Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 [2019] AUSStaCSBSD 28 (28 March 2019)

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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 21 February 2019

Trespass on personal rights and liberties
Broad discretionary power^[83]

1.109 The bill provides that the minister may make a temporary exclusion order (an exclusion order), which would exclude an Australian citizen from returning to Australia, if the minister suspects on reasonable grounds that making the exclusion order would substantially assist in:

1.110 The minister may also make an exclusion order if the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security for reasons related to politically motivated violence.

1.111 An exclusion order could be made in relation to an Australian citizen who is at least 14 years of age and located outside of Australia. Once issued, an exclusion order would prevent the person from entering Australia for up to two years,^[85] with it an offence punishable by up to two years imprisonment to enter Australia, or help a person to enter, if an exclusion order is in force.^[86] However, the bill also provides that if a person applies for a 'return permit' the minister must grant a permit permitting the person to enter Australia, but in doing so, the minister may impose certain monitoring conditions as specified in the permit.^[87]

1.112 The statement of compatibility explains that there is a need to reform Australia's approach to managing individuals who may represent a threat to public safety as the number of Australians travelling to join terrorist organisations overseas has significantly increased and the 'collapse of the Islamic State's territorial control complicates the threat environment as more Australians participating in or supporting the conflict, leave the conflict zone and seek to return home'.^[88] It also states that the purpose of the bill is not necessarily to prevent Australian citizens from returning to Australia but to 'control the return of individuals who may pose a threat to Australia' by delaying their return and enabling the minister to impose conditions on individuals once they have returned to Australia.^[89]

1.113 The committee has 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. There are also significant scrutiny concerns in subjecting persons to strict monitoring conditions without any requirement that the person needs to have been convicted of, let alone charged with, any offence.

Temporary exclusion orders

1.114 The threshold by which an exclusion order may be made is one of ministerial suspicion on reasonable grounds. The statement of compatibility notes that this 'incorporates an objective test which precludes the arbitrary exercise of many statutory powers'^[90]. However the committee notes that the decision to issue an exclusion order is based on whether the minister 'suspects' rather than that the minister 'believes' that making the order would assist in preventing certain terrorist related acts. The committee notes that the High Court has previously noted there is a different standard between a reasonable suspicion and a reasonable belief and 'the facts which can reasonably ground a suspicion may be quite insufficient to ground a belief'.^[91] The explanatory materials do not provide any justification for imposing this lower threshold on which an exclusion order may be made.

1.115 In addition, the committee notes that while the bill states that these are 'temporary' exclusion orders, there is no limit in the bill about the number of exclusion orders that may be issued in relation to a person. Subclause 10(5) of the bill makes it clear that the minister is not prevented from making another exclusion order once an initial exclusion order has expired and there is no limit regarding the number of times this may be done. While the explanatory memorandum states that the minister may issue a further exclusion order 'if new or further information comes to light which warrants making a temporary exclusion order',^[92] the committee notes that there are no such restrictions on the face of the bill. The committee notes that it may be unlikely that the minister would come to a different conclusion regarding whether a person should be subject to a new exclusion order after an initial one has expired. As a result, the committee is concerned that these measures could amount, in practice, to the permanent exclusion of an Australian citizen if the person is unwilling or unable to make an application for a return permit.

Return permits

1.116 Clause 12 of the bill provides that if an exclusion order is in force in relation to a person, the minister must provide a return permit to the person on application (or where the person is being deported by another country to Australia). The minister also has the discretion to give a permit where an exclusion order is in place if the minister considers it is appropriate to do so. In granting a return permit, the minister has the discretion to impose a number of pre-entry conditions, such as preventing the person from entering Australia for up to 12 months and specifying the date and manner of the person's arrival. The minister may also impose a number of post-entry conditions, including that while in Australia the person is required to notify a specified person or body of:

1.117 Conditions may also be imposed stating that a person may be required to surrender their Australian travel document and is not permitted to apply for or obtain another travel document. Failure to comply with a condition of a return permit (including notifying specified persons within 24 hours of any change occurring) would constitute an offence punishable by up to two years imprisonment.^[93]

1.118 The minister may impose one or more of the listed pre or post entry conditions if he or she is 'satisfied' that the imposition of the conditions are reasonably necessary, and reasonably appropriate and adapted for the purpose of preventing certain acts. The committee notes that this provides the minster with a very broad discretionary power to impose conditions as it is based only on the opinion of the minister. In addition, under subclause 12(8) of the bill the minister is not required to justify imposing each individual condition; it is only necessary to be satisfied that the conditions imposed as a whole are reasonably necessary, appropriate and adapted.^[94] The committee notes that there would be limited scope for a person to seek judicial review of the decision to impose conditions given the breadth of the discretionary power.

1.119 The committee expects that the inclusion of such a broad discretionary power, that has the potential to unduly trespass on personal rights and liberties, would be thoroughly justified in the explanatory materials. In this instance, the explanatory materials give limited information as to why it is necessary to enable the minister to impose potentially onerous conditions on Australian citizens subject to return permits. The statement of compatibility states:

1.120 The committee considers that the ministerial restrictions that can be imposed on a person subject to a return permit could be characterised as similar, in some respects, to a control order. The committee has previously raised serious concerns about the impact of control orders on an individual's personal liberty as a control order may be issued by a court without any criminal conviction (or without even a charge being laid).^[96] In this instance, the order would be issued by the minister exercising a broad personal discretionary power rather than a court. While the committee notes that the restrictions on a return permit may be less restrictive than a control order (particularly as it does not allow for the detention of a person), the conditions may nevertheless be onerous. In particular, the committee notes that the conditions would allow for the monitoring of all internet or phone activity by a person, who the person associates with and where they live, work or are educated.

1.121 The committee also has scrutiny concerns that an exclusion order may be made in relation to children aged between 14 and 17, and as such a return permit, with all of the associated conditions (including pre-entry conditions that mean the child may be unable to enter Australia for up to 12 months), can also be imposed on a child under 18 years of age.^[97] While the committee notes that subclauses 10(3) and 12(4) require the minister to consider the best interests of a person aged 14 to 17 years as a primary consideration, this is offset by the requirement that the minister makes the protection of the community the paramount consideration.

Merits review

1.122 The bill also contains no avenue for merits review of decisions by the minister to either issue an exclusion order or impose conditions on a return permit. As such, only judicial review would be available. Yet, the committee has outlined above the limitations of judicial review in providing an adequate review mechanism. Although the decision to impose an exclusion order or apply conditions to a return permit to prevent certain terrorist acts must be based on reasonable grounds, the courts are unlikely to be able to supervise such matters closely given the courts have generally acknowledged their limitations in evaluating national security considerations.

1.123 Given the potential impact on personal rights and liberties in making an exclusion order or imposing conditions on a return permit, the committee considers that it may be appropriate for the bill to be amended to allow for merits review of decisions by the minister by a tribunal with appropriate national security expertise.

1.124 In addition, given the serious potential consequences and breadth of power contained in the bill, the committee considers it may be appropriate to increase parliamentary oversight over such measures. This could include a requirement to report to the Parliament on the operation of the bill and include a sunsetting provision similar to those applying to other counter-terrorism measures, such as control orders and preventative detention orders (which sunset one to three years after they are made or extended).^[98]

1.125 The committee notes its scrutiny concerns regarding the broad discretionary powers granted to the minister to exclude Australian citizens from Australia and to impose monitoring conditions on persons not convicted of any offence. The committee considers that the bill, as currently drafted, has the potential to significantly and unduly trespass on personal rights and liberties.

1.126 The committee notes, at a minimum, that consideration should be given to providing for some form of merits review of the minister's broad discretionary powers, and to increase parliamentary oversight of the measures, such as requiring a sunset provision.

1.127 The committee considers that the explanatory materials do not adequately address the committee's scrutiny concerns and draws this matter to the attention of the Senate.

Procedural fairness^[99]

1.128 Clause 17 of the bill provides that the minister is not required to observe any requirements of procedural fairness in exercising his or her powers under this bill. The committee notes that the right to procedural fairness has two basic rules. It requires that decision-makers are not biased and do not appear to be biased, and requires that a person who may be adversely affected by a decision is given an adequate opportunity to put their case before the decision is made. The committee considers that the right to procedural fairness is a fundamental common law right and it expects that any limitation on this right be comprehensively justified in the explanatory memorandum.

1.130 The committee does not consider this explanation adequately justifies the decision to remove in its entirety the right to procedural fairness. The committee notes that while judicial review will be available, judicial review is undertaken after a decision has already been made and focuses on whether a legal error has been made. This does not provide the person who may be subject to an exclusion order with the opportunity to address whether the issuing of an exclusion order is appropriate or correct any mistakes of fact. This is combined with a lack of merits review (as discussed above at paragraph [1.122]) and as a result severely limits a person's avenue for review of a decision under this bill. In addition the committee notes that it may be difficult or prohibitive for a person subject to an exclusion order to initiate the judicial review process in circumstances where the person is located outside of Australia and may not have access to the necessary services.

1.131 The committee also notes that the courts have consistently interpreted procedural fairness obligations flexibly based on specific circumstances and the statutory context. If it could, in the circumstances of a particular case, be demonstrated that no hearing could be afforded without undue prejudice to national security, then the rules of natural justice may require no more than a consideration of the extent to which it is possible to give notice to the affected person and how much (if any) detail of the reasons for the proposed decision should be disclosed.^[101] The explanatory materials do not address why this level of flexibility would not adequately deal with situations where it would be impractical or inappropriate to grant a reasonable opportunity to be heard.

1.132 The restriction on procedural fairness would also apply to decisions by the minister to revoke an exclusion order or to vary or revoke a return permit. The decision to vary or revoke a return permit could be made while the subject of the permit was in Australia. The justification in the explanatory materials does not address why procedural fairness in these circumstances would not be appropriate.

1.133 Finally, the committee notes that the explanatory materials only address the natural justice aspect of procedural fairness and does not provide any explanation why the other limb of the right to procedural fairness, the bias rule, has also been excluded.

1.134 The committee notes its scrutiny concerns regarding removing the obligation of the minister to observe the requirements of procedural fairness. The committee considers that, given the serious scrutiny concerns raised and the potential consequences for an individual in excluding them from Australia or imposing monitoring conditions on their return, it may be appropriate to amend the bill to remove clause 17 to ensure the minister is required to observe the usual requirements of procedural fairness when exercising powers under the bill.

1.135 The committee considers that the explanatory materials do not adequately address the committee's scrutiny concerns and draws this matter to the attention of the Senate.

Reverse evidential burden of proof^[102]

1.136 Clauses 9 and 15 of the bill provide that it is an offence for a person to permit the use of a vessel or aircraft to convey another person to Australia if the person knows the other person is subject to an exclusion order or is entering Australia in violation of a condition of their return permit. Both clauses provide an offence-specific defence which provide that the offence does not apply if the second person is being deported or extradited to Australia. In addition, clause 16 provides that it is an offence for a person to give information or produce documents as required by their return permit knowing that the information or document is false or misleading. The clause provides an offence-specific defence if the information or document is not false or misleading in a material particular. In each instance, the offence-specific defences mean the evidential burden of proof is reversed.^[103]

1.137 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.138 While in these instances the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The reversals of the evidential burden of proof in clauses 9, 15 and 16 have not been addressed in the explanatory materials.

1.139 The committee notes its scrutiny concerns regarding the proposed reversal of the evidential burden of proof. The committee considers that the explanatory materials do not adequately address these concerns and draws this matter to the attention of the Senate.

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

[96] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2018, pp. 13-16 and Alert Digest No. 7 of 2016 and Report No. 8 of 2016.

[97] In contrast, the committee notes that under section 104.28 of the Criminal Code Act 1995, a control order can only be made in relation to a person between 14 and 17 years of age for a period of 3 months.

[98] See subsections 104.32(1) and (2) (control orders); subsections 105.53(1) and (2) (preventative detention orders); and subsection 119.2(6) (declared area provisions) of the Criminal Code Act 1995 and subsections 3UK(1), (2) and (3) of the Crimes Act 1914 (stop, search and seizure powers) and section 34ZZ of the Australian Security Intelligence Organisation Act 1979 (ASIO's special powers relating to terrorism offences).

[99] Clause 17. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[102] Clauses 9, 15 and 16. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[103] As a result of subsection 13.3(3) of the Criminal Code Act 1995 which provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests