Julian Leeser (Berowra, Liberal Party) Share this | Hansard source

I'm speaking in favour of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 as presented by the minister and against the amendment that was presented to us by the member for Isaacs. As the member for Isaacs pointed out, I do serve on the Parliamentary Joint Committee on Intelligence and Security, and he is right: it is a very important committee of the parliament. But what makes it a very important committee of the parliament is the subject matter that it deals with. It deals with national security. It deals with highly sensitive issues. The committee gets top secret briefings. It holds its hearings in camera as well as in public, and we seek, as every committee in this parliament does, to analyse and scrutinise bills.

I've spoken on many occasions in favour of the good work that the committee does. But the Parliamentary Joint Committee on Intelligence and Security is, like every other parliamentary committee in this place, a committee. It is subordinate to this parliament. It can make recommendations that can be accepted in toto, accepted in part or rejected. I've sat on plenty of committees where reports have come up and they've been accepted in part, as is the case with this particular set of legislation, on other committees where reports have been rejected and on other committees where they've been accepted in toto. I've seen Labor members sit on committees which have had recommendations accepted in part, and they have subsequently voted for the legislation. The committee discharged its function here by examining the bill. It was a matter for the government to determine what it wanted to put before this House, and the government determined the matters it wanted to put before the House. I support the bill as presented by the government.

I would like to make some broad comments in relation to the bill. In September 2014, Australia's national terrorism threat level was raised for the first time since 2002. This public alert system has since sat at high, denoting that a terrorist attack is likely. The threat of terrorism in this country is clear and tangible. Over the five years that have followed, our security, intelligence and law enforcement agencies have disrupted 16 attempted terrorist attacks in this country. The most recent was on 3 July when three men were arrested in Sydney over their planned hostilities in connection with ISIL.

On the one hand, this is a figure to be applauded. It's the product of thousands of dedicated officers, agents and intelligence experts working around the clock to keep Australians safe. It's the product of a more than $3 billion increase in security funding that our government has secured since 2014. This year we've provided the AFP with an additional $512 million for counterterrorism and combatting transnational crime. On the other hand, this figure is deeply alarming. The indiscriminate threat of terrorism creates fear. Protecting all Australians from people who seek to harm us must be, and indeed is, our government's most critical task. These bills are essential to achieving this. They are time-critical additions to our existing matrix of national security laws.

Since 2012, we have seen close to 230 Australian citizens travel to Syria and Iraq to engage directly with and assist extremist organisations. Approximately 80 of these citizens are still active in conflict zones. Many of the fighters have taken their families, partners and children with them, and they've been given a chance to learn, as the Minister for Home Affairs has put it, the art of terrorism. They have been given the chance to undertake violent offences against Australian troops. They've been given the chance to support the extremist groups with resources and knowledge. They've been given the chance to learn how to construct improvised explosive devices, or IEDs. Now, with the collapse of Islamic State's territorial control, these people are in a position where they want to return home to Australia. Media reports suggest that many have returned home and others will be seeking to return home in the near future.

Although many of these people are of counterterrorism interest, under article 12.4 of the International Covenant on Civil and Political Rights, it is their right, as Australian citizens, to return to Australia. The proposed TEO scheme doesn't arbitrarily deprive these people of the right to abode. Instead, it necessarily gives the government an effective means to monitor and regulate the return of these fighters, keeping the protection of our Australian community a paramount consideration. These changes are sensible and deserving of bipartisan support. Likewise, the scheme's orders are subject to reviewing authorities. In accordance with international covenants which Australia has ratified, it also has specific provisions which consider the best interests of children directly or indirectly implicated in these extremist activities.

Since it was introduced in the last parliament on 21 February, the TEO scheme has been amended to include some of the recommendations of the Parliamentary Joint Committee on Intelligence and Security. As a member of that committee, let me state again, as the chair has done, that I too am satisfied with the government's response to that report. The government is not bound to accept all the recommendations of the PJCIS, as it is not bound to accept the recommendations of any committee. As my colleague, the member for Canning has stated, the most significant compromise is over judicial review. The government has accepted that and, on that basis, I think we can move forward as a parliament and pass the bill.

A temporary exclusion order allows the Minister for Home Affairs to delay the entry of an Australian citizen of heightened terrorism risk for up to two years without a return permit. Consistent with division 104 of the Criminal Code, the person must be at least 14 years of age. This ministerial discretion is not unfettered. The minister may issue a TEO if our Australian security agencies have assessed the person as a direct or indirect risk for reasons relating to politically motivated violence and have advised the minister therein or if the minister suspects on reasonable ground that a TEO would substantially assist in preventing a terrorist attack, preventing a person from being trained by a terrorist organisation and/or preventing a person from assisting a terrorist attack or terrorist organisations.

The mutually exclusive nature of these two circumstances is crucial. Fighters are seeking to return home from overseas conflict zones. These threats are in a constant state of flux. The highly nuanced case-specific challenges posed, and the relay of information between Australia's security agencies and the Department of Home Affairs, is such that the minister must act urgently as soon as a threat becomes apparent.

Reviewing authorities provide a safeguard for the exercise of the minister's powers. Under the scheme, TEOs don't come into force until a reviewing authority has assessed the legality—as opposed to the merits—of the minister's decision to issue the order. This authority, being a retired judge or a senior member of the Administrative Appeals Tribunal, is independent, providing additional accountability in the scheme. Judicial review will also be available through the Federal Court or the High Court of Australia. If the reviewing authority determines the minister's decision to be unlawful, the TEO will be taken never to have been made. The authority will have access to all information that is in the public interest. However, if insufficient information is provided, it remains open to the reviewing authority to potentially overturn the TEO. This enables the independent authority to reach a well-informed decision while still protecting the sensitivity of Australia's information sources and defence capabilities.

Conversely, the scheme also confers power on the minister to issue a TEO that can come into force immediately. This is vital for situations such as when the return of a high-risk individual is imminent and the minister has just been made aware of that fact. Temporarily delaying return is justified by the urgency of such cases. It is important to note that this decision is still subject to the ordinary reviewing authority process. The TEO can still be struck down at any hour—a day or a week later, for example. However, this simply adds an additional temporary layer of security—a proactive rather than reactive way of mitigating risk in the interim.

One of the greatest tragedies of the Australians who have fought or assisted terrorist groups in Iraq is that some took their families with them or had children while in the service of ISIL. We know that children are vulnerable. By immersing children in ISIL conflict zones, they too may have been given the chance to learn the art of terrorism. They may, as well, bear an increased risk of harbouring radical thoughts. These are the same children who, on application, will return to Australia. Without adequate monitoring, they may put the lives of other Australian children at risk.

However, it is appropriate to balance this concern with the best interests of each child. The TEO scheme reflects this. TEOs cannot apply to a person under the age of 14. If the person is aged between 14 and 17, the minister must regard both the protection of the community and the best interests of the child. But the protection of the community is paramount. Section 10(4) includes additional safeguards. It provides that the age, maturity, culture, lifestyle and physical and mental health of a 14- to 17-year-old, the benefit of them meaningfully connecting with their family, their right to education and their right to practise their religion, among other factors, must be taken into account by the minister when issuing a TEO. This is an effective, sensible balance between a child's vulnerability, Australia's international obligations and vital community protections.

Under the scheme, to enter Australia while the TEO is in force would be a criminal offence punishable by up to two years imprisonment. Facilitating the entry into Australia of a person who has a TEO issued against them may also incur the same penalty. This second offence requires the owner or operator of a vessel or aircraft to have actual knowledge that the individual is subject to a TEO that prohibits them from returning to Australia.

Both these new offences are essential components of the TEO scheme's enforceability. They acknowledge that those returning from their suspended extremist engagements in Syria and Iraq will be subject to the full force of Australian law, should they be in a position to return to this country. These provisions aid in ensuring TEOs are complied with, delaying the passage of foreign fighters so that Australian security agencies have time to conduct their investigations and appropriate conditions can be implemented to keep other Australians safe.

The TEO scheme stands in contrast to control orders. A control order is issued by the courts on consent of the Minister for Home Affairs. It enables the liberty of an individual to be restricted if it substantially helps prevent terrorist attack, or if the individual is trained in, engaged in or convicted of terrorism. The individual can, for example, be prevented from leaving Australia, being in certain areas, communicating with certain people, owning certain items, accessing forms of technology and carrying out certain activities, and they may be required to wear a tracking device.

The TEO scheme has a starkly different function. Its aim is the regulation of these persons of counterterrorism interest that are Australian citizens seeking to return to the country. In areas of active conflict, to compile sufficient evidence for criminal prosecution can be difficult, so most of these individuals have not yet been convicted and are still subject to further investigation and assessment. To reflect this, the second part of the TEO scheme provides for the issuance of return permits and attached conditions.

A return permit must be issued on application of an Australian citizen to the minister, or where the Australian citizen has been deported or extradited to Australia. The minister has discretion to issue a return permit if he or she otherwise considers it appropriate to do so under section 15(2). For example, if there was a natural disaster in Iraq or Syria and the fighter was unable to submit an application, the minister may find it appropriate to issue a return permit so as to evacuate the person to safety. This discretion favourably allows the unique circumstances of each case to be considered.

Similar to a statement of claim, a return permit must be served personally on the person to whom the order relates, or a parent or guardian if the person is between 14 and 17 years old. However, recognising the irrationality of personal service in an active conflict zone, the minister must only comply with the personal service requirement where it's reasonably practical to do so.

Return permits have two main strengths. First, much like division 3 of the Bail Act 2013, section 16 of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 provides for an exhaustive list of conditions that can be attached to return permits. Pre-entry and post-entry conditions are available. Second, a return permit may specify a certain time frame in which a person must return to Australia, delaying their passage by a time reasonably necessary to assess the risk posed by their entry. This delay, however, cannot be for more than 12 months, so, whether a return permit or temporary exclusion order is in force, our communities will remain protected.

At the same time, section 16(8) necessitates that the minister must consider whether the person has a lawful right to remain in the country and whether they are at risk of detention, mistreatment or harm before preventing a person from entering Australia. Post-entry conditions include notifying authorities of certain activities, associations and education. This balances the presumption of innocence and terrorism risk management.

Under the TEO scheme, it's an offence to provide false or misleading information with regard to return permits. The defendant, the foreign fighter, bears the evidentiary burden of proving that the material they provided was not false or misleading. This promotes accountability and favourably reduces public expenditure. The financial impact of this scheme is low, and costs will be met from within existing agency allocations.

To conclude, the TEO scheme addresses the vexed issue of what to do with Australian citizens who have been exposed to terrorism in Syria and Iraq, either by directly participating in terrorism or by virtue of being family members of terrorists. These bills strike the balance of upholding Australia's international obligations while protecting Australian communities from those who've lived and supported organisations whose entire ideology is the destruction of the West and the Australian values we hold dear. Many of these people have been reprogrammed to oppose our way of life, so, although they have a right to return to their country of citizenship, it's crucial to have regulations in place to monitor their return.

These bills are commonsense reforms to Australia's national security framework. They allow the minister, under appropriate supervision, to delay the re-entry of foreign fighters and their families who are potentially experienced in committing terrorism. They also put in place structures to closely monitor and investigate their individual profiles to allay risk once they return home.

I commend these bills, as presented by the minister to this House, and I oppose the amendments that have been put forward by the member for Isaacs.

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