendation Nos 3 and 12. Amendment (10) would implement them.

      Recommendation No. 4 would be implemented by amendment (26). The fourth recommendation of the committee was to amend the bill so that in determining the best interest of a child before issuing a TEO—because they do apply to children as young as 14—the minister would have to take into account the child's age, maturity, sex, background, physical and mental health, the right to receive an education, and other matters. The government's approach to this would allow the minister to be wilfully blind to those matters, because it would allow the minister to say that those matters are not relevant. The committee said that those matters are relevant. It should not be for the minister to decide which matters are relevant or not relevant. Amendment (26) addresses this issue and implements that recommendation in full.

      The fifth recommendation of the committee was to amend the bill to require that a temporary exclusion order set out:

            This just simply was not implemented by the government. The bill doesn't require the order to state the grounds on which an order is made—so a person will have a TEO but they won't even know why—and nor does it require the order to set out the person's rights of review. Amendment 12 implements this recommendation in full.

            Recommendation 7 is addressed by many amendments, including (10), (14), (17), (20), (22), (28) and (30). This recommendation was to amend the bill to require that a temporary exclusion order may only be issued by an issuing authority, such as a retired judge, and that the authority must approve conditions in a return permit. The government say that it has implemented this recommendation in full. The minister often says that this is just like the UK scheme. It is not just like the UK scheme; the UK scheme, in fact, is as the committee recommended. The government has created its own process, a process that is highly questionable in its constitutionality and which would in fact put this legislation in doubt as to whether it would actually be effective. Recommendation 7 is a significant recommendation. It is one that seeks to implement what the UK scheme has done, and there is no evidence that it's not working for the United Kingdom. The government hasn't given any substantive justification as to why it hasn't taken up recommendation 7, and that's why we're moving those amendments.

            The 10th recommendation is a very simple one:

            The Committee recommends that the Bill be amended to clarify that a person may seek judicial review of a decision of the Minister to grant or refuse an application for a return permit.

            Incredibly, this was rejected by the government on the grounds that it was unnecessary! The government argued that it was unnecessary to expressly provide for a judicial review in the circumstances by pointing to the fact that a minister must accept the application for a return permit.

            But this is not precisely true. The minister must give a return permit if the person has applied to the minister in a prescribed form and manner, and:

            … if the person is to be, or is being, deported or extradited to Australia.

            Implicitly, the minister may refuse to give a return permit if he or she does not believe the person has applied in an appropriate manner or form, and the minister may or may not be correct about that. So amendment (24) makes clear that there are judicial review rights in relation to a decision to grant or refuse an application for a return permit. This is pretty basic, and it's extraordinary that the government doesn't think it needs to be included.

            Recommendation 11 would be implemented by amendment (31), and would see the bill amended:

            … so that, in any prosecution for a breach of an offence provision under the Bill, the prosecution must prove that the defendant had knowledge of the existence of the temporary exclusion order or of the relevant return permit condition (as applicable).

            As a general principle, people should not be prosecuted for breaching an order they are unaware of, especially in circumstances where an order can be issued on the basis of the matters believed or satisfaction of certain matters and where the breach of order can result in a prison sentence. The government has failed to provide a coherent argument as to why that general principle should not be adhered to in these circumstances.

            While it is true that a person may not be aware of an exclusion order at the time it's issued—because, perhaps, they're in a remote location or the government doesn't know where the person is—any such person who tries to return to Australia would presumably be made aware of the order when he or she tries to board a plane, for example. Is the government really saying that a person who is subject to one of these orders would not be flagged on an airline's computer system?

            The government has to explain why, in a practical sense, requiring the prosecution to prove actual knowledge of the existence of the order is unworkable. It is not enough just to assert that. That's what the government has done, though, in its submission to the Intelligence and Security Joint Committee, and no member of that bipartisan committee, Labor or Liberal, was convinced. That is why the committee has made recommendation 11, and amendment (31) would implement that recommendation of the committee.

            So, there you have it: nine recommendations of the bipartisan Intelligence and Security Joint Committee that were not implemented by the government and which Labor's amendments would seek to implement in full. This is, as I said, a bipartisan committee of this parliament which has operated quite effectively, particularly since 2013, from when there has been a raft of significant national security legislation put before the parliament. That committee has worked quite effectively. It is chaired by a Liberal member of parliament and it is Liberal dominated. They made 18 substantive recommendations. The government, in proceeding with this legislation and proceeding with this legislation in a manner that does not allow the bill to go back to the committee, means we are forced to deal in the Senate with the issues that properly should have been dealt with by the intelligence and security committee.

            I flag that Labor supports the intent of this legislation and Labor supports this legislation. I will not have this legislation go through the parliament without Labor's support, because we want a scheme. We want a scheme that works. We understand the threat that returning foreign fighters pose to the Australian community. What we want is a scheme that keeps Australians safe, that is constitutionally valid and that works. While we will support this legislation, we are moving these amendments in an effort to improve it to ensure that Australians have a scheme that they can rely on that is constitutionally valid and that will withstand a High Court challenge. It is unfortunate that the government is proceeding in this way with this legislation.

            I flag that there are further amendments that I will move to the consequential bill, but moving these amendments—and I do seek the support of this chamber—is about implementing all of the recommendations of the Parliamentary Joint Committee on Intelligence and Security.

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