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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Counter-Terrorism (Temporary
Exclusion Orders) Bill 2019
No. , 2019
(Home Affairs)
A Bill for an Act to protect the community from
terrorism by providing for temporary exclusion
orders, and for related purposes
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Simplified outline of this Act ............................................................ 2
4
Definitions ......................................................................................... 3
5
Act extends to external Territories..................................................... 4
6
Act extends to things outside Australia ............................................. 4
7
Act binds the Crown .......................................................................... 4
Part 2--Temporary exclusion orders and return permits
5
Division 1--Temporary exclusion orders
5
8
Prohibition on entering Australia if a temporary exclusion
order is in force .................................................................................. 5
9
Prohibition on permitting use of a vessel or aircraft by
person in relation to whom a temporary exclusion order is in
force ................................................................................................... 5
10
Making a temporary exclusion order ................................................. 6
11
Revoking a temporary exclusion order .............................................. 8
12
Application to revoke a temporary exclusion order ........................... 9
13
Period for which a temporary exclusion order is in force ................ 10
14
Reviewing authority must review the making of a temporary
exclusion order ................................................................................ 11
Division 2--Return permits
14
15
Issuing a return permit ..................................................................... 14
16
Conditions on a return permit .......................................................... 15
17
Varying and revoking a return permit .............................................. 19
18
Applications in relation to a return permit ....................................... 20
19
Period for which a return permit is in force ..................................... 22
20
Consequences for failing to comply with return permit
conditions ........................................................................................ 22
21
Permitting use of a vessel or aircraft by person in
contravention of return permit conditions........................................ 23
22
Consequences for providing false or misleading information
or documents ................................................................................... 23
Part 3--Other matters
25
23
Reviewing authority ........................................................................ 25
24
Protection of information provided to a reviewing authority ........... 26
25
Delegation ....................................................................................... 27
ii
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
26
Exclusion of procedural fairness ..................................................... 27
27
The Administrative Decisions (Judicial Review) Act 1977
does not apply to certain decisions under this Act ........................... 27
28
Interaction with the Australian Security Intelligence
Organisation Act 1979 .................................................................... 28
29
Interaction with the Australian Passports Act 2005 ........................ 28
30
Severability ...................................................................................... 28
31
Annual report on operation of Act ................................................... 29
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
1
A Bill for an Act to protect the community from
1
terrorism by providing for temporary exclusion
2
orders, and for related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the Counter-Terrorism (Temporary Exclusion Orders)
8
Act 2019.
9
Part 1 Preliminary
Section 2
2
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day this Act receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Simplified outline of this Act
13
The Minister may make an order (called a temporary exclusion
14
order) that prevents a person from entering Australia for a specified
15
period, which may be up to 2 years. An order cannot be made
16
unless certain criteria are met, and it can be revoked.
17
The Minister must refer the decision to make a temporary
18
exclusion order to a reviewing authority for review. If the
19
reviewing authority is of the opinion that the decision involved
20
specified errors of law, the decision is taken never to have been
21
made.
22
If the person is being deported or extradited to Australia or makes
23
an application, the Minister must issue a permit (called a return
24
permit) that allows the person to enter Australia. The Minister may
25
also issue a permit if the Minister considers that it is appropriate to
26
do so.
27
Preliminary Part 1
Section 4
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
3
The permit may contain conditions, such as specifying the period
1
within which and the way in which the person must enter Australia,
2
and requiring the person to give notice of specified things, such as
3
the person's principal place of residence or place of employment
4
while in Australia. Conditions cannot be imposed unless the
5
Minister has regard to certain matters and is satisfied of specified
6
matters.
7
A return permit can remain in force for a maximum period of 12
8
months after the person to whom it applies enters Australia.
9
A return permit can be varied or revoked.
10
It is an offence to fail to comply with any conditions imposed on a
11
return permit, or to give false or misleading information or
12
documents in purported compliance with such conditions.
13
The Minister must, each year, present a report to each House of the
14
Parliament on the operation of this Act.
15
4 Definitions
16
In this Act:
17
Australian travel document has the meaning given by the
18
Australian Passports Act 2005.
19
listed terrorist organisation has the meaning given by
20
subsection 100.1(1) of the Criminal Code.
21
return permit means a permit issued under subsection 15(1) or (2).
22
reviewing authority means a person appointed under section 23.
23
temporary exclusion order means an order made under
24
subsection 10(1).
25
terrorist act has the meaning given by section 100.1 of the
26
Criminal Code.
27
Part 1 Preliminary
Section 5
4
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
5 Act extends to external Territories
1
This Act extends to every external Territory.
2
6 Act extends to things outside Australia
3
This Act extends to acts, omissions, matters and things outside
4
Australia.
5
7 Act binds the Crown
6
(1) This Act binds the Crown in each of its capacities.
7
(2) However, this Act does not make the Crown liable to a pecuniary
8
penalty or to be prosecuted for an offence.
9
Temporary exclusion orders and return permits Part 2
Temporary exclusion orders Division 1
Section 8
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
5
Part 2--Temporary exclusion orders and return
1
permits
2
Division 1--Temporary exclusion orders
3
8 Prohibition on entering Australia if a temporary exclusion order is
4
in force
5
A person commits an offence if:
6
(a) a temporary exclusion order is in force in relation to the
7
person; and
8
(b) the person enters Australia.
9
Penalty: Imprisonment for 2 years.
10
9 Prohibition on permitting use of a vessel or aircraft by person in
11
relation to whom a temporary exclusion order is in force
12
(1) A person commits an offence if:
13
(a) the person is:
14
(i) an owner, charterer, lessee, operator, agent or master of
15
a vessel; or
16
(ii) an owner, charterer, lessee, operator or pilot in charge of
17
an aircraft; and
18
(b) the person permits the vessel or aircraft to be used to convey
19
another person (the second person) to Australia; and
20
(c) the person knows that a temporary exclusion order is in force
21
in relation to the second person.
22
Penalty: Imprisonment for 2 years.
23
(2) Subsection (1) does not apply if the second person is being
24
deported or extradited to Australia.
25
Note:
A defendant bears an evidential burden in relation to the matter in this
26
subsection (see subsection 13.3(3) of the Criminal Code).
27
Part 2 Temporary exclusion orders and return permits
Division 1 Temporary exclusion orders
Section 10
6
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
(3) Section 15.1 of the Criminal Code (extended geographical
1
jurisdiction--category A) applies to an offence against
2
subsection (1) of this section.
3
10 Making a temporary exclusion order
4
(1) Subject to subsections (2) and (3), the Minister may make an order
5
(a temporary exclusion order) under this subsection in relation to a
6
person if:
7
(a) the person is located outside Australia; and
8
(b) the person is an Australian citizen; and
9
(c) the person is at least 14 years of age; and
10
(d) a return permit is not in force in relation to the person.
11
(2) The Minister must not make a temporary exclusion order in
12
relation to a person unless either:
13
(a) the Minister suspects on reasonable grounds that making the
14
order would substantially assist in one or more of the
15
following:
16
(i) preventing a terrorist act;
17
(ii) preventing training from being provided to, received
18
from or participated in with a listed terrorist
19
organisation;
20
(iii) preventing the provision of support for, or the
21
facilitation of, a terrorist act;
22
(iv) preventing the provision of support or resources to an
23
organisation that would help the organisation engage in
24
an activity described in paragraph (a) of the definition of
25
terrorist organisation in subsection 102.1(1) of the
26
Criminal Code; or
27
(b) the person has been assessed by the Australian Security
28
Intelligence Organisation to be directly or indirectly a risk to
29
security (within the meaning of the Australian Security
30
Intelligence Organisation Act 1979) for reasons related to
31
politically motivated violence (within the meaning of that
32
Act).
33
Temporary exclusion orders and return permits Part 2
Temporary exclusion orders Division 1
Section 10
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
7
(3) If the person is 14 to 17 years of age, the Minister must, before
1
making a temporary exclusion order in relation to the person, have
2
regard to:
3
(a) the protection of the community as the paramount
4
consideration; and
5
(b) the best interests of the person as a primary consideration.
6
(4) In determining what is in the best interests of a person for the
7
purposes of paragraph (3)(b), the Minister must take into account
8
the following matters:
9
(a) the age, maturity, sex and background (including lifestyle,
10
culture and traditions) of the person;
11
(b) the physical and mental health of the person;
12
(c) the benefit to the person of having a meaningful relationship
13
with his or her family and friends;
14
(d) the right of the person to receive an education;
15
(e) the right of the person to practise his or her religion;
16
(f) any other matter the Minister considers relevant.
17
(5) The Minister must take into account the matters in subsection (4):
18
(a) only to the extent that the matters are known to the Minister;
19
and
20
(b) only to the extent that the matters are relevant.
21
(6) If the Minister makes a temporary exclusion order, the order must:
22
(a) be in writing; and
23
(b) specify the name of the person to whom the order relates; and
24
(c) state that the criteria in subsection (2) for the making of the
25
order have been met; and
26
(d) specify the period during which the order is to be in force,
27
which must not end more than 2 years after the day on which
28
the order is made; and
29
(e) if the person to whom the order relates has an Australian
30
travel document--specify whether the person must surrender
31
the document to a specified person or body; and
32
(f) specify whether the person to whom the order relates is
33
permitted to apply for an Australian travel document; and
34
Part 2 Temporary exclusion orders and return permits
Division 1 Temporary exclusion orders
Section 11
8
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
(g) specify whether the person to whom the order relates is
1
permitted to obtain an Australian travel document; and
2
(h) set out the effect of the following sections:
3
(i) section 8 (offence to enter Australia if temporary
4
exclusion order is in force);
5
(ii) sections 11 and 12 (about revoking a temporary
6
exclusion order);
7
(iii) sections 15 and 18 (about return permits); and
8
(i) state that the person may have review rights in relation to the
9
decision to make the order.
10
(7) Paragraph (6)(d) does not prevent the making of another temporary
11
exclusion order in relation to the same person.
12
(8) As soon as practicable after a temporary exclusion order comes
13
into force, the Minister must cause such steps to be taken as are, in
14
the opinion of the Minister, reasonable and practicable:
15
(a) to bring to the attention of the person the content of the order;
16
and
17
(b) if the person to whom the order relates is 14 to 17 years of
18
age--to bring to the attention of a parent or guardian of the
19
person the content of the order.
20
(9) A temporary exclusion order is not a legislative instrument.
21
11 Revoking a temporary exclusion order
22
(1) The Minister may revoke a temporary exclusion order.
23
(2) A temporary exclusion order may be revoked under subsection (1):
24
(a) on the Minister's own initiative; or
25
(b) on application by, or on behalf of, the person to whom the
26
order relates.
27
Note:
See section 12 for how an application to revoke a temporary exclusion
28
order can be made.
29
(3) As soon as practicable after revoking a temporary exclusion order
30
under subsection (1), the Minister must cause such steps to be
31
Temporary exclusion orders and return permits Part 2
Temporary exclusion orders Division 1
Section 12
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
9
taken as are, in the opinion of the Minister, reasonable and
1
practicable:
2
(a) to bring to the attention of the person the revocation of the
3
order; and
4
(b) if the person to whom the order relates is 14 to 17 years of
5
age--to bring to the attention of a parent or guardian of the
6
person the revocation of the order.
7
(4) A revocation of a temporary exclusion order under subsection (1)
8
takes effect when the Minister revokes the order.
9
(5) A temporary exclusion order in relation to a person is taken to be
10
revoked if a return permit is issued to the person. The revocation
11
takes effect immediately after the return permit is issued.
12
(6) This section does not prevent the making of another temporary
13
exclusion order in relation to the same person.
14
12 Application to revoke a temporary exclusion order
15
(1) An application for revocation of a temporary exclusion order may
16
be made orally or in writing to:
17
(a) the Minister; or
18
(b) the Department.
19
(2) The Minister may, in writing, authorise any person (whether in or
20
outside Australia) to receive applications on behalf of the Minister
21
or Department for the purposes of subsection (1).
22
(3) The application must include:
23
(a) the following information about the person to whom the
24
temporary exclusion order relates:
25
(i) the person's full name;
26
(ii) the person's date and place of birth;
27
(iii) the person's contact details; and
28
(b) a statement specifying the reasons why the person seeks to
29
have the temporary exclusion order revoked.
30
Part 2 Temporary exclusion orders and return permits
Division 1 Temporary exclusion orders
Section 13
10
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
(4) However, if the person making the application does not have
1
information required by subsection (3), the person must explain
2
why in the application.
3
(5) If the application is made on behalf of someone else, the person
4
making the application must provide the following in the
5
application:
6
(a) the person's full name;
7
(b) the person's contact details;
8
(c) the person's relationship to the person to whom the
9
application relates;
10
(d) a statement that the person to whom the application relates
11
has consented to the person making the application on their
12
behalf.
13
Note:
Sections 137.1 and 137.2 of the Criminal Code create offences for
14
providing false or misleading information or documents.
15
13 Period for which a temporary exclusion order is in force
16
(1) A temporary exclusion order in relation to a person comes into
17
force:
18
(a) if subsection (2) does not apply--immediately after a
19
reviewing authority makes a decision under section 14 that
20
none of subparagraphs 14(4)(b)(i) to (iii) apply to the
21
decision to make the temporary exclusion order; or
22
(b) if subsection (2) applies--immediately after the Minister
23
makes the temporary exclusion order in relation to the
24
person.
25
Note:
If subsection (2) does not apply and a reviewing authority makes a
26
decision under section 14 that one or more of
27
subparagraphs 14(4)(b)(i) to (iii) apply to the decision to make the
28
temporary exclusion order in relation to the person, the temporary
29
exclusion order is taken never to have been made and so never comes
30
into force.
31
(2) This subsection applies if the Minister is satisfied that, because of
32
urgent circumstances, it is necessary that a temporary exclusion
33
order in relation to a person comes into force immediately after it is
34
made.
35
Temporary exclusion orders and return permits Part 2
Temporary exclusion orders Division 1
Section 14
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
11
(3) A temporary exclusion order in relation to a person remains in
1
force until the earlier of the following occurs:
2
(a) the period specified for the purposes of paragraph 10(6)(d)
3
ends;
4
(b) the order is revoked under section 11.
5
14 Reviewing authority must review the making of a temporary
6
exclusion order
7
Referral of TEO decision
8
(1) Immediately after making a temporary exclusion order in relation
9
to a person, the Minister must refer the decision (the TEO
10
decision) to make the order to a reviewing authority.
11
(2) The referral must include:
12
(a) a written statement of reasons for the TEO decision; and
13
(b) all of the material relating to the TEO decision that was
14
before the Minister at the time the TEO decision was made.
15
(3) Paragraph (2)(b) does not apply to material that, in the Minister's
16
opinion, would be contrary to the public interest to disclose.
17
Review of TEO decision
18
(4) The reviewing authority must, as soon as is reasonably practicable:
19
(a) review the TEO decision; and
20
(b) decide whether, in the opinion of the reviewing authority, one
21
or more of the following subparagraphs apply to the TEO
22
decision:
23
(i) the making of the decision was an improper exercise of
24
the power to make the decision;
25
(ii) the decision was induced or affected by fraud;
26
(iii) if the temporary exclusion order was made on the basis
27
of paragraph 10(2)(a)--there was no material before the
28
Minister from which the Minister could form the state
29
of mind required by that paragraph.
30
Part 2 Temporary exclusion orders and return permits
Division 1 Temporary exclusion orders
Section 14
12
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
(5) For the purposes of subparagraph (4)(b)(i), the making of the
1
decision is an improper exercise of the power to make the
2
decision if:
3
(a) the Minister took an irrelevant consideration into account; or
4
(b) the Minister failed to take a relevant consideration into
5
account; or
6
(c) the decision was made for a purpose other than a purpose for
7
which the power to make the decision was conferred; or
8
(d) the decision was made in bad faith; or
9
(e) the decision was made at the direction or behest of another
10
person; or
11
(f) the decision was made in accordance with a rule or policy
12
without regard to the merits of the particular case; or
13
(g) the decision was so unreasonable that no reasonable person
14
could have made it; or
15
(h) the decision was made in such a way that the result of the
16
decision is uncertain; or
17
(i) the decision was otherwise an abuse of the power to make the
18
decision.
19
(6) The reviewing authority must conduct a review of a TEO decision:
20
(a) in the absence of the person (the affected person) to whom
21
the temporary exclusion order relates; and
22
(b) without the affected person having been notified of the
23
review; and
24
(c) without the affected person having been given an opportunity
25
to make any representations to the reviewing authority.
26
Effect of reviewing authority decision
27
(7) If, in the opinion of the reviewing authority, one or more of
28
subparagraphs (4)(b)(i) to (iii) apply to the TEO decision:
29
(a) the TEO decision is taken never to have been made; and
30
(b) if the person to whom the TEO decision relates has been
31
notified of the making of the order--the Minister must cause
32
such steps to be taken as are, in the opinion of the Minister,
33
reasonable and practicable:
34
Temporary exclusion orders and return permits Part 2
Temporary exclusion orders Division 1
Section 14
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
13
(i) to bring to the attention of the person the reviewing
1
authority's decision; and
2
(ii) if the person is 14 to 17 years of age--to bring to the
3
attention of a parent or guardian of the person the
4
reviewing authority's decision.
5
Note:
If:
6
(a) the reviewing authority decides that none of
7
subparagraphs (4)(b)(i) to (iii) apply to the decision to make a
8
temporary exclusion order; and
9
(b) the order has not already come into force under
10
paragraph 13(1)(b);
11
the temporary exclusion order comes into force immediately after the
12
reviewing authority's decision is made (see paragraph 13(1)(a)).
13
(8) If:
14
(a) a return permit has been issued to a person in relation to
15
whom a temporary exclusion order applies; and
16
(b) the order is taken never to have been made because of the
17
operation of paragraph (7)(a);
18
the return permit is taken never to have been issued.
19
TEO decision material must be returned to the Minister
20
(9) As soon as reasonably practicable after completing a review of a
21
TEO decision, the reviewing authority must return the material
22
referred to in paragraph (2)(b) to the Minister.
23
Further temporary exclusion orders may be made
24
(10) Nothing in this section prevents the making of another temporary
25
exclusion order in relation to the same person.
26
Part 2 Temporary exclusion orders and return permits
Division 2 Return permits
Section 15
14
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
Division 2--Return permits
1
15 Issuing a return permit
2
When a return permit must be issued
3
(1) If a temporary exclusion order is in force in relation to a person,
4
the Minister must issue a permit (a return permit) under this
5
subsection to the person:
6
(a) on application by, or on behalf of, the person; or
7
(b) if the person is to be, or is being, deported or extradited to
8
Australia.
9
Note:
See section 18 for how an application for a return permit can be made.
10
When a return permit may be issued
11
(2) If a temporary exclusion order is in force in relation to a person,
12
the Minister may issue a permit (a return permit) under this
13
subsection to the person if the Minister considers it is appropriate
14
to do so.
15
Time for issuing a return permit
16
(3) The return permit must be issued:
17
(a) if the person applied for the permit under paragraph (1)(a)--
18
within a reasonable period after the Minister received the
19
application; or
20
(b) if the person is to be, or is being, deported or extradited to
21
Australia--within a reasonable period after the Minister
22
becomes aware of that fact; or
23
(c) if the Minister decides, under subsection (2), to issue a return
24
permit to the person--within a reasonable period after the
25
Minister makes the decision.
26
Form and contents of permit
27
(4) A return permit must:
28
(a) be in writing; and
29
Temporary exclusion orders and return permits Part 2
Return permits Division 2
Section 16
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
15
(b) specify the name of the person to whom the permit relates;
1
and
2
(c) specify the day the permit comes into force and the period it
3
remains in force, which must not end more than 12 months
4
after the person enters Australia; and
5
(d) specify the conditions (if any) imposed on the permit; and
6
(e) if one or more conditions are imposed on the permit--
7
specify, for each condition, the period during which the
8
condition is in force, which must not end after the permit
9
ceases to be in force; and
10
(f) set out the effect of the following sections:
11
(i) sections 17 and 18 (about varying and revoking a return
12
permit);
13
(ii) section 20 (offence for failing to comply with conditions
14
of permit);
15
(iii) section 22 (offence for providing false or misleading
16
information or documents); and
17
(g) state that the person may have review rights in relation to the
18
decision to issue the permit.
19
Return permit to be served personally
20
(5) The Minister must cause a copy of the return permit to be served
21
personally:
22
(a) on the person to whom it relates; and
23
(b) if the person to whom the permit relates is 14 to 17 years of
24
age--on a parent or guardian of the person.
25
(6) The Minister must comply with paragraph (5)(b) only if it is
26
reasonably practicable to do so.
27
16 Conditions on a return permit
28
(1) The Minister may impose one or more conditions mentioned in
29
either or both of subsections (9) and (10) on a return permit.
30
(2) A condition may be imposed at the time the return permit is issued,
31
or at a later time.
32
Part 2 Temporary exclusion orders and return permits
Division 2 Return permits
Section 16
16
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
Requirements relating to imposing conditions
1
(3) Before the Minister imposes a condition mentioned in
2
subsection (9) or (10) on a return permit, the Minister must be
3
satisfied that the imposition of the condition and (if more than one
4
condition is imposed) the conditions taken together are reasonably
5
necessary, and reasonably appropriate and adapted, for the purpose
6
of one or more of the following:
7
(a) preventing a terrorist act;
8
(b) preventing training from being provided to, received from or
9
participated in with a listed terrorist organisation;
10
(c) preventing the provision of support for, or the facilitation of,
11
a terrorist act;
12
(d) preventing the provision of support or resources to an
13
organisation that would help the organisation engage in an
14
activity described in paragraph (a) of the definition of
15
terrorist organisation in subsection 102.1(1) of the Criminal
16
Code.
17
(4) Before the Minister imposes a condition mentioned in
18
subsection (9) or (10) on a return permit, the Minister must have
19
regard to the impact of imposing the condition (including the
20
impact of all of the conditions that will be imposed on the permit
21
taken together if the condition were imposed) on the person's
22
personal circumstances, particularly the impact on any dependants
23
of the person who are aged under 18 years.
24
(5) If the person to whom the return permit relates is 14 to 17 years of
25
age, the Minister must have regard to the following matters before
26
the Minister imposes a condition mentioned in subsection (9) or
27
(10) on the permit:
28
(a) the protection of the community as the paramount
29
consideration;
30
(b) the best interests of the person as a primary consideration.
31
(6) In determining what is in the best interests of a person for the
32
purposes of paragraph (5)(b), the Minister must take into account
33
the following matters:
34
(a) the age, maturity, sex and background (including lifestyle,
35
culture and traditions) of the person;
36
Temporary exclusion orders and return permits Part 2
Return permits Division 2
Section 16
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
17
(b) the physical and mental health of the person;
1
(c) the benefit to the person of having a meaningful relationship
2
with his or her family and friends;
3
(d) the right of the person to receive an education;
4
(e) the right of the person to practise his or her religion;
5
(f) any other matter the Minister considers relevant.
6
(7) The Minister must take into account the matters in subsection (6):
7
(a) only to the extent that the matters are known to the Minister;
8
and
9
(b) only to the extent that the matters are relevant.
10
(8) Before imposing a condition mentioned in subsection (9) on a
11
return permit that would prevent a person from entering Australia
12
for a period of time, the Minister must consider the following
13
matters (to the extent known to the Minister):
14
(a) whether the person has a lawful right to remain, or to enter
15
and remain, in a country other than Australia during that
16
period;
17
(b) if the person has no lawful right to remain, or to enter and
18
remain, in a country other than Australia during that period--
19
the likelihood of the person being detained, mistreated or
20
harmed if the person cannot enter Australia until the end of
21
that period.
22
Pre-entry conditions
23
(9) The conditions in this subsection are as follows:
24
(a) that the person must not enter Australia during a specified
25
period, which must end no later than the earlier of:
26
(i) the end of the period reasonably necessary to assess the
27
risk posed by the entry of the person to Australia and to
28
make appropriate arrangements for that entry; and
29
(ii) 12 months after the permit is issued to the person;
30
(b) that the person must enter Australia within a specified period,
31
which must not end more than 3 months after the permit is
32
issued to the person;
33
Part 2 Temporary exclusion orders and return permits
Division 2 Return permits
Section 16
18
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
(c) that the person must enter Australia on a specified date,
1
which must not be later than 3 months after the permit is
2
issued to the person;
3
(d) that the person enter Australia in a specified manner.
4
Post-entry conditions
5
(10) The conditions in this subsection are as follows:
6
(a) that the person notify a specified person or body of the
7
person's principal place of residence in Australia;
8
(b) that the person notify a specified person or body of any
9
change to the person's principal place of residence in
10
Australia within 24 hours of the change occurring;
11
(c) that the person notify a specified person or body of the
12
person's place of employment in Australia;
13
(d) that the person notify a specified person or body of any
14
change to the person's place of employment in Australia
15
within 24 hours of the change occurring;
16
(e) that the person notify a specified person or body of the
17
person's place of education in Australia;
18
(f) that the person notify a specified person or body of any
19
change to the person's place of education in Australia within
20
24 hours of the change occurring;
21
(g) that the person notify a specified person or body of any
22
contact with specified individuals (whether within or outside
23
Australia) within 24 hours of the contact occurring;
24
(h) that the person notify a specified person or body, within a
25
specified period, if the person intends to enter, or enters, a
26
State or Territory that is not the State or Territory in which
27
the person's principal place of residence is located;
28
(i) that the person notify a specified person or body, within a
29
specified period, if the person intends to leave, or leaves,
30
Australia;
31
(j) that, if the person accesses or uses, or intends to access or
32
use, specified forms of telecommunication or other
33
technology in Australia, the person do either or both of the
34
following within a specified period of the access or use, or
35
intended access or use, occurring:
36
Temporary exclusion orders and return permits Part 2
Return permits Division 2
Section 17
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
19
(i) notify a specified person or body of the use or access, or
1
intended use or access;
2
(ii) provide a specified person or body with sufficient
3
information to enable the specific telecommunications
4
service, account or device to be identified;
5
(k) that the person notify a specified person or body, within a
6
specified period, if the person intends to apply for an
7
Australian travel document;
8
(l) if the person has an Australian travel document--that the
9
person must surrender the document to a specified person or
10
body;
11
(m) that the person is not permitted to apply for an Australian
12
travel document;
13
(n) that the person is not permitted to obtain an Australian travel
14
document.
15
(11) If a condition is imposed that requires the person to notify a
16
specified person or body of a particular matter, the return permit
17
may specify either or both of the following:
18
(a) the manner in which the person or body is to be notified;
19
(b) any documents or information that must be provided to the
20
person or body to substantiate the relevant matter.
21
17 Varying and revoking a return permit
22
(1) The Minister may:
23
(a) vary a return permit to do one or more of the following:
24
(i) vary the period during which the permit is in force,
25
which must not end more than 12 months after the
26
person enters Australia;
27
(ii) remove a condition imposed on the permit;
28
(iii) impose a new condition under section 16 on the permit;
29
or
30
(b) revoke a return permit.
31
(2) The Minister may vary or revoke a return permit under
32
subsection (1):
33
(a) on the Minister's own initiative; or
34
Part 2 Temporary exclusion orders and return permits
Division 2 Return permits
Section 18
20
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
(b) on application by, or on behalf of, the person to whom the
1
return permit relates.
2
Note:
See section 18 for how an application to vary or revoke a return permit
3
can be made.
4
(3) A variation or revocation of a return permit takes effect when the
5
Minister varies or revokes the permit.
6
(4) If the Minister varies a return permit to vary the period during
7
which the permit is in force or to impose a new condition on the
8
permit, the Minister must cause a copy of the return permit as
9
varied to be served personally:
10
(a) on the person to whom it relates; and
11
(b) if the person to whom the permit relates is 14 to 17 years of
12
age--on a parent or guardian of the person.
13
(5) The Minister must comply with paragraph (4)(b) only if it is
14
reasonably practicable to do so.
15
(6) If the Minister revokes a return permit, or a condition on a return
16
permit, the Minister must, as soon as practicable after revoking the
17
permit or the condition, cause such steps to be taken as are, in the
18
opinion of the Minister, reasonable and practicable:
19
(a) to bring to the attention of the person the revocation of the
20
permit or condition; and
21
(b) if the person to whom the permit relates is 14 to 17 years of
22
age--to bring to the attention of a parent or guardian of the
23
person the revocation of the permit or condition.
24
18 Applications in relation to a return permit
25
(1) An application for a return permit, or for a variation or revocation
26
of a return permit, may be made orally or in writing to:
27
(a) the Minister; or
28
(b) the Department.
29
(2) The Minister may, in writing, authorise any person (whether in or
30
outside Australia) to receive applications on behalf of the Minister
31
or Department for the purposes of subsection (1).
32
Temporary exclusion orders and return permits Part 2
Return permits Division 2
Section 18
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
21
(3) If the person to whom the application relates is located outside
1
Australia at the time the application is made, the application must
2
include the following information:
3
(a) the person's full name;
4
(b) the person's date and place of birth;
5
(c) the person's contact details;
6
(d) if the application is for the issue of a return permit--the
7
following information in relation to each child (if any) of the
8
person:
9
(i) whether the child is deceased or alive;
10
(ii) the full name of the child;
11
(iii) the date and place of birth of the child;
12
(iv) if the child is alive--the location of the child.
13
(4) If the person to whom the application relates is in Australia at the
14
time the application is made, the application must include the
15
following information:
16
(a) the person's full name;
17
(b) the person's date and place of birth;
18
(c) the person's current residential address in Australia;
19
(d) the person's contact details.
20
(5) However, if the person making the application does not have
21
information required by subsection (3) or (4), the person must
22
explain why in the application.
23
(6) If the application is for a variation of a return permit, the
24
application must be accompanied by a statement that specifies:
25
(a) the variation requested to be made; and
26
(b) the reasons why the person to whom the application relates
27
seeks to have the permit varied in the manner requested.
28
(7) If the application is for a revocation of a return permit, the
29
application must be accompanied by a statement that specifies the
30
reasons why the person to whom the application relates seeks to
31
have the permit revoked.
32
Part 2 Temporary exclusion orders and return permits
Division 2 Return permits
Section 19
22
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
(8) If the application is made on behalf of someone else, the person
1
making the application must provide the following in the
2
application:
3
(a) the person's full name;
4
(b) the person's contact details;
5
(c) the person's relationship to the person to whom the
6
application relates;
7
(d) a statement that the person to whom the application relates
8
has consented to the person making the application on their
9
behalf.
10
Note:
Sections 137.1 and 137.2 of the Criminal Code create offences for
11
providing false or misleading information or documents.
12
19 Period for which a return permit is in force
13
A return permit:
14
(a) comes into force on the day specified for the purposes of
15
paragraph 15(4)(c); and
16
(b) remains in force until the earliest of the following occurs:
17
(i) the period specified for the purposes of
18
paragraph 15(4)(c) ends;
19
(ii) if the period is varied under subparagraph 17(1)(a)(i)--
20
the end of that period as varied;
21
(iii) the permit is revoked under paragraph 17(1)(b).
22
20 Consequences for failing to comply with return permit conditions
23
(1) A person commits an offence if:
24
(a) a return permit is in force in relation to the person; and
25
(b) a condition mentioned in subsection 16(9) or (10) is imposed
26
on the return permit; and
27
(c) the person fails to comply with the condition.
28
Penalty: Imprisonment for 2 years.
29
(2) Section 15.2 of the Criminal Code (extended geographical
30
jurisdiction--category B) applies to an offence against
31
subsection (1) of this section.
32
Temporary exclusion orders and return permits Part 2
Return permits Division 2
Section 21
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
23
21 Permitting use of a vessel or aircraft by person in contravention
1
of return permit conditions
2
(1) A person commits an offence if:
3
(a) the person is:
4
(i) an owner, charterer, lessee, operator, agent or master of
5
a vessel; or
6
(ii) an owner, charterer, lessee, operator or pilot in charge of
7
an aircraft; and
8
(b) the person permits the vessel or aircraft to be used to convey
9
another person (the second person) to Australia; and
10
(c) the person does so knowing that the second person is entering
11
Australia in contravention of a condition imposed on a return
12
permit that is in force in relation to the second person.
13
Penalty: Imprisonment for 2 years.
14
(2) Subsection (1) does not apply if the second person is being
15
deported or extradited to Australia.
16
Note:
A defendant bears an evidential burden in relation to the matter in this
17
subsection (see subsection 13.3(3) of the Criminal Code).
18
(3) Section 15.1 of the Criminal Code (extended geographical
19
jurisdiction--category A) applies to an offence against
20
subsection (1) of this section.
21
22 Consequences for providing false or misleading information or
22
documents
23
(1) A person commits an offence if:
24
(a) the person gives information or produces a document to a
25
person or body; and
26
(b) the person does so in response to a condition imposed on a
27
return permit given to the person; and
28
(c) the person does so knowing that the information or document
29
is false or misleading.
30
Penalty: Imprisonment for 2 years.
31
Part 2 Temporary exclusion orders and return permits
Division 2 Return permits
Section 22
24
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
(2) Subsection (1) does not apply if the information or document is not
1
false or misleading in a material particular.
2
Note:
A defendant bears an evidential burden in relation to the matter in this
3
subsection (see subsection 13.3(3) of the Criminal Code).
4
Other matters Part 3
Section 23
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
25
Part 3--Other matters
1
2
23 Reviewing authority
3
Appointment
4
(1) The Attorney-General may, in writing, appoint as a reviewing
5
authority:
6
(a) a former Justice of the High Court; or
7
(b) a former judge or justice of a court created by the Parliament;
8
or
9
(c) a former judge of the Supreme Court of a State or Territory;
10
or
11
(d) a person who:
12
(i) holds an appointment to the Administrative Appeals
13
Tribunal as Deputy President or senior member (of any
14
level); and
15
(ii) is enrolled as a legal practitioner of a federal court or of
16
the Supreme Court of a State or a Territory; and
17
(iii) has been enrolled for at least 5 years.
18
(2) A person who is currently a judge or justice of any court is not
19
eligible for appointment under subsection (1).
20
(3) A person's appointment under subsection (1) ceases to have effect
21
if:
22
(a) the person ceases to be a person whom the Attorney-General
23
could appoint under that subsection; or
24
(b) the Attorney-General, in writing, revokes the appointment.
25
(4) The Attorney-General must not appoint a person as a reviewing
26
authority unless:
27
(a) the person has, by writing, consented to being appointed; and
28
(b) the consent is in force.
29
Part 3 Other matters
Section 24
26
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
Powers conferred personally
1
(5) A power conferred on a reviewing authority by this Act is
2
conferred on the reviewing authority:
3
(a) in a personal capacity; and
4
(b) if the reviewing authority is a member of the Administrative
5
Appeals Tribunal--not as a member of the Tribunal.
6
Powers need not be accepted
7
(6) The reviewing authority need not accept the power conferred.
8
Protection and immunity
9
(7) A reviewing authority has, in relation to performing functions or
10
exercising powers under this Act, the same protection and
11
immunity as a Justice of the High Court has in relation to
12
proceedings in the High Court.
13
24 Protection of information provided to a reviewing authority
14
(1) A person commits an offence if:
15
(a) the person is, or has been, a reviewing authority; and
16
(b) the person obtains information under subsection 14(2); and
17
(c) the person discloses the information.
18
Penalty: Imprisonment for 2 years.
19
(2) Subsection (1) does not apply if the disclosure of the information is
20
for the purposes of giving effect to this Act.
21
Note:
A defendant bears an evidential burden in relation to the matter in this
22
subsection (see subsection 13.3(3) of the Criminal Code).
23
(3) For the purposes of subsection (2) (and without limiting that
24
subsection), if the disclosure of the information is in civil
25
proceedings for judicial review of a decision made under this Act,
26
then the disclosure is for the purposes of giving effect to this Act.
27
Other matters Part 3
Section 25
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
27
25 Delegation
1
(1) The Minister may, in writing, delegate all or any of the Minister's
2
functions or powers under this Act to:
3
(a) the Secretary of the Department; or
4
(b) an SES employee, or acting SES employee, in the
5
Department.
6
Note 1:
The expressions SES employee and acting SES employee are defined
7
in section 2B of the Acts Interpretation Act 1901.
8
Note 2:
Sections 34AA to 34A of the Acts Interpretation Act 1901 contain
9
provisions relating to delegations.
10
(2) Subsection (1) does not apply to the Minister's functions or powers
11
under the following provisions:
12
(a) subsection 10(1) (making a temporary exclusion order);
13
(b) subsection 11(1) (revoking a temporary exclusion order);
14
(c) subsection 15(1) (mandatory issue of a return permit);
15
(d) subsection 15(2) (discretion to issue a return permit);
16
(e) subsection 16(1) (imposing conditions on a return permit);
17
(f) subsection 17(1) (varying or revoking a return permit).
18
(3) In performing a delegated function or exercising a delegated
19
power, the delegate must comply with any written directions of the
20
Minister.
21
26 Exclusion of procedural fairness
22
The Minister is not required to observe any requirements of
23
procedural fairness in exercising a power or performing a function
24
under this Act.
25
27 The Administrative Decisions (Judicial Review) Act 1977 does not
26
apply to certain decisions under this Act
27
The Administrative Decisions (Judicial Review) Act 1977 does not
28
apply to decisions made under this Act.
29
Part 3 Other matters
Section 28
28
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
28 Interaction with the Australian Security Intelligence Organisation
1
Act 1979
2
(1) Neither a temporary exclusion order nor a return permit constitutes
3
prescribed administrative action for the purposes of the Australian
4
Security Intelligence Organisation Act 1979.
5
(2) This section is enacted for the avoidance of doubt.
6
29 Interaction with the Australian Passports Act 2005
7
(1) If a temporary exclusion order specifies one or more of the
8
following:
9
(a) that the person must surrender an Australian travel document
10
to a specified person or body;
11
(b) that the person is not permitted to apply for an Australian
12
travel document;
13
(c) that the person is not permitted to obtain an Australian travel
14
document;
15
the person is taken, for the purposes of section 12 of the Australian
16
Passports Act 2005, to be prevented from travelling internationally.
17
(2) If a condition mentioned in paragraph 16(10)(l), (m) or (n) is
18
imposed on a return permit, the person in relation to whom the
19
permit applies is taken, for the purposes of section 12 of the
20
Australian Passports Act 2005, to be prevented from travelling
21
internationally while the condition is in force.
22
(3) This section is enacted for the avoidance of doubt.
23
30 Severability
24
If section 14 is not a valid law of the Commonwealth:
25
(a) it is Parliament's intention that this Act operate as if that
26
section had never been enacted; and
27
(b) this Act applies as if subsections 13(1) and (2) were omitted
28
and replaced with the following:
29
Other matters Part 3
Section 31
No. , 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
29
"(1) A temporary exclusion order in relation to a person comes into
1
force immediately after the Minister makes the temporary
2
exclusion order in relation to the person."
3
31 Annual report on operation of Act
4
(1) The Minister must, as soon as practicable after the end of each
5
financial year, cause to be prepared a report about the operation of
6
this Act, during that year.
7
(2) The report must include information about the following matters in
8
relation to the financial year:
9
(a) the number of temporary exclusion orders made;
10
(b) the number of temporary exclusion orders revoked;
11
(c) the number of temporary exclusion orders taken never to
12
have been made because of the operation of
13
paragraph 14(7)(a);
14
(d) the number of times a temporary exclusion order came into
15
force immediately after it was made;
16
(e) the number of temporary exclusion orders made in relation to
17
persons aged 14 to 17 years;
18
(f) the number of return permits issued;
19
(g) for each condition mentioned in subsections 16(9) and (10)--
20
the number of return permits on which the condition was
21
imposed;
22
(h) the number of return permits varied or revoked;
23
(i) the number of persons subject to a return permit who entered
24
Australia;
25
(j) the number of persons (if any) charged with an offence
26
against this Act.
27
(3) Despite subsection (2), if the Minister is satisfied that disclosure of
28
information mentioned in that subsection is likely to prejudice
29
national security:
30
(a) the information must not be included in the report; and
31
(b) the information must instead be provided to the
32
Parliamentary Joint Committee on Intelligence and Security.
33
Part 3 Other matters
Section 31
30
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
No. , 2019
(4) The Minister must cause a copy of the report to be laid before each
1
House of the Parliament within 15 sitting days of that House after
2
the Minister receives it.
3