Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 83 (11 September 2019)

• Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
• Trespass on personal rights and liberties
• Broad discretionary power 19
• Exclusion of judicial review20
• Procedural fairness21
• Reversal of the evidential burden of proof26

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Counter-Terrorism (Temporary Exclusion Orders)
Bill 2019

Purpose	This bill seeks to introduce an exclusion orders scheme to delay Australians of counter-terrorism interest from re-entering Australia
Portfolio	Home Affairs
Introduced	House of Representatives on 4 July 2019
Bill status	Received Royal Assent on 30 July 2019

Trespass on personal rights and liberties
Broad discretionary power ^[19]
Exclusion of judicial review^[20]
Procedural fairness^[21]

2.40 In Scrutiny Digest 3 of 2019 the committee requested the minister's advice in relation to:

• the necessity and appropriateness of providing the minister with broad discretionary powers to both issue temporary exclusion orders and impose conditions on return permits;

• why merits review is not provided for;

• why the bill is not subject to additional parliamentary oversight, such as a sunsetting provision;^[22]

• why it is considered appropriate to exclude judicial review under the Administrative Decisions (Judicial Review) Act 1977 in relation to decisions made under the bill;^[23] and

• why it is appropriate and necessary to remove the obligation of the minister to observe the requirements of procedural fairness (and whether it may be appropriate to amend the bill to remove clause 26 to ensure the minister is required to observe the usual requirements of procedural fairness when exercising powers under the bill).^[24]

Minister's response^[25]

2.41 The minister advised:

I note the Committee's concerns relating to the Minister's powers. Providing the Minister with these powers allows counter-terrorism authorities to respond rapidly to cases where information indicates a person of counter-terrorism interest is seeking to return to Australia. The TEO scheme does not permanently exclude a person from Australia, but rather can delay and regulate their return. The process for a person to apply for a return permit is not onerous. A third party, such as a legal representative or family member, can apply for a return permit on the person's behalf. Furthermore, the Minister has broad discretion to issue a return permit in other circumstances, including where the person is unable to apply.
Once in Australia under a return permit, the person may be subject to a number of notification requirements. These requirements are not onerous, and overwhelmingly are not a restriction on the person's activities. Notification requirements are necessary to allow security and law enforcement agencies to more easily identify changes in behaviour that may be of security concern. The Minister must be satisfied that the imposition of the condition and (if more than one condition is imposed) the conditions taken together are reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing terrorism-related activities.
In response to recommendations made by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in April 2019, the Bill establishing a TEO scheme was amended to provide additional independent oversight before being passed by the Parliament. The legislation appropriately balances independent oversight of the scheme with operational requirements. As noted by the Committee, the legislation provides that, except in urgent circumstances, a TEO does not come into force until a reviewing authority has reviewed the Minister's decision to make a TEO. If a reviewing authority determines the Minister's decision was not lawful, the TEO is taken to have never been made.
I note the Committee's request for advice on why merits review is not provided for, and why the legislation is not subject to additional parliamentary oversight, such as a sunsetting provision. The purpose of a TEO is to prevent terrorism-related conduct by a person who might return to Australia. Allowing merits review would lengthen the decision-making process and could result in the person returning to Australia without adequate notice or security measures being in place. Further, the relevant person is entitled to seek judicial review in the High Court of Australia under section 75(v) of the Constitution, or in the Federal Court of Australia under section 398 of the Judiciary Act 1903.
Similarly, the exclusion of Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) review is necessary to respond with speed and certainty in a dynamic threat environment. A reviewing authority already provides independent review of the Minister's decision to make a TEO against a person. Review under the ADJR Act would largely replicate existing forms of review undertaken by the reviewing authority. Additionally, review under the ADJR Act would create challenges for protecting sensitive information. Classes of decisions which are likely to rely on sensitive information are usually excluded from the ADJR Act to limit the possibility of that information being exposed. On balance, it is preferable that the TEO scheme have streamlined and efficient mechanisms for review but not where it results in duplication or risks to sensitive information.
While the Act does not contain a sunsetting provision, it contains provisions for parliamentary and other oversight. The Minister must prepare an annual report for Parliament about the operation of the Act. Consistent with the recommendations made by the PJCIS, the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Act 2019 provides that the PJCIS will review the Minister's exercise of power under the Act. The PJCIS will also be required to conduct a review of the TEO scheme within three years of the scheme's commencement. The Independent National Security Legislation Monitor also has a statutory function to review the operation, effectiveness and implications of the Act. These oversight mechanisms will assess whether the legislation continues to be necessary and fit for purpose.
Excluding procedural fairness and not providing for merits review are not matters the Government takes lightly. However, the extent to which this impacts a person's avenues for review is necessary to protect Australian communities. Providing procedural fairness in relation to the decision to make a TEO could allow the person to whom the TEO relates to return to Australia before the TEO is made. This would create an unacceptable risk to safety for Australian communities, thereby defeating the purpose of the Act.
There are also practical difficulties affording procedural fairness to a person offshore, who presents a security risk and may be located in a conflict zone. I note the Committee's views on the court's interpretation of procedural fairness taking into account the circumstances, as outlined in paragraph 1.49 of Scrutiny Digest 3 of 2019. However, the TEO scheme is designed to manage Australians who pose a threat to community safety and are likely located in conflict zones. The safety of Australians, including Australian officials overseas, remains paramount in the development and implementation of our counter-terrorism framework. The extent to which notification can be given to a person will often be extremely limited. Furthermore, a TEO will be informed by highly sensitive intelligence, a substantial proportion of which could not be disclosed to the person.
If the person considers that there are reasons a TEO should not have been made, that person can make submissions to the Minister to have the TEO revoked under section 11 of the Act. As a matter of administrative law, the Minister will be obliged to take into account any information provided by the person in support of an application for the revocation of a TEO, or the variation or revocation of a return permit.

Committee comment

2.42 The committee thanks the minister for this response. The committee notes the minister's advice that providing the Minister with the power to make a temporary exclusion order and impose conditions on return permits allows counter-terrorism authorities to respond rapidly to cases where information indicates a person of counter-terrorism interest is seeking to return to Australia.

2.43 The committee reiterates its significant scrutiny concerns regarding the power of the minister to exclude Australian citizens from entering Australia, noting that the issuing of an exclusion order severely limits the citizenship rights of Australians to freely enter their country of nationality and could potentially leave an Australian citizen stranded in a conflict zone. The committee also reiterates its significant scrutiny concerns in subjecting persons to monitoring conditions without any requirement that the person needs to have been convicted of, let alone charged with, any offence. The committee considers that the minister's response does not adequately address why it is necessary and appropriate to provide the minister with such broad discretionary powers.

2.44 The committee notes the minister's advice that allowing merits review would lengthen the decision-making process and could result in the person returning to Australia without adequate notice or security measures being in place and that judicial review is available. However, the committee notes that the minister's response does not address the committee's comments regarding the limitations of judicial review in providing an adequate review mechanism for decisions made under this bill.

2.45 The committee also notes the minister's advice that, while the bill does not contain a sunsetting provision, there are other provisions to provide for parliamentary scrutiny and oversight, including a requirement that the Parliamentary Joint Committee on Intelligence and Security review the operation of the scheme.

2.46 The committee notes the minister's advice that the exclusion of Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) review is necessary to respond with speed and certainty in a dynamic threat environment. While the committee notes the minister's advice that review under the ADJR Act would largely replicate existing forms of review undertaken by the reviewing authority, the minister's response does not address any of the potential issues raised by the committee that may limit the ability of the reviewing authority to provide an appropriate safeguard compared to the breadth of the discretionary power provided to the minister. The committee does not consider that the inclusion of the reviewing authority adequately compensates for the exclusion of judicial review under the ADJR Act.

2.47 The committee notes the minister's advice that providing for procedural fairness in relation to the decision to make a temporary exclusion order (TEO) could allow the person to whom the TEO relates to return to Australia before the TEO is made. The committee also notes the minister's advice that there are practical difficulties in relation to providing information or notifications to persons located in conflict areas, especially where the information may be highly sensitive or classified.

2.48 The committee reiterates its serious scrutiny concerns regarding the removal of the obligation of the minister to observe procedural fairness. The committee also notes that the minister's response does not adequately address scrutiny issues raised by the committee, including why it is appropriate to remove the right to procedural fairness in relation to decisions by the minister to vary or revoke a return permit and why the bias rule has been excluded.

2.49 In light of the fact that the bill has passed both Houses of Parliament, the committee makes no further comment on these matters.

Reversal of the evidential burden of proof^[26]

2.50 In Scrutiny Digest 3 of 2019 the committee requested the minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance.^[27]

Minister's response

2.51 The minister advised:

I note the Committee's request for advice on the use of offence-specific defences in the legislation, which reverse the evidential burden of proof. The Guide to Framing Commonwealth Offences (the Guide) sets out some circumstances where creating an offence-specific defence is appropriate, relevantly:

• the matter in question is not central to the question of culpability for the offence; or

• the conduct proscribed by the offence poses a grave danger to public health or safety.

The offence-specific defences in the Act have been drafted consistent with the Guide and do not relate to matters that are central to the question of culpability for the offence. Rather, the inclusion of specific defences ensures that the offences do not capture persons who were otherwise acting lawfully. Furthermore, the intent of the TEO scheme is to protect the Australian community from terrorism, and any conduct which would seek to undermine or circumvent the scheme could pose grave danger to public safety. Finally, the Guide provides that where an offence-specific defence is created, it should be made clear on the face of the legislation. This guidance has been followed in the drafting of the relevant sections of the Act.

Committee comment

2.52 The committee thanks the minister for this response. The committee notes the minister's advice that the offence-specific defences in the bill have been drafted consistent with the Guide to Framing Commonwealth Offences. The committee also notes the minister's advice that the defences do not relate to matters that are central to the question of culpability for the offence. Rather, the inclusion of specific defences ensures that the offences do not capture persons who were otherwise acting lawfully.

2.53 The committee notes that the Guide to Framing Commonwealth Offences provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

2.54 It remains unclear to the committee that the offence-specific offences in the bill are either peculiarly within the knowledge or significantly more difficult and costly for the prosecution to disprove as this has not been addressed by the minister.

2.55 In light of the fact that the bill has already passed both Houses of Parliament, the committee makes no further comment on this matter.

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[19] Various provisions. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (ii).

[20] Clause 27. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[21] Clause 26. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[22] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2019, pp. 6-11.

[23] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2019, pp. 11-13.

[24] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2019, pp. 13-15.

[25] The minister responded to the committee's comments in a letter dated 27 August 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 5 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

[26] Clauses 9, 21 and 16. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[27] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2019, pp. 15-16.