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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COUNTER-TERRORISM (TEMPORARY EXCLUSION ORDERS)
(CONSEQUENTIAL AMENDMENTS) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Hon. Peter Dutton MP)
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Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill
2019
OUTLINE
The Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill
2019 (the Bill) makes amendments consequential to the Counter-Terrorism (Temporary
Exclusion Orders) Bill 2019, which introduces a temporary exclusion orders scheme to delay
Australians of counter-terrorism interest from re-entering Australia until appropriate
protections are in place.
FINANCIAL IMPACT STATEMENT
The financial impact of the Bill is nil.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with Australia's
human rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A.
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COUNTER-TERRORISM (TEMPORARY EXCLUSION ORDERS) BILL 2019
Notes on individual clauses
Part 1 Preliminary
Clause 1 Short title
1. Clause 1 provides for the short title of the Act to be the Counter Terrorism (Temporary
Exclusion Orders) (Consequential Amendments) Act 2019.
Clause 2 Commencement
2. Subclause 2(1) provides that each provision of this Bill specified in column 1 of the
table commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its terms.
3. Table item 1 provides that clauses 1 - 3 of this Bill will commence on the day this
Bill receives Royal Assent.
4. Table item 2 provides that Schedule 1 of this Bill commences at the same time as the
Counter Terrorism (Temporary Exclusion Orders) Act 20191 commences. It also
provides that the provisions do not commence if that Act does not commence.
5. A note explains that this table relates only to the provisions of this Bill as originally
enacted. It will not be amended to deal with any later amendments.
6. Subsection 2(2) provides that any information in column 3 of the table is not part of
this Bill. Information may be inserted in this column, or information in it may be
edited, in any published version of this Bill.
Clause 3 Schedules
7. This clause is the formal enabling provision for the Schedules to the Bill, providing
that each Act specified in a Schedule is amended or repealed in accordance with the
applicable items in the Schedule. This Bill amends the Intelligence Services Act 2001
and the Independent National Security Legislation Monitor Act 2010.
Schedule 1 - Amendments
Independent National Security Legislation Monitor Act 2010
Item 1 Section 4 (at the end of the definition of counter terrorism and national
security legislation)
8. Part 1 of the Independent National Security Legislation Monitor Act 2010 sets out a
number of preliminary matters. Existing section 4 of Part 1 provides definitions of
relevant terms in the Independent National Security Legislation Monitor Act 2010.
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9. This item inserts new paragraph 4(g) which will add Part 2 of the Counter Terrorism
(Temporary Exclusion Orders) Act 2019 into the definition of counter-terrorism and
national security legislation.
10. The purpose of this item is to enable the Independent National Security Legislation
Monitor to review, on his or her own initiative, the operation, effectiveness and
implications of the Counter Terrorism (Temporary Exclusion Orders) Act 2019.
11. It is important that the scheme set up by the Bill is able to be reviewed to determine
its operation as intended, its effectiveness in helping to protect the Australian
community, and its implications and any unintended consequences that may have
become apparent.
12. This item gives effect to Recommendation 16 of the Advisory report on the Counter-
Terrorism (Temporary Exclusion Orders) Bill 2019 published by the Parliamentary
Joint Committee on Intelligence and Security on 3 April 2019.
Intelligence Services Act 2001
Item 2 After paragraph 29(1)(cb)
13. Part 4 of the Intelligence Services Act 2001 establishes the Parliamentary Joint
Committee on Intelligence and Security. Existing subsection 29(1) of Part 4 of the
Intelligence Services Act 2001 sets out the functions of the Committee.
14. This item inserts new paragraphs 29(1)(cc) and (cd) into the Intelligence Services Act
2001, which would establish as Committee functions:
to review, by the end of the period of 3 years beginning on the day the Counter
Terrorism (Temporary Exclusion Orders) Act 2019 commenced, the operation,
effectiveness and implications of that Act; and
to monitor and review the exercise of powers under the Counter Terrorism
(Temporary Exclusion Orders) Act 2019 by the Minister administering that Act.
15. The purpose of this item is to require the Parliamentary Joint Committee on
Intelligence and Security to review the operation, effectiveness and implications of,
and monitor and enable the review of the exercise of powers under, the Counter
Terrorism (Temporary Exclusion Orders) Act 2019.
16. It is important that the scheme set up by the Bill is reviewed to determine its operation
as intended, its effectiveness in helping to protect the Australian community, and its
implications and any unintended consequences that may have become apparent.
17. This item gives effect to Recommendation 15 of the Advisory report on the Counter-
Terrorism (Temporary Exclusion Orders) Bill 2019 published by the Parliamentary
Joint Committee on Intelligence and Security on 3 April 2019.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
1. This Bill makes amendments consequential to the Counter-Terrorism (Temporary Exclusion
Orders) Bill 2019, which introduces a temporary exclusion orders scheme (TEO scheme) to
temporarily delay Australians of counter-terrorism interest from entering Australia until
appropriate protections are in place. The TEO scheme will enable greater control over the
return of these Australians by providing a streamlined mechanism to impose conditions,
including notification requirements, and facilitate the monitoring of the individuals who may
pose a threat to the Australian community.
2. The Bill amends the Intelligence Services Act 2001 to provide that it is a function of the
Parliamentary Joint Committee on Intelligence and Security (PJCIS) to monitor and review
the exercise of powers under the TEO scheme. The PJCIS is also required to review, by three
years after the date of commencement, the operation and effectiveness of the TEO scheme.
These measures implement Recommendations 15 and 17 of the PJCIS Report.
3. The Bill amends the Independent National Security Legislation Monitor Act 2010 to include,
in the definition of 'counter-terrorism and national security legislation', the Act that creates
the TEO scheme. The intent of this amendment is to enable the Independent National Security
Legislation Monitor (INSLM) to review the operation, effectiveness, and implications of the
TEO scheme on his or her own initiative at any time. This partially implements
Recommendation 16 of the PJCIS Report.
Human rights implications
4. The consequential amendments in this Bill do not directly engage any specific human rights
or freedoms. Rather, the broad oversight mechanisms that the Bill introduces provide
additional protections to ensure that any limitations placed on human rights by the TEO
scheme are reasonable, necessary and proportionate.
5. This Bill supplements the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, which
directly engages a range of human rights. To the extent that the TEO scheme places any
limitations on human rights, such limitations are reasonable, necessary and proportionate to
achieving the legitimate objective of protecting the Australian community. The Statement of
Compatibility with Human Rights accompanying the Counter-Terrorism (Temporary
Exclusion Orders) Bill 2019 provides detailed explanation to this end, specifically addressing:
(a) The International Covenant on Civil and Political Rights
(i) Article 6 - right to work
(ii) Article 9 - right to liberty and security
(iii) Article 12(1) - right to freedom of movement
(iv) Article 12(4) - right to enter one's own country
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(v) Article 14 - right to a fair trial
(vi) Article 17 - right to privacy
(vii) Article 17 and 23 - rights relating to the family unit
(viii) Article 19 - right to freedom of expression
(ix) Article 22 - right to freedom of association
(b) Convention on the Rights of the Child
(x) Article 3 - the best interests of the child
(xi) Article 10 - family reunification
(xii) Article 12 - right to participate in judicial or administrative proceedings
(xiii) Article 28 - right to education
(xiv) Article 31 - right to participation in cultural life
(c) International Covenant on Economic, Social and Cultural Rights
(xv) Article 13 - right to education
(xvi) Article 15 - right to participation in cultural life
6. This Bill implements additional oversight and accountability safeguards to ensure that
independent and objective third parties will review the operation of the TEO scheme. These
oversight and accountability measures enhance the transparency of the TEO scheme and
include:
(a) enabling the PJCIS to monitor and review the exercise of powers under the TEO scheme.
The PJCIS is also required to review, by three years after the date of commencement, the
operation and effectiveness of the TEO scheme
(b) enabling the INSLM to review the operation, effectiveness, and implications of the TEO
scheme on his or her own initiative at any time.
7. These measures enhance the transparency of the TEO scheme's operation. The PJCIS and
INSLM reviews ensure that the operation of the TEO scheme is periodically and thoroughly
reviewed by an objective third party. They are intended to encourage public scrutiny of the
operation of the TEO scheme and protect the human rights that are engaged by the TEO
scheme. These oversight measures and the potential for public scrutiny contribute to ensuring
that any limitation of human rights engaged by the TEO scheme is confined to what is
reasonable, necessary and proportionate to the legitimate objective of protecting the
Australian community.
Conclusion
8. This Bill indirectly strengthens the protection of human rights. This Bill is compatible with
human rights and does not raise any human rights issues.
Hon Peter Dutton MP, Minister for Home Affairs