There’s no clear need for Peter Dutton’s new bill excluding citizens from Australia


Sangeetha Pillai, UNSW

Yesterday, the government introduced a bill into Parliament that, if passed, would allow the home affairs minister Peter Dutton to temporarily exclude some Australian citizens – including children – from returning to Australia.

The bill is aimed at mitigating threats posed by foreign fighters coming back to Australia from conflicts in Syria and Iraq. It was first put before Parliament in February, and has now been reintroduced with some amendments.




Read more:
Why is it so difficult to prosecute returning fighters?


The bill draws on similar legislation in the UK and, if passed, would add to an arsenal of around 75 pieces of anti-terrorism legislation currently operating in Australia.

National security laws must continue to adapt to changing circumstances. But the government has not made it clear how the bill would fill an identified gap in Australia’s already extensive national security regime.

How would the bill work?

If passed, the bill will allow the minister to issue a Temporary Exclusion Order (TEO) preventing an Australian citizen who is overseas from re-entering Australia. These exclusion orders aren’t designed to exclude citizens from Australia forever, but rather to provide a system that manages their return.

A TEO can be imposed on a citizen outside Australia if they are at least 14 years old, and:

  • the minister reasonably suspects that issuing the TEO would substantially help prevent terrorism-related acts, or

  • ASIO has assessed the person to be a direct or indirect risk to security, for reasons related to political violence. ASIO doesn’t need to be satisfied to any standard of proof when making this assessment.

But neither of these criteria actually requires a TEO candidate to have engaged in any wrongdoing.

A person may not enter Australia while a TEO is in force against them. If they do, they can face up to two years behind bars. A TEO may also require the person to surrender their Australian passport.

Each TEO can be issued for a maximum of two years, but a person may have multiple TEOs issued against them. This means the actual period of exclusion from Australia can be much longer.

So how does a return to Australia work?

The return of citizens with TEOs against them is managed through “return permits”. This is designed to allow the government to monitor and control foreign fighters’ entry and presence in Australia. A return permit must be issued if the person applies for one, or if a foreign country moves to deport them to Australia.




Read more:
How can we understand the origins of Islamic State?


A return permit may prescribe various conditions. Significantly, it doesn’t guarantee an immediate right to return to Australia – a person may be prohibited from entering Australia for up to 12 months after the permit is issued.

Once in Australia, a range of post-entry conditions may also be imposed. These can include passport surrender, and requirements to report changes to residence or employment, contact with particular individuals and technology use.

Breaching the conditions of a return permit is an offence, punishable by up to two years in prison.

Are the proposed laws constitutional and compatible with international law?

The right to return to one’s country is commonly regarded as a core aspect of citizenship. And some experts have argued that a citizen’s right to return home is constitutionally protected in Australia.

But the High Court has never ruled on the question of whether a constitutional right of this nature exists, so it’s impossible to say for certain whether the bill, if passed, would be unconstitutional. Still, it’s likely to face constitutional challenge.

In any case, international law protects an individual’s right to voluntarily return to their country of citizenship. The government acknowledges that TEOs restrict a person’s capacity to do this, but says the bill is justified because it’s “reasonable, necessary and proportionate”. This, however, isn’t clear.

Does the bill contain adequate safeguards?

In April, when reviewing the original bill, the Parliamentary Joint Committee on Intelligence and Security recommended 18 changes, aimed at improving safeguards.

But the new bill only took on seven changes in full, including requiring the minister to consider specific criteria when imposing a TEO on a child, and providing independent oversight of decisions to issue TEOs.




Read more:
If Dutton had defeated Turnbull, could the governor-general have stopped him becoming prime minister?


Importantly, some of the committee’s most significant recommendations have been ignored, such as narrowing the criteria for issuing a TEO. And others have only been partially implemented.

Given the significant impact a TEO has on a person, the bill should adopt the committee’s recommendations in full.

Is the bill even necessary?

In parliament, Dutton said national security agencies advise that many Australians who have travelled to conflict zones in Syria and Iraq to support extremist groups are “likely to seek return to Australia in the very near future”, and the bill is needed to keep Australians safe.

But the government hasn’t explained why Australia’s extensive suite of existing anti-terrorism mechanisms doesn’t already adequately protect against threats posed by Australians returning from conflict zones.

Australia’s 75 pieces of legislation provide for criminal penalties, civil alternatives to prosecution, expanded police and intelligence powers, and citizenship revocation.

And they protect Australia from the risks posed by returning foreign fighters in a variety of ways.

For example, a person who returns to Australia as a known member of a terrorist organisation can be charged with an offence punishable by up to 10 years’ imprisonment. Where the person has done more – such as fight, resource or train with the organisation – penalties of up to 25 years each apply.

Although gathering sufficient evidence to prosecute returning foreign fighters can prove challenging, there are mechanisms in our legislation that already account for this.

For instance, a control order may be imposed on a person in cases where they are deemed a risk but there is not enough evidence to prosecute. This restricts the person’s actions through measures such as curfews and monitoring requirements.




Read more:
Explainer: why some acts are classified as terrorism but others aren’t


Evidence shows the existing measures work effectively. Police and intelligence agencies have successfully disrupted a significant number of terror plots using existing laws, most recently just days ago.

Arguably, this suggests Australia has not only the capacity, but also the responsibility to use the full force of our laws to bring foreign fighters to justice in Australia, rather than leave them stranded in conflict zones where their only connections may be to terrorist groups, thereby weakening global security.

Of course, if it’s to remain fit for purpose, Australia’s national security framework must continue to adapt to changing circumstances. But with extensive, demonstrably effective mechanisms in place, the government must clearly explain what gap this bill would fill. This has not been done.The Conversation

Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Advertisements

Religious Club Closures in Schools Touch Nerve in Malaysia


KUALA LUMPUR, Malaysia, August 11 (CDN) — More closures of non-Muslim religious clubs in Malaysian schools, including Christian fellowships, have surfaced since the first incident was reported on July 12.

Loh Seng Kok, central committee member of the Malaysian Chinese Association, said at a July 23 press conference that the situation was “getting worse” and that the initial incident at Klang High School was not an “isolated issue.”

Loh based his assessment on complaints received by various religious society representatives. Present with Loh at the press conference were Vice-President of the Young Buddhist Association of Malaysia Loh Yit Phing, President of the Subang Jaya Buddhist Association Chim Siew Choon and Executive Secretary of the Christian Federation of Malaysia Tan Kong Beng.

The Malaysian Insider online news agency reported that Chin Fook Khiang, a parent, disclosed that the Buddhist Society and Christian Fellowship in SMK SS17 in Subang Jaya, Selangor were ordered to stop activities in January 2009 – and that it was the second time the clubs were ordered to close by education authorities since 2005.

The religious clubs were closed even though they had been in operation since before 2000, excluding them from the need for official approval. According to Circular Bill 20/2000, non-Muslim religious clubs formed after education authorities issued the circular in 2000 must obtain their approval before they are allowed. Clubs that existed before the circular was issued do not require approval.

Malaysiakini news agency on July 23 cited an unnamed retired teacher who described the situation as “very serious,” to the extent that some teachers had been transferred because they were active in Christian fellowship activities in their schools.

Loh called for a fairer treatment of non-Muslim associations in the co-curricular activities listed in the co-curriculum management guidelines issued to schools. The guidelines only allow for Islamic religious societies to operate unconditionally without requiring prior approval from the education authorities.

Several political leaders, including veteran opposition leader Lim Kit Siang, have called on authorities to revoke outdated directives and circulars that contravene the Federal Constitution, which guarantees freedom of religion.

 

Public Outcry

Reports of non-Muslim religious club closures first surfaced when The Sun reported on July 12 that three non-Muslim religious student groups, including the Christian Union at Klang High School, were ordered closed by the Selangor education department last month.

Following the report, the Rev. Dr. Thomas Philips, president of the Malaysian Consultative Council for Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST), issued a strongly worded statement seeking “immediate confirmation” and “prompt explanation” from authorities.

“Needless to say,” Phillips added, “if indeed there had been such a directive to close non-Muslim religious societies in schools or to not permit the setting up of such societies in schools, the Ministry of Education and the Ministry of National Unity should not be in doubt that MCCBCHST shall protest such a policy with the strongest possible vehemence.”

Following public outcry over the closure, Alimuddin Dom, director-general of education, reportedly said that the directive was a “misunderstanding” by the Selangor Education Department and ordered a reinstatement of the affected religious clubs.

Malaysia’s population is about 60 percent Muslim, 19 percent Buddhist and 9 percent Christian. About 6 percent are Hindu, with 2.6 percent of the population adhering to Confucianism, Taoism and other traditional Chinese religions.

 

Church Attack Trial

Reports of the religious club closures came amid the trial of three men who have been charged with arson in the attack on Metro Tabernacle church’s building earlier this year.

Brothers Raja Muhammad Faizal Raja Ibrahim and Raja Muhammad Idzham Raja Ibrahim, along with their friend Azuwan Shah Ahmad, were charged with committing mischief by torching the church building at 11:50 p.m. on Jan. 7. Since the trial started on July 6, however, the court has acquitted Azuwan due to lack of evidence.

Both brothers deny burning the church building, though they admit to witnessing the incident. They claim they left the scene of the burning to attend a barbeque at a friend’s house. Raja Muhammad Faizal claims he sustained burns from starting a fire at the barbeque, while his brother Raja Muhammad Idzham says he was injured in the course of helping his brother take off his flaming shirt on the occasion.  

The trial is ongoing.

Metro Tabernacle Church was among several churches that came under attack in January following a controversial court ruling that allowed the Herald, a Catholic weekly, to use the word “Allah” in the multilingual publication. The Herald had challenged the ban imposed by the Home Ministry.

The court decision angered some Muslims in the country who claim the term is exclusive to Islam.

Following the high court decision, the Home Ministry filed an appeal in February and won a stay, preventing the weekly from using the word until the case was addressed in the court of appeal. To date there has been no indication when the case will be heard.

On Aug. 1, Home Minister Hishammuddin Hussein was widely reported as saying his predecessor, Syed Hamid Albar, should not have banned the word “Allah” from being used by the Roman Catholic Church, and that the decision will continue to haunt his ministry for a very long time.

Report from Compass Direct News