- Consideration of the Bill
- As outlined in Chapter 1, the effect of the Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024(the Bill) would be to:
- extend for a further three years the offence contained within section119.2 of Schedule 1 of the Criminal Code Act 1995 (Criminal Code), to 7 September 2027;
- insert a sunsetting provision on the power for the Minister for Foreign Affairs to declare an area for the purpose of the offence in section119.2 of the Criminal Code, which would also cease to have effect on 7 September 2027; and
- amend the Intelligence Services Act 2001 (IS Act) to repeal the provision for review by this Committee in paragraph29(1)(bbaa).
- The Bill does not propose to amend the scope or operation of the declared areas provisions in any respect but it would continue their operation for a further three years. As such, much of the evidence provided to the Committee focused on the overall desirability of the declared areas provisions, including whether they should be allowed to sunset or to be renewed. Some evidence offered views on how, if continued, the provisions should be amended.
- The other substantive change proposed in the Bill is the removal of the explicit authority for the Committee to conduct a statutory review and report to Parliament on the operation, effectiveness and proportionality of the declared areas provisions, prior to their future sunsetting dates.
- This chapter examines the evidence received in relation to each of the proposed amendments contained in the Bill.
Section 119.2: the offence of entering, or remaining in, declared areas
2.5Currently, the declared areas offence in section 119.2 of the Criminal Code is due to cease operation on 7 September 2024. Schedule 1, Item 1 of the Bill would amend the sunset date contained in subsection 119.2(6) of the Criminal Code from 7September 2024 to 7 September 2027. The effect of this would be to continue the operation of the declared areas offence for another three years.
2.6As detailed in Chapter 1, subsection 119.2(1) sets out the offence of entering, or remaining in, declared areas, including the elements that must be proved to be found guilty of the offence. Subsections 119.2(3)–(4) of the Criminal Code set out, by way of exceptions, several legitimate purposes for which a person may enter, or remain in, declared areas without committing an offence. In addition to these specific exceptions, a person may also rely on the general defences set out in Part 2.3 of the Criminal Code.
Necessity of declared areas provisions
2.7The Attorney-General’s Department, the Australian Federal Police (AFP), the Australian Security Intelligence Organisation (ASIO) and the Department of Foreign Affairs and Trade (DFAT) all submitted that the declared areas provisions remain a necessary and proportionate part of Australia’s counter-terrorism laws. The Attorney-General’s Department stated in its submission to this inquiry:
The declared areas provisions in the Criminal Code are an important part of the Australian Government’s efforts to stop the flow of foreign fighters, and mitigate the risk they pose to Australia on their return.
2.8The AFP submitted that there is still a need for the declared areas provisions and that they ‘remain appropriate and proportionate in the current terrorism threat environment’.
The AFP continues to be concerned that individuals who travel, without any legitimate purpose, to areas where terrorist organisations are engaging in hostile activities, present a threat to Australia and Australians (both domestically and overseas). In particular, there is a risk that such individuals may develop enhanced capabilities, connections to terrorist organisations, and/or an ideology and motivation to cause harm to Australians. The provisions at sections 119.2 and 119.3 of the Criminal Code Act 1995 (the declared area provisions) create a mechanism that can be used to deter Australians from travelling to such areas.
2.9The AFP submitted that despite there being no areas declared at present, ‘the existence of the declared area provisions ensures the Government is able to pivot quickly to address emerging risks’. Similarly, ASIO submitted that the security environment remains ‘complex, challenging and changing’:
The National Terrorism Threat Level is POSSIBLE and terrorism remains a real and pervasive threat. In this regard, ASIO acknowledges that the declared areas offence is a necessary and proportionate tool to manage the terrorist risk to Australia in the current threat environment.
2.10The Committee inquired about whether any conversations were presently underway within ASIO or the Government about using the declared areas provisions, making reference to the current situations in southern Lebanon and Gaza. ASIO advised that, while at the time of the hearing it had not received a formal request for advice on any particular areas it might consider ‘worthy’ of being declared under section 119.3 of the Criminal Code, ASIO was aware of ‘general conversations’ regarding the declared areas provisions within the Government.
2.11While emphasising that ASIO’s role was providing advice to Government, not instigating or making its decisions about declarations, Director-General of Security Mr Mike Burgess considered that there was a ‘very real possibility’ that the provisions may need to be used to declare an area in the future:
If we look at our security environment and what’s happening globally, we continue to keep a close eye on developments in Afghanistan, further into the Middle East and in Africa. We could well see the need to have the government call on this [the declared areas provisions] in terms of our toolkit to respond to the terrorist threat in the future. It’s a very real possibility.
2.12The Attorney-General’s Department submitted that the declared areas provisions serve a dual purpose: to disrupt and prosecute returning foreign fighters and to deter Australians from traveling to conflict zones overseas where terrorist organisations are operating. The Department’s submission explained:
The declared areas offence was designed to fill a crucial gap in the disruption and prosecution of returning foreign terrorist fighters by reducing the ability of offenders to contribute to conflict in foreign countries. It was also designed to deter persons from travelling to conflict zones overseas where a listed terrorist organisation is engaged in a hostile activity.
Prosecution of returning foreign terrorist fighters and their associates
2.13As at the time of this report, four Australians had been charged under the declared areas offence.These constituted a small proportion of the 168 people charged with terrorism offences since 2014, including 37 persons charged with offences related to travel or activity overseas.
2.14The AFP provided additional details about the four individuals charged:
Of the four charged, one was convicted of the declared area offence and is also subject to other charges and convictions. … one had the charge withdrawn and was subject to other offences. Of the two matters before the court, one of those matters in addition to the declared area offence has other offences for which they are being prosecuted, which leaves, of course, by deduction, one person whose only conduct was the declared area offence.
2.15The Law Council of Australia (Law Council) and the Australian Human Rights Commission (AHRC) both submitted that the declared areas provisions should be allowed to sunset on 7 September 2024 because the offence is no longer a necessary nor proportionate response to the security threat presented by foreign terrorist fighters.
2.16DFAT and the Attorney-General’s Department both submitted that the limited use of the provisions to date was an indication of their exceptional nature and judicious use, rather than an indication of a lack of utility. DFAT stated:
The declared areas provisions are used infrequently, and only four Australians have been charged under the declared areas offence to date. They remain an important element of Australia’s counter-terrorism policy response however. Having this framework available, should it be required, allows the Government to respond to evolving circumstances in an appropriate and measured way. The limited use of the declared areas provisions is reflective of its exceptional nature and the judicious use of the powers.
Deterring Australians from travelling to dangerous locations
2.17In addition to the prosecution of returned foreign terrorist fighters, the declared provisions also seek to deter Australians from travelling to dangerous locations in the first place. Australians who have travelled to areas where terrorist organisations have been operating can pose a serious risk to Australia’s national security, as the Attorney-General’s Department submitted:
Persons who return from a declared area could return with enhanced capabilities, skills, expertise and knowledge; and the ideology and motivation to facilitate acts of terrorism or related harms in Australia, thereby endangering the Australian community. Persons returning from a declared area may have developed or maintained connections with other violent extremists in different parts of the world. The enduring power of violent extremist ideologies means that some behaviours, connections or networks may only emerge in the future. The seriousness of the threat posed by these individuals will depend on their experiences, capability, ideology at the time of their return and in future, and their inclination to participate in or support violence in Australia.
2.18The Attorney-General’s Department explained the importance of deterrence as an additional purpose of the declared areas offence:
Where this deterrent effect is realised, it reduces access to training, tools and motivation to carry out terrorism offences in Australia, and protects Australians by preventing them from travelling to a dangerous area without a legitimate purpose.
2.19According to DFAT, there is still a risk Australians want to travel offshore to fight.
Despite the defeat of the self-declared caliphate of the Islamic State of Iraq and the Levant (ISIL) in 2019, the potential for Australians to travel offshore to fight for or engage with a terrorist organisation continues to be a focus for our national security agencies. The declared areas provisions in the Criminal Code are critically important to these agencies’ efforts to manage the risk foreign fighters pose to Australia.
2.20The Attorney-General’s Department, the AFP, DFAT and ASIO all considered the declared areas provisions to have effectively deterred Australians from travelling to conflict zones. According to the Attorney-General’s Department:
There was a significant reduction in Australians travelling to the Syria/Iraq conflict zone after the declarations were made. The [declared areas] provisions are likely to have contributed to discouraging people who might otherwise have considered entering Mosul and al-Raqqa while the respective declarations were in effect, and discouraging parents from taking their children into those areas.
2.21The Committee queried how this reduction could be attributed specifically to the declared areas provisions given they were introduced as part of a suite of counter-terrorism offences and reforms. The Director-General of Security, Mr Mike Burgess, said that this conclusion was in part informed by what ASIO had observed in its work:
In part, that would be driven by our investigative subjects, the cohorts we are watching under our powers, and seeing them make different decisions based on areas being declared and how the Government and its entire toolkit in responding to this incident is being executed.
Nature and proportionality of the declared areas offence
Criminalising ‘mere presence’ in a place
2.22Division 119 (foreign incursions and recruitment) of the Criminal Code—in which the declared areas provisions appear—establishes several other foreign incursion offences, but these offences require law enforcement to establish factors such as the intention behind a person’s travel or the activities that a person actually engaged in while offshore. For example, subsection 119.1(1) criminalises entering a foreign country with the intention of engaging in hostile activities and subsection 119.1(2) criminalises the act of engaging in a hostile activity in a foreign country.
2.23According to the Attorney-General’s Department, the need to only prove intent to enter a defined area and not an intention to engage in a terrorism-related act is part of the justification for the declared areas offence. The Department advised that the offence is drafted in this manner to allow ‘for the prosecution of suspected terrorists in circumstances where it is challenging to collect evidence relating to the intention elements of more serious terrorism offences, including in conflict zones’. These factors can be difficult to establish given the challenges with obtaining admissible evidence from other jurisdictions or from ungoverned spaces such as active conflict zones.
2.24Acting Assistant Commissioner Stephen Nutt of the AFP described the difficulties of gathering evidence from a declared area:
It's extremely tricky and extremely challenging. … when we’re talking about ungoverned spaces, which generally fit the characteristic of a declared area, there are no formal mechanisms through which we can collect evidence in the usual way—through the other usual international cooperation mechanisms.
2.25Mr Nutt indicated that many of the same evidence collection difficulties faced for related terrorism offences also existed when investigating declared areas offences. Mr Nutt provided an example of a charge under section 119.2 being withdrawn due to ‘insufficient evidence available to proffer a conviction’.
Proportionality of the offence and the changed security context
2.26Under international human rights law, limitations on human rights are considered permissible so long as they are expressed in clear and unambiguous terms, are necessary to advance a legitimate objective, and are reasonable, necessary, and proportionate to achieving that legitimate objective. The legitimate objective of the declared areas offence was described in the Bill’s Statement of Compatibility with Human Rights as
protecting Australia’s national security interests, deterring Australians from travelling to dangerous conflict areas where listed terrorist organisations are engaged in hostile activity, and protecting children by discouraging their parents and guardians from taking them to declared areas.
2.27None of the evidence provided to the Committee called into question the legitimateness of this objective but some evidence did dispute whether the declared areas provisions remained necessary or proportionate to achieving it. The Law Council and the AHRC submitted that the declared areas provisions and the resultant restrictions on human rights are no longer proportionate to the pursuit of that objective, owing to the changed security environment.
2.28When the declared areas provisions were introduced in 2014, then Attorney-General Senator George Brandis QC described the risk posed by returning foreign fighters as ‘one of the most significant threats to Australia’s national security in recent years’ and stated:
While this is not the first time Australians have been involved in overseas conflicts, the scale and scope of the conflicts in Syria and Iraq, and the number of Australians presently involved, is unparalleled and demands specific and targeted measures to mitigate this threat.
2.29ASIO submitted that, although the security environment had changed since the offence was introduced in 2014, ASIO still considered the declared areas provisions to be necessary and proportionate:
While there are currently no areas declared, the security environment remains complex, challenging and changing. The National Terrorism Threat Level is POSSIBLE and terrorism remains a real and pervasive threat. In this regard, ASIO acknowledges that the declared areas offence is a necessary and proportionate tool to manage the terrorist risk to Australia in the current threat environment.
2.30Similarly, the AFP considered it appropriate to retain the offence to enable Australia to respond to any emerging situations:
Overseas conflicts and terrorist groups operating offshore can change and escalate quickly, and the continued existence of the framework ensures that the government is able to pivot quickly to address emerging situations.
2.31In addition to the changed threat landscape, the Law Council submitted that when the declared areas provisions were introduced, there was ‘understandable uncertainty about the adequacy of tools’ available to combat the emerging threat. The Law Council argued that that is no longer the case, because Australia’s counter-terrorism legislative posture has matured and there is now a range of established counter-terrorism tools available which are better tailored to combat future terror risks.
2.32The Attorney-General’s Department, when asked about the role of these additional powers and offences available to the Government, stated:
Yes, there are other powers. It is part of having a framework. These are complex and difficult problems, and it’s important we have something suited to the various aspects of that. … We’re talking about criminal offences, and these are filling a clear legislative gap where the foreign incursion offences, the other ones in Division 119, require proof of the activities undertaken in those areas. We heard just before from the AFP and ASIO about the difficulties in doing that, and therefore the role these offences can play to contribute to that broader framework.
Exemptions and defences to the offence
2.33Currently, a person will not be criminally liable for the offence of entering, or remaining in, a declared area if they can demonstrate they were there solely for one or more of the ‘legitimate purposes’ listed in subsection 119.2(3) of the Criminal Code. These are in addition to the general defences to criminal liability contained in Part 2.3 of the Criminal Code.
2.34As outlined in Chapter 1, there are currently eight specific ‘legitimate purposes’ in the Criminal Code for which a person may enter or remain in a declared area without committing an offence. The legislation also allows for other legitimate purposes to be prescribed by regulations. There are no regulations currently in place nor have any ever been made.
2.35The Law Council submitted that the structure of the offence in section 119.2 is problematic because it combines a very broad offence with only a narrow ‘sole legitimate purpose’ exception. The Law Council argued that this creates a disproportionate limitation on the right to freedom of movement under Article 12 of the International Covenant on Civil and Political Rights.
2.36However, the Attorney-General’s Department stated that this construction of the offence was deliberate because ‘the circumstances in which a person would legitimately travel to a declared area are by nature narrow’, and that such a construction is consistent with Australia’s criminal law policy:
There’s a strong preference for relying on the general defences in the Criminal Code or, where they are not appropriate, having very specific defences articulated alongside the offence.
2.37Nevertheless, the Law Council and the AHRC both recommended expanding the scope of the legitimate purposes defence contained in subsections 119.2(3)–(4). The AHRC made three recommendations in the event its primary recommendation—that the offence be repealed—was not accepted:
- The exception contained in section 119.2(3) should be amended so that section 119.2(1) does not apply to a person if that person enters, or remains in, an area solely for a purpose or purposes not connected with engaging in hostile activities (AHRC Recommendation 3).
- If the above recommendation is not accepted:
- the list of legitimate reasons for travel to declared areas in section 119.2(3) should be expanded to be made as comprehensive as possible to include, for instance, visiting friends, transacting business, retrieving personal property and attending to personal or financial affairs; and
- section 119.2 should be amended so that it is a defence to a charge of entering or remaining in a declared area if a person establishes they were in a country for a purpose other than engaging in a hostile activity (AHRC Recommendation 4).
- 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 are not otherwise illegitimate under Australian law (AHRC Recommendation 5) (preauthorisation regime).
- Additionally, the Law Council recommended the listed ‘legitimate purposes’ in subsection 119.2(3) should be expanded to include:
- bona fide, necessary and urgent business to protect legitimate business interests domiciled in a foreign country; and
- providing legal advice to an Australian person who is detained in the declared area.
- In its review of the Bill, the Parliamentary Joint Committee on Human Rights also considered that ‘[p]roviding for greater flexibility to allow for travel to a declared area for legitimate purposes would assist with proportionality’.
- However, the AFP considered that the legitimate purpose excuse should remain as drafted for two main reasons:
One is … being able to actually investigate and conduct due diligence around any legitimate purpose that may be raised, so there’s a question of enforceability of any such provision. The second aspect is that it does not sufficiently reinforce the deterrent effect of persons travelling to the region, if there is an increase or broader range of legitimate excuses.
2.41In 2021, the Australian Government rejected the recommendation made by this Committee in 2021 and the Independent National Security Legislation Monitor in 2017 to introduce a provision for prior authorisation of travel, stating:
The Government considers 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.
2.42The reasons for which the Government considered a pre-authorisation regime untenable included:
- insufficient information available to assess an application and whether it was genuine
- significant time and resource impost which would divert resources from other national security priorities
- significant practical difficulties in monitoring and determining whether a person authorised to travel had complied with any conditions to which their travel authorisation was subject
- any declared area would also likely be recommended as ‘do not travel’ destinations by DFAT and it would be contrary to Government travel advice to implement a pre-authorisation regime that would consider whether to permit Australians to travel to such a declaration
- legislation already provides for a range of exceptions and there is provision to regulate for additional exceptions.
The UK ‘designated area’ regime and its ‘reasonable excuse’ defence
2.43The Law Council recommended that the Criminal Code be amended to create a wider ‘reasonable excuse’ defence modelled on subsection58B(2) of the Terrorism Act 2000 (UK). The Law Council submitted that, owing to the declared areas offence’s criminalisation of a person’s mere presence in a declared area rather than their conduct or intended conduct, the general defences in Chapter 2 of the Criminal Code, such as duress, mistake of fact, intervening conduct or lawful authority, would not assist in exculpating a person who was present in a declared area for purely innocent reasons other than those listed in the ‘sole legitimate purpose’ exception. In the Law Council’s opinion, providing defendants with access to a general ‘reasonable excuse’ defence would somewhat ameliorate this problem.
2.44The Law Council also considered that adding such a defence would bring Australia in line with like-minded jurisdictions:
Australia is an outlier among like-minded international jurisdictions in retaining and using a declared area offence that criminalises mere presence. … the United Kingdom offence provision provides a reasonable-excuse defence rather than the limited list of exceptions that appears in the Australian equivalent.
2.45The UK regime also includes a list of ‘significantly expanded exceptions’ to the offence of entering, or remaining in, a designated area and a ‘grace period’ of one month for people who are present in, or are travelling to, an area at the time it becomes designated. A table comparing Australia and the UK’s regimes, provided by the Law Council in 2020, is replicated at Appendix C.
2.46The AHRC also recommended that the United Kingdom’s approach be considered as an alternative recommendation, and that the UK approach should be combined with the pre-authorisation regime in the AHRC’s recommendation 5.
2.47The Attorney-General’s Department considered the reasonable excuse approach to be inappropriate due to the lack of clarity it would introduce into the legislation:
As a matter of general criminal law policy, there’s a preference against having reasonable excuse defences because of the lack of clarity around what is caught. […] It’s not an ideal situation to be in where you’ve got to predict whether a court is going to consider that to be a reasonable excuse or not, so having clearly articulated legitimate reasons is certainly [the Attorney-General’s Department’s] preferred approach.
2.48The AFP also considered that introducing a reasonable excuse provision would ‘weaken’ the declared areas provisions, stating:
There are questions around enforceability on such an approach. It takes away from the deterrent effect of the legislation to help protect people from being in dangerous places in the first place.
2.49The AHRC submitted that in addition to the ‘reasonable excuse’ defence and the list of specific purposes, the other defences in the UK Act should also be incorporated into the Australian offence.
- A one month grace period: subsection 58B(3) provides that a person does not commit an offence of entering, or remaining in, a designated area if
- the person is already travelling to, or is already in, the area on the day on which it becomes a designated area, and
- the person leaves the area before the end of the period of one month beginning with that day.
- Involuntariness: a person does not commit the offence if the person enters, or remains in, a designated area involuntarily.
- DFAT advised that it does not have a specific mechanism for alerting travellers who are in a country where an area has been declared. Following the declarations of al-Raqqa province in 2014 and Mosul District in 2015, the notification processes included a media release and publication of the declarations on the Australian National Security webpage; updated travel advice published to the ‘Smartraveller’ webpage and sent to registered travellers. ‘Smartraveller’ registration no longer exists and is therefore no longer a notification option. In addition the Government developed a travel warning brochure advising potential travellers in both Arabic and English and distributed to community groups and at airports.
Section 119.3: Declaration of areas
2.51Currently, section 119.3 empowers the Minister for Foreign Affairs to declare an area for the purpose of the offence in section 119.2 of the Criminal Code.
2.52Schedule 1, Item 2 of the Bill would provide that section 119.3 also ceases to have effect on 7 September 2027; currently, section 119.3 does not have a sunset provision. The Attorney-General’s Department explained:
This would align the relevant declaration and offence provisions in the Criminal Code, reflecting that there is no utility in empowering the Minister to declare an area, without a mechanism for enforcing the declaration.
2.53Currently, to declare an area under section 119.3 for the purposes of enlivening the offence in section 119.2, the Minister for Foreign Affairs need only be satisfied that ‘a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country’.
2.54A ‘listed terrorist organisation’ is an organisation, specified by regulations under section 102.1 of the Criminal Code, for which 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. There are currently 30 listed terrorist organisations operating around the world.
2.55‘Engage in a hostile activity’ is defined in section 117.1 of the Criminal Code. A person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives, regardless of whether the objective is achieved:
- the overthrow by force or violence of the government of a foreign country;
- engaging in conduct that in Australia would be a serious offence;
- intimidating the public or a section of the public;
- causing the death of, or bodily injury to, a person who is the head of state or holds or performs any of the duties of a public office; or
- unlawfully destroying or damaging any real or personal property belonging to the government of a foreign country.
- The Minister for Foreign Affairs also has recourse to a ‘Protocol for declaring an area’. The Protocol provides guidance on the process for declaring an area for the purposes of section 119.2 of the Criminal Code including a list of non-legislative factors that may be taken into consideration, but do not need to be.
- The AHRC and the Law Council both considered the Minister’s discretion to declare an area solely on this basis too broad. The Law Council stated that the application and enforcement of the declared areas offence is ‘substantially dependent’ on the exercise of discretion by the Minister; this ‘creates an unacceptably high risk of arbitrariness in the operation of the regime’.
- Similarly, the AHRC raised concerns that, for many parts of the world, the ability for an area to be declared solely on the basis of the Minister’s satisfaction that a terrorist organisation is engaging in a hostile activity in that area ‘is a low bar to be met, and so has the potential to “cast the net” too widely’.
- Both the Law Council and the AHRC considered that additional safeguards ought to be put in place to narrow the Minister’s currently broad discretion to declare an area and thus enliven the declared areas offence in section 119.2 of the Criminal Code. The Law Council submitted:
We reiterate support for legislative amendments directed to strengthening the statutory criteria and process by which the Minister for Foreign Affairs may prescribe an area as a ‘declared area’ in section 119.3, and the circumstances in which a declaration must be reviewed by the Minister.
2.60The Law Council reiterated its 2020 recommendations to this Committee that the statutory issuing criterion in subsection 119.3(1) should be supplemented with a further requirement that the Minister must not declare an area unless satisfied, on reasonable grounds, that:
- A listed terrorist organisation has engaged in a substantial hostile act in the declared area;
- Making the declaration is necessary to protect Australia’s national security, and the safety of individual Australians; and
- The effects of making the declaration area are reasonable and proportionate.
- Similarly, the AHRC recommended that section 119.3 of the Criminal Codebe amended so that the Minister for Foreign Affairs may declare an area ‘only if the Minister is satisfied that a listed terrorist organisation is engaging in a hostile activity to a significant degree in that area’. According to the AHRC, that recommendation
recognise[s] the fact that, unfortunately, there are levels of hostile activity occurring in a significant number of places around the world, and that adding a level of precision to this offence assists with the proportionality analysis in terms of assuring that the provision does what it is intended to do, which is to be an extraordinary provision that is only used in the most serious and extraordinary of circumstances.
2.62The Law Council further submitted that declaration of an area should be a matter for parliamentary, not Executive, decision:
the need to publicly denounce the activities of terrorist organisations whose security threat may be linked to control over geographic areas … is the legitimate province of Parliament and should be subject to democratic debate.
2.63The Attorney-General’s Department submitted that there are already appropriate safeguards in place to ‘ensure the declaration and prosecution processes are rigorous’:
- the requirement for the Minister for Foreign Affairs to be ‘satisfied’ that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country ensures that a declaration will not be made in an arbitrary manner
- the requirement for the Minister for Foreign Affairs to arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to a proposed declaration
- Parliament is able to disallow a declaration if it considers this appropriate; and the Committee is able to review a declaration before the end of the disallowance period and at any time a declaration is in effect
- the INSLM reviews Australia’s national security and counter-terrorism law, including the declared areas provisions
- the Commonwealth Director of Public Prosecutions must be satisfied that it is in the public interest to pursue a prosecution; and the Attorney-General’s consent is required prior to the institution of proceedings in respect of offences in relation to the declared area
- the regular sunsetting of the declared areas provisions provides an additional point of review and means the provisions are only in place for a finite time.
Repealing paragraph 29(1)(bbaa) of the IS Act
2.64Section 29 of the Intelligence Services Act 2001 (IS Act) sets out the Committee’s functions. Currently, paragraph 29(1)(bbaa) of the IS Act states it is a function of the Committee—
if the Committee resolves to do so—to review, by 7 January 2024, the operation, effectiveness and proportionality of sections 119.2 and 119.3 of the Criminal Code (which provide for declared areas in relation to foreign incursion and recruitment).
2.65Schedule 1, Item 3 of the Bill would repeal paragraph 29(1)(bbaa) of the IS Act.
2.66The date for review has passed and therefore the provision in its current form is obsolete. The Bill does not propose a replacement provision to continue this function of the Committee. The Explanatory Memorandum (EM) to the Bill states:
The Intelligence Services Legislation Amendment Bill 2023, which is currently before the Parliament would empower the PJCIS to review these provisions before they sunset, ensuring that due consideration is given to the continued utility of the provisions.
2.67While the Intelligence Services Legislation Amendment Bill 2024 as presented to Parliament would not affect the Committee’s ability to review a declaration made under section 119.3 of the Criminal Code, and would vest in the Committee an ‘own-motion’ power for legislative review which could enable the legislative scheme to be reviewed in future, some witnesses expressed concern over the removal of a specific statutory prompt for the review of the declared areas provisions. The AHRC stated:
The commission's view is that having those mandated reviews set out in legislation is a really useful prompt for committees that are structured to look at these particular issues. They are reminded and prompted by the legislation to do so, so we think there is some real value in that timetable coming up in the Intelligence Services Act or in another appropriate piece of legislation. We note this particular hearing wasn't mandated by legislation and so was prompted by the bill amending the sunset clause. There is some room for that still to happen even if it is not embedded in the legislation, but we think embedding those sorts of timetables in the legislation is a really useful safeguard.
2.68Similarly, in its submission the Law Council also expressed support for maintaining a specific legislative prompt to review these provisions before sunsetting.
We have long argued for giving this Committee a general mandate to review any counter-terrorism or national security legislation prior to its sunsetting. However, that general function is no substitute for a specific legislative prompt to justify the continued necessity and proportionality of this exceptional scheme prior to its next sunsetting date in September 2027. That is because, given the significant demands already placed on this Committee, it is possible that the declared areas regime (which has been rarely used in practice) will not be reviewed prior to the next sunset in September 2027 and will be renewed without scrutiny. In our experience, a specific legislative prompt for review can trigger reassessments of necessity.
2.69The Senate Standing Committee for the Scrutiny of Bills also supported the retention of a mandatory review requirement in the legislation.
The committee is of the view that providing for a discretion for a review to be conducted of the continued appropriateness of such measures rather than mandating such a review may operate so as to impact the efficacy of parliamentary scrutiny of the exercise of legislative power.
2.70In addition, the Law Council recommended the need for another review by the INSLM because at the time of the INSLM’s 2017 review the offence provision had not yet been used. Furthermore, the principal recommendation of both the INSLM’s 2017 report and this Committee’s 2021 report (to introduce a pre-authorisation regime) has been repeatedly rejected by the Government. The Law Council submitted that due to this there is a need to review the necessity and proportionality of the scheme afresh, and therefore recommended that section 6 of the Independent National Security Legislation Monitor Act 2010 should be amended to require that the declared areas regime be subject to review by the INSLM prior to any future renewal in September 2027.