1.1
Section 119.2 of the Criminal Code Act 1995 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.
1.2
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).
1.3
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 The declaration for al-Raqqa Province was revoked by the Minister of Foreign Affairs on 27 November 2017.
Mosul district, Ninewa Province, Iraq (on 2 March 2015 and re‑declared on 2 March 2018). The declaration for Mosul district was revoked by the Minister for Foreign Affairs on 19 December 2019.
1.4
The Parliamentary Joint Committee on Intelligence and Security (the Committee) is required, under subparagraph 29(1)(bb)(iii) of the Intelligence Services Act 2001, to review, by 7 January 2021, the operation, effectiveness and implications of sections 119.2 and 119.3 of the Criminal Code (which provide for declared areas in relation to foreign incursion and recruitment).
1.5
Unless extended by the Parliament, section 119.2 will cease to have effect at the end of 7 September 2021.
Conduct of the Inquiry
1.6
The Chair of the Committee, Mr Andrew Hastie MP, announced the review by media release on 18 June 2020 and invited written submissions from members of the public.
1.7
The Committee received ten submissions and two supplementary submissions from the Government, academia, and other stakeholders. A list of submissions received by the Committee is at Appendix A.
1.8
The Committee held one public hearing on 22 September 2020. A list of witnesses who appeared before the Committee is included at Appendix B.
1.9
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 Areas provisions of the Criminal Code
Section 119.2 – Entering into, or remaining in, declared areas
1.10
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 Australia.
1.11
The offence carries a maximum penalty of imprisonment for 10 years.
1.12
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’:
a. providing aid of a humanitarian nature;
b. satisfying an obligation to appear before a court or other body exercising judicial power;
c. performing an official duty for the Commonwealth, a State or a Territory;
d. 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;
e. performing an official duty for:
i) the United Nations or an agency of the United Nations;
ii) the International Committee of the Red Cross
f. 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;
g. making a bona fide visit to a family member;
h. any other purpose prescribed by the regulations.
1.13
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’.
1.14
The defendant bears an evidential burden in relation each of the above exceptions.
1.15
The consent of the Attorney-General is required for any prosecution. However, a person can be charged, a warrant issued for their arrest, be remanded in custody, or on bail under the declared areas provisions.
Section 119.3 – Declaration of areas for the purpose of section 119.2
1.16
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.
1.17
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
a. is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
b. advocates the doing of a terrorist act.
1.18
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).
1.19
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).
1.20
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.
1.21
A declaration by the Foreign Affairs Minister ceases to have effect after three years.
1.22
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.
1.23
Section 119.3(7) provides that the Committee may review a declaration and report to the parliament before the end of the parliamentary disallowance period (15 sitting days after the declaration is tabled). In addition, section 119.3(8) provides that the Committee may review a declaration and report to parliament any time while the declaration is in effect.
Previous reviews
2014 PJCIS Advisory Report
1.24
The Committee first reviewed the ‘declared areas’ provisions in 2014. The Committee’s findings and recommendation were recorded in the Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, and tabled on 17 October 2014.
1.25
The Committee made four recommendations in relation to the ‘declared areas’ provisions, which were all agreed by the Government and implemented through amendments to the Bill. These recommendations were:
That the proposed provision subsection 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 Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.
That the Foreign Fighters Bill be amended to insert a clause that enables the PJCIS to conduct a review of the declaration made under proposed section 119.3, within the disallowance period for each declaration.
That the sunset provisions be reduced from ten years to two years after the next federal election (which resulted in the sunset date of 7 September 2018).
That the Intelligence Services Act 2001 be amended to require the PJCIS to complete a public inquiry into the ‘declared areas’ provisions 18 months after the next federal election.
1.26
The report further recommended that the Independent National Security Legislation Monitor (INSLM), review the provisions 12 months after the next federal election.
2017 INSLM Review
1.27
The Independent National Security Legislation Monitor (INSLM) published his report on the declared areas provisions on 7 September 2017. The INSLM recommended that the provisions be continued, and in the case of a positive review from the PJCIS in 2018, be extended for a further five years. The INSLM recommended that a declaration may be reviewed by the PJCIS at its discretion at any time prior to the declaration ceasing to have effect or being revoked by the Minister for Foreign Affairs.
1.28
The INSLM further recommended that members of the public be allowed to seek permission from the Minister for Foreign Affairs to enter or remain in declared areas outside of the listed exceptions. This recommendation was not supported by the government.
2018 PJCIS Review
1.29
The most recent PJCIS review into declared areas provisions was announced on 10 August 2017 and the report published on 1 March 2018. The Committee made five recommendations , including:
1
that the provisions be continued for a further period of three years.
2
that the provisions be amended to include humanitarian work beyond direct aid as an exception to the offence of entering or remaining in declared areas.
3
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.
4
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.
5
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’.
1.30
The government supported recommendations one, four and five, and supported in principle recommendations two and three.
1.31
In May 2018, the Government introduced the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 which, among other things, implemented Recommendations 1 (in full), 2 (in part), 4 (in full) and 5 (in full) of the Committee’s 2018 report. It did so by amending:
1
subsection 119.2(6) of the Criminal Code to change the sunset date from “7 September 2018” to “7 September 2021” (Recommendation 1);
2
paragraph 119.2(3)(e) of the Criminal Code to include the performance of an official duty for the International Committee of the Red Cross as a new exception to the offence of entering or remaining in declared areas (Recommendation 2);
3
subsection 119(3)(6) of the Criminal Code to empower the Minister for Foreign Affairs to revoke a declaration at any time (Recommendation 4); and
4
subsection 119.3(7) of the Criminal Code to empower the Committee to review and report back to the Parliament on any declaration made under section 119.3 (Recommendation 5).
In respect of Recommendation 3 of the Committee’s 2018 report, the Committee heard evidence that agencies, including the Department of Home Affairs and the Department of Foreign Affairs and Trade, were still in the process of “revising the protocol around” the issues referred to in that recommendation.
PJCIS Reviews into declarations
1.32
Both of the declarations (and the re-declaration of Mosul) made under the provisions to date—al-Raqqa Province in Syria and Mosul District in Ninewa Province, Iraq—were reviewed and supported by the Committee.