Please ensure Javascript is enabled for purposes of website accessibility
Law Council of Australia


Opinion piece: Leaving our security threats offshore may not be smart: citizens suspected of terrorist activities abroad should face the full force of Australian law

16 July 2019

Opinion piece by Law Council of Australia President, Arthur Moses SC – published on The Australian, Tuesday, 16 July 2019.

A month after September 11, 2001, John Howard famously declared “we will decide who comes to this country and the circumstances in which they come”.

He was acknowledging a sense of unease — that we’re not quite as safe as a generation ago. He also made a less remembered observation: “It’s got to be borne in mind that international crime and terrorist groups have no regard to state or national borders, yet their activities now, and can in the future, affect all Australians.”

This nuance seems to have been lost in the government’s proposal to introduce temporary exclusion orders to stop Australians returning from foreign war zones.

Under the proposal, the Home Affairs Minister could authorise the issuing of a TEO to prevent a citizen returning from a conflict zone for up to two years if there are “reasonable grounds” for the minister to suspect that they may engage in a terrorism-related ¬activity on their return.

Protecting Australians from the threat of terrorism must always be the paramount. But the regrettable reality is that someone on the opposite side of the world can pose as great, if not greater, risk to the safety and security of Australians as someone standing on home soil. Rather than strengthening national security, TEOs could weaken it.

Throwing up the walls and pulling up the drawbridge is an instinctive and understandable response to a threat. But the trouble is that modern threats to national security cannot be so neatly geographically contained.

If passed, the TEO bill would not necessarily keep us safer. It would have the effect of keeping known national security threats out of the watchful eye of Australian intelligence and security agencies, out of the reach of Australian law enforcement, out of Australian prisons and out of the sights of Australian justice. The US, our closest ally, has rejected such a policy approach for its nation’s security.

The government should not pursue a policy that leaves Australian citizens, who are our ¬responsibility, in another jurisdiction that may not have adequate security and legislative infrastructure, where these individuals could do further harm to Australians and others, and be beyond the reach of our justice system.

While they remain outside of Australia, we lose control of them.

The Law Council has raised many concerns about the TEO bill. It is not necessary, reasonable or proportionate. It raises significant rule-of-law and human rights concerns. TEOs could be issued against children as young as 14. The onus of proof is low — the minister simply needs to have “reasonable grounds” a person may have engaged in terrorism-related acts. This is inadequate and, to ensure greater fairness and transparency, such decisions should be made by a court.

The bill leaves open the possibility that TEOs could be issued repeatedly and indefinitely, essentially excluding a person from Australia indefinitely. Perhaps some of these adverse effects could be endured if the bill demonstrably could safeguard national security and safety. Unfortunately, it can’t.

The bill was introduced in February and subjected to a scathing critique by the parliamentary committee on intelligence and security in April. The committee recommended 19 changes which it suggested should be made before the bill was passed. The bill lapsed with the federal election and was reintroduced by the government during the first sitting week with a raft of amendments, picking up some but not all of the committee’s recommendations.

This legislation is too important to get wrong. The TEO proposal must go back to the committee for further scrutiny before the 46th parliament is called to vote on it. Our politicians should also bear in mind that debate over national security legislation should not be used for political purposes. It is a serious issue that needs to be considered in a mature manner based on evidence. Recently, where issues have been raised concerning national security legislation or freedom of the press, there has been a disturbing and regrettable tendency among some politicians to seek to question an opponent’s commitment to Australia or public safety, rather than listen to and carefully consider the policy considerations raised. No one has a monopoly over a commitment to national security, or the right to impugn improper motives to those seeking to raise legitimate concerns about it. We are all committed to the security and safety of our nation, including ensuring our law enforcement agencies have the necessary resources and powers they need.

Cheap attempts to shut down important debate and distract attention from the real role of our parliament - which is to ensure any national security legislation is appropriately calibrated to balance the paramount duty of protecting the safety of our community with a duty to promote the rights and freedoms of citizens and the media — get us nowhere.

Such comments seek to promote a culture of silence on some of the most critical issues concerning our country’s safety, and do our nation a great disservice.

The Immigration and Citizenship Minister David Coleman, part of the Home Affairs portfolio, said in his maiden speech that regardless of where we are born, we all have the same responsibility “to live within our laws and to embrace our values”.

“All that matters,” he said at the time, “is that you play by the rules of Australia.”

If Australian citizens break our laws, break their bond to this country, or threaten our safety or values, then they should feel the full force of our rules.

Passing legislation that puts security risks outside of the reach of these rules — and serves as a get-out-of-jail-free card — is unwise, ill-considered and does not protect the public interest.

Our parliament has a duty to the Australian people to think very carefully before changing rules that may adversely effect — national security and the rights of citizens.

Arthur Moses SC
President, Law Council of Australia