2.1
In fulfilling its obligation to review the operation, effectiveness and implications of the ‘declared areas’ provisions, the Committee considered the following matters:
the current and evolving international security threat environment;
the purpose of, and the necessity for, the provisions;
the operation and effectiveness of the provisions, with reference to their usage to date and their deterrent effect;
the intersection of the provisions with human rights and civil liberties; and
proposed additional exceptions for legitimate travel to declared areas.
2.2
In conducting its review, the Committee also took into account the current and future uncertain geopolitical environment exacerbated by the COVID-19 global pandemic. The Committee acknowledges that global recessions, political tension and the eventual reversal of travel preventions could very quickly have an effect on the global threat environment. The Committee has taken this into account when making recommendations.
Current and evolving security threat
2.3
Government agencies stated that the current level of terrorism remained at ‘probable’, where it has sat since 2014.
2.4
According to the Australian Security Intelligence Organisation (ASIO), the volatility in the security environment globally is increasing. ASIO believes that the threat environment is potentially being exacerbated by COVID-19 in terms of the isolation, economic downturn, and the ability of groups to mobilize in this period. ASIO remains concerned that there are circumstances where a prescribed terrorist organisation could occupy and carry out hostilities in an ungoverned space.
2.5
ASIO noted terrorist hotspots which could see an increase in activity going forward. These areas include Libya, Yemen, Somalia, the Philippines, as well as the Middle East more generally. Further, ASIO is concerned about the rise of far-right extremist ideologies and are closely monitoring whether or not groups meet the criteria to be prescribed as terrorist organisations under the current legislation.
2.6
Despite COVID-19 border restrictions limiting movement of people, according to the relevant Government Agencies, the declared areas provisions are still necessary in the current global strategic context. The nominal defeat of the Islamic State Caliphate in Syria and Iraq has not reduced the ongoing threat from foreign terrorist fighters to the Australian community.
Purpose and necessity
2.7
The Deputy Counter-Terrorism Co-ordinator, Department of Home Affairs, stated that the declared areas provisions allow for the prosecution of foreign terrorist fighters and their associates on their return to Australia, where it can be proven that the person was in a specified region without legitimate reasons, where listed terrorist organisations were engaged in hostile activities.
2.8
The Deputy Counter-Terrorism Co-ordinator further stated that the provisions also act as a potential deterrent to prevent Australians from travelling to areas where terrorist organisations are active, unless they have a legitimate purpose to do so.
2.9
In its submission, the Australian Federal Police (AFP) stated that:
The offences continue to form a necessary part of the suite of powers available to the AFP and law enforcement partners to combat terrorism. The AFP considers that the provisions should be retained.
2.10
ASIO assessed that since 2012, approximately 230 Australians travelled to Syria and Iraq to engage in activity in support of either the Islamic State or other groups. ASIO believed 100 of that number are deceased, 40 have returned and approximately 80 remain in the area including in detention camps.
2.11
The Government submission stated that Australians currently or previously in the conflict zones may seek to return to Australia either directly or by transiting through third countries. These individuals may return with enhanced capabilities which could be used to facilitate or support terrorist acts in Australia.
2.12
The Government submission acknowledged that the use of offence provisions under section 119.2 of the criminal code has been limited. However, they argued it is a necessary part of the countering terrorism toolkit, as it allows for prosecution of suspected terrorists in circumstances where it is challenging to collect evidence relating to intention elements. This is often a challenge in conflict zones.
2.13
The Deputy Director of the Commonwealth Director of Public Prosecutions (CDPP) noted that a revocation of the declared areas provisions would not prevent prosecution of cases where the person was deemed to illegitimately be in a declared area while the provisions were in force.
2.14
The above fact is one of the reasons why the Law Council of Australia and the Australian Human Rights Commission (AHRC) asserted that the declared areas provisions should be allowed to sunset.
2.15
While the Law Council and the AHRC did not oppose, in principle, “the enactment of laws that place some limitations on the freedom of movements of individual Australians, to prevent people from engaging in terrorism-related activities in foreign countries,” they did not agree that the declared areas offence was necessary or proportionate enough to warrant its continuation.
Operation and effectiveness
2.16
To date, there has been one charge made under the section 119.2 offence provisions. This person was not ultimately prosecuted for the offence as he pleaded guilty to an offence under section 119.1 of the Criminal Code Act 1995 which carried a higher penalty.
2.17
According to the CDPP, the offender pled guilty to a section 119.1 offence relating to engaging in hostile activities. As this offence resulted in more serious penalties, he was ultimately not convicted of the declared areas charge.
2.18
As of August 2020, the AFP had 20 outstanding arrest warrants that included a charge of entering or remaining in a declared area. All of those warrants related to individuals who remained overseas. The AFP advised the Committee that it knew where all of the subjects of the 20 warrants were located, that they were predominately in Syria and that most of them were in detention.
2.19
The Deputy Commissioner of Investigations in the AFP stated that there are eight arrest warrants in place for persons that may return from conflict zones, where the only charge able to be listed is entering into or remaining in, a declared area.
2.20
All these instances could be prosecuted regardless of whether the provisions remain in place going forward. As such, there has been some discussion of whether the provisions are now redundant in the wake of similar and more recently introduced counter terrorism powers.
2.21
The President of the Law Council of Australia stated, if the intention is to capture criminal and terrorist activity, as opposed to innocent activity, there are sufficient other laws in place:
There are a range of new preventative and disruptive powers that have been brought into play since the enactment of the declared areas regime in 2014. Taken together all of those would mean that the declared areas regime is neither necessary nor proportionate.
2.22
As an example, the Law Council noted that the ability to cancel passports and travel documents on the basis of a reasonable suspicion someone may be intending to travel to a conflict zone to engage in hostile activities.
2.23
In conclusion, the Law Council reiterated:
It’s simply a redundant law that doesn’t achieve its goals and criminalises a large number of activities that aren’t intended to be criminalised, with the only fall back being that we wouldn’t prosecute them, even though there’s all the activity that is criminalised.
2.24
The International Commission of Jurists Victoria agreed with the Law Council of Australia, and submitted that the foreign incursion offences under section 119.1 and 119.4 of the Criminal Code Act, and the membership or support provisions in Part 5.3 Division 3 address the same intended criminal activities and serve the same preventative function as the declared areas provisions.
2.25
The Australian Federal Police (AFP) said that the declared areas provisions are not redundant. According to the AFP, the provisions allow a person returning from a declared area to be charged with the offences when they are assessed to be a threat to the community, but where it has been difficult to obtain evidence that would result in a charge or prosecution for a more serious offence.
Civil liberties and human rights
2.26
A concern for non-government inquiry participants was the impact the offence provisions have on various freedoms, and it may criminalise otherwise legitimate actions.
2.27
Dr Nicola McGarrity and Professor George Williams AO, from UNSW Sydney, stated that the declared areas offence makes a considerable incursion into Human Rights. According to the academics, the limited use of section 119.2, and the fact that the only charge under the provisions was not ultimately prosecuted, means that the impact on civil liberties is neither proportionate nor necessary.
2.28
The academics noted that the provisions are meant to deter travel with the intention of joining a terrorist organisation or commit a hostile offence. However, they stated that the provisions go further, and criminalise the mere act of travel, without the proof of engagement, or intention to engage, with extremism in any form.
2.29
The AHRC agreed that the criminalisation of freedom of movement without having committed any other offence is not sufficiently justified in the case of the section 119.2 provisions.
2.30
As such, the AHRC believed the provision may infringe impermissibly on article 12 of the International Covenant on Civil and Political Rights (ICCPR) (freedom of movement) and on other rights such as the right to family life, which is protected by article 23 of the same charter.
Proposed exemptions
2.31
When considering proposed additions to the list of exceptions, the Attorney-General’s Department stated that careful consideration would need to be given to ensure new exceptions do not risk undermining the objective of the offence. The Department defined this purpose as deterring travel unless absolutely necessary.
2.32
In his September 2017 report, the Independent National Security Legislation Monitor (INSLM) recommended that consideration be given to allowing individuals to “seek permission from the Minister for Foreign Affairs to enter into and remain in a declared area for such a period and on such conditions as the minister may choose to impose.” As such, while the INSLM suggested a permission system in his report in 2017, other organisations to this inquiry suggested expansions to the list of the legitimate exceptions.
2.33
The Law Council’s primary recommendation was that the provisions should be allowed to sunset in 2021. However, should that not be agreed to, it proposed two additional exceptions: where a person travels to, or remains in, a declared area for the purposes of a bona fide, necessary and urgent business to protect legitimate businesses; and for providing legal advice to an Australian detained in a declared area.
2.34
The Attorney Generals Department’s view was that there would be difficulties incorporating these two proposed exceptions in an appropriately limited way to ensure that the offence continues to achieve its intended effect, while ensuring clarity as to its operation for potential travellers and the courts.
2.35
According to the Attorney General’s Department, they, alongside relevant agencies, “will continue to consider the need for additional exceptions at such time when it becomes apparent that there are further legitimate reasons for travel to a declared area, that are not addressed by the existing exceptions.”
2.36
The Law Council of Australia expressed the concern that the narrow scope of the exemptions are disproportionate to the breadth of the offence, especially as there are significant numbers of Australians with connections to countries that could be subject to a declaration under schedule 119.3.
2.37
The Law Council stated that offences under section 119.2 may conflict with Article 14(2) of the ICCPR which provides for the presumption of innocence as part of the right to a fair trial. According to the Law Council, the provisions place a possibly insurmountable evidential burden on the defendant to ‘prove a negative’ in the context of a limited exception in a foreign conflict zone.
2.38
The United Kingdom’s (UK) designated area provisions came into effect from 12 April 2019. The provisions allow the Foreign Secretary to designate an area outside the UK that is associated with a risk of terrorism. This makes it an offence for UK nationals to enter a designated area without a reasonable excuse, or for a non-exempt purpose.
2.39
Unlike the Australian provisions, the UK legislation permits travel to visit a terminally ill relative, attend a funeral; provide care for a family member or another reasonable excuse. The provisions are not retrospective so will therefore be used for future conflicts.
Committee comment
2.40
The possible economic and security fall outs from COVID-19 mean that the Committee is disinclined to allow a provision to sunset at a time when international borders may be reopening.
2.41
While the Committee acknowledges the limited use of the offence and the fact that there are no current declared areas, the Committee believes it would not be prudent to repeal these provisions during a period of great uncertainty.
2.42
As such, Committee recommends extending the life of the provisions by a further three year period, to sunset on 7 September 2024, and that the Committee may review the operation, effectiveness and proportionality of the provisions by 7 January 2024.
2.43
This will allow for reassessment of the provisions after the geopolitical, economic and political outcomes of COVID-19 begin to be felt, which should provide clarity on whether these provisions remain a necessary measure.
2.44
The Committee recommends that section 119.2 and 119.3 of the Criminal Code Act 1995 be extended a further three years, with a new sunset date of 7 September 2024.
2.45
The Committee recommends that the Criminal Code Act 1995 be amended to provide that the Parliamentary Joint Committee on Intelligence and Security may review the operation, effectiveness and proportionality of the ‘declared areas’ provisions prior to the new sunset date.
2.46
The Committee notes the evidence received from civil society organisations regarding the proportionality of the ‘declared areas’ provisions and the government’s response that these provisions remain an important measure to combat threats.
2.47
Therefore, the Committee would welcome the government providing a briefing to the Committee within 18 months of the tabling of this report on the proportionality and necessity of provisions 119.2 and 119.3 of the Criminal Code Act 1995.
2.48
The Committee recommends that, within 18 months of tabling this report, the Parliamentary Joint Committee on Intelligence and Security receive a briefing, from relevant government agencies on the use, proportionality and effectiveness of provisions 119.2 and 119.3 of the Criminal Code Act 1995.
Permits to travel to a declared area
2.49
Following recommendations in the INSLM’s 2017 Report, the Committee believes there is merit in implementing a regulation under the provisions allowing Australian Citizens to apply to the Minister for Foreign Affairs for permission to travel to a declared area in special circumstances.
2.50
These exemptions could be applied for reasons that are otherwise legitimate under Australian law, but are not prescribed exceptions under section 119.2, for example, assisting an elderly family member to relocate out of a conflict zone.
2.51
This may remove the need to extend the exceptions, and allow the government to consider applications based on merit and a relevant security threat assessment, allowing more oversight of Australians overseas in potentially dangerous situations than for which the legislation currently provides.
2.52
In the cross-agency submission, the Government Agencies noted that declared areas are also ‘do not travel’ zones, and permitting travel in this way would be contrary to the Governments own policy. Further, the agencies noted that there would be significant practical difficultly in monitoring compliance.
2.53
The Committee considers providing an avenue for people, with legitimate reasons to travel, to request an exemption upon which the Minister for Foreign Affairs could decide to impose conditions (for example, regular contact with the closest embassy), would likely be significantly easier to manage than people traveling to a declared area under a current exception. If an applicant with an approval permit does not comply with the terms of their exemption, they could also be charged under section 119.2 or other relevant offence provision.
2.54
Further, the Minister for Foreign Affairs, on advice from the Attorney-General and the Minister for Home Affairs, would have the ability to reject an application based on the reason or security situation in the area where travel is intended.
2.55
The Committee considers this method of providing individual exceptions to travel would be less burdensome than trying to list every possible reason a person may legitimately need to travel to a declared area. The Committee believes regular applications would be unlikely, as there are no current declared areas, and unlikely to be any in the near future, given COVID-19 restrictions on travel.
2.56
The Committee recommends that the Criminal Code Act 1995 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.
The Committee recommends that the Minister for Foreign Affair’s decision is not subject to merit review.
Senator James Paterson
Chair
18 February 2021