LCA calls for TEO Bill to return to Senate
National security could be at stake if the Senate does not put the Temporary Exclusion Order (TEO) Bill back to a parliamentary committee, said the Law Council of Australia.
The Law Council is urging that the bill is returned to the parliamentary joint committee on intelligence and security (PJCIS) for further review to ensure it is not subject to any constitutional challenges, with concerns the bill was rushed to get through parliament.
Law Council president Arthur Moses SC said the government cannot claim it is strong on national security or border protection if it does not have laws that are constitutionally “sound and safe” from challenge and has instead placed politics above this concern.
Mr Moses added he is concerned the government ignored “critical” recommendations from the Law Council that “would have better dealt” with the handling of the bill. This “sets a dangerous precedent for future inquiries”, Mr Moses warned.
“Protecting the safety and security of the Australian people must always be the paramount concern of government. But rushed laws at risk of constitutional challenge poses an unnecessary risk to national security,” Mr Moses said.
“The Australian people must be able to have confidence that public safety and the work of our intelligence and law enforcement agencies is protected by laws and powers that are strong, proportional and without legal ambiguity.”
A Commonwealth law may be unconstitutional if it authorises the executive to impose and determine punishment for criminal conduct. A ministerial decision to grant a TEO is arguably “punitive and invalid”, according to the Law Council, and in granting a TEO, “a minister is effectively determining and imposing punishment.”
In most cases, a form of punishment for a citizen’s alleged misconduct, or prospective offence, could be an order preventing re-entry. Mr Moses said if such an order is to be made, “it is the Law Council’s view it should be made by a court, not a minister.”
Mr Moses said serious concerns remain over the constitutional validity of TEOS, which creates uncertainty and could undermine government’s integrity. He said that to enhance the legislation’s robustness, the recommendations should be implemented.
“When it comes to matters of national security, parliament must take the time to get its laws right. That is why we are calling on the senate to send it back to the PJCIS.”