This review is conducted under section 119.3 of the Criminal Code.
Section 119.2 of the Criminal Code provides that it is an offence for a person to enter, or remain, in a ‘declared area’. There are exceptions to this offence for persons entering, or remaining in, declared areas solely for one or more of the listed ‘legitimate purposes’, or for service with a foreign government armed force (other than a proscribed organisation).
Section 119.3 of the Criminal Code provides that the Minister for Foreign Affairs 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’. Unless disallowed by the Parliament, or revoked earlier by the Minister for Foreign Affairs, a declaration ceases to have effect on the third anniversary of that day on which it takes effect.
Subsection 119.3(7) of the Criminal Code provides that the Parliamentary Joint Committee on Intelligence and Security (the ‘Committee’) may review a declaration before the end of the period in which the declaration may be disallowed by the Parliament (15 sitting days after it is tabled).
Mosul District, Ninewa Province, Iraq, was first declared as an area in a foreign country for the purposes of section 119.2 of the Criminal Code on 3 March 2015. The Committee undertook a review of that declaration and recommended that the legislative instrument declaring Mosul District not be disallowed. Due to the operation of subsection 119.3(4) of the Criminal Code, the initial legislative instrument would cease to have effect on the third anniversary of the day on which it took effect.
On 1 March 2018, the Minister for Foreign Affairs wrote to the Committee to advise that she had re-declared Mosul District. The letter indicated the Minister was satisfied that the Islamic State—a listed terrorist organisation under the Criminal Code—continues to engage in hostile activities in Mosul District.
The declaration came into effect on 3 March 2018, the day after it was registered on the Federal Register of Legislative Instruments. The declaration was tabled in the Senate on 19 March 2018 and in the House of Representatives on 26 March 2018.
This is the first time an area has been re-declared under the Criminal Code. In addition to Mosul District, only one other area has been declared: al-Raqqa Province in Syria, which was declared in December 2014. The Minister for Foreign Affairs revoked that declaration on 27 November 2017 after she ceased to be satisfied that a listed terrorist organisation—Islamic State—was engaging in hostile activity in that area.
Conduct of the inquiry
The Minister for Foreign Affairs’ letter included a copy of the declaration, the explanatory statement and a Statement of Reasons. The letter and its attachments were accepted as a submission to the review and published on the Committee’s website as Submission 1.
The Chair of the Committee, Mr Andrew Hastie MP, announced the review on 6 March 2018 and invited written submissions from members of the public. Submissions were requested to be provided by 6 April 2018, with extensions available on request. One additional submission was received:
Submission 2: Department of Home Affairs - Process for the 2018 Declaration of Mosul District, Ninewa Province, Iraq, as an area where a listed terrorist organisation is engaging in hostile activity.
A list of submissions received by the Committee is at Appendix A.
The Committee resolved to conduct a classified hearing so that evidence presented could be examined in more detail. A private hearing was held with representatives of the Department of Home Affairs, the Australian Security Intelligence Organisation (ASIO), the Department of Foreign Affairs and Trade, and the Australian Federal Police in Canberra on Thursday 10 May 2018. A follow-up private hearing was held in Canberra with the same agencies on 22 May 2018. Unclassified evidence from the hearings has been included in this report to support the Committee’s findings.
A list of hearings and witnesses who appeared before the Committee at the private hearings is included at Appendix B.
The Committee’s review followed a similar process to that developed in the Committee’s previous reviews of the declaration of Mosul District, Ninewa Province, Iraq, and al-Raqqa Province, Syria. This included examination of:
the Government’s procedures underpinning the declaration,
the declared area’s boundaries, and
communication of the declaration with stakeholders.
The Committee notes the previous review of the Mosul District declared area also examined the effectiveness of the ‘declared area’ offence and community counter-narratives. On this occasion, given Mosul District was being re-declared, the Committee instead considered:
the extent to which Islamic State holds territorial control over Mosul District,
legitimate purposes for travel to Mosul District, and
comparison with al-Raqqa, Syria.
While documents presented to the Committee refer to both the Islamic State of Iraq and the Levant (ISIL) and the Islamic State, the Committee will use the name Islamic State in this report—the same name as that used by the Australian Government to list Islamic State as a terrorist organisation under section 102.1 of the Criminal Code.
The Government’s procedures
During its review, the Committee received a document outlining the process undertaken by government agencies for the declaration of Mosul District. The Committee also sought information from agencies about the Government’s processes during the private hearing.
The procedures for the re-declaration of Mosul District follow similar procedures undertaken for the previous declarations of al-Raqqa Province, Syria and Mosul District. However, the current re-declaration occurred during machinery of government changes that saw policy responsibility for Part 5.5 of the Criminal Code—encompassing the declared area provisions—transferring from the Attorney-General’s Department to the Home Affairs portfolio. Since 20 December 2017, the Minister for Home Affairs and the Department of Home Affairs undertook the roles in the declaration process previously undertaken by the Attorney-General and the Attorney-General’s Department. Although this change had no substantive impact on the re-declaration of Mosul, the Committee notes the Department of Home Affairs and the Minister for Home Affairs provided the Statement of Reasons and the draft legislative instrument to the Minister for Foreign Affairs for her consideration.
Under the machinery of government changes, the Minister for Foreign Affairs continues to be the Minister responsible for declaring an area, and the Attorney-General continues to be the Minister responsible for consenting to any prosecution of a declared area offence.
At the time of tabling this report, the publicly-available protocol on declared areas had not been updated to reflect the machinery of government changes. During a private hearing, a representative from the Department of Home Affairs informed the Committee that the protocol would be updated following passage through Parliament of the Home Affairs and Integrity Agencies Legislation Amendment Act 2018 on 9 May 2018, which formalised the machinery of government changes.
The Committee’s previous review of the ‘declared area’ provisions
The Committee undertook a review of the declared area provisions in late 2017 and presented its report on 1 March 2018. The Committee made five recommendations in the report, in summary as follows:
that the ‘declared area’ provisions under the Criminal Code be continued for a further three years,
that section 119.2(3) of the Criminal Code be amended to clarify that humanitarian work, beyond direct aid, including compliance training on the laws of armed conflict, be considered a ‘legitimate purpose’ for entering a declared area,
that the key non-legislative factors considered by ASIO to guide and prioritise the selection of declared areas be specifically addressed in the unclassified Statement of Reasons. These factors include:
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,
that the Criminal Code be amended to allow the Minister for Foreign affairs to revoke a declaration at any time, including in 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, and
to allow the Committee, at its discretion, to review and report back to the Parliament at any time on any declaration made under section 119.3 of the Criminal Code.
The Government response to the Committee’s report was tabled in the Parliament on 24 May 2018—after the receipt of submissions and the conclusion of the Committee’s private hearings into the re-declaration of Mosul District. As such, the recommendations noted above were not factored into the Minister for Foreign Affairs’ submission. However the recommendations were considered during both the private hearings and in Committee deliberations.
The re-declaration of Mosul District
Islamic State is a listed terrorist organisation operating in Iraq under various names since 2003. In June 2014, the group launched a major offensive throughout northern Iraq, taking control of the city of Mosul and proclaiming an Islamic caliphate. In July 2017, following an offensive to reclaim Mosul, the Iraqi Prime Minister officially declared Mosul to be liberated from Islamic State.
As noted above, to declare an area in a foreign country for the purposes of section 119.2 of the Criminal Code, the Minister for Foreign Affairs must be satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country. Section 117.1 of the Criminal Code defines ‘engaging in hostile activity’ as engaging in conduct with the intention of achieving one of the following objectives:
the overthrow by force or violence of the government of that or any foreign country (or part of that or any other foreign country);
the engagement, by that or any other persons, in action that:
falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and
if engaged in in Australia, would constitute a serious offence;
intimidating the public or a section of the public of that or any other foreign country;
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);
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).
Using publicly available information, the Statement of Reasons produced by ASIO’s National Threat Assessment Centre outlines the basis of Mosul District’s declaration by assessing Islamic State’s activity in the area against each of the above criteria. In particular, the Statement of Reasons includes the following examples of hostile activities undertaken by Islamic State in Mosul District that have occurred since the Iraqi Prime Minister declared Mosul liberated in July 2017:
between 3 and 9 January 2018, Islamic State claimed four assassinations in three neighbourhoods of Mosul city targeting a local leader and three intelligence agents,
on 15 December 2017, Islamic State detonated several improvised explosive devices near Hamam al-Alil, south of Mosul, killing and wounding 13 soldiers of the Iraqi Popular Mobilisation Forces,
on 12 November 2017, an Islamic State bomb killed three civilians in west-Mosul. Another explosion killed a tribal fighter, and wounded three others, in al-Qayyarah,
on 11 November 2017, five policemen were killed and seven others wounded in a suspected Islamic State person-borne suicide attack targeting a checkpoint in al-Houd village,
on 23 October 2017, seven Iraqi police personnel were killed and wounded in an Islamic State suicide and armed attack in Mosul’s Old City, including when a ‘booby-trapped house’ exploded in east Mosul,
on 14 October 2017, Islamic State targeted a security forces headquarters in Tak Safuk village killing five security force personnel and wounding a further 13, and
on 4 August 2017, a suicide bomber invaded a makeshift headquarters belonging to the Iraqi Army’s elite Counter Terrorism Service in west-Mosul, killing three Iraqi Army members.
The declared area’s boundaries
The boundaries remain unchanged since Mosul was originally listed in 2015. Mosul District is located in the Ninewa Province of northern Iraq, bordered by the districts of Al Hadr, Tall Afar, Tall Kayf and Al Hamdaniyah in Ninewa Province, and the provinces of Arbil and Salah al Din. A map of the declared area boundaries can be found in the Statement of Reasons.
During the private hearing on 10 May 2018, the Committee heard that, due to the fluid nature of Islamic State’s activities in Mosul District, it was difficult to identify a smaller area for declaration. Further, any attempt to reduce the boundaries may diminish the requirement to provide the public with an easily understandable definition of the boundaries to the declared area.
According to the Statement of Reasons,
Given the liberation of Mosul city from Islamic State on 11 July 2017 and the subsequent liberation of other urban population centres such as Tal Afar and Hawijah; the geographic areas in which Islamic State is engaged in hostile activity are now less defined in Iraq than they were in March 2015.
However, the Statement of Reasons also explains that ‘despite the announced liberation of Mosul city and the group’s loss of control in the declared area of Mosul District; Islamic State has continued to engage in hostile activity in this area’.
In its Review of the ‘declared area’ provisions report, the Committee commented:
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’.
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…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.
When Mosul District was first declared in 2015, ASIO’s Statement of Reasons explained that Islamic State had a
significant and enduring presence in Mosul, which is its main base for operations in Iraq. Mosul has a symbolic significance for the organisation …
As the largest city in Iraq controlled by [Islamic State], Mosul plays a key role as a central location for foreign extremists—including Australians—to form networks and train.
In the 2018 Statement of Reasons, ASIO advised that Islamic State
has been militarily defeated in the vast majority of territory it once claimed in Iraq and Syria, including in Mosul District.
At the private hearings, witnesses agreed that—notwithstanding the loss of territorial control exerted by Islamic State over Mosul between 2015 and 2018—the declaration continued to satisfy the legislative requirements of the Criminal Code.
Mr Tony Sheehan, the Commonwealth Counter-Terrorism Coordinator, said at the private hearing that the re-declaration of Mosul District was ‘not a simple decision’. Mr Sheehan explained that although the area had been liberated, terrorist activity was still occurring.
ASIO told the Committee that the extent to which a terrorist organisation exercises territorial control over an area was not a key non-legislative factor outlined in the protocol for declaring an area. As such, the element of territorial control was not a key factor ASIO was able to consider when preparing the Statement of Reasons for Mosul District.
ASIO suggested the Committee may wish to consider whether the extent to which a terrorist organisation exercises territorial control over an area should be added to the key non-legislative factors taken into account when preparing the Statement of Reasons. ASIO said the inclusion of this factor would enhance future discussions of declared areas.
In its Review of the ‘declared area’ provisions, the Committee commented:
Essential to the objectives of the offence being realised … 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.
At the private hearings, witnesses discussed the potential for an increasing number of Australians with legitimate reasons to visit Mosul. The re-building of civil society in Mosul, including jobs, education and public infrastructure was an important precursor to stopping any resurgence of Islamic State; Australians may wish to contribute to this. The need to balance the re-building of Mosul District against deterring Australians from travelling to the region to support Islamic State was noted. However, agencies agreed that support for the re-declaration would increase the safety of Australians to ‘such an extent that it outweighs any potential detriment to the rebuilding or reconstruction that Australians might be looking to be part of’.
Agencies also noted that the current travel advice for Iraq was ‘do not travel’, with the SmartTraveller.gov.au website advising:
Do not travel to Iraq because of the extremely volatile and dangerous security situation. Armed conflict, air strikes, kidnappings and terrorist attacks are common. If you're in Iraq, including the Kurdish region, depart immediately.
Agencies reiterated that humanitarian assistance remained an exception to the declared area provisions, which would allow for Australians to travel to Mosul District to provide humanitarian aid.
Comparison with al-Raqqa
During the private hearings, the Committee questioned why Mosul District was being re-declared, yet the declaration for al-Raqqa had been revoked. al-Raqqa was declared by the Minister for Foreign Affairs in December 2014, and after its liberation from Islamic State in October 2017, the Minister revoked the declaration on 27 November 2017. The Committee also questioned why Mosul District was the only current declared area, despite Islamic State operating in other areas of Iraq and Syria.
ASIO explained there was no information to indicate Islamic State had engaged in hostile activities in al-Raqqa since its liberation in October 2017. In the case of Mosul District, hostile activity has been ongoing since the liberation was declared in July 2017.
ASIO also noted that while Islamic State was engaging in hostile activities in other parts of Iraq and Syria, Mosul District was of symbolic significance to Islamic State and its followers. It continues to hold resonance and was ‘well within that area’ where Islamic State traditionally tends to operate and draw support.
Communication of the declaration with stakeholders
Information on the original declaration of Mosul District in 2015 was communicated to stakeholders as outlined in Appendix B of the Committee’s May 2015 Report: Review of the declaration of Mosul district, Ninewa province, Iraq. Since the re-declaration was made on 1 March 2018, information has been updated on Government websites including nationalsecurity.gov.au; foreignminister.gov.au; dfat.gov.au; and smartraveller.gov.au.
In addition, the Australian Embassy in Baghdad notified senior members of the Iraqi Government of the re-declaration.
The Committee reviewed the process for the declaration of Mosul District and was satisfied with the appropriateness of the procedures undertaken by the Government.
The Committee agrees with the Minister for Foreign Affairs’ decision to re‑declare Mosul District. Although hostile activities have significantly reduced in the area since Mosul District was first declared in 2015, Mosul District continues to meet the legislative threshold under the Criminal Code, namely that a terrorist group is engaging in hostile activity in the area.
The Committee is also satisfied that the current key non-legislative factors—contained in the Protocol for declaring an area and considered by ASIO when preparing the Statement of Reasons—have been appropriately factored into the decision to re-declare Mosul District.
While the Committee considers that Mosul District meets the legislative threshold for re-declaration, the Committee notes that Islamic State does not continue to exercise territorial control over Mosul District. When both Mosul District and al-Raqqa Province were first declared, Islamic State held territorial control over the areas. These initial declarations were in line with the then Attorney-General’s second reading speech when he introduced the declared area offences to Parliament. The Attorney-General said that declarations are expected to be made in ‘exceptional circumstances, where terrorist organisations are active and effectively exercising control over a particular region’.
The Committee agrees with ASIO’s suggestion that the key non-legislative factors considered when preparing a Statement of Reasons be broadened to include the extent to which a proscribed group holds territorial control over the area. The Committee expects other significant and persuasive key non-legislative factors would need to be present in the absence of territorial control.
The Committee notes that when preparing a Statement of Reasons, ASIO’s consideration of the key non-legislative factors are currently restricted to those specified in the Protocol for declaring an area. While the Committee supports the current list of factors and the proposed additional territorial control factor, the Committee considers that these key non-legislative factors should not be exhaustive. Rather, ASIO should have the ability to take into account any factor it considers appropriate and relevant to the assessment of a declared area. In line with the Committee’s third recommendation in its Review of the Declared Area Provisions, if ASIO considers other key non-legislative factors, then these should be addressed in the Statement of Reasons.
The Committee recommends that the key non-legislative factors considered by the Australian Security Intelligence Organisation to guide and prioritise the selection of an area in a foreign country be expanded to include
the extent to which the listed terrorist organisation exercises territorial control over the area, and
other key factors relevant to the declaration of an area.
In instances where a terrorist group is engaged in hostile activities in multiple areas, the Committee considers the declaration process would be enhanced if there was an explanation in the Statement of Reasons as to why one geographic region was being prioritised for declaration over another. While the Committee accepts ASIO’s explanation for the prioritisation of Mosul District over other areas, in future the Committee requests that these explanations be extended to the Statement of Reasons.
The Committee notes a number of mechanisms are in place to ensure ongoing review of the declaration of Mosul District. These mechanisms include:
ongoing monitoring by intelligence and law enforcement agencies under the Protocol for declaring an area, and
the ability for the Minister for Foreign Affairs to revoke a declaration at any time if he or she ceases to be satisfied that a listed terrorist organisation is engaging in hostile activity in the area.
Subject to the passage of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018, additional mechanisms will include:
the ability for the Minister for Foreign Affairs to revoke a declaration at any time where the legislative test continues to be met, but where changes in non-legislative factors suggest that the declaration is no longer necessary or desirable, and
the ability for the Committee to review a declaration at its discretion at any time prior to the declaration ceasing to have effect or being revoked by the Minister.
Given Islamic State no longer exerts territorial control over the Mosul District and that there are an increasing number of legitimate reasons for Australians to travel to the area, the Committee requests intelligence and law enforcement agencies’ ongoing attention to ensure the legislative test is still being met, and to monitor for changes in key non-legislative factors.
In the event that Mosul District remains a declared area in September 2019—18 months from the time of the re-declaration—the Committee intends to undertake a further review of the declaration. The Committee will engage with the Government to ensure any review is timed to complement any parallel review processes.
The Committee concludes that appropriate processes have been followed and, after the private hearings, accepts that a listed terrorist organisation, Islamic State, continues to engage in hostile activity in Mosul District, Ninewa Province, Iraq.
The Committee supports the re-declaration of Mosul District under the Criminal Code and finds no reason to disallow the legislative instrument.
Mr Andrew Hastie MP