Section 119.2 of the Criminal Code makes it an offence to enter, or remain in, an area in a foreign country that is declared by the Minister for Foreign Affairs under section 119.3 of the Criminal Code. Sections 119.2 and 119.3 (the ‘declared area’ provisions) were added to the Criminal Code in November 2014, following the passage of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Foreign Fighters Bill).
To date, the following two areas have been declared:
al-Raqqa Province, Syria (on 4 December 2014). The declaration for al‑Raqqa Province was revoked on 27 November 2017 (see: 2.96–2.99).
Mosul district, Ninewa Province, Iraq (on 2 March 2015). The declaration for Mosul district is due to expire on 3 March 2018.
The Parliamentary Joint Committee on Intelligence and Security (the Committee) is required, under subparagraph 29(1)(bb)(iv) of the Intelligence Services Act 2001, to review, by 7 March 2018, the operation, effectiveness and implications of sections 119.2 and 119.3 and any other provision of the Criminal Code Act 1995 as far as it relates to those sections.
Unless extended by the Parliament, section 119.2 will cease to have effect at the end of 7 September 2018.
Conduct of the inquiry
The Chair of the Committee, Mr Andrew Hastie MP, announced the review by media release on 10 August 2017 and invited written submissions from members of the public. Submissions were requested to be provided by 6 October 2017, with extensions available on request.
The Committee received 11 submissions and three supplementary submissions from Government, academia, and other stakeholders. A list of submissions received by the Committee is at Appendix A.
The Committee held one public hearing and two private hearings on 1 December 2017. A list of hearings and witnesses who appeared before the Committee is included at Appendix B. The Committee also received private briefings from the Independent National Security Legislation Monitor (INSLM) and, separately, from the Attorney-General’s Department, Australian Federal Police and Australian Security Intelligence Organisation.
Copies of unclassified submissions and transcripts of public hearings can be accessed on the Committee’s website at www.aph.gov.au/pjcis.
Overview of the ‘declared area’ provisions
Section 119.2 – Entering into, or remaining in, declared areas
Section 119.2(1) of the Criminal Code provides the following:
(1) A person commits an offence if:
(a) the person enters, or remains in, an area in a foreign country; and
(b) the area is an area declared by the Foreign Affairs Minister under section 119.3; and
(c) when the person enters the area, or at any time when the person is in the area, the person:
(i) is an Australian citizen; or
(ii) is a resident of Australia; or
(iii) is a holder under the Migration Act 1958 of a visa; or
(iv) has voluntarily put himself or herself under the protection of
The offence carries a maximum penalty of imprisonment for 10 years.
The declared area offence does not apply if the person enters, or remains in, an area solely for one or more of the following ‘legitimate purposes’:
providing aid of a humanitarian nature;
satisfying an obligation to appear before a court or other body exercising judicial power;
performing an official duty for the Commonwealth, a State or a Territory;
performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory;
performing an official duty for the United Nations or an agency of the United Nations;
making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist;
making a bona fide visit to a family member;
any other purpose prescribed by the regulations.
The offence also does not apply if a person enters, or remains in, an area solely in the course of, and as part of, the person’s service with the armed forces of a foreign government or any other armed force declared by the Minister. Further, the offence does not apply to conduct engaged in by ‘a person acting in the course of the person’s duty to the Commonwealth in relation to the defence or international relations of Australia’.
The defendant bears an evidential burden in relation each of the above exceptions.
The consent of the Attorney-General is required for any prosecution.
Section 119.3 – Declaration of areas for the purpose of section 119.2
Section 119.3(1) of the Criminal Code provides the following:
The Foreign Affairs Minister may, by legislative instrument, declare an area in a foreign country for the purposes of 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.
For the purpose of subsection (1), a ‘listed terrorist organisation’ is an organisation, specified by regulations under section 102.1 of the Criminal Code, that the Minister is satisfied on reasonable grounds
is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
advocates the doing of a terrorist act.
Listings of terrorist organisations are subject to review by the Committee within the parliamentary disallowance period and cease to have effect after three years (if not re-listed).
The term ‘engage in a hostile activity’ is defined in section 117.1 as follows:
a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):
(a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);
(b) the engagement, by that or any other person, in action that:
(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and
(ii) if engaged in in Australia, would constitute a serious offence;
(c) intimidating the public or a section of the public of that or any other foreign country;
(d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);
(e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).
A declaration by the Foreign Affairs Minister must not cover an entire country; however, a single declaration may cover areas in two or more foreign countries. Before making a declaration, the Foreign Affairs Minister must arrange for the Leader of the Opposition to be briefed in relation to the proposed declaration.
A declaration by the Foreign Affairs Minister ceases to have effect after three years.
Section 119.3(5) provides that, if the Foreign Affairs Minister ceases to be satisfied that a listed terrorist organisation is engaging in a hostile activity in a declared area, the Minister must revoke the declaration.
The Committee may review a declaration ‘before the end of the period during which the declaration may be disallowed under section 42 of the Legislation Act 2003’ (the parliamentary disallowance period)—that is, 15 sitting days.
Both of the declarations made under the provisions to date—al-Raqqa Province in Syria and Mosul District in Ninewa Province, Iraq—have been reviewed and supported by the Committee.
The Foreign Fighters Bill was introduced into the Parliament by the Attorney-General on 24 September 2014 and contained a range of measures intended to ‘enhance the capability of Australia’s law enforcement, intelligence and border protection agencies to protect Australian communities from the threat posed by returning foreign fighters and those individuals within Australia supporting foreign conflicts’.
2014 review by the Committee
Prior to its debate in the Parliament, the Foreign Fighters Bill was subject to review by the Committee. While the Bill also covered a range of other measures, many participants in the inquiry submitted evidence in relation to the (then) proposed declared area provisions. The key arguments presented to the Committee and the Committee’s findings and recommendations were recorded in the Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, tabled in the Parliament on 17 October 2014.
In summary, the following matters were raised by participants in relation to the ‘declared area’ provisions:
concerns that the offence would criminalise conduct that is not of itself demonstrably harmful,
concerns about the particular impact on certain segments of the community,
the Government’s obligation to prevent people from going into certain areas and the need to overcome limitations in the existing Foreign Incursions Act,
that there are legitimate reasons why a person may wish to travel to a declared area that are not included in the list of ‘legitimate purposes’ in section 119.2,
that the ‘sole purpose’ requirement of the ‘legitimate purpose’ exception would place too high a burden of proof on the defendant,
particular concerns that would arise if an entire country were to be declared under the provisions, and
the difficulty of sentencing a person found guilty of the offence.
Suggestions for amendments to the provisions that were put forward by inquiry participants included:
adding a broad exception to the offence for persons entering an area solely for any purpose not connected with engaging in hostile activities,
including an intention to enter a declared area to engage in a terrorist activity or other illegitimate purpose as an element of the offence,
including a mechanism for persons to seek advice or pre-approval prior to travel to a declared area,
providing that the Minister of Foreign Affairs may only declare an area if satisfied that a terrorist organisation was engaging in a hostile activity to a significant degree in an area,
limiting the size of declared areas, requiring parliamentary approval for declarations, requiring the Minister to review declared areas on at least a monthly basis, and ensuring against the Minister continually adding to a declared area, and
reducing the sunset period for the provisions, and/or for individual declarations.
These matters were considered in detail by the Committee during its review of the Bill. The Committee also received substantial additional information from the Attorney-General’s Department in response to the matters raised and the suggestions put forward.
On the basis of compelling evidence received about the limitations of existing offences in regard to foreign incursions, the Committee concluded that a declared area offence was necessary. The Committee also noted the intent of the provisions to act as a deterrent against Australians travelling to conflict areas. However, the Committee acknowledged the concerns raised by some inquiry submitters and identified a number of areas in which safeguards and oversight could be enhanced without reducing the efficacy of the provisions. The Committee considered that the most effective means of building on the existing safeguards in the Bill was by ensuring the integrity of the process behind the Foreign Affairs Minister’s declarations.
In total, the Committee’s report on the Foreign Fighters Bill contained 37 recommendations, all of which were accepted by the Government. Four of these recommendations related specifically to the declared area provisions:
Recommendation 18 – that proposed section 119.3(2)(b), which explicitly enabled the Minister to declare an entire country for the purposes of prohibiting persons from entering, or remaining in, that country, be removed from the Bill. The result of this amendment was that a declaration by the Minister for Foreign Affairs must not cover an entire country.
Recommendation 19 – that a clause, modelled on existing provisions relating to the listing of terrorist organisations, be inserted enabling the Committee to conduct a review of the declaration of each area made under section 119.3, within the disallowance period for each declaration. This amendment resulted in subsection 119.3(7) being inserted into the Criminal Code, under which the Committee has reviewed both of the declarations made by the Minister Foreign Affairs to date.
Recommendation 20 – that the sunset date in subclause 119.2(6) be reduced from ten years after Royal Assent to two years after the next Federal election. This resulted in the current sunset date of 7 September 2018.
Recommendation 21 – that the Independent National Security Legislation Monitor Act 2010 be amended to require the INSLM to review and report on the operation of the declared area provisions 12 months after the next Federal election, and that the Intelligence Services Act 2001 be amended to require the Committee to complete a public inquiry into the provisions 18 months after the next Federal election. These amendments resulted in, respectively, the INSLM being required to review the declared area provisions by 7 September 2017 (see below), and the Committee by 7 March 2018 (this report).
The Committee’s recommendations were accepted by the Government and implemented through amendments to the Bill. The Bill passed the Parliament on 30 October 2014 and was given Royal Assent on 3 November 2014.
2017 review by the INSLM
As required under section 6(1B) of the Independent National Security Legislation Monitor Act 2010, the INSLM, Dr James Renwick SC, completed a review of sections 119.2 and 119.3 of the Criminal Code and presented a report of the review to the Prime Minister on 7 September 2017.
The INSLM concluded the declared area provisions are consistent with Australia’s human rights, counter-terrorism and international security obligations; contain appropriate safeguards for protecting the rights of individuals; are proportionate to the current threats of terrorism and to national security; and are necessary. He added that the laws ‘have the capacity to be effective (noting that no prosecution of the declared area offence has occurred)’.
The INSLM made the following recommendation for an increased role for the Committee in reviewing declarations made under section 119.3:
I recommend that these laws be continued, subject to any declaration being reviewable by the PJCIS at their discretion at any time prior to the declaration ceasing to have effect or being revoked by the Minister.
Increasing the role of the PJCIS, as recommended above, will assist in ensuring that the process for declaring areas under s 119.3 is judiciously applied and the situation in declared areas is monitored closely by the government with a view to the possible cessation of a declaration.
Responding to concerns raised during his review about the adequacy of the current ‘legitimate purpose’ exception, the INSLM also recommended
that consideration be given (noting in particular the potential issues set out in paragraphs 8.18–8.35 of this report) to making a regulation under, or an amendment to, these 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.
Subject to these recommendations being adopted, the INSLM recommended that the declared area laws be continued for a further period of five years.
The INSLM’s report was tabled in the Parliament and made publicly available on 16 October 2017. To enable submissions to take into account the INSLM’s findings, participants in the Committee’s review were given an additional two weeks after this date to make a submission.
The current security environment
In its most recent annual report, the Australian Security Intelligence Organisation (ASIO) described Australia’s current security environment in relation to terrorism as follows:
The Islamist extremist terrorism threat in Australia remains elevated with little prospect of significant improvement in the near term. We see little indication that the attraction of the Islamist extremist narrative is substantially declining—and we expect a very small number of Australian Islamist extremists will continue to plan and aspire to conduct terrorist attacks in Australia.
The national terrorism threat level is currently PROBABLE—credible intelligence, assessed to represent a plausible scenario, indicates an intention and capability to conduct a terrorist attack in Australia. Since the national terrorism threat level was raised in September 2014, there have been five onshore terrorist attacks targeting people in Australia and 13 disruption operations in response to imminent terrorist attack planning in Australia … All but one have been linked to or inspired by ISIL.
While experience over recent years suggests the most likely form of terrorism in Australia remains an attack by an individual or small group, recent disrupted attack plots—in December 2016 in Melbourne and July 2017 in Sydney—remind us that we must be prepared for terrorist attacks across the spectrum of tactics and capabilities.
The June 2017 Independent Intelligence Review conducted by Mr Michael L’Estrange AO and Mr Stephen Merchant PSM similarly highlighted the enduring nature of the current terrorism threat:
In our view, extremism with global reach will continue and diversify over the coming decade. Fundamentalist advocacy of violence in the name of religion will continue to inspire attacks, especially from Islamist terrorist organisations. Radicalisation and terrorist acts will continue to be enabled by increasingly internationalised networks and encrypted communications. The prominence and power of individual groups such as the Islamic State of Iraq and the Levant (ISIL) may wane but many of the forces of deep alienation, ruthless hostility and ideologies of violence that have brought these groups to prominence will remain. Individuals inspired by ISIL will outlive any demise of the organisation. Al-Qaida and its affiliates will remain a threat. Those groups and other splinter organisations that may emerge will aim to give effect to ambitions for mass casualty attacks and random violence. Such groups will continue to draw on local grievances to support their regional and global agendas.
These realities of Australia’s national security environment will continue as a vital focus for the work of the intelligence agencies over the coming decade and beyond. Particular challenges will emerge and others will evolve. These will include the activities and networks of Australian ‘foreign fighters’ involved in international extremist and terrorist causes, the rise of ‘lone wolf’ assaults and the scope for low-technology terrorism attacks often facilitated online. The time taken between radicalisation and terrorist attack is shortening, further challenging intelligence agencies’ detection and response capabilities.
In our view, the terrorist and extremist threats to Australia and Australian interests will continue to grow in scale and complexity. Detecting and countering such threats will be increasingly challenging for our intelligence and law enforcement agencies. The greater numbers of Australians travelling and living overseas, as well as the international movement of radicalised individuals, will magnify the security threats Australia faces.
The INSLM, in his review of the declared area provisions, considered comments such as these to be ‘highly relevant in considering whether the legislation under review is proportionate to the threats, and necessary’. The INSLM also noted that
it is better to have a carefully thought‐out counter‐terrorism legal structure in place before an attack: while legislating in an emergency is possible, it is generally undesirable, not least as it may lead to a disproportionate response.