Terrorism (Temporary Exclusion Orders) Bill 2019 – More Parliamentary Scrutiny Needed, Constitutional Advice Must Be Released
Centre Alliance has called for further parliamentary scrutiny of the Government’s latest counter-terrorism legislation, the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, and for the Government to release its legal advice on the constitutionality of the legislation.
"The Coalition Government has listed the Temporary Exclusion Orders Bill for debate in the Senate next week, but they haven’t resolved serious concerns about this legislation and further parliamentary committee scrutiny is clearly required," said Centre Alliance National Security spokesperson, Senator Rex Patrick.
"No one should be rushing to pass flawed legislation, especially when the Bill deals with national security and fundamental rights of Australian citizens."
The Government’s proposed law is designed to establish a temporary exclusion orders (TEO) scheme to delay Australians of counter-terrorism interest from re-entering Australia until appropriate protections are in place.
In large part the Bill has been developed as a measure to prevent or otherwise control the return to Australia of Australian former Islamic State fighters and supporters from Syria and elsewhere in the Middle East.
The Bill was introduced into the 45th Parliament and the Parliamentary Joint Committee on Intelligence Services (PJCIS) conducted an extensive review and produced a detailed report that recommended substantive changes to the legislation.
The Government has now reintroduced the Bill with amendments that implement some of the PJCIS recommendations. The Government has not fully implemented all the recommendations of the Committee’s bipartisan report.
"There is no doubt that the Bill as amended is a very forceful security measure," Senator Patrick said. "Like a number of other pieces of counter-terrorism legislation, it gives the Minister for Home Affairs powers in relation to Australian citizens that would have once been only contemplated in time of war."
"Centre Alliance is prepared to support the intent of the Bill as a necessary security measure, but it is essential that legislation be subjected to the most rigorous scrutiny and that the outcome be absolutely sound not only from a national security perspective, but also that it be proportional in its effects, doesn’t give the Minister arbitrary power, and has robust legal validity."
"In this regard it must be clearly understood that the Bill now before the Parliament is qualitatively different from both the original TEO legislation considered by the PJCIS last year and from the bipartisan recommendations made by that Committee."
"The constitutionality of the measures contained in the Bill - effectively providing for the temporary exclusion of Australian citizens from their own country - remains uncertain. The PJCIS strongly recommended that the Government obtain legal advice from the Solicitor-General, or an equivalent legal authority, on the constitutional validity of the final form of the Bill. That recommendation was consistent with the Committee’s approach to other constitutionally uncertain counter-terrorist measures."
“The Government has accepted that recommendation, but has not made any legal advice public or available to Members of Parliament. There is no shortage of precedents where Governments have publicly released or otherwise made available to non-government parliamentarians advice from the Solicitor General concerning the constitutional standing of proposed laws.”
"The Government should make its legal advice available to the Parliament without delay," Senator Patrick said.
Among the significant departures from the PJCIS’s recommendations, the Government has not accepted the PJCIS recommendation that the Minister must not make a temporary exclusion order in respect of a person unless the Minister reasonably suspects that the person is, or has been, involved in terrorism-related activities outside Australia, and making the order would substantially assist in preventing the provision of support for, or the facilitation of, a terrorist act.
"As the Bill presently stands the mere existence of an adverse ASIO security assessment could allow the Minister for Home Affairs to rubber stamp a TEO," Senator Patrick said.
The Government has also not accepted the PJCIS recommendation that the ‘issuing authority’ for a Temporary Exclusion Order should be a judge/retired judge/senior AAT member. Instead, the Government proposes the Minister makes the decision to issue the TEO, and then his decision is then subject to a tightly defined review process by a judge/retired judge/senior AAT member. This may amount to little more than a rubber stamp process for the Minister’s decisions and raises constitutional issues in addition to those raised by the TEO scheme as a whole.
"In effect the Bill as now presented to the Parliament could result in the Minister for Home Affairs rubber stamping exclusion orders and another ‘review authority’ rubber stamping those decisions," Senator Patrick said.
The Government has also not implemented the PJCIS recommendation 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. The Government says this is not necessary, but there should be no doubt about the availability of judicial review of the Minister’s decision in such matters, including the conditions set out in a return permit.
"This legislation requires much further scrutiny. At the very least the Bill must be referred back to the Parliamentary Joint Committee on Intelligence Services for further detailed examination, and the Government’s legal advice must be released."
"Curiously, given the declared importance of this national security legislation, the Government has not yet approached Centre Alliance about these matters."