Counter-terrorism Legislation Amendment (Declared Areas) Bill 2024 - New and Ongoing Matters [2024] AUPJCHR 15 (17 April 2024)

1.1 The committee comments on the following bills and legislative instruments, and in some instances, seeks a response or further information from the relevant minister.

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Parliamentary Joint Committee on Human Rights

Purpose	This bill seeks to extend for a further three years the declared area offence in the Criminal Code Act 1995 that is scheduled to sunset on 7 September 2024
Portfolio	Attorney-General
Introduced	House of Representatives, 27 March 2024
Rights	Equality and non-discrimination; fair trial; freedom of movement; liberty; life; security of person

1.2 This bill seeks to extend by a further three years (to 7 September 2027) the operation of the declared area offence provision in section 119.2 of the Criminal Code Act 1995 (Criminal Code) which is due to sunset on 7 September 2024.^[10] The bill also seeks to add a sunset date (of 7 September 2027) to section 119.3 of the Criminal Code, which empowers the minister to declare an area for the purposes of the offence provision (this is not currently subject to any sunsetting).^[11] Under the current provisions, it is an offence, punishable by up to 10 years’ imprisonment, to enter or remain in an area declared by the Minister for Foreign Affairs, unless the accused can raise evidence to demonstrate it is for one of a limited set of purposes as set out in the Criminal Code.^[12] The Minister for Foreign Affairs may declare an area in a foreign country for the purposes of this offence if they are satisfied that a listed terrorist organisation is engaging in a hostile activity in that area.^[13]

1.3 The declared area offence provisions are intended to protect Australia’s national security interests; deter Australians, including families, from travelling to dangerous conflict areas where listed terrorist organisations are engaging in hostile activities; and protect against the possibility of terrorist attacks in Australia, noting that foreign conflicts provide an opportunity for Australians to develop the capability and ambition to undertake terrorist acts.^[14] If these provisions were capable of assisting in achieving these objectives, it would appear that extending the provisions for a further three years would promote the rights to life and security of the person. The right to life^[15] includes an obligation on the state to protect people from being killed by others or identified risks.^[16] The right to security of the person requires the state to take steps to protect people against interference with personal integrity by others.^[17]

1.4 However, the declared area offence provisions also engage and limit numerous rights, including the rights to equality and non-discrimination, fair trial, freedom of movement and liberty.^[18] The statement of compatibility acknowledges the engagement of some of these rights.^[19] These rights may be subject to permissible limitations providing they pursue a legitimate objective and are rationally connected and proportionate to that objective.

1.5 The committee has previously considered the human rights compatibility of the declared area offence provisions proposed to be extended by this measure. After detailed consideration of these provisions, the committee has previously found that while the provisions are likely aimed at achieving a legitimate objective (namely, that of seeking to prevent terrorist acts), questions remain as to whether the provisions would be effective to achieve this objective and were necessary, noting the limited use of the provisions in practice. The committee further found that the provisions did not contain sufficient safeguards or flexibility to constitute a proportionate limit on rights. As a result, the committee previously found the provisions, as well as measures that extended the operation of the provisions (as was done in 2018 and 2021), were likely to be incompatible with a range of human rights.^[20]

1.6 The same human rights concerns as were raised previously apply in relation to the further extension of these provisions. In particular, there are questions as to whether the provisions remain necessary and address a current pressing and substantial need. The statement of compatibility states that the measure seeks to address two pressing and substantial concerns:

The first concern is that Australians who enter or remain in conflict areas put their own lives at risk. This concern also extends to children who have been taken to declared areas by their parents or guardians. The second is that foreign conflicts provide a significant opportunity for Australians to develop the capability and ambition to undertake terrorist attacks.^[21]

1.7 As to the necessity of the measure, the statement of compatibility states that since the introduction of the provisions, two areas have been declared – provinces in Syria and Iraq, although both declarations have since been revoked and there are currently no declared areas in effect, and four Australians have been charged with the declared area offence.^[22] The statement of compatibility explains that the provisions have only been used in the context of the Islamic State as this has been the only conflict which warranted the use of the powers. It notes that after the declarations were made with respect to areas in Syria and Iraq, there was a significant reduction in the number of Australians travelling to these areas, concluding that the provisions are likely to have contributed to discouraging people from travelling to these areas, including discouraging parents from taking their children into those areas.^[23] The statement of compatibility notes that the limited number of areas declared and limited number of people charged with the offence indicate the exceptional nature of the provisions and judicious use of the power and associated offence. It emphasises that it is ‘not an indication of a lack of utility’.^[24] It states that the provisions are capable of being used in response to future conflicts and will greatly assist the government’s ability to rapidly respond to a future crisis in an appropriate and measured manner.

1.8 Another relevant consideration with respect to the necessity of the measure is the current threat environment. The statement of compatibility states that Australia’s national terrorism threat level is ‘possible’, which means there is credible intelligence that, while Australia remains a potential terrorist target, there are fewer violent extremists with the intention to conduct an attack onshore.^[25] It notes that a ‘possible’ threat level ‘does not mean the risk is negligible’.^[26] The statement of compatibility includes some statistics regarding the number of people in Australia who have been charged with terrorism offences and who have travelled to, and died in, Syria or Iraq. In particular, since 2012, around 230 Australians are said to have travelled to Syria or Iraq to fight with or support violent extremist groups and, at mid-2023, around 160 Australians who travelled to Syria or Iraq are believed to have died.^[27] It is not clear, however, when these people travelled to Syria or Iraq and if such travel occurred when the areas were declared areas, noting that the declarations with respect to Syria and Iraq were revoked in 2017 and 2019 respectively. It is noted that since the committee’s previous consideration of the declared area offence provisions in 2021, the national terrorism threat level has been lowered from ‘probable’ to ‘possible’.^[28]

1.9 The statement of compatibility further notes that the three year extension of section 119.2 would be consistent with the previous two extensions made in 2018 and 2021 in accordance with the recommendations made by the Parliamentary Joint Committee on Intelligence and Security (PJCIS).^[29] In 2021, the PJCIS conducted a review of the declared area offence provisions in sections 119.2 and 119.3 of the Criminal Code. It recommended that these provisions be extended for a further three years (to 7 September 2024). It did so, despite noting the limited use of the offence and that there were no declared areas at the time of the review, on the basis that it would not be ‘prudent’ to repeal the provisions during a period of uncertainty as caused by COVID-19 and at a time when international borders may be reopening.^[30] There has not been a more recent review of the declared area offence provisions by the PJCIS since 2021. Indeed, this bill would repeal paragraph 29(1)(bbaa) of the Intelligence Services Act 2001, which provides that the PJCIS may, should it resolve to do so, review the operation, effectiveness and proportionality of sections 119.2 and 119.3 of the Criminal Code prior to 7 January 2024.^[31] The explanatory memorandum explains that the PJCIS did not resolve to undertake a review and as the mandate is exhausted, it is appropriate that the provision be repealed.^[32] Noting the change in the threat environment from ‘probable’ in 2021 to ‘possible’ in 2024, the 2021 recommendation of the PJCIS to extend the provisions appears to have less relevance with respect to this measure.

1.10 Having regard to the limited use of the provisions, noting that no areas are currently declared and the last declaration was revoked in 2019; the lower national terrorism threat level; the absence of a recent review of the effectiveness of the provisions; and the availability of other counter-terrorism powers (noting that since these provisions were enacted in 2014, new legislation has conferred further powers to investigate terrorism related offences),^[33] questions remain as to whether the extension for a further three years of the declared area offence provisions is necessary and addresses a current pressing and substantial concern.

1.11 With respect to proportionality, the committee has previously noted that the statutory exceptions or defences to the declared area offence contained in subsections 119.2(3) and 119.2(4) of the Criminal Code are relatively narrow and that the defendant bears an evidential burden in relation to these matters.^[34] For example, it is not a defence to visit friends, retrieve personal property, transact business or undertake a religious pilgrimage. Accordingly, there may be a number of significant, innocent reasons why a person might enter or remain in a declared area, but that would not bring a person within the scope of the legitimate purpose defence. It is noted that the PJCIS, in its 2021 review of the provisions, recommended that the Criminal Code Act 1995 be amended to allow Australian citizens to request an exemption to travel to a declared area for reasons not listed in the Criminal Code, but which are not otherwise illegitimate under Australian law.^[35] It considered:

providing an avenue for people, with legitimate reasons to travel, to request an exemption upon which the Minister for Foreign Affairs could decide to impose conditions (for example, regular contact with the closest embassy), would likely be significantly easier to manage than people traveling to a declared area under a current exception [under subsection 119.2(3) or 119.2(4)] ... The Committee considers this method of providing individual exceptions to travel would be less burdensome than trying to list every possible reason a person may legitimately need to travel to a declared area.^[36]

The government did not support this exemption recommendation.^[37] Providing for greater flexibility to allow for travel to a declared area for legitimate purposes would assist with proportionality.

1.12 Further, as the committee has noted on a number of occasions, it remains unclear why other measures that may constitute a less rights restrictive approach, such as existing provisions of the Criminal Code which prohibit engaging in hostile activities in foreign countries,^[38] cannot be relied on to achieve the stated objective.^[39] Additionally, while the ability of the minister to revoke a declaration at any time prior to its expiration if it is no longer necessary and the PJCIS’s ability to monitor a declaration on an ongoing basis may offer some safeguard value, it has not been established that these safeguards alone would be sufficient to ensure that any limitation on rights is proportionate.^[40]

1.13 Noting this committee’s previous conclusion that the declared area provisions did not contain sufficient safeguards or flexibility to constitute a proportionate limit on rights, and noting that questions remain with respect to the necessity of the measure, particularly in light of the downgraded terrorism threat level and limited use of the provisions in recent years, it has not been established that the extension of these provisions for a further three years is compatible with human rights.

1.14 The committee considers that the objective underpinning the measure is important, namely, to protect Australia’s national security interests and deter Australians from travelling to dangerous conflict areas where listed terrorist organisations are engaged in hostile activity.

1.15 The Parliamentary Joint Committee on Human Rights supports the Parliamentary Joint Committee on Intelligence and Security’s 2021 suggested amendment that would allow for Australian citizens to request an exemption to travel to a declared area for reasons not listed in the Criminal Code, but which are not otherwise illegitimate under Australian law.

1.16 The committee notes that while the provisions have been historically used, including declarations relating to provinces in Syria and Iraq, there are currently no areas declared. The committee also notes that the national terrorism threat level has been downgraded since the provisions were previously extended – from ‘probable’ in 2021 to the current threat level of ‘possible’.

1.17 The committee has previously found that while the provisions likely pursue a legitimate objective (namely, that of seeking to prevent terrorist acts), there were questions whether the provisions were necessary, and, in particular, the measures did not appear to be proportionate, and therefore were likely to be incompatible with a range of human rights. The committee notes that these same human rights concerns apply with respect to this measure. In light of the limited use of the provisions and the changed threat environment, as well as the availability of other counter-terrorism powers, the committee considers that questions remain as to whether the measure is necessary and addresses a current pressing and substantial concern. Additionally, noting the committee’s previous conclusion that these provisions do not contain sufficient safeguards or flexibility to constitute a proportionate limit on rights, concerns remain as to the proportionality of the measure. As such, the committee considers that it has not been demonstrated that the extension of these provisions is compatible with human rights.

1.18 The committee draws its human rights concerns to the attention of the Attorney-General and the Parliament.

^[9] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024, Report 3 of 2024; [2023] AUPJCHR 15.

^[12] Criminal Code Act 1995, section 119.2. Subsection 119.2(3) sets out that the offence will not apply if the person enters, or remains in, the area solely for one or more of the following purposes: providing aid of a humanitarian nature; appearing before a court; performing an official duty; acting as a journalist; making a bona fide visit to a family member; or any other purpose prescribed by the regulations. Subsection 119.2(4) provides it also will not apply if the person was there as part of the person’s service with the armed forces of a foreign country (unless it is a prescribed organisation).

^[15] International Covenant on Civil and Political Rights, article 6(1) and Second Optional Protocol to the International Covenant on Civil and Political Rights, article 1.

^[16] UN Human Rights Committee, General Comment No. 36: article 6 (right to life) (2019) [3]: the right should not be interpreted narrowly and it ‘concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity’.

^[18] International Covenant on Civil and Political Rights, articles 2, 9, 12, 14 and 26.

^[19] Statement of compatibility, p. 5. The statement of compatibility also identifies the engagement of other human rights, including the rights to privacy and freedom of association. As these rights are only marginally engaged, they are not discussed in this entry.

^[28] The threat levels are set out in the National Terrorism Threat Advisory System. See Australian National Security, National Terrorism Threat Advisory System (11 November 2021).

^[30] See Parliamentary Joint Committee on Intelligence and Security, Review of ‘declared areas’ provisions: Sections 119.2 and 119.3 of the Criminal Code (February 2021) p. 18.

^[33] Such as temporary exclusion orders; citizenship cessation; surveillance powers; the grounds for control orders; and a compulsory industry assistance scheme. For further details see Law Council of Australia, Submission 2, p. 14, to the Parliamentary Joint Committee on Intelligence and Security, Review of ‘declared areas’ provisions of the Criminal Code Act 1995 (Cth), 25 August 2020.

^[34] See Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (28 October 2014) p. 41; Report 6 of 2018, (26 June 2018), pp. 18–20.

^[35] See Parliamentary Joint Committee on Intelligence and Security, Review of ‘declared areas’ provisions: Sections 119.2 and 119.3 of the Criminal Code (February 2021) p. 21.

^[36] See Parliamentary Joint Committee on Intelligence and Security, Review of ‘declared areas’ provisions: Sections 119.2 and 119.3 of the Criminal Code (February 2021) p. 20.

^[37] See Australian Government response to the Parliamentary Joint Committee on Intelligence and Security, Review of ‘declared areas’ provisions: Sections 119.2 and 119.3 of the Criminal Code (July 2021) pp. 2–3

^[38] See Parliamentary Joint Committee on Human Rights, Report 4 of 2018 (8 May 2018) p. 90.

Australian Parliamentary Joint Committee on Human Rights

Counter-terrorism Legislation Amendment (Declared Areas) Bill 2024 - New and Ongoing Matters [2024] AUPJCHR 15 (17 April 2024)