An Important News Australia

What is a temporary exclusion order? Australia’s foreign fighters bill explained

Labor now supports the Coalition’s bill to block foreign fighters from returning to Australia, but will attempt to force it to a further review and make amendments to include safeguards.

On Tuesday Labor’s caucus agreed to support the temporary exclusion order bill in principle, refer it back to the parliamentary joint committee on intelligence and security and, if unsuccessful, move amendments that reflect 18 recommendations of that committee.

Challenged about the constitutionality of the bill in caucus, the shadow home affairs minister, Kristina Keneally, responded that Labor should nevertheless support it because “some of the people affected by [this bill] represent a threat to the Australian community”.

The shadow attorney general, Mark Dreyfus, then went into the lower house and accused the government of a “significant breach” of bipartisanship by “failing to implement in full at least 10 recommendations of the PJCIS without explanation”.

In a second reading amendment, he said it was “the first time since 2013 that this government has ever openly rejected recommendations of the bipartisan committee”.

Dreyfus told the house the government was “looking for a cheap headline” by presenting national security bills as a “test for Labor” and accusing the opposition of “treason and disloyalty” if they block or amend bills.

What is the bill?

In February, the home affairs minister, Peter Dutton, introduced the counter-terrorism (temporary exclusion orders) bill into the House of Representatives.

The bill would give the minister the power to block a person aged over 14 years of age – including an Australian citizen – from returning to Australia for up to two years if the minister “suspects on reasonable grounds” that an order would prevent support or assistance to a terrorist organisation.

An order can also be issued 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”.

Once a temporary exclusion order is issued the person can apply for a “return permit”, which the minister must grant. The permit allows the Australian government to impose conditions on their return, such as notifying authorities of a change of address, of contact with certain individuals, or future travel plans.

What did the intelligence and security committee say about it?

In April the PJCIS – chaired by the Liberal MP Andrew Hastie – issued a bipartisan report recommending that the bill be passed “following the implementation” of 18 amendments or safeguards.

These included amendments so that:

  • A temporary exclusion order may only be issued by an issuing authority – a judge, a retired judge or a senior member of the Administrative Appeals Tribunal – on application by the minister (recommendation 7).
  • Prosecution for a breach of the law requires proof that the defendant had knowledge of the existence of the temporary exclusion order or of the relevant return permit condition (recommendation 11).
  • The minister must not make a temporary exclusion order unless he or she reasonably suspects that the person is, or has been, involved in terrorism-related activities outside Australia, and an Asio assessment can’t be the trigger for an order (recommendation 12).

The bill lapsed when parliament was dissolved for the 2019 election. After the Coalition was re-elected Dutton reintroduced an amended bill on 4 July.

What is the Coalition’s position?

The government’s response to the PJCIS report accepted seven recommendations in full, nine in principle or in-part and “noted” – but did not implement – two.

The government did not accept recommendations 11 and 12, arguing:

  • Authorities should be able to prosecute based on reckless breaches – not actual knowledge – or the deterrent effect would be reduced.
  • Implementing the recommendation to require the minister to suspect the person is or has been involved in terrorism-related activities outside Australia would restrict the operation of the scheme to high-risk individuals only.

The government amended the bill to provide “additional oversight” from a reviewing authority which can review the minister’s decisions to issue a temporary exclusion order, but only overturn it if the decision is “legally flawed”.

The first concern is one of process – by putting the bill back up for debate without fully implementing the PJCIS recommendations, the opposition believes the government is ignoring bipartisanship in a bid to wedge Labor.

Second, Labor is concerned that the Asio assessment – which can trigger a temporary exclusion order – is not a legally defined term, and should be replaced with a requirement for an adverse security assessment.

On Tuesday, the Labor leader, Anthony Albanese, added that the government “hasn’t put forward a reason” why it should be the minister – not a judge – who makes a temporary exclusion order.

What will Labor and the crossbench do now?

On Tuesday, Keneally called on the government to refer the legislation back to the PJCIS and release the solicitor general’s advice to ensure the bill’s constitutionality.

“Labor wants a [temporary exclusion order] scheme that works, is constitutional, keeps Australians safe and that withstands high court challenges – the government must refer the legislation back to the PJCIS to ensure this happens,” Keneally said.

On Sunday, Centre Alliance also called on the government to demonstrate the bill is constitutional and improve the oversight regime for issuing and reviewing exclusion orders by implementing the PJCIS recommendations.

But the new Labor caucus position means if the government pushes the bill back to the Senate, unamended, it is likely to pass in its current form.

The bill would give the minister the power to block a person aged over 14 years of age – including an Australian citizen – from returning to Australia for up to two years if the minister “suspects on reasonable grounds” that an order would prevent support or assistance to a terrorist organisation.

An order can also be issued 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”.

Once a temporary exclusion order is issued the person can apply for a “return permit”, which the minister must grant. The permit allows the Australian government to impose conditions on their return, such as notifying authorities of a change of address, of contact with certain individuals, or future travel plans.

What did the intelligence and security committee say about it?

In April the PJCIS – chaired by the Liberal MP Andrew Hastie – issued a bipartisan report recommending that the bill be passed “following the implementation” of 18 amendments or safeguards.

These included amendments so that:

  • A temporary exclusion order may only be issued by an issuing authority – a judge, a retired judge or a senior member of the Administrative Appeals Tribunal – on application by the minister (recommendation 7).
  • Prosecution for a breach of the law requires proof that the defendant had knowledge of the existence of the temporary exclusion order or of the relevant return permit condition (recommendation 11).
  • The minister must not make a temporary exclusion order unless he or she reasonably suspects that the person is, or has been, involved in terrorism-related activities outside Australia, and an Asio assessment can’t be the trigger for an order (recommendation 12).

The bill lapsed when parliament was dissolved for the 2019 election. After the Coalition was re-elected Dutton reintroduced an amended bill on 4 July.

What is the Coalition’s position?

The government’s response to the PJCIS report accepted seven recommendations in full, nine in principle or in-part and “noted” – but did not implement – two.

The government did not accept recommendations 11 and 12, arguing:

  • Authorities should be able to prosecute based on reckless breaches – not actual knowledge – or the deterrent
  • effect would be reduced.
  • Implementing the recommendation to require the minister to suspect the person is or has been involved in terrorism-related activities outside Australia would restrict the operation of the scheme to high-risk individuals only.

The government amended the bill to provide “additional oversight” from a reviewing authority which can review the minister’s decisions to issue a temporary exclusion order, but only overturn it if the decision is “legally flawed”.

The first concern is one of process – by putting the bill back up for debate without fully implementing the PJCIS recommendations, the opposition believes the government is ignoring bipartisanship in a bid to wedge Labor.

Second, Labor is concerned that the Asio assessment – which can trigger a temporary exclusion order – is not a legally defined term, and should be replaced with a requirement for an adverse security assessment.

On Tuesday, the Labor leader, Anthony Albanese, added that the government “hasn’t put forward a reason” why it should be the minister – not a judge – who makes a temporary exclusion order.

What will Labor and the crossbench do now?

On Tuesday, Keneally called on the government to refer the legislation back to the PJCIS and release the solicitor general’s advice to ensure the bill’s constitutionality.

“Labor wants a [temporary exclusion order] scheme that works, is constitutional, keeps Australians safe and that withstands high court challenges – the government must refer the legislation back to the PJCIS to ensure this happens,” Keneally said.

On Sunday, Centre Alliance also called on the government to demonstrate the bill is constitutional and improve the oversight regime for issuing and reviewing exclusion orders by implementing the PJCIS recommendations.

But the new Labor caucus position means if the government pushes the bill back to the Senate, unamended, it is likely to pass in its current form.