1. Introduction

The Bill and its referral

1.1The Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024 (the Bill) was introduced into the House of Representatives by the Attorney-General, the Hon Mark Dreyfus KC MP, on 27 March 2024. On 3 April 2024, the Bill was referred to this Committee for review.

1.2The ‘declared areas’ offence in section 119.2 of Schedule 1 of the Criminal Code Act 1995 (Criminal Code) is presently due to cease (‘sunset’) on 7 September 2024. The Bill would ensure the continuation of the offence for a further three years, until 7September 2027. In addition, the Bill provides that section 119.3—the provision under which the Minister for Foreign Affairs can declare an area for the purpose of the offence in section 119.2—ceases to have effect on 7September 2027. Currently, section 119.3 is not subject to a sunsetting provision.

1.3In his second reading speech, the Attorney-General said:

The threat of terrorism is enduring and we must remain resolute in our response. To this end, this bill ensures the continuation of a key component of our counterterrorism legal framework: the declared areas provisions. …

Although there are currently no areas declared, these provisions remain a necessary component of our framework in the current threat environment. The offence plays a role in the disruption and prosecution of returning foreign fighters and their associates. The limited number of areas that have been declared, and the limited use of the offence to date, demonstrate its exceptional nature and judicious use of this power.[1]

1.4The Bill would also amend the Intelligence Services Act 2001 (IS Act) to remove paragraph 29(1)(bbaa), which provides for the Committee to review the ‘operation, effectiveness and proportionality’ of sections119.2 and 119.3 (declared areas provisions) before 7 January 2024. The Committee exercised its discretion not to do so before 7 January 2024, making this paragraph redundant.

1.5The Bill does not propose a replacement paragraph in the IS Act to re-vest the Committee with that specific review power. The justification for this is that the Intelligence Services Legislation Amendment Bill 2023 (ISLAB), which is currently before the Parliament, proposes to empower the Committee to conduct own motion reviews of legislation such as the declared areas provisions before they sunset in future.[2]

Conduct of the inquiry

1.6The Committee commenced its inquiry on 11 April 2024 and invited submissions by 29 April 2024. The Committee received 13 submissions, including five supplementary submissions responding to questions on notice from the Committee. Appendix A sets out a list of the submissions received.

1.7The Committee held a public hearing on 20 May 2024. Appendix B sets out a list of witnesses who appeared at the public hearing.

1.8Copies of submissions received, a transcript of the public hearing and links to the Bill and Explanatory Memorandum (EM) can be accessed at the Committee’s website.[3]

1.9The Committee is, as always, grateful to the Government departments and non-Government bodies and individuals who contributed their expertise to this inquiry.

Report structure

1.10This report contains three chapters:

• The remainder of Chapter 1 provides an overview of the declared areas regime and the review history of the provisions.
• Chapter 2 examines the evidence received in relation to the Bill.
• Chapter 3 offers the Committee’s comments and recommendations on the continued utility of the declared areas provisions and proposals for their reform.

Overview of the declared areas provisions

1.11Section 119.2 of the Criminal Code makes it an offence, punishable by up to 10 years’ imprisonment, for an Australian citizen, resident or visa-holder to enter or remain in an area of a foreign country that has been declared by the Minister for Foreign Affairs under section 119.3 of the Criminal Code,[4] unless it can be demonstrated that their presence in the area was solely for one of the ‘legitimate purposes’ explicitly listed in the Criminal Code.[5]

Section 119.2: Entering, or remaining in, declared areas

1.12A person commits the offence in section 119.2(1) of the Criminal Code, subject to the exceptions in subsections 119.2(3) and (4), if each of the following physical elements is satisfied:

1. The person enters, or remains in, an area in a foreign country;
2. The area is an area declared by the Minister for Foreign Affairs under section 119.3; and
3. When the person enters the area, or at any time when the person is in the area, one of the following applies—the person:

1. is an Australian citizen; or
2. is a resident of Australia; or
3. is a holder under the Migration Act 1958 of a visa; or
4. has voluntarily put himself or herself under the protection of Australia.[6]
   13. In addition to demonstrating the above physical elements, a fault element must also be established for each physical element, unless stated otherwise.[7]
   14. No fault element is specified for the first two physical elements—entering, or remaining in, an area in a foreign country (paragraph 119.2(1)(a)) and that the area is a ‘declared area’ (paragraph 119.2(1)(b))—and therefore the default fault elements apply for both.[8] The fault elements are intention and recklessness, respectively.
   15. For the third physical element—being an Australian citizen, resident, visa holder or under Australia’s protection while present in the declared area—absolute liability applies.[9] This means there is no fault element that needs to be proven and the mistake of fact general defence under section 9.2 of the Criminal Code is not available (i.e. a person cannot claim they did not know that they had such ties to Australia when committing the offence).
   16. The below table sets out the three physical elements of the declared areas offence and the corresponding fault elements to be proved to be found guilty of the offence.

Source: Criminal Code Act 1995 (Cth), Sch 1 (Criminal Code).

Exceptions—entering or remaining in a declared area solely for ‘legitimate purposes’

1.17An individual will not contravene the declared areas offence if they entered or remained in the declared area solely for one or more of the legitimate purposes set out in subsection 119.2(3) of the Criminal Code.

1.18The purposes are:

1. providing aid of a humanitarian nature;
2. satisfying an obligation to appear before a court or other body exercising judicial power;
3. performing an official duty for the Commonwealth, a State or a Territory;
4. performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory;
5. performing an official duty for:

5. the United Nations or an agency of the United Nations; or
6. the International Committee of the Red Cross;

6. making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist;
7. making a bona fide visit to a family member;
8. any other purpose prescribed by the regulations.[13]
   19. The defendant bears the evidential burden in relation to demonstrating that they entered or remained in a declared area solely for one or more of the specified legitimate purposes.[14]
   20. In addition to these specific purposes, the offence does not apply to a person who enters, or remains in, the area solely in the course of, and as part of, the person’s service with the armed forces of a foreign government or any other armed force declared by the Minister.[15] The offence also does not apply to conduct engaged in by ‘a person acting in the course of the person’s duty to the Commonwealth in relation to the defence or international relations of Australia’.[16]
   21. A defendant also has recourse to the general defences in Part 2.3 of the Criminal Code, including the defence of intervening conduct or event,[17] or a sudden or extraordinary emergency.[18]

Section 119.3: declaration of areas for the purposes of section 119.2

1.22Section 119.3 provides that the Minister for Foreign Affairs may, by legislative instrument, declare an area in a foreign country for the purposes of section 119.2 if they are satisfied a listed terrorist organisation is ‘engaging in a hostile activity’ in that area.[19] A declaration must not cover an entire country[20] but a single declaration may cover areas in two or more foreign countries if the Minister is satisfied that one or more listed terrorist organisations is engaging in a hostile activity in each of those areas.[21]

1.23A declaration ceases to have effect three years from the date it came into effect, unless it is revoked by the Minister for Foreign Affairs earlier.[22] The Minister must revoke the declaration if they cease to be satisfied that a listed terrorist organisation is engaging in a hostile activity in the area[23] and may revoke the declaration if they consider it necessary or desirable to do so.[24] The Minister may also make a new declaration which is the same in substance as the previous declaration.[25]

1.24Before making a declaration, the Minister for Foreign Affairs must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed declaration.[26]

1.25The Parliamentary Joint Committee on Intelligence and Security may review any declaration made by the Minister for Foreign Affairs under section 119.3 of the Criminal Code and report its findings to each House of the Parliament before the end of the applicable disallowance period for that House.[27] Additionally, the Committee may review and report on a declaration at any time while a declaration is in effect.[28]

1.26At the time of the Committee’s review, no declarations were in effect. Two areas have previously been declared under section 119.3 of the Criminal Code:

• al-Raqqa Province, Syria was declared on 4 December 2014. The declaration for al-Raqqa Province was revoked by the Minister for Foreign Affairs on 27 November 2017.
• Mosul district, Ninewa Province, Iraq was first declared on 2 March 2015 and re-declared on 2 March 2018. The declaration for Mosul district was revoked by the Minister for Foreign Affairs on 19 December 2019.
  27. Unless extended by the Parliament, section 119.2 will cease to have effect at the end of 7 September 2024.[29] There is currently no equivalent sunset provision for section 119.3.

Previous reviews of the declared areas provisions by this Committee

1.28The declared areas provisions were inserted into the Criminal Code in November 2014, following the passage of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014. The declared areas provisions have been reviewed in their entirety four times by this Committee, and once by the Independent National Security Legislation Monitor (INSLM).

• The Committee reviewed the provisions when they were first introduced as part of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. The Committee made four recommendations, all of which were accepted by the Government and implemented.[30]
• On the Committee’s recommendation the INSLM conducted a review of the declared areas provisions in 2017.[31]
• In February 2018, the Committee tabled its first statutory review of the provisions as required by the IS Act. The report made five recommendations, which were accepted by the Government. These included implementing the INSLM’s recommendation that the Committee be empowered to review and report on any declaration while in force, and that the key non-legislative factors considered in making a declaration should be addressed in an unclassified Statement of Reasons provided to the Minister for Foreign Affairs and made publicly available.[32]
• In May 2018, the Government introduced the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018, which implemented the Government’s response to the Committee’s recommendations.[33] The Committee reviewed that Bill and considered that it was consistent with the Committee’s recommendations.[34]
• In February 2021, following its second statutory review, the Committee recommended the provisions be extended for another three years with the Committee retaining the power to conduct a statutory review at its discretion on the provisions’ operation, effectiveness and proportionality. To this end, the relevant government agencies would be required to provide a briefing to the Committee within 18 months of the report.

• The Committee also recommended that the Criminal Code be amended to allow Australian citizens to request an exemption from the Minister for Foreign Affairs to travel to a declared area for reasons not listed in section 119.2 but which would not be otherwise illegitimate under Australian law, with the Minister’s decision not subject to merits review.[35] The Government did not support this recommendation, noting that a ‘pre-authorisation scheme could not be effectively implemented and monitored, and it would be contrary to Government travel advice to issue a pre-authorisation’.[36]
  29. Pursuant to section 119.3(8) of the Criminal Code, the Committee reviewed each of the three declarations made by the Minister.[37]

• The Committee used its review of the re-declaration of Mosul in 2018 to recommend that the key non-legislative factors used to guide and prioritise the selection of an area in a foreign country be expanded to include the extent to which the listed terrorist organisation exercises territorial control over the area and other relevant factors.[38] The Government accepted the recommendation and amended its protocol for declaring an area.[39]
  30. The declared areas provisions have also been independently reviewed by other parliamentary committees including the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights.[40]

Footnotes

[1]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 27 March 2024, p. 8.

[2]The Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 27 March 2024, p. 8.

[3]www.aph.gov.au/DeclaredAreasBill2024.

[4]Criminal Code Act 1995, Sch 1(Criminal Code), s. 119.2(1).

[5]Criminal Code, s. 119.2(3)–(4).

[6]Criminal Code, s. 119.2(1).

[7]Generally, an offence consists of both a physical element (conduct, circumstance or result) and a fault element (intention, knowledge, recklessness or negligence): Criminal Code, s. 3.1. For a person to be found guilty of committing an offence, it must be proved beyond a reasonable doubt that the requisite physical and fault elements exist, and then that no defences or legal exceptions apply.

[8]Criminal Code, s. 5.6.

[9]Criminal Code, s. 119.2(2).

[10]Section 5.6(1) of the Criminal Code states that if the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. See Criminal Code, s 5.2(1) for a definition of intention in relation to conduct.

[11]Section 5.6(2) of the Criminal Code states that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element. See Criminal Code, s 5.4(1) for a definition of recklessness in relation to circumstances.

[12]Section 119.2(2) provides that absolute liability applies to paragraph (1)(c); section 6.2(2) of the Criminal Code provides that if a law that creates an offence provides that absolute liability applies to a particular physical element of the offence: (a) there are no fault elements for that physical element; and (b) the defence of mistake of fact under section 9.2 is unavailable to that physical element. But other defences are available.

[13]Criminal Code, s. 119.2(3).

[14]Criminal Code, s. 119.2(3); Criminal Code, s. 13.3: An ‘evidential burden’ is defined as the burden of adducing or pointing to evidence that suggests a reasonable possibility that a matter exists or does not exist.

[15]Criminal Code, s. 119.2(4).

[16]Criminal Code, s. 119.9.

[17]Criminal Code, s. 10.1: intervening conduct or event.

[18]Criminal Code, s. 10.3: sudden or extraordinary emergency.

[19]A ‘listed terrorist organisation’ is an organisation, specified by regulations under section 102.1 of the Criminal Code, where the Attorney-General is satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or advocates the doing of a terrorist act. ‘Engage in a hostile activity’ is defined at section 117.1 of the Criminal Code.

[20]Criminal Code, s. 119.3(2A).

[21]Criminal Code, s. 119.3(2).

[22]Criminal Code, s. 119.3(4).

[23]Criminal Code, s. 119.3(5).

[24]Criminal Code, s. 119.3(5A).

[25]Criminal Code, s. 119.3(4)(b).

[26]Criminal Code, s. 119.3(3).

[27]Criminal Code, s. 119.3(7).

[28]Criminal Code, s. 119.3(8).

[29]Criminal Code, s. 119.2(6).

[30]Parliamentary Joint Committee on Intelligence and Security (PJCIS), Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, 17 October 2014, pp. xv–xvi.

[31]Commonwealth of Australia, Independent National Security Legislation Monitor, Declared Areas, p. 38.

[32]PJCIS, Review of the ‘declared areas’ provisions, February 2018, p. xii.

[33]This included through non-legislative amendments to the Government’s protocol for declaring an area: see Australian National Security, ‘Protocol for declaring an area’, https://www.nationalsecurity.gov.au/what-australia-is-doing/places-you-cant-go/protocol-for-declaring-an-area, viewed 19 June 2024.

[34]PJCIS, Advisory Report on the Counter Terrorism Legislation Amendment Bill (No. 1) 2018, June 2018, p. 8.

[35]PJCIS, Review of ‘Declared Areas’ Provisions, February 2021, p. xi.

[36]Australian Government Response to the Parliamentary Joint Committee on Intelligence and Security report Review of ‘Declared Area’ Provisions: Sections 119.2 and 119.3 of the Criminal Code, 4 August 2021.

[37]PJCIS, Review of the declaration of al-Raqqa province, Syria, March 2015; PJCIS, Review of the declaration of Mosul district, Ninewa province, Iraq, May 2015; PJCIS, Review of the re-declaration of Mosul District, Ninewa Province, Iraq, June 2018.

[38]PJCIS, Review of the re-declaration of Mosul District, Ninewa Province, Iraq, June 2018, p. 14.

[39]See Australian National Security, ‘Protocol for declaring an area’, https://www.nationalsecurity.gov.au/what-australia-is-doing/places-you-cant-go/protocol-for-declaring-an-area, viewed 19 June 2024.

[40]Most recently, see Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2024, 15 May 2024, p. 6; Parliamentary Joint Committee on Human Rights, Human rights scrutiny report: report 3 of 2024, 17 April 2024, p. 9.