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Counter-Terrorism (Temporary Exclusion Orders) Bill 2019

The submission to the Parliamentary Joint Committee on Intelligence and Security’s inquiry into the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 (Cth) was prepared by the Law Council. 

This Bill seeks to create a new scheme for the making of a Temporary Exclusion Order (a TEO) and a Return Permit (Permit) in relation to Australian citizens who are overseas and seeking to return to Australia. The TEO scheme is designed to apply to people returning from a “conflict zone” and where the Minister of Home Affairs (the Minister) “suspects on reasonable grounds” that the making the order is necessary to substantially assist in preventing terrorism-related activity upon their return to Australia. The order can be in force for up to two years from the date of making the order.

The Law Council does not 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. While matters of national security and protecting Australians from terrorism are of the utmost importance, the Australian Parliament must ensure responses are necessary, proportionate and consistent with Australia’s international obligations.

The proposed TEO scheme is broad and it appears that the Minister may make a TEO in the absence of an assessment by the Australian Security Intelligence Organisation (ASIO) and without adequate judicial oversight. Further, onerous conditions may be attached to Permits by the Minister alone where terms of imprisonment are applicable where there is a breach of a TEO or Permit, including in respect of children as young as 14 years of age. Even where a risk assessment is provided by ASIO, a TEO may be made where there is only an “indirect” risk to security rather than a direct risk.

The introduction of TEOs could have the effect of rendering an Australian unable to legally enter Australia – or indeed any other country if they are not a citizen of another country and hence have no right to enter another country – while the order is in place. 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. There is also a lack of precision as to the grounds required to make a TEO and inadequate provision for procedural fairness.

You can read the full submission below.

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