Counter-Terrorism (Temporary Exclusion Orders) Act 2019

Overview

The Counter-Terrorism (Temporary Exclusion Orders) Act 2019 was enacted to provide the Minister with the power to issue temporary exclusion orders that prevent certain individuals from entering Australia. This Act aims to protect the community from terrorism by allowing the Minister to exclude individuals who are assessed to be a risk to security for reasons related to politically motivated violence. The Act was introduced by the Parliament of Australia and received Royal Assent on 30 July 2019. The key provisions of the Act include the ability for the Minister to make temporary exclusion orders, the mandatory referral of such decisions to a reviewing authority, and the issuance of return permits for individuals subject to exclusion orders who are being deported or extradited to Australia or who apply for entry. The Act also establishes offences for failing to comply with conditions on return permits and for providing false or misleading information or documents in connection with such permits. The Act further outlines the role of a reviewing authority, the protection of information provided to such authorities, and the interaction of this Act with other relevant legislation.

Scope and Application

The Counter-Terrorism (Temporary Exclusion Orders) Act 2019 applies to Australian citizens who are located outside Australia and who are at least 14 years of age. The Act enables the Minister to make a temporary exclusion order that prevents a person from entering Australia for a specified period, which may be up to 2 years. The Minister may make a temporary exclusion order if they suspect on reasonable grounds that making the order would substantially assist in one or more of the following: preventing a terrorist act, preventing training from being provided to, received from or participated in with a listed terrorist organisation or a state sponsor of terrorism, preventing the provision of support for, or the facilitation of, a terrorist act, preventing the provision of support or resources to an organisation that would help the organisation engage in an activity described in the definition of terrorist organisation in the Criminal Code, or preventing the provision of support or resources to an entity that would help the entity engage in an activity described in the Criminal Code. The Minister must also have regard to certain matters if the person is between 14 and 17 years of age. The Minister must refer the decision to make a temporary exclusion order to a reviewing authority for review, and the reviewing authority may, if they consider it appropriate, decide that the temporary exclusion order is taken never to have been made. If the person is being deported or extradited to Australia, or makes an application, the Minister must issue a return permit that allows the person to enter Australia. The Minister may also issue a return permit if the Minister considers that it is appropriate to do so. The permit may contain conditions, such as specifying the period within which and the way in which the person must enter Australia, and requiring the person to give notice of specified things, such as the person’s principal place of residence or place of employment while in Australia. Conditions cannot be imposed unless the Minister has regard to certain matters and is satisfied of specified matters. A return permit can remain in force for a maximum period of 12 months after the person to whom it applies enters Australia. A return permit can be varied or revoked. It is an offence to fail to comply with any conditions imposed on a return permit, or to give false or misleading information or documents in purported compliance with such conditions. The Act extends to every external Territory and acts, omissions, matters and things outside Australia. The Act binds the Crown in each of its capacities, but does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence. The Act extends or restricts application through subordinate instruments.

Key Provisions

• The Counter-Terrorism (Temporary Exclusion Orders) Act 2019 allows the Minister to make temporary exclusion orders that prevent certain individuals from entering Australia for up to two years, as outlined in section 10. A temporary exclusion order can only be made if the Minister suspects that doing so would substantially assist in preventing a terrorist act or if the individual has been assessed as a security risk due to politically motivated violence, as detailed in section 10(2). Once a temporary exclusion order is made, it must be reviewed by a reviewing authority appointed by the Attorney-General, as stated in section 14. If the reviewing authority finds that the order was made improperly or was based on insufficient material, the order is considered never to have been made, as detailed in section 14(7). If a person is subject to a temporary exclusion order but is being deported or extradited to Australia, or makes an application, the Minister must issue a return permit that allows them to enter Australia, as described in section 15. The return permit can include conditions, such as requiring the person to notify specified authorities of changes to their residence or employment, as outlined in sections 16 and 17. Failure to comply with the conditions of a return permit, or providing false or misleading information in response to such a condition, are criminal offences, as stated in sections 20 and 22.
• The Act imposes several obligations on the Minister and other relevant parties. The Minister must refer the decision to make a temporary exclusion order to a reviewing authority for review, as outlined in section 14. The Minister must also ensure that the person subject to a temporary exclusion order is informed of the order, and if the person is aged between 14 and 17, a parent or guardian must also be informed, as detailed in section 10(8). If a temporary exclusion order is revoked, the Minister must inform the affected person and, if applicable, their parent or guardian, as stated in section 11(3). When issuing a return permit, the Minister must consider the impact of the permit conditions on the person's personal circumstances, particularly if they have dependants under 18, and take into account the person's best interests, as described in sections 16(3) and (5). Additionally, the Minister must impose permit conditions that are reasonably necessary and appropriate to prevent terrorist activities or support for such activities, as outlined in section 16(3).
• Breaches of the Act can result in criminal offences and penalties. Entering Australia while a temporary exclusion order is in force is an offence punishable by imprisonment for up to two years, as stated in section 8. Permitting a vessel or aircraft to be used to convey a person into Australia in contravention of a return permit condition is also an offence, with the same penalty, as outlined in section 21. Failure to comply with a condition on a return permit is an offence, as detailed in section 20, and providing false or misleading information or documents in response to a condition on a return permit is an offence, as stated in section 22. All these offences carry a maximum penalty of imprisonment for two years. Furthermore, disclosing information obtained under the Act by a reviewing authority is an offence, with the same penalty, as outlined in section 24.

Legal classification tags

Area of Law

National Security Law

Instrument

Act

Concepts

Commencement Provisions

Offence Provisions

Reporting & Disclosure Obligations

Regulatory Standards