2.1
In fulfilling its obligation to review the operation, effectiveness and implications of the ‘declared area’ provisions, the Committee considered the following matters:
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,
matters concerning the offence in section 119.2 of the Criminal Code, including its implications for individual liberties and potential amendments put forward by participants in the review, and
matters concerning the process for the making and revocation of declarations in section 119.3 of the Criminal Code, including potential amendments aimed at improving safeguards and oversight.
2.2
In conducting its review, the Committee took into account the findings and recommendations of the INSLM.
Purpose and necessity
2.3
The declared area provisions were introduced as part of a suite of measures in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 aimed at responding to the threat posed by returning foreign fighters and individuals within Australia supporting foreign conflicts. On introducing the Bill to the Senate, the Attorney-General, Senator the Hon George Brandis QC, stated:
The rapid resurgence in violent extremism and the participation in overseas conflicts by some Australians present new and complex security challenges for our nation. The ongoing conflicts in Syria and Iraq are adding to this challenge and the number of Australians who have sought to take part, either by directly participating in these conflicts or providing support for extremists fighting there, is unprecedented.
… The risk posed by returning foreign fighters is one of the most significant threats to Australia’s national security in recent years. Our security agencies have assessed that around 160 Australians have become involved with extremist groups in Syria and Iraq by travelling to the region, attempting to travel or supporting groups operating there from Australia. 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.
2.4
The Explanatory Memorandum for the Bill identified the following purpose for the declared area offence:
The purpose of the offence is to equip law enforcement and prosecutorial agencies with the tools to arrest, charge and prosecute those Australians who have committed serious offences, including associating with, fighting, or providing other support for terrorist organisations overseas. Legitimate purposes for travel to or remaining in a declared area are protected, but appropriately limited in recognition of the need to deter individuals from travelling to areas which pose a significant risk to life.
2.5
The Bill’s Statement of Compatibility with Human Rights also stated that the provisions were intended to have a deterrent effect, which was linked to the security of the Australian community:
The legitimate objective of the new offence is to deter Australians from travelling to areas where listed terrorist organisations are engaged in a hostile activity unless they have a legitimate purpose to do so. People who enter, or remain in, a declared area will put their own personal safety at risk. Those that travel to a declared area without a sole legitimate purpose or purposes might engage in a hostile activity with a listed terrorist organisation. These people may return from a declared area with enhanced capabilities which may be employed to facilitate terrorist or other acts in Australia.
2.6
The Attorney-General noted that it was his expectation that the offence would only be enlivened in ‘exceptional circumstances, where terrorist organisations are active and effectively exercising control over a particular region’. He added that
[i]n those circumstances, a declaration by government would have the dual benefit of warning people about the dangers associated with travelling to that area and creating an offence for those who, regardless of those warnings, choose to travel to the area without legitimate reason.
2.7
Evidence to the current inquiry suggested that the threat posed by returning foreign fighters remained high. The current threat environment, including the continued ‘probable’ national terrorism threat level in Australia, is summarised in general terms in Chapter 1. In relation to the specific threat posed by returning foreign fighters, Jacinta Carroll, of the Australian National University’s National Security College, summarised the situation as follows:
The foreign terrorist fighter phenomenon that drove the development of this legislation is a serious and global threat. While there have been, and continue to be, instances of citizens of one country joining other military or paramilitary forces, as well as joining overseas-based and focussed terrorist organisations, the numbers involved in Islamist-extremist terrorist groups in the Middle East is much higher and wider spread than seen in comparable recent incidents and poses an extraordinary global security threat. This threat is twofold: foreign terrorist fighters have directly and substantially contributed to conflicts in the Middle East, Africa and Asia; they are also directing, supporting and enabling terrorism elsewhere, including in their home countries.
The security threat posed by foreign terrorist fighters is considered by states and experts alike as one of the most challenging and concerning aspects of the current Islamist extremist terrorist threat. It is also of urgent and pressing concern, due to the involvement of tens of thousands of foreign fighters in ongoing conflicts in the Middle East and elsewhere.
2.8
The Australian Federal Police (AFP) noted the ‘critical’ role of the declared area offence in managing the threat posed by returning foreign fighters, as distinct from other foreign incursions offences in the Criminal Code:
[T]he declared area offence plays a critical role in ensuring Australia is able to manage the terrorist threat posed by the widespread return of Australians who have participated in foreign conflicts or undertaken training with extremist groups overseas. Around 110 Australians are currently fighting or engaged with terrorist groups in Syria and Iraq. There may be instances where there is strong intelligence, but no admissible evidence, to support the intention element in other foreign incursions offences.
2.9
The AFP also highlighted the ongoing role of the declared area offence in deterring Australians from travelling to areas where terrorist organisations are engaged in hostile activity:
The offence recognises that people who enter, or remain in, a declared area put their own personal safety at risk. This risk exists regardless of whether or not the individual intends to engage in hostile activities. There are also broader reasons to criminalise entering or remaining in a declared area, including the risk of a person being captured by ISIS and held for ransom.
The declared area offence also plays a critical role in preventing persons from travelling to a conflict zone to engage in a hostile activity. The offence has a strong deterrent effect and provides a useful disruption tool for police.
2.10
The INSLM, while noting there had been no prosecutions for the declared area offence to date, expressed his view that the offence ‘responds to a continuing threat of returning foreign fighters and addresses needs that are not addressed by other offences in div 119’. In forming this conclusion, the INSLM referred to evidence he received about
the ‘unique purpose’ of the provisions in addressing the difficulties of obtaining foreign evidence from a declared area that is needed to prosecute the other foreign incursion offences in division 119 of the Criminal Code,
the potential for the offence to protect the personal safety of individuals by discouraging or deterring them from travelling to areas where terrorist organisations are engaged in hostile activity,
the additional potential for the offence to protect the personal safety of children by discouraging their parents or guardians from taking them to, or remaining with them in, declared areas, and
an apparent impact of the offence on financial flows between Australia and the declared areas, thereby preventing financial assistance to terrorist organisations controlling territory in those areas.
2.11
Some submitters to the Committee disputed the notion that the declared area provisions are a necessary part of the Government’s response to the threat posed by returning foreign fighters. The joint councils for civil liberties, for example, submitted that the necessity of the provisions had ‘not been established’:
The arguments referenced by the INSLM in support of the provisions’ necessity do not provide specific examples as to how the existing simplified processes have been inadequate in enabling the arrest, charging and prosecution of returning foreign fighters suspected of having engaged in any kind of terrorist related activity.
Without compelling specific examples providing solid evidence the arguments are essentially expressions of opinion.
2.12
Applying human rights analysis to the provisions, the Australian Human Rights Commission noted that it is permissible for a measure to limit human rights where the measure is
expressed in clear and unambiguous terms, is directed towards a legitimate aim, is necessary to achieve that aim, and is proportionate. A measure which limits a human right may not ‘jeopardise the essence of the right concerned’. Limitations on human rights must not be arbitrary.
2.13
The Commission argued that while deterring Australians from travelling abroad to engage in terrorism was a legitimate objective, the declared area provisions are ‘not necessary and proportionate’ because they ‘criminalise conduct that is not related to terrorism’.
2.14
Dr Nicola McGarrity and Professor George Williams submitted that the ‘significant burden’ upon the freedom of movement of individuals might be justified if there was evidence that the restrictions were necessary and proportionate. However, they argued that the current offence is ‘not sufficiently targeted to terrorism’ and should be allowed to lapse at the end of the sunset period.
2.15
The joint councils for civil liberties noted that Australia and Denmark appear to be the only two liberal democracies that have enacted ‘declared area’ style offences, and highlighted advice from the United Kingdom Independent Review of Terrorism Legislation that a comparable offence ‘would not be worthwhile for the UK’.
2.16
Jacinta Carroll, on the other hand, pointed out that Australia has recently been found by the United Nations to be one of only a handful of countries to have complied with UN Security Council Resolution 2178 by enacting legislation specifically aimed to counter foreign fighters. The September 2014 resolution required Member States to ‘urgently’ and ‘immediately’ implement a range of measures to address the foreign terrorist fighter threat. Ms Carroll attributed Australia’s compliance with the resolution to ‘the declared area offence provision and other complementary initiatives’.
2.17
The Australian Human Rights Commission contested that, while ‘it is uncontroversial that deterring Australians from travelling abroad to engage in terrorism is a legitimate objective’, due to the lack of elements concerning terrorist activity the declared area provisions ‘cannot readily be characterised as implementing Resolution 2178’.
Operation and effectiveness
2.18
Some submitters to the inquiry discussed the extent to which the provisions have been effective to date in meeting either of the stated objectives: as a tool for the arrest, charge and prosecution of foreign fighters; or as a tool to deter travel by Australians to areas where listed terrorist organisations are engaged in hostile activities.
Prosecutions
2.19
In its submission, the Attorney-General’s Department advised the Committee that no prosecutions had commenced for the declared area offence under section 119.2 of the Criminal Code. However, the Attorney-General’s consent for a prosecution had been sought on one occasion.
2.20
The AFP reported in its submission that it had five outstanding arrest warrants for persons suspected of contravening the section 119.2 offence and that there were a number of ongoing investigations that may lead to charges under the section. By the time of the Committee’s public hearing, the number of arrest warrants had increased to six.
2.21
In their submission, the joint councils for civil liberties noted the absence of any prosecutions to date and that, while 50 people had been charged with terrorism and/or foreign incursions offences in Australia since late 2014, none had related to the declared area offence. The councils argued that this statistic provided support for the argument that the offence is not necessary.
2.22
Similarly, McGarrity and Williams submitted:
Although the lack of use of a legislative provision is not determinative, the fact that the declared area offence has never been used goes a long way to demonstrating that it is neither necessary nor effective as a response to the threat posed by foreign fighters.
2.23
Jacinta Carroll, while supporting the provisions, also noted the lack of prosecutions to date. She suggested advice could be sought from relevant Government agencies on ‘how practical this legislation is, and whether it needs to be amended in order for it to be used’. Ms Carroll drew attention to a ‘variety’ of reasons why the offence had not been used, including
the difficulty of obtaining evidence to a prosecution standard in a conflict environment,
that the offence doesn’t apply retrospectively, and
that perpetrators may still be with terrorist organisations overseas and unable to have charges laid.
2.24
The AFP noted that, as there had been no prosecutions, it had ‘not been possible to test the evidential thresholds’. However, it outlined the challenges associated with obtaining foreign evidence to support prosecutions:
Obtaining foreign evidence is a difficult and complicated process, particularly when evidence is located in an area outside the control of any legitimate government.
In particular, where evidence or intelligence suggests a person has been located in a declared area, it can be difficult to prove:
The person was located within the precise boundaries of the declared area; and
The area was a declared area at the time the person was located there.
The AFP continues to work with the Attorney-General’s Department and government partners to consider options to address challenges in obtaining foreign evidence.
2.25
Asked whether it recommended any amendments to the declared area provisions to improve their effectiveness as a counter-terrorism tool, the AFP responded:
The AFP works closely with [the Attorney-General’s Department] to ensure that legislation remains contemporary and fit-for-purpose and does not have any recommendations or amendments to the declared area provisions at this time.
2.26
At the public hearing, the AFP confirmed that all six of its outstanding arrest warrants that nominate the declared area offence as one of the charges related to people who were currently overseas and would be prosecuted should they return to Australia.
2.27
On 19 December 2017, the AFP and the New South Wales Police announced that a Sydney man had been arrested and charged with foreign incursion offences, including the offence of entering or remaining in a declared area. This represented the first time that a person had been charged with the offence.
Deterrent effect
2.28
The Committee asked the Attorney-General’s Department to provide evidence as to whether the declarations of Mosul district and al‑Raqqa province have had the desired effect of deterring Australians from travelling to those areas. The Department submitted:
While it is inherently difficult to prove an individual’s intentions not to undertake travel, the view of agencies is that the declared area provisions may have had an effect of very strongly discouraging people who might otherwise have considered going into the area to not go there, and to discourage parents and guardians from taking their children to those areas.
2.29
The Department drew the Committee’s attention to evidence provided by ASIO’s Director-General of Security at the INSLM’s hearing on 19 May 2017:
… to the effect that the numbers of people going to the Middle East ‘dropped off quite significantly’ at about the time the declared area provisions were introduced, however noting that there were other factors—for example increased border protection and security—that may have contributed.
2.30
ASIO’s 2016–17 annual report provided up-to-date information on the organisation’s current assessment of the foreign fighter threat:
We have seen a substantial decline in the number of Australians successfully travelling to join ISIL in Syria and Iraq. We continue to assess that most Australians with ISIL will remain there, either as a conscious choice or because they are currently unable to safely depart. In the longer term, further ISIL military losses are likely to lead to the death of many of these individuals, although we can expect considerable uncertainty about their circumstances.
Freedom of movement from the conflict zone will continue to be extremely limited. A small number of Australians may successfully depart Syria and Iraq, or may be detained there as ISIL loses territory. Of these:
A very small number may return to Australia voluntarily, but are unlikely to hold valid travel documents, so will find this difficult. Others may be returned through deportation. It is unlikely large numbers will return in concentrated periods, but rather small numbers periodically—this will include non-combatant women and children.
Some will go to third countries. Their destinations will be influenced by their background, ethnicity and language skills, or through connections that give them access to new destinations.
Other Australians will stay long term with ISIL and other Islamist extremist groups in Syria and Iraq. A small handful of these are or may become involved in ISIL’s external terrorist planning.
Any defeat of ISIL will not be absolute—some remnants of the group will remain, probably focused on a local insurgency, but still projecting a global terrorist threat. It will not eliminate the terrorist threat posed by Islamist extremist groups to Australia and Australian interests globally. This threat, including from those Australians who have spent time with ISIL in Syria and Iraq, will endure in the long term.
2.31
Other submitters questioned whether the declared area offence was justifiable on the basis of its deterrent effect alone. For example, Australian Lawyers for Human Rights submitted:
The explanatory memorandum relating to this offence explained that the legislation was intended ‘to deter Australians from travelling to areas where listed terrorist organisations are engaged in a hostile activity.’ If this was the real aim of the legislation then logically the legislation should be tailored to that end and the normal concept of mens rea should be an essential part of the offence. There is no reason for making the offence an absolute one which applies irrespective of the offender’s knowledge that they have entered a ‘declared area’ for the purposes of the legislation. The legislation is a completely disproportionate response to the possibility of a very small number of Australians becoming involved with any listed terrorist organisation.
2.32
The joint councils for civil liberties suggested that travel advice would be a more appropriate mechanism for deterring persons from travelling to dangerous areas:
It is of course legitimate for Government to deter persons from travelling to dangerous areas. However, if the intent is to safeguard persons from danger, there is no justification for creating a serious criminal offence with a penalty up to 10 years’ imprisonment. The existing travel advice provided by Government on its ‘Smarttraveller.gov.au’ [sic] website is designed for this purpose and carries explicit, strong warnings where appropriate.
2.33
The Australian Human Rights Commission, while recognising that deterring Australians from travelling abroad to engage in terrorism is a legitimate objective, submitted that ‘it is rare that the best way of protecting a person’s human rights is to criminalise their behaviour’. The Commission wrote:
The Commission has not seen a compelling justification that the most appropriate means of protecting people from themselves, in these circumstances, is to criminalise their behaviour with a risk of life imprisonment. The INSLM report does not address what would appear to be a common-sense alternative approach: that the Government adopt less draconian measures—such as education campaigns and travel warnings—to deter or dissuade people with no intention of becoming ‘foreign fighters’ from travel to relevant areas. It is difficult to see how the declared areas provisions can be characterised as proportionate to the objective of protecting would-be innocent travellers from harm.
Committee comment
2.34
Australia continues to be challenged by domestic terrorism threats on an unprecedented scale, with the National Terrorism Threat Level being raised to ‘probable’ since September 2014. Of ongoing concern in relation to this threat has been the number of Australians travelling to take part in overseas civil conflicts, including in support of listed terrorist organisations, and primarily in Syria and Iraq.
2.35
Through a range of reviews over the past three years, the Committee has been well briefed on the concerns held by agencies about the potential increased threat posed by such persons returning to Australia carrying new capabilities and entrenched extremist ideologies. The Committee continues to be fully supportive of measures that are taken to prevent Australians from joining overseas conflicts and to enable strong action to be taken against such persons who return in order to appropriately manage the threat to the Australian community.
2.36
The declared area offence was one of a number of measures introduced in 2014 to respond to the ‘foreign fighters’ problem. Other measures included reforms to the existing foreign incursion and recruitment legislation, reforms to the Foreign Evidence Act 1994, and providing for the suspension of travel documents. Despite these other reforms, on reviewing the 2014 Foreign Fighters Bill the then Committee was convinced that the declared area offence was necessary, in particular due to the reliance of other foreign incursion offences on foreign evidence. The Committee continues to hold this view.
2.37
The Committee did not receive evidence to suggest that the threat posed by foreign fighters has abated since 2014. On the contrary, the AFP gave evidence that around 110 Australians continue to fight with or otherwise engage with terrorist groups in Syria and Iraq. The AFP indicated that the declared area offence plays a ‘critical’ role in ensuring the threat posed by such persons, should they return, is able to be managed.
2.38
Consistent with the views it expressed in its advisory report on the Foreign Fighters Bill, the Committee considers that the range of legitimate reasons for Australian persons to be in areas controlled by a terrorist organisation is extremely limited. The Committee considers it reasonable that persons entering, or remaining in, such areas be called upon to justify their presence.
2.39
The Committee recognises that the declared area offence also serves a dual purpose of deterring persons from entering what are extremely dangerous and hostile areas. The value in preventing unnecessary travel to such areas should not be dismissed lightly, as it stretches beyond merely protecting the personal safety of individuals. The experience to date is that the areas declared have been places where, whether or not the individual intends it, being present in the area could indirectly support a terrorist organisation through the imposition of requirements to pay fees or taxation.
2.40
For the areas targeted by this legislation, the Committee concludes that relying on measures such as unenforceable travel advice or education campaigns would not be a proportionate response to the threat and would not be adequate to achieve the deterrent effect that the declared area offence provides. The declared area provisions may also provide authorities with additional options to assist in dealing with any Australians found in declared areas without a legitimate purpose—for example, assisting in removing the person from the area.
2.41
The Committee notes that to date, no prosecutions have been concluded and only one individual has been arrested and charged in relation to entering, or remaining in, either of the two declared areas: al-Raqqa province in Syria and Mosul district in Iraq. The Committee does not consider this low level of use to be an indicator of major deficiencies in the offence. Rather, the Committee suggests this is indicative of judicious use of the provisions, the fact that only a small proportion of Australians fighting overseas have returned home and, more generally, the time taken for police to secure sufficient admissible evidence to lay charges.
2.42
The Committee considers that the declared area offence remains necessary at this time. The INSLM’s recommendation was that the laws be continued for a further period of five years. The Committee, however, considers that a sunset period of three years would be more appropriate, with the Committee required to conduct a further statutory review prior to the sunset date. At the time of its further review, the Committee will consider the efficacy of the operation of the provisions and assess their continuing need.
2.43
The Committee recommends that sections 119.2 and 119.3 of the Criminal Code, which establish the ‘declared area’ provisions, be continued for a further period of three years.
The Committee also recommends that the Intelligence Services Act 2001 be amended to require the Committee to commence a further review into the operation, effectiveness and implications of the provisions prior to the sunset date.
Section 119.2: the ‘declared area’ offence
2.44
Critics of the provisions highlighted a number of aspects in the design of the declared area offence in section 119.2 that they claimed rendered it disproportionate to its stated objectives.
2.45
Although the purpose of the offence is preventing support for terrorism, the offence is enlivened only by a person entering, or remaining in, a declared area. If prosecuted, the burden falls on the defendant to produce evidence that one of the available defences applies to them. A common concern raised by participants opposed to the continuation of the offence was the extent of the evidentiary burden this places on the defendant.
2.46
Dr Nicola McGarrity and Professor George Williams, for example, submitted:
In order to displace the required evidentiary burden, it would be necessary for the defendant to demonstrate a reasonable possibility that they travelled to the declared area solely for a legitimate purpose. It is not clear how this would be interpreted by a court, but it could very well mean that defendants are placed in the very difficult position of needing to prove a negative. That is, a defendant may be required to adduce evidence not only that they travelled to the area for one of the enumerated purposes but also that this was the only purpose for travel. This would require the defendant to provide factual evidence that they did not travel to the area with the intention of engaging in a terrorism-related purpose. It is not clear what evidence a defendant would be able to adduce to establish the absence of such an intent.
2.47
Legal Aid New South Wales characterised this evidentiary burden as a reversal of the burden of proof, noting that the difficulty faced by the AFP in obtaining foreign evidence would equally apply to defendants:
The AFP submitted to the INSLM that:
… obtaining foreign evidence remains a challenge. This is particularly the case where evidence is being sought from a conflict zone which may not have full operational government in place.
Obtaining foreign evidence is likely to be even more challenging for an Australian citizen charged with such an offence, and Legal Aid NSW does not consider the difficulty of obtaining evidence to be a satisfactory justification for casting the evidentiary burden on the defendant in criminal proceedings.
2.48
Australian Lawyers for Human Rights similarly submitted that ‘the fact that it is difficult to obtain evidence about overseas events does not justify treating all Australian travellers as criminals unless they can prove otherwise’. It argued that the provisions are a ‘completely disproportionate response to the possibility of a very small number of Australians becoming involved with any listed terrorist organisation’.
2.49
When the Foreign Fighters Bill was introduced in 2014, the Bill’s Explanatory Memorandum addressed questions about the onus of proof as follows:
The new offence does not reverse the onus of proof as guilt is not presumed. However, it requires the defendant to provide evidence of a sole legitimate reason for entering a declared area which shifts an evidential burden to the defendant. This requires the defendant to adduce evidence that suggests a reasonable possibility that they have a sole legitimate purpose or purposes for entering the declared area. Once that evidence has been advanced by the defendant, the burden shifts back to the prosecution to disprove that evidence beyond reasonable doubt.
2.50
McGarrity and Williams agreed that the offence ‘does not technically reverse the onus of proof’. However, they argued that the lack of physical elements in the offence (other than that a person has entered or remained in a declared area) means that it has the same effect:
The prosecution need not establish, for example, that the person travelled to the area for the purpose of engaging in terrorism. This is problematic because it is that malicious purpose—rather than the mere fact of travel—which renders the conduct an appropriate subject for criminalisation.
2.51
Australian Lawyers for Human Rights noted the limited range of legitimate purposes provided for in the section 119.2(3) exception to the offence:
… because the exemptions are so narrowly drafted, the defendant may not be able to demonstrate that they fall within the exemptions, despite having a ‘legitimate’ reason for being in the area. And given that the exemptions do not cover all ‘legitimate’ reasons for being in the area, the argument in the Explanatory Memorandum appears to follow the worrying trend identified previously, being that government on the one hand legislates to impose disproportionately severe penalties but on the other hand makes public statements that it will not enforce the legislation where there are ‘legitimate’ excuses for the offender. We concur with other commentators that this is an inappropriate way in which to make law.
2.52
In its submission to the INSLM, the Australian Human Rights Commission similarly highlighted the ‘chilling effect’ of an overreliance on prosecutorial discretion to protect against ‘arbitrary interference with a human right’:
The Commission considers that it is likely to be difficult, if not impossible, to formulate in advance a comprehensive list of legitimate reasons for travel to a declared area. This will render persons who do not intend to undertake any inherently wrongful conduct liable to prosecution. To the extent it may be claimed that this outcome may be avoided by the Attorney-General withholding consent to the commencement or a particular prosecution, or to the Director of Public Prosecutions exercising a discretion not to prosecute, that is insufficient protection. Relying on executive discretion not to commence a prosecution cannot be a satisfactory protection against arbitrary interference with a human right. It is likely to have a chilling effect on the enjoyment of the rights to freedom of movement and association: a reasonable person considering whether to undertake travel in these circumstances would be well advised not to travel if their sole protection against prosecution is an expectation of ministerial or prosecutorial discretion.
Potential amendments put forward by inquiry participants
2.53
Participants in the inquiry put forward a range of recommendations for amendments aimed at overcoming concerns about the design of the section 119.3 offence. Some of these recommendations were previously considered by the then Committee during its review of the Foreign Fighters Bill or by the INSLM during his statutory review, whereas others were put forward for the first time.
2.54
The joint councils for civil liberties recommended that, if the provisions were not repealed or allowed to lapse in 2018, an ‘intention to engage in, or engagement in hostile activity should be included as an element of the offence’.
2.55
McGarrity and Williams, however, advised that specifying such an ‘illegitimate purpose’ in the offence would be problematic:
[I]f such an amendment were adopted, the offence would be superfluous as it would overlap very significantly with the foreign incursion offences in the Criminal Code. Those offences already have a broad scope and cover the kinds of activities to which the declared area offence is directed—namely, to prevent individuals from participating in hostilities overseas.
2.56
Several submissions to the inquiry recommended broadening the ‘legitimate purpose’ exceptions to the offence contained in subsection 119.3(3). The joint councils for civil liberties, for example, recommended that the list of exemptions to the offence be amended to be as comprehensive as possible.
2.57
The Australian Human Rights Commission recommended that, if the declared area provisions were not repealed, the exception contained in the provisions should be amended so that the offence ‘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’.
2.58
As an alternative if the above recommendation was not accepted, the Commission recommended that
a.
Detailed consideration be given to expanding the list of legitimate reasons for travel to declared areas in s 119.2(3) of the Criminal Code to include, for instance, visiting friends, transacting business, retrieving personal property and attending to personal or financial affairs. The list should be made as comprehensive as possible; and
b.
Section 119.2 of the Criminal Code 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.
2.59
The Commission’s recommendations were supported by Legal Aid New South Wales and Australian Lawyers for Human Rights.
2.60
The Attorney-General’s Department argued against expanding the list of legitimate purposes in section 119.2 on the basis that it would be ‘counter to the Government’s aim of discouraging persons from travelling to these extremely dangerous areas’:
The list of legitimate purposes is, appropriately, limited because entry into a declared area will be at considerable risk to the person’s safety. Experts who gave evidence to the INSLM during his review also questioned the credibility of persons travelling to conflict zones controlled by terrorist organisations for conducting any kind of business activity. The INSLM’s report concluded that the circumstances in which a person would wish to travel to a declared area other than to provide support to the terrorist organisation engaging in hostile activities in the area are extremely narrow.
2.61
Some participants in the inquiry put forward more specific suggestions for limited extensions to the current list of legitimate purposes. The Law Council of Australia recommended that the list of legitimate purposes be expanded to include two purposes that it considered would not reduce the deterrent effect of the offence:
bona fide, necessary and urgent business to protect the legitimate business interests domiciled in the foreign country – for example, it would appear disproportionate to criminalise for three years a person who travels to a certain area to address matters relating to his or her livelihood or expose the person to potential conflicts with fiduciary duties purely because a listed terrorist organisation had commenced operating in an area. This issue may be more likely to arise where a declaration is first in force and a person is required to address urgent financial affairs in light of the danger in the area;
providing legal advice to an Australian citizen. For example, if parts of Egypt had been a declared area, Peter Greste’s lawyer would not be able to visit him for the purposes of providing legal advice under this offence, unless the lawyer was specifically satisfying an obligation to appear before a court or other body exercising judicial power. The current exception regarding satisfying an obligation to appear before a court appears inconsistent with not permitting a legal practitioner to advise a client prior to the appearance.
2.62
Australian Lawyers for Human Rights appeared to support broadening the current legitimate purpose of ‘providing aid of a humanitarian nature’ to include persons engaged in related humanitarian work other than direct aid—such as the delivery of training that has a humanitarian purpose, including compliance training on the laws of armed conflict. The Department indicated that this option ‘remains under consideration by Government’. Separately, the Department advised that at least one non-government organisation had contacted the Government seeking advice on the legal implications of operating in Iraq or Syria, and that the organisation had been referred to information on the Smartraveller website and the Australian National Security website.
2.63
In their submission, McGarrity and Williams pointed out that the available defences ‘do not capture the wide range of legitimate reasons for which a person might travel to a foreign country in a state of conflict’, but that it would be ‘impossible as a matter of practicality to prospectively specify every legitimate reason for travel’.
The INSLM’s findings regarding the offence
2.64
The INSLM did not make any recommendations in his report for changes to the fundamental design of offence. While acknowledging that the provisions were yet to be tested and would require close monitoring in the future, the INSLM wrote that he was
satisfied that the operation and content of the legitimate purpose exception renders the declared area offence a sufficiently proportionate response to concerns of protecting the personal safety of Australians, and of preventing the support (directly or indirectly) of terrorist organisations in control of those areas.
2.65
In particular, the INSLM cautioned against ‘opening up’ the list of legitimate purposes or replacing the legitimate purpose exception with a requirement for the prosecution to prove an illegitimate purpose:
An objective of the declared area offence is to deter Australians from travelling to areas where terrorist organisations are engaged in a hostile activity. I accept that the deterrent effect of the offence may be reduced by opening up the list of legitimate purposes in s 119.2(3).
I have concluded that the circumstances in which an adult person would wish to travel to either of the current declared areas other than to provide support to the terrorist organisation engaged in hostile activities in the area are extremely narrow. This is reflected by the current drafting of the legitimate purpose exception in s 119.2(3) which acknowledges that some such reasons may exist.
… I also accept that opening up the list of legitimate purposes has the potential to render the offence unworkable. This potential is significantly greater if the legitimate purpose exception were to be replaced altogether by a ‘positive’ element requiring the prosecution to prove that the defendant [travelled] to the declared area for an illegitimate purpose. Such an amendment would also undermine the unique purpose that the offence serves.
2.66
As noted in Chapter 1, the INSLM recommended that consideration be given to making a regulation under, or an amendment to, the provisions to allow an individual to seek permission from the Foreign Affairs Minister (following advice from the Attorney-General) to enter into and remain in a declared area for such period and on such conditions as the Minister may choose to impose.
2.67
In making this recommendation, the INSLM noted that
an authorisation regime could only be effective to the extent that individual compliance with the authorisation could be properly monitored. In particular, whether the purposes and plans for travel on which the decision to give authorisation was based aligned with the individuals actions within the declared area.
2.68
The INSLM also expressed concerns as to whether an authorisation regime could be implemented within the existing terms of the offence via a regulation provided for under section 119.2(3)(h), or would require an appropriate legislative amendment to be made.
2.69
The AFP provided the following comments on the INSLM’s recommendation for a pre-authorisation regime:
While it’s obviously a policy matter for government, if you have that kind of regime, there’s no way operationally we can say, ‘Yes, that person should be given permission because we trust that they’re going over there.’ The reality is it’s a really unsafe place for them to be going. They might have very good reasons, but that doesn’t outweigh the safety concern.
2.70
In a subsequent written submission, the Attorney-General’s Department added:
In the department’s preliminary view, it would only be appropriate to introduce an authorisation regime if it is capable of being effectively implemented and monitored, which would be difficult.
Firstly, there may be practical difficulties in establishing a regime for assessing an application to travel to a declared area to determine that the applicant is travelling for a bone fide reason. There may be little information at the Government’s disposal, other than that provided by the applicants themselves, to determine whether their proposed travel is for a legitimate purpose. Significant security and intelligence resources would need to be diverted from other priorities to assess risk of applicants engaging in or supporting hostile activities.
As the INSLM has noted, there are also significant practical difficulties in monitoring compliance with any conditions imposed on an authorisation for travel to conflict zones.
Further, it is likely that any declared area will also be a ‘do not travel’ destination on smarttraveller.gov.au [sic], the Government’s official travel advisory service. Allowing an individual to travel to a declared area would be contrary to the Australian Government’s travel advice.
2.71
Noting these concerns, the Department further indicated that it had not given detailed consideration to the design of a pre-authorisation scheme, including any limitations that could be put in place to ensure the mechanism is not open to misuse.
2.72
The Law Council of Australia, while continuing to maintain that the declared area provisions are ‘neither necessary nor proportionate’, supported the INSLM’s recommendations, and suggested that they be seen as a ‘minimum standard by which to improve the proportionality of the offences’.
2.73
However, the Law Council expressed concerns that the INSLM’s recommendation for a ministerial pre-authorisation regime ‘may not be workable from a security perspective’:
[T]he Minister cannot be assured of the individual’s safety or that the individual would not conduct an act related to terrorism where the Minister has declared an area. A question may also arise as to Commonwealth liability in circumstances where an authorised person is injured or injures others in a declared area.
The liability issue may potentially be addressed through the provision of an undertaking to the Minister to pay any damages which a court may decide another party may suffer as a result of the person’s actions while entering and remaining in a declared area. However, the security and safety risks do not appear to be easily ameliorated.
… In addition, on a practical level, the time taken to obtain such an authorisation may well defeat the purpose for the travel. This may be compounded if the applicant is already overseas.
2.74
Due to these practicalities, the Law Council was concerned that the INSLM’s recommendation may not be implemented. Should this occur, the Law Council recommended that, in addition to some specific extensions to the list of legitimate purposes in the Bill (discussed above), judicial discretion ‘guided by appropriate statutory criteria’ should be permitted to assist in determining what may be regarded as a ‘legitimate purpose’.
The Law Council considers that a general term could be inserted in subsection 119.2(3) to provide ‘without limiting this subsection’, to allow a court the discretion to determine on a case-by-case basis whether a person travelled to a declared area for a legitimate purpose. …
While the Ministerial pre-authorisation would, potentially, obviate the need for a criminal trial, the difficulties identified above raise concerns that this recommendation may not be implemented or may not be effective even if implemented. In such a case, the Law Council considers that judicial discretion should be permitted to determine what constitutes a legitimate purpose. Appropriate criteria could also be developed to guide this discretion, including the need for deterrence of individuals to a declared area.
2.75
Responding to this recommendation, the Attorney-General’s Department registered the following concerns:
In the department’s preliminary view, the function of determining what constitutes a legitimate purpose is appropriately exercised by the parliament.
Listing the legitimate purposes provides clear guidance to individuals about the acceptable reasons for entering or remaining in a declared area. The exercise of broader judicial discretion on what is a ‘legitimate purpose’ would undermine the certainty these listings provide.
Committee comment
2.76
The Committee recognises that measures like the declared areas provisions, which by their design place limitations on the human rights of individuals, cannot be justified on the basis of their usefulness alone. That a measure is ‘a tool in the toolbox’ for authorities to respond to a threat is not in itself sufficient. Measures must also be appropriately targeted, have adequate safeguards in place, and be a proportionate response to the threat.
Evidential burden on the defendant
2.77
The Committee notes the concerns of inquiry participants relating to the lack of malicious conduct as an element of the declared area offence and the resultant evidentiary burden placed on individuals to show that they were in a declared area for a legitimate purpose. The Committee also notes the INSLM’s finding that the ‘operation and content of the legitimate purpose exception renders the declared area offence a sufficiently proportionate response’.
2.78
The Committee agrees with the INSLM that any amendment to introduce malicious conduct as an element of the offence (thereby requiring the prosecution to prove that the defendant travelled to the declared area for an illegitimate purpose) would undermine the ‘unique purpose’ of the offence.
2.79
The Committee has considered the nature of the areas that have been declared to date and considers it reasonable that any person who was to travel there should have to account for themselves. The Committee notes that any prosecution will not be automatic. Under the Prosecution Policy of the Commonwealth, before commencing a prosecution, the Commonwealth Director of Public Prosecutions must be impartially satisfied that there is sufficient evidence to prosecute the case; and that it is evident from the facts of the case, and all the surrounding circumstances, that the prosecution would be in the public interest. Furthermore, under section 119.11 of the Criminal Code, the Attorney-General is required to provide his written consent to the prosecution. In the event that a person is prosecuted, the burden remains on the prosecution to disprove any evidence put forward by the defendant relating to a legitimate purpose beyond reasonable doubt.
2.80
The Committee remains convinced that the declared area offence is a proportionate response, and that the safeguard requiring Attorney-General consent to prosecute is appropriate.
Legitimate purposes
2.81
Some participants in the inquiry recommended that a defence be made available to persons charged with entering, or remaining in, a declared area if the person establishes they were in the declared area for any legitimate purpose (whether or not that purpose is listed in the legislation). This would enable judicial discretion as to whether a person’s reasons for being in the area are legitimate, reducing reliance on the defined list of reasons provided in section 119.3(3). The Committee examined similar proposals during its 2014 review of the Foreign Fighters Bill. At that time, the Committee expressed its concerns that ‘given the perils of relying on foreign evidence or the impossibility of being able to gather it, such an approach could risk placing too high a burden on the prosecution being able to persuasively prove that any evidence presented by a defendant was not legitimate’. The Committee also cautioned that a broad definition of ‘legitimate purpose’ would ‘substantially reduce the deterrent intent of the legislation’.
2.82
The Committee continues to hold these concerns. Further, the Committee notes concerns expressed by the Attorney-General’s Department in the current review that leaving ‘legitimate purposes’ to the discretion of the courts would reduce the level of certainty in the current legislation. Individuals would not know until the point of prosecution whether or not they complied with the law when they entered a declared area.
2.83
Some participants in the inquiry also recommended that the existing list of legitimate purposes in subsection 119.3(3) be expanded. The Committee notes the INSLM’s concerns that ‘opening up’ the list of legitimate purpose exceptions to the offence ‘has the potential to render the offence unworkable’. The Committee also notes the INSLM’s conclusion that the circumstances in which an adult person would wish to travel to either of the (then) current declared areas other than to provide support to a terrorist organisation are ‘extremely narrow’. The Committee was not convinced that there exists a need to extend the list of legitimate purposes at this time.
2.84
In its 2014 review of the Foreign Fighters Bill, the Committee encouraged the Attorney-General’s Department to review the evidence provided by participants to that inquiry to identify legitimate purpose exceptions that could be added using the regulation-making power provided for in paragraph 119.2(3)(h), without reducing the deterrent effect of the offence. It was not clear in the current inquiry whether such a review has occurred; however, the Department confirmed that the regulation-making power has not been used to date.
2.85
However, the proposal for the legislation to be amended to make clear that humanitarian work other than direct aid—such as compliance training on the laws of armed conflict—is a legitimate purpose deserves close attention. While it is unclear whether the existing exception for ‘aid of a humanitarian nature’ would cover such work, the lack of clarity has the potential to deter non-government organisations from deploying Australian personnel to declared areas. Given the important role of organisations such as the International Red Cross Red Crescent Movement in conflict environments, the Committee considers deterring such organisations from operating in declared areas to be beyond the intention of the legislation. The Committee recommends that this matter be clarified.
2.86
The Committee recommends that section 119.2(3) of the Criminal Code be amended to make clear that humanitarian work beyond direct aid, including compliance training on the laws of armed conflict, is considered to be a ‘legitimate purpose’ for entering, or remaining in, a declared area.
Ministerial authorisation
2.87
The INSLM’s recommendation for consideration to be given to a ministerial pre-authorisation regime in the legislation could be an effective means of allowing individual circumstances to be taken into account where the reason for a person’s proposed travel to a declared area does not fall within one of the defined legitimate purposes.
2.88
However, the Committee notes the concerns about the workability of such a regime expressed by the Law Council of Australia, the AFP and the Attorney-General’s Department—in particular, that it would not be possible for the Government to be certain that a person would not engage in hostile activities once they arrived in the declared area. The Committee is therefore not persuaded that a pre-authorisation regime is feasible.
2.89
The Committee notes that virtually all of the concerns about the implications of the offence and possible legitimate purpose exceptions, discussed above, are significantly diminished if declarations are strictly limited to the most exceptional situations—where terrorist organisations are active and effectively exercising control over a particular region. The Committee notes that this was the intent when the bill was introduced, and has been the case for the declarations made to date.
2.90
The provisions that govern the making and revocation of declarations are discussed in the following section.
Section 119.3: the process for declarations
The test for declarations
2.91
As noted earlier, section 119.3 currently provides that the Foreign Affairs Minister may declare an area in a foreign country for the purposes of the offence in section 119.2 if he or she is satisfied that a listed terrorist organisation is ‘engaging in a hostile activity’ in that area of the foreign country.
2.92
The Law Council of Australia noted that this test ‘does not require an area to be fully under the control of a terrorist organisation to be declared’, and therefore that a person ‘may still have legitimate business or legal interests that may be dealt with under local law’.
2.93
The Australian Human Rights Commission recommended that, in the event that the Committee is satisfied that the declared area provisions are necessary and proportionate and should not be repealed, section 119.3 should be amended so that
the Foreign Affairs Minister may declare an area only if she is satisfied that a listed terrorist organisation is engaging in a hostile activity to a significant degree in that area.
2.94
Responding to this recommendation, the Attorney-General’s Department cautioned that
[i]ntroducing a subjective element to the nature of the hostile activity that underpins the declaration could undermine the operation of the declared area offences by creating greater opportunity for the basis of the declaration to be challenged.
2.95
Responding to a separate question from the Committee, the Department outlined a range of ‘non-legislative factors’ that the National Threat Assessment Centre may have regard to in order to ‘guide and prioritise the selection of areas in foreign countries for consideration’. Key non-legislative factors identified in the protocol are:
links to Australia and Australians
threats to Australian interests including the role of a particular area in the radicalisation of Australians and likely repercussions in Australia
the enduring nature of the listed terrorist organisation’s hostile activity in the area
the operational impact/utility of declaring the area
factors relevant to Australia’s international relations, including bilateral relations with countries including those in which an area may be declared, and engagement with international organisations such as the United Nations
the listed terrorist organisation’s ideology
links to other terrorist groups
engagement in peace or mediation processes.
The current status of declared areas
2.96
At the time of writing, the Minister for Foreign Affairs had declared two areas of foreign countries under section 119.3 of the Criminal Code:
al-Raqqa Province, Syria; and
Mosul district, Ninewa Province, Iraq.
2.97
In accordance with subsection 119.3(7), both areas were reviewed by the Committee within the parliamentary disallowance period (15 sitting days) after the declarations were made. The Committee supported the declarations in both instances, and has since then maintained a watching brief on developments in each area.
2.98
At the time al-Raqqa province was declared on 4 December 2014, the entire province was under control of the Da’esh. The provincial capital, Raqqa city, was also the de facto capital of the terrorist organisation’s self-proclaimed Caliphate. Over the subsequent years, Da’esh’s control of territory in the province was gradually reduced. By 20 October 2017, the group’s last remaining area of control in Raqqa city was claimed by the Syrian Democratic Forces, and the city was declared to be ‘liberated’. On 27 November 2017, shortly before its expiry, the declaration of al-Raqqa province was revoked by the Minister for Foreign Affairs. The supporting statement for the revocation noted:
Since the liberation of al-Raqqa city from Islamic State on 20 October 2017, ASIO has no information to indicate the group has engaged in hostile activity within the geographical boundary of the al-Raqqa province declared area. Islamic State continues to engage in hostile activity elsewhere in Syria, as well as across the globe.
2.99
Mosul District in Iraq was declared on 2 March 2015. Mosul was the largest city in Iraq controlled by Da’esh and played a key role as a central location for foreign extremists—including Australians—to form networks and train. On 9 July 2017, following the success of an offensive to reclaim the city that had begun nine months earlier, the Iraqi Prime Minister officially declared Mosul to be liberated from Da’esh. At the time of writing, the declaration remains in force and is due to expire in March 2018 (unless revoked or re-issued before then).
Monitoring and updating of declared areas
2.100
During its 2017 review of the Foreign Fighters Bill, the then Committee raised questions about the protocols that would be developed to ensure that the areas declared under the legislation would be regularly adjusted to keep pace with developments on the ground. The Attorney-General’s Department advised:
[T]he legislation really constrains our ability to declare an area to that area in which the hostilities are actually occurring. It does not give us ambit to declare an area surrounding that just in case the hostilities shift … the Minister for Foreign Affairs, once he or she is no longer satisfied that the hostilities are occurring in a particular area, is required under the legislation to revoke that declaration. What we are anticipating there is that if it is simply that the hostilities move from here to an area a small way away, then the process would be somewhat streamlined, because ASIO and other agencies would have done all the core legwork to develop the case for the minister’s consideration in the first instance, and a lot of that material could be used, and it would need to be supplemented by information that demonstrates that the hostilities have moved from this particular area or province to this area over here. But the whole process would need to be revisited.
2.101
In the current review, noting that no adjustments had been made to the boundaries of either of the declared areas in the years since their initial declarations, the Committee sought updated information on how the declared areas were being reviewed in practice. Noting the requirement for the Minister for Foreign Affairs to revoke a declaration once he or she is no longer satisfied that the legislative test is being met, the Committee asked about the process by which the Minister was kept informed about the extent to which a terrorist organisation is continuing to ‘engage in a hostile activity’ in a declared area. The Attorney-General’s Department submitted:
If circumstances arise which cause agencies to form a view that a declared area no longer meets the legislative test for declaration, advice from the National Threat Assessment Centre (NTAC) within ASIO, prepared in consultation with key agencies, will be provided to relevant agencies who will subsequently advise the Attorney-General and the Minister for Foreign Affairs.
2.102
In relation to the two (then) existing declarations, the Department advised:
Australian agencies are continuously monitoring the situation in Mosul district and al-Raqqa province to assess whether the situation continues to warrant those areas continuing to be subject to declaration.
In monitoring the situation in Mosul and al-Raqqa, ASIO must prepare an assessment of whether the observed activity in those areas satisfies the key criteria for the designation of a declared area. These are:
1
There is a listed terrorist organisation in existence; and
2
That listed organisation is engaging in hostile activity in the area of a foreign country.
While the volume and extent of Islamic State activity in al-Raqqa Province, Syria and Mosul district, Ninewa Province Iraq—and the territory under the group’s control—has contracted considerably, the group continues to engage in hostile activity within the declared areas.
2.103
The Department noted that legislative instruments for declared areas cease to have effect three years after they take effect, ‘ensuring there is regular review as to whether the area continues to meet the legislative criteria’. The Department also referred to the impact that changes to a declared area’s boundaries could have on the ability for the area to be readily understood by members of the public:
It is noted that changing the geographic boundary for a declared area to, for example, an individual city, or along natural features such as a river, to reflect the contraction in Islamic State control of territory within current declared areas, may not meet the requirement of the area being described in sufficient detail to ensure it is readily understood by members of the public.
2.104
Dr Ramzi Barnouti OAM, of the Iraqi Australian Christian Association, contended that as Mosul was now under the control of the Iraqi Government, it should no longer be declared under section 119.3 of the Criminal Code. Similarly, the President of the New South Wales Council for Civil Liberties stated that ‘the failure to revoke the declarations after territorial victory has been achieved just shows how these laws don’t end up operating in the way in which they’re originally described when they’re introduced’.
2.105
The current arrangements for the monitoring of declared areas are outlined in the Protocol for declaring an area in a foreign country where a listed terrorist organisation is engaging in a hostile activity under the Criminal Code Act 1995.
2.106
At the public hearing, the Committee questioned the Attorney-General’s Department further about why the declaration of Mosul had not yet been revoked, despite the city’s liberation from Da’esh. The Department provided the following advice:
Whenever a declaration is made, it is for a three-year period, so there is a sunset period at the end of it. The Mosul declaration sunsets on 3 March next year. As the revocation of the declaration of al-Raqqa shows, declarations that are in place remain under constant review for agencies and, if it is appropriate, agencies will give advice to ministers that the situation has changed. That was certainly the case in relation to al-Raqqa. That process will be the process that continues to be followed by agencies in relation to Mosul as well.
2.107
The Department added that, rather than being able to revoke a declaration at any time,
under the code, the foreign minister can revoke a declaration in circumstances where he or she becomes satisfied that the threshold for declaration no longer exists. The threshold is quite low. It is just that a listed terrorist organisation is engaging in hostile activity in the region. …
Mosul now remains under review by agencies, and if it’s appropriate then advice will be given to the minister.
2.108
As noted in Chapter 1, the INSLM has recommended that declarations be reviewable by the Committee at its discretion at any time prior to its expiry or revocation. While the Department declined to comment on this recommendation, no concerns were raised and other participants in the review expressed their support.
Committee comment
2.109
The Committee considers the ultimate value of the legislation under review is that it makes it an offence for a person to enter, or remain in, an area in an overseas country for which the range of legitimate reasons for a person to be there is extremely limited. As the INSLM pointed out in his report, the circumstances in which an adult person would wish to travel to either of the areas declared to date—other than to provide support to a terrorist organisation—are extremely narrow. As such, subject to the exceptions and other safeguards in the legislation, it is appropriate that Australian persons are strongly deterred from travelling to those areas and face possible criminal proceedings if they do so.
2.110
Essential to the objectives of the offence being realised, however, is that declarations continue to be applied sparingly and judiciously. That is, declarations should be limited to areas where, due to the activities of a terrorist organisation in the area, the legitimate reasons for which a person may wish to enter or remain in that area are strictly limited. As the Attorney-General noted in his second reading speech when initially introducing the legislation, declarations are expected to be made in ‘exceptional circumstances, where terrorist organisations are active and effectively exercising control over a particular region’.
2.111
While declarations have been applied sparingly and judiciously to date, the Committee is concerned that the legislation, as it stands, does not guarantee that this will continue into the future. The legislative test for an area to be declared, ‘that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country’, was described by even the Attorney-General’s Department as ‘quite low’. Consequently, it would be permissible under the legislation for a declaration to be made covering an area where a terrorist organisation exercised no control and engaged in only a small amount of hostile activity. Such concerns were highlighted to the Committee by the Australian Human Rights Commission, which recommended that the Minister should only be able to declare an area if satisfied that a listed terrorist organisation is engaging in a hostile activity to a significant degree in that area.
2.112
The Committee notes, however, that in addition to the legislative test, ASIO has regard to a wide range of other non-legislative factors when providing advice to support the Minister’s consideration of a decision to declare an area. These factors include links to Australia and Australians, threats to Australian interests, the enduring nature of the terrorist organisation’s hostile activity in the area, international relations and the operational impact or utility of declaring the area. These factors ensure a more judicious application of the declared area provisions. The Committee considers these to be crucial factors in considering whether or not an area should be declared (or continue to be declared), and suggests these factors should be specifically addressed in the public statement of reasons supporting each declaration. This would enhance transparency and be consistent with current practice for the listing of terrorist organisations under section 102.1 of the Criminal Code.
2.113
An additional concern to the Committee is that the two declarations that have been made to date were not revoked or amended more quickly in order to keep up with developments on the ground. In the case of Mosul district, Iraq, the declaration remains in force at the time of writing despite the city being liberated from Da’esh more than six months earlier in July 2017. Since the city’s liberation, it can be expected that the legitimate reasons for an Australian person to travel to Mosul would have expanded greatly. For example, an Iraqi-Australian may wish to return to Mosul to check on property, business interests or close friends that may have been severely affected by Da’esh’s occupation of the city—all of which is unlawful while the declaration remains in force. Preventing such persons from travelling to a declared area is far outside the purpose of the offence.
2.114
Similarly, in the case of al-Raqqa province, Syria, the declaration remained in force until it was revoked by the Minister in November 2016, several days before it was due to expire. By the time the last part of Raqqa city had been liberated a month earlier, large parts of the province had already been cleared of Da’esh forces for many months.
2.115
A key factor behind the continuation of each declaration appears to be the lack of a provision in the legislation for a declaration to be revoked in circumstances where the ‘quite low’ threshold test is still being met. Subsection 119.3(5) provides that the Minister must revoke a declaration if he or she ceases to be satisfied that a terrorist organisation is engaging in hostilities in the declared area. However, there is no provision for the Minister to revoke a declaration in circumstances where that test is still being met (to any extent), but it would be desirable to revoke a declaration due to changed circumstances on the ground. Under the current legislation, such declarations will remain in effect until they expire in three years.
2.116
The Committee considers this matter should be rectified in the legislation by providing the Minister with the capacity to revoke a declaration at any time, taking into account security advice from relevant agencies. Such a provision is particularly important given the significant implications of a declaration for the individual liberties and the wide range of considerations beyond the legislative threshold that go into the initial making of a declaration.
2.117
The Committee notes evidence that declared areas are constantly reviewed by agencies, with the Minister being briefed on a declared area if agencies consider the legislative test is no longer being met, or immediately prior to the expiry of a declaration. In the case of al-Raqqa province, such a briefing led to the declaration being revoked. The Committee expects that providing the Minister with the ability to revoke a declaration at any time, taking into account the full range of non-legislative factors, will result in agencies briefing the Minister in a greater range of circumstances as the situation in declared areas change.
2.118
The Committee also supports the INSLM’s recommendation that the Committee be empowered to review a declaration at any time it chooses to do so, and, if necessary, report its findings to the Parliament.
2.119
The Committee recommends that the key non-legislative factors that are considered by ASIO to guide and prioritise the selection of areas in foreign countries for consideration be specifically addressed in the unclassified Statement of Reasons that is provided to the Minister and made publicly available in relation to each declared area. These factors include:
links to Australia and Australians,
threats to Australian interests including the role of a particular area in the radicalisation of Australians and likely repercussions in Australia,
the enduring nature of the listed terrorist organisation’s hostile activity in the area,
the operational benefit of declaring the area,
factors relevant to Australia’s international relations, including bilateral relations with countries including those in which an area may be declared, and engagement with international organisations such as the United Nations,
the listed terrorist organisation’s ideology,
links to other terrorist groups, and
engagement in peace or mediation processes.
2.120
The Committee recommends that section 119.3 of the Criminal Code be amended to provide that the Minister for Foreign Affairs may revoke a declaration at any time. This should include circumstances where the legislative test for the declaration continues to be met, but where changes in non-legislative factors suggest that the declaration is no longer necessary or desirable, taking into account security advice from relevant agencies.
2.121
The Committee recommends that the Government implement the Independent National Security Legislation Monitor’s recommendation to empower the Committee to review and report back to the Parliament on any declaration made under section 119.3 of the Criminal Code at its discretion ‘at any time prior to the declaration ceasing to have effect or being revoked by the Minister’.