Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 85 (15 May 2024)

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Purpose	The bill will extend for a further three years the declared areas offence in 119.2 of the Schedule to the Criminal Code Act 1995 (the Criminal Code) that is scheduled to sunset on 7 September 2024.
Portfolio	Attorney-General
Introduced	House of Representatives on 27 March 2024
Bill status	Before the House of Representatives

Significant matters in delegated legislation
Trespass on rights and liberties
Parliamentary scrutiny^[8]

1.17 Item 1 of Schedule 1 to the bill seeks to amend subsection 119.2(6) of the Schedule to the Criminal Code Act 1995 (the Criminal Code) to extend the declared areas offence in section 119.2 of the Criminal Code. The offence is due to cease at the end of 7 September 2024 and the bill seeks to amend the cessation date to the end of 7 September 2027.

1.18 The declared areas provisions make it an offence for a person to enter or remain in an area declared by the Minister for Foreign Affairs to be an area in a foreign country where a listed terrorist organisation is engaging in a hostile activity.

1.19 The committee has previously raised concerns regarding the breadth of the offence of entering, or remaining in, declared areas, and the broad delegation of power in allowing the Minister for Foreign Affairs to make this declaration.^[9] In particular, the committee has noted its concerns that the offence could apply even if a person did not know the area was subject to a relevant declaration and they had no intention to commit any particular crime or activity.

1.20 The extraordinary nature of the regime is recognised in the current legislation by the inclusion of a sunset period. In extending these significant powers by a period of three years, the committee expects that the explanatory materials accompanying the bill should provide a comprehensive justification for the continued need for such powers. In relation to this the explanatory memorandum states:

The effect of this amendment would be to extend the operation of the offence for entering or remaining in a declared area by three years to 7 September 2027. Extending the offence by three years reflects the continued appropriateness of the provisions and is consistent with the previous two extensions made in 2018 and 2021 in accordance with recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS). This would allow for continued, periodic review of the appropriateness of this framework.^[10]

1.21 The committee’s expectations will also be higher where the sunsetting date has been repeatedly extended. The explanatory materials accompanying such a bill should provide a comprehensive justification for the continued need for extraordinary measures, including outlining what exceptional circumstances justify the extension and whether those exceptional circumstances are expected to continue into the future.

1.22 The committee has previously commented on past extensions to the sunsetting date for the offence and notes that similar explanations were provided to justify extending the sunsetting date until September 2021 and then to September 2024.^[11] The committee reiterates its previous concerns that there is a risk that measures that were originally introduced on the basis of being a temporary response to an emergency situation may become permanent, in effect, by their continual renewal without sufficient scrutiny of the rationale for their continued appropriateness.^[12] The committee considers the measures being extended by this bill raise significant scrutiny concerns and may, in some instances, unduly trespass on personal rights and liberties.

1.23 Sunset provisions can be an important safeguard for the imposition of significant measures which trespass on rights and liberties such as the declared area provisions as they require the Parliament to consider at regular intervals whether the measures remain necessary and appropriate, or should be repealed or amended. However, the justification for the extension of sunsetting in this instance, being to ‘allow for continued, periodic review of the appropriateness of this framework’^[13] may be undermined if the body tasked to undertake this periodic review, the Parliamentary Joint Committee on Intelligence and Security (the PJCIS) has a discretion to not undertake that review. The committee notes that, in this instance, the PJCIS did not resolve to undertake the review.

1.24 These concerns are exacerbated by the proposed changes to the previous arrangement for regular reviews by the PCJIS of the offence prior to its sunsetting. The committee notes the legislative history surrounding review of the declared areas offence, as follows:

1.25 As noted above, the PJCIS did not resolve to conduct the second review referred to above. Item 3 of Schedule 1 to the current bill seeks to repeal paragraph 29(1)(bbaa) of the Intelligence Services Act 2001, which provided for that review, without replacing it with a new mandate to review the declared area offence. Instead, as noted in the explanatory memorandum to the bill, it is the intention to replace the PJCIS’s specific mandate with the a broader discretion for the PJCIS to inquire into any counter‑terrorism or national security legislation prior to its sunsetting.^[14][15]

1.26 Noting that the decision to impose a sunset period on legislative provisions is only taken by the Parliament in extraordinary cases, mandated reviews appear to the committee to be the most appropriate avenue for review. This would ensure that the Parliament is provided with sufficient advice concerning the continued appropriateness of measures that are subject to sunsetting. This advice would be of critical importance to the Parliament in considering any proposal to extend the sunsetting date. The committee is of the view that providing for a discretion for a review to be conducted of the continued appropriateness of such measures rather than mandating such a review may operate so as to impact the efficacy of parliamentary scrutiny of the exercise of legislative power.

1.27 The committee requests the Attorney-General’s advice as to why it is necessary and appropriate for item 3 of Schedule 1 to the bill to repeal paragraph 29(1)(bbaa) of the Intelligence Services Act 2001 without reinstating the mandate for review specifically of the declared area offences framework by the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

1.28 Noting the value to parliamentary scrutiny of the measures that would be provided by a mandated review, the committee’s scrutiny of the Attorney-General’s response would be assisted if it addressed how the proposed broad discretion for a review into any counter‑terrorism or national security legislation by the PJCIS prior to sunsetting is a sufficient and equal safeguard.

1.29 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of the proposed amendment to subsection 119.2(6) of the Criminal Code, which extends the operation of the offence in section 119.2 by a further three years.

^[7] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Counter‑Terrorism Legislation Amendment (Declared Areas) Bill 2024, Scrutiny Digest 6 of 2024; [2024] AUSStaCSBSD 85.

^[8] Schedule 1, item 1, proposed subsection 119.2(6) of the Criminal Code; and Schedule 1, item 3. The committee draws senators’ attention to these provisions pursuant to Senate standing orders 24(1)(a)(i), (iv) and (v).

^[15] The bill to give effect to this change, the Intelligence Services Legislation Amendment Bill 2023, is currently before the House of Representatives, having last been considered by that house on 22 June 2023. The Parliamentary Joint Committee on Intelligence and Security is currently reviewing the bill but has not yet reported.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests