Purpose of the Bill
The Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024 (the Bill) amends the Criminal Code Act 1995 (Criminal Code) and the Intelligence Services Act 2001 to extend the operation of the declared areas provisions of the Criminal Code for a further three years. These provisions were due to cease operating on 7 September 2024. The Bill will extend that date to 7 September 2027.
The declared areas provisions provide the Minister with the power to declare certain areas of a foreign country where a listed terrorist organisation is engaging in a hostile activity, making it an offence to enter or remain in the area without a legitimate reason. These powers are intended to discourage people from entering declared areas without legitimate reason to disrupt the return of people who have been involved in terrorist related foreign fighting.
Structure and provisions of the Bill
The Bill consists of one schedule with 3 amending items.
Items 1 and 2 amend the Criminal Code to extend the sunset date for the declared area provisions.
Section 119.2 currently sets out the offence of entering, or remaining in, declared areas. Subsections 119.2 (3)-(5) set out, by way of exceptions, several legitimate purposes for which a person may enter, or remain in, declared areas. The Minister may, under section 119.3, by legislative instrument, declare an area in a foreign country to be a declared area for the purposes of this offence if they are satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country. Subsection 119.2(1) provides that the offence attracts a penalty of imprisonment for up to 10 years. The offence applies to Australian citizens, residents, visa holders or others under Australian protection. Subsection 119.2(6) is the sunset provision for the section, and currently states that the section ‘ceases to have effect at the end of 7 September 2024’.
Item 1 would omit ‘2024’ from subsection 119.2(6) and replace it with ‘2027’, extending the declared area offence for three years.
Item 2 would insert a sunset provision, proposed subsection 119.3(9), into section 119.3 so that the Minister’s power to declare an area under section 119.3 would sunset at the same time as the related offence in section 119.2.
Item 3 amends the Intelligence Services Act 2001 to repeal paragraph 29(1)(bbaa) which is now obsolete due to the passage of time. This paragraph currently provides that one of the functions of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) is that the Committee may resolve to ‘review, by 7 January 2024, the operation, effectiveness and proportionality of sections 119.2 and 119.3 of the Criminal Code’.
The Explanatory Memorandum for the Bill notes that the Intelligence Services Legislation Amendment Bill 2023, currently before Parliament, would introduce an updated power for the PJCIS to review the provisions before their proposed sunset date of September 2027 by inserting a general power to ‘review and inquire into any proposed reforms to, or expiry, lapsing or cessation of effect of, legislation relating to counter-terrorism or national security, as the PJCIS sees fit’.[1]
Background and issues
The declared areas provisions were inserted into the Criminal Code in 2014, as sections 119.2 and 119.3 within Division 119—Foreign incursions and recruitment. The sections were inserted by the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014. The Bill for this Act, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (‘the 2014 Bill’), when first introduced, had proposed a sunset date for the declared areas provisions of ten years. However, this was amended to provide an initial sunset date of September 2018 in response to a recommendation of the PJCIS in its Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Recommendation 20, page xvi).
At the time of the passage of the 2014 Bill, the Australian Labor Party, Australian Greens, Independents and various legal, human rights and other interest groups had expressed concerns with the new offence of entering declared areas. In particular, commenters were concerned with the limitation on the freedom of movement and the placing of the evidential burden on a defendant who wishes to avail themselves of one of the exceptions to the offence.[2]
The provisions have been used to declare areas twice, in 2014 and 2018. The areas were Al-Raqqa province in Syria and Mosul district, Ninewa province in Iraq, respectively. Both of these declarations have since been revoked and are no longer in force. The Australian National Security website states that there are no declared areas in effect at present.
The PJCIS has reviewed and reported on the declared areas provisions twice, in 2018 and 2021. At each of these previous reviews, the Committee recommended that the provisions should be extended for three years.[3] The Government carried out the extensions through the Counter‑Terrorism Legislation Amendment Act (No. 1) 2018 and the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Act 2021.
In 2018 the PJCIS conducted its initial review of the provisions, and in its report, ‘Review of the 'declared area' provisions’, recommended that they be continued for a further three years, as well as recommending that a further review be carried out before the new sunset date (Recommendation 1). Further amendments to the detailed operation of the provisions were also recommended. The Government supported most of the recommendations in its Government Response.
In 2021 the PJCIS again conducted a review of the provisions in advance of the new sunset date. In its report of the ‘Review of 'declared areas' provisions: Sections 119.2 and 119.3 of the Criminal Code’, the Committee again recommended an extension of the operation of the provisions for three years (Recommendation 1) and a review of the operation of provisions by the PJCIS before the new sunset date (Recommendation 2). The Government supported these recommendations in its Government Response.
In making its recommendations the PJCIS considered submissions from government agencies as well as non-government stakeholders. While acknowledging that the provisions had only had limited use,[4] and that many non-government participants in the inquiry had raised concerns about ‘the impact the offence provisions have on various freedoms, and it may criminalise otherwise legitimate actions’,[5] the Committee considered that ‘the declared areas provisions are still necessary in the current global strategic context’[6] and it would not be prudent to allow the provisions to sunset at a time when borders were expected to reopen following Covid (published in February 2021).[7]
Committee consideration
Parliamentary Joint Committee on Intelligence and Security
The Bill has been referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry and report. Details of the inquiry are at Review of the Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024. Submissions to the review closed on 29 April 2024.
Senate Standing Committee for the Scrutiny of Bills
At the time of writing the Scrutiny Committee had not published its consideration of the Bill.
Policy position of non-government parties/independents
At the time of writing no non-government parties or independents had expressed an opinion on the Bill publicly.
Position of major interest groups
Issues were raised by various interest groups in submissions to the 2021 PJCIS review in relation to the declared areas provisions. These earlier views are summarised on pages 11 to 18 of the ‘Review of 'declared areas' provisions: Sections 119.2 and 119.3 of the Criminal Code’. Concerns were raised regarding the need for the provisions, the possible human rights limitations on freedom of movement and otherwise legitimate activities, while the review also considered government agencies’ statements of the need for the provisions in the context of the security environment at the time.
In its submission to the PJCIS for the Review of the Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024 the Australian Human Rights Commission (AHRC) reiterated its earlier concerns regarding the provisions and stated that it:
… remains of the view that the provisions to be extended by the Declared Areas Bill are inconsistent with human rights, and are not necessary or proportionate to achieving a legitimate objective.[8]
At the time of writing no other submissions from major interest groups had been published.
Financial implications
The Government considers that the Bill will have no financial impact.[9]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[10]
Parliamentary Joint Committee on Human Rights
The Committee reported on the Bill in its Report 3 of 2024. The Committee reiterated human rights concerns it had raised in relation to previous bills dealing with the declared areas provisions and drew these to the attention of the Attorney-General and Parliament.
The Committee also expressed support for a previously proposed exemption to the declared area provisions:
… the Parliamentary Joint Committee on Intelligence and Security’s 2021 suggested amendment that would allow for Australian citizens to request an exemption to travel to a declared area for reasons not listed in the Criminal Code, but which are not otherwise illegitimate under Australian law (p. 15).
In summarising its concerns, the Committee noted:
The committee has previously found that while the provisions likely pursue a legitimate objective (namely, that of seeking to prevent terrorist acts), there were questions whether the provisions were necessary, and, in particular, the measures did not appear to be proportionate, and therefore were likely to be incompatible with a range of human rights … As such, the committee considers that it has not been demonstrated that the extension of these provisions is compatible with human rights (p. 15).