House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The declared areas provisions in the Criminal Code Act 1995 (Criminal Code) are an important part of the Australian Government's efforts to stop the flow of foreign fighters, and the risk they pose to Australia on their return.

3. Where an area is declared by the Minister for Foreign Affairs, it is an offence to enter, or remain in that area without a legitimate reason. A declared area is a place where terrorist organisations are engaging in hostile activity. There are very few legitimate reasons for entering such an area. The offence recognises this by providing a carefully targeted range of exceptions.

4. This Bill would extend for a further three years the declared areas offence in 119.2 of the Criminal Code that is scheduled to sunset on 7 September 2024.

5. The declared areas offence fulfils a crucial role in the disruption and prosecution of returning foreign terrorist fighters and their associates and allows for the prosecution of suspected terrorists in circumstances where it is challenging to collect evidence relating to the intention elements of more serious terrorism offences, including in conflict zones.

6. While there have only been two declarations made (Mosul district, Ninewa province in Iraq on 2 March 2018 and Al-Raqqa province in Syria on 4 December 2014), and four Australians charged under the declared areas offence, this is not an indication of a lack of utility. The limited number of areas that have been declared, and the limited use of the offence to date are indicative of its exceptional nature and judicious use of this power and associated offence.

7. There was a significant reduction in Australians travelling to the Syria/Iraq conflict zone after the declarations were made. The provisions are likely to have contributed to discouraging people who might otherwise have considered entering Mosul and al-Raqqa while the respective declarations were in effect, and discouraging parents from taking their children into those areas.

8. Declarations have only been used in the context of the Islamic State, as this has been the only conflict since the commencement of the declared areas framework which warranted the use of the power. The framework is, however, designed in such a way that it would be capable of being used in response to future conflicts. Having this well considered and understood framework available to be utilised in response to a future crisis will greatly assist the Government's ability to rapidly respond in an appropriate and measured manner.

9. A three-year extension of section 119.2 would be consistent with the previous two extensions made in 2018 and 2021 in accordance with recommendations made by the PJCIS.

10. The Bill would also provide that section 119.3 – the provision under which the Minister for Foreign Affairs can declare an area for the purpose of the offence in section 119.2 – also ceases to have effect on 7 September 2027. This reflects that there is no utility in empowering the Minster to declare an area, if there is no mechanism in place to enforce the declaration.

11. The Bill would additionally amend the Intelligence Services Act 2001 to remove now obsolete paragraph 29(1)(bbaa) which provides for the PJCIS to review the declared areas provisions (sections 119.2 and 119.3) before 7 January 2024.

12. The Intelligence Services Legislation Amendment Bill 2023, which is currently before the Parliament would empower the PJCIS to review these provisions before they sunset, ensuring that due consideration is given to the continued utility of the provisions.

Human rights implications

13. This Bill engages the following rights:

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the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

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the right to freedom from arbitrary detention in Article 9 of the ICCPR

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the right to freedom of movement in Article 12 of the ICCPR

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the right to minimum guarantees in criminal proceedings in Article 14 of the ICCPR

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right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

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the right to freedom of association in Article 22 of the ICCPR.

Current threat environment

14. The current terrorism threat environment continues to be highly relevant in considering the reasonableness, necessity and proportionality of the measures contained in this Bill. Australia's National Terrorism Threat Level is 'possible'. This 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. In discussing the threat level, the Director-General of Australian Security Intelligence Organisation (ASIO) has noted a threat level of 'possible' means there is the realistic possibility of a terrorist attack or attack planning in the next twelve months, and it does not mean the risk is negligible. ^[1]

15. As at 26 February 2024:

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161 people have been charged as a result of 87 counter-terrorism related operations around Australia

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there have been 12 attacks and 21 major counter-terrorism disruption operations in response to imminent attack planning in Australia

16. Since 2012:

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around 230 Australians have travelled to Syria or Iraq to fight with or support violent extremist groups involved in conflict, and

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around 250 Australian passports have been cancelled or refused in relation to the Syria/ or Iraq conflict.

17. Further, as at mid-2023:

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around 120 Australians who have travelled to Syria or Iraq are believed to have died, and

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around 65 people have returned to Australia after traveling to Syria or Iraq having joined groups involved in conflict.

Foreign incursions and recruitment: declared areas

18. Section 119.2 of the Criminal Code makes it an offence to enter or remain in an area declared by the Minister for Foreign Affairs. The offence carries a penalty of up to ten years' imprisonment.

19. The offence does not prevent a person from travelling to a declared area, for a legitimate purpose. An individual will not contravene the declared areas offence if he or she has entered or remained in the declared area solely for one or more of the following legitimate purposes, as set out in subsection 119.2(3):

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providing aid of a humanitarian nature

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satisfying an obligation to appear before a court or other body exercising judicial power

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performing an official duty for the Commonwealth, a State or a Territory

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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

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performing an official duty for:

i.

the United Nations, or an agency of the United Nations; or

ii.

the International Committee of the Red Cross

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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

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making a bona fide visit to a family member, or

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any other purpose prescribed by the regulations.

20. Subsection 119.2(4) provides additional exceptions for serving with the armed forces of the government of a foreign country or any other armed force if a relevant declaration covers the person and circumstances of that service.

21. The declared areas provisions support the legitimate objectives of protecting Australia's national security interests, deterring Australians from travelling to dangerous conflict areas where listed terrorist organisations are engaged in hostile activity, and protecting children by discouraging their parents and guardians from taking them to declared areas.

22. There are two pressing and substantial concerns with Australians travelling to these areas of conflict. 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.

23. On 4 December 2014, the Minister for Foreign Affairs made a declaration under section 119.3 in respect of al-Raqqa Province in Syria; and on 2 March 2015, the Minister for Foreign Affairs made a declaration in respect of Mosul District, Ninewa Province in Iraq. The Minister for Foreign Affairs revoked the declaration in respect of al-Raqqa province on 29 November 2017. The Minister renewed the declaration for Mosul district on 2 March 2018, before finally revoking it on 19 December 2019. There are currently no declared areas in effect at the time of introduction of the Bill.

24. Outlined below are the rights that are likely to continue to be engaged by continuing the operation of the declared areas provisions.

Freedom from arbitrary detention in Article 9 of the ICCPR; Prohibition on cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR and the CAT

25. Article 9 of the ICCPR provides that no one shall be subjected to arbitrary arrest or detention or deprived of their liberty except on such grounds and in accordance with such procedures as are established by law. The United Nations Human Rights Committee has stated that 'arbitrariness' includes the elements of inappropriateness, injustice and lack of predictability. Arbitrariness can result from a law that is vague and provides for the exercise of powers in a broad range of circumstances that are not sufficiently defined. However, arrest or detention may be considered reasonable and necessary where it is required in the circumstances; for example, to prevent flight, interference with evidence or the recurrence of crime. In relation to the declared area provisions, arrest, detention or the deprivation of liberty of a convicted person is not 'arbitrary' in the sense that the offence is established by law and its application is clear and predictable. The legislative framework and requirements necessary for a prosecution are clearly outlined.

26. Article 7 of the ICCPR and the CAT prohibit conduct which is regarded as cruel, inhuman or degrading treatment. Whilst the maximum penalty imposed by the offence is ten years' imprisonment, the presiding judicial officer will have discretion to impose a penalty that reflects the gravity of the offence taking into account the nature of the conduct and the particular circumstances of the defendant. If convicted, a defendant may be sentenced to imprisonment in a State or Territory facility and will not be treated any differently to other prisoners of commensurate risk. As such, any penalty imposed would not constitute cruel, inhuman or degrading treatment.

27. The penalty implements a gradation consistent with established principles of Commonwealth criminal law policy, as documented in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide). The Guide suggests that the maximum penalty should aim to provide an effective deterrent to the commission of the offence, and punishment for the commission of the offence, and should reflect the seriousness of the offence within the relevant legislative scheme.

Freedom of movement in Article 12 of the ICCPR

28. Article 12(1) of the ICCPR provides that persons lawfully within the territory of a State shall have the right to freedom of movement within that State. Article 12(2) provides that everyone shall also be free to leave any country, including their own. This right also extends to the right of the person to determine the country of destination. Article 12(3) provides that these rights can be permissibly limited if the limitations are provided by law and are necessary to advance a legitimate objective, including to protect national security.

29. The declared areas offence may limit the freedom of movement of persons who wish to travel to a declared area. This limitation is justified on the basis that it achieves the legitimate objective of deterring Australians from travelling to areas where a listed terrorist organisation is engaged in a hostile activity, unless they have a legitimate purpose to do so. People who enter, or remain in a declared area will put their own personal safety at risk. Those that travel to a declared area without a sole legitimate purpose or purposes may engage in a hostile activity with a listed terrorist organisation. These people may return from a declared area with enhanced capabilities which may be used to facilitate terrorist or other acts in Australia. The radicalisation of these individuals abroad may enhance their ability to spread extremist messages to the Australian community which increases the likelihood of terrorist acts being undertaken on Australian soil. Therefore, the limitation on freedom of movement is necessary to protect Australia's national security.

30. Even with the existence of a legitimate objective, any restriction on the freedom of movement must still be reasonable, necessary and proportionate. Several factors indicate that the restriction achieves an appropriate balance between securing Australia's national security and preserving an individual's civil liberties.

31. The sole legitimate purpose defence provides an appropriate safeguard for individuals who have entered or remained in a declared area. Individuals may lead evidence highlighting that their presence in a declared area was for a legitimate purpose and the prosecution is then required to prove that the person was not in the declared area solely for a legitimate purpose. Legitimate purposes include the provision of humanitarian aid, undertaking official duties for a government or the United Nations or an agency of the United Nations, performing official duties for the International Committee of the Red Cross, making a news report of events in the area by a professional journalist and making a genuine visit to a family member. Further legitimate purposes may be prescribed by regulations should additional grounds be required.

32. The general defences under Division 10 of the Criminal Code (intervening conduct or event, duress and sudden or extraordinary emergency) are also available in relation to the declared areas offence. In a conflict zone where a terrorist organisation is engaged in hostilities, circumstances may arise where an individual can reasonably claim that they have acted under duress (for example, under the threat of physical harm) or in response to a sudden and extraordinary emergency (for example, the closure of safe routes of departure).

33. The impact of the declared areas provisions on individuals' freedom of movement is additionally limited by the requirements that a declaration must not cover an entire country, may only cover areas in two or more foreign countries if the Minister for Foreign Affairs is satisfied that one or more listed terrorist organisations is engaging in hostile activity in each of those areas, and ceases three years after it takes effect. The three-year time limitation ensures that there is regular review and re-evaluation as to whether the area continues to meet the legislative criteria for the declaration, and that the declaration therefore continues to be required to achieve the legitimate objective of keeping the Australian community safe.

34. Additionally, the Minister for Foreign Affairs must revoke a declaration if he or she is no longer satisfied that a listed terrorist organisation is engaging in hostile activity in the area. The Minister for Foreign Affairs may also revoke a declaration at any time prior to the expiry of the declaration, when he or she considers that the declaration is no longer necessary or desirable. This may arise in circumstances where, for example, the Minister is still satisfied that a listed terrorist organisation is engaging in hostile activity in a declared area, but the extent of hostile activity has significantly reduced. This ensures that limitations on the right to freedom of movement are proportionate and operate for no longer than necessary in order to achieve the legitimate objective of preventing Australians from travelling to conflict zones where listed terrorist organisations are known to be engaging in hostile activities.

35. Under subsections 119.3(7) and (8), the PJCIS is able to review a declaration before the end of the period during which the declaration may be disallowed under section 42 of the Legislation Act 2003, and at any time during which the declaration is in effect. The PJCIS reports their comments and recommendation to each House of Parliament. The PJCIS's ability to monitor a declaration on an ongoing basis ensures that the declaration, and therefore any limitation on the freedom of movement, is reasonable, necessary and proportionate.

36. Accordingly, the continuation of the declared areas provisions for a further three years does not limit the right to freedom of movement in Article 12 of the ICCPR, except to the extent that it is reasonable, necessary and proportionate to achieving the legitimate objectives identified above. The legitimate purpose exceptions, requirement for the Minister for Foreign Affairs to revoke a declaration if he or she is no longer satisfied of the legislative criteria, and PJCIS oversight provide additional safeguards. These ensure that there is an appropriate balance between individual rights and freedoms, and the need to protect Australia from threats of terrorism.

Procedural guarantees under Article 14 of the ICCPR

37. Article 14 protects a person's right to a fair and public hearing by a competent, independent and impartial tribunal established by law, and Article 14(2) provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proven beyond reasonable doubt.

38. Offences that contain a 'reverse burden', particularly a legal, as opposed to an evidential burden, may affect the presumption of innocence. This includes a situation where the defendant has to provide evidence in relation to an offence-specific defence. This is because a defendant's failure to discharge a legal or evidential burden may lead to their conviction.

39. To the extent that the declared areas provisions place a limitation on Article 14 of the ICCPR, those limitations are reasonable, necessary and proportionate to countering the risks of travelling to such a dangerous area, and the threat posed to Australia and its national security interests by foreign fighters returning to Australia from areas where the Minister for Foreign Affairs is satisfied that a listed terrorist organisation is engaging in a hostile activity.

40. The declared areas provisions engage this right by providing that a defendant bears an evidential burden should they wish to rely on any exception listed in subsection 119.2(3) above.

41. The declared areas offence operates so that the defendant bears no burden of proof unless they seek to raise facts constituting a defence. Should the defendant choose to rely on any of the exceptions in subsection 119.2(3), they bear an evidential burden to adduce or point to evidence that suggests a reasonable possibility that their travel was for a legitimate purpose or purposes. The prosecution retains the legal burden and must disprove any legitimate purpose defence raised beyond a reasonable doubt, in addition to proving elements of the offence. In accordance with paragraph 4.3 of the Guide to Framing Commonwealth Offences, Infringement Notice and Enforcement Powers, it is reasonable and appropriate for an evidential burden of proof to be placed on a defendant where the facts in relation to the defence, being their individual motivation and intended purpose for entering or remaining in a declared area, are peculiarly within their knowledge, and it would be significantly more difficult for the prosecution to disprove than for the defendant to establish the matter. Therefore, to the extent that placing the onus on the defendant to discharge an evidential burden in relation to the defences limits the presumption of innocence, it is reasonable and proportionate.

42. The declared areas offence in section 119.2 does not infringe on the right to the presumption of innocence. To the extent that the offence limits Article 14 of the ICCPR, that limitation is reasonable, necessary and proportionate to achieve the legitimate objective of protecting Australia's national security. The offence achieves this objective by discouraging Australians from travelling to conflict zones and countering the threat of foreign fighters returning to Australia from areas where the Minister for Foreign Affairs is satisfied that a listed terrorist organisation is engaging in hostile activities. The 2017 INSLM Review into declared areas also considered that the declared areas offence is not inconsistent with the rights protected under Article 14 of the ICCPR.

Right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR

43. Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person's privacy, family, home and correspondence, and prohibits unlawful attacks on a person's reputation. The United Nations Human Rights Committee (UNHCR) has interpreted the right to privacy as comprising freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

44. The declared areas provisions limit this right by placing the onus on an individual suspected of entering, or remaining in, a declared area to disclose personal details as to why they meet one of the legitimate purposes set out in subsection 119.2(3) of the Criminal Code to enter, or remain in, a declared area.

45. The right to privacy may be limited where the limitation is lawful and not arbitrary. In order for any interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in particular circumstances. The UNHCR has interpreted reasonableness in this context to imply that any interference with privacy must be proportionate to the end sought and be necessary in the circumstances of any given case.

46. The areas targeted by these provisions are dangerous locations in which listed terrorist organisations are engaging in hostile activities. The provisions are designed to act as a deterrent to prevent people from traveling to declared areas. This is particularly important given the risk to the Australian community posed by individuals who have fought for or otherwise supported terrorist organisations offshore and seek to return to Australia. Accordingly, these measures would be lawful (as they would be prescribed by law) and would not be arbitrary, as they would be reasonable, necessary and proportionate to achieve the legitimate objectives of protecting Australia's national security interests, deterring Australians from travelling to dangerous conflict areas where listed terrorist organisations are engaged in hostile activity, and protecting children by discouraging their parents and guardians from taking them to declared areas.

Freedom of association under Article 22 of the ICCPR

47. Article 22 of the ICCPR protects the right of all persons to group together voluntarily for a common goal and to form an organisation. Article 22(2) provides that this right is not absolute and may be limited for certain purposes, including national security, public safety, and the protection of the rights and freedoms of others.

48. The declared areas provisions engage this right by restricting a person's right to enter, or remain in, an area in a foreign country, thereby limiting a person's ability to join or associate with certain groups operating in the declared area. Consistent with Article 22(2), the declared areas offence limits the right to freedom of association to achieve the legitimate objective of discouraging individuals engaging with listed terrorist organisations known to be engaging in hostile activities in declared areas. Individuals engaging with these organisations in declared areas may return to Australia with increased capabilities to commit terrorist acts domestically, and inspire others to do the same.

49. There are a number of safeguards and procedures which ensure that any limitation on the right to association is reasonable, necessary and proportionate to the aim of supporting this legitimate objective of protecting Australia's national security.

50. Firstly, the legitimate purpose exceptions in subsection 119.2(3) ensure that individuals are permitted to enter, or remain, in declared areas in specified circumstances. The legitimate purpose exceptions include associating with certain groups, such as providing aid of a humanitarian nature, undertaking official duties for the Government or the United Nations, making news reports in the area while working in a professional capacity as a journalist, and visiting a family member. Further legitimate purposes can be prescribed by regulation if required.

51. The Minister for Foreign Affairs must revoke a declaration if he or she is no longer satisfied that a listed terrorist organisation is engaging in hostile activity in the area. The Minister for Foreign Affairs may also revoke a declaration at any time prior to the expiry of the declaration, when he or she considers that the declaration is no longer necessary or desirable. This may arise in circumstances where, for example, the Minister is still satisfied that a listed terrorist organisation is engaging in hostile activity in a declared area, but the extent of hostile activity has significantly reduced. This ensures that limitations on the right to association are proportionate and operate for no longer than necessary in order to achieve the legitimate objective of preventing Australians from travelling to conflict zones to join listed terrorist organisations known to be engaging in hostile activities.

52. Under subsections 119.3(7) and (8), the PJCIS is able to review a declaration before the end of the period during which the declaration may be disallowed under section 42 of the Legislation Act 2003, and at any time during which the declaration is in effect. The PJCIS reports their comments and recommendation to each House of Parliament. The PJCIS's ability to review a declaration as it considers necessary ensures that the declaration, and therefore any limitation on the freedom of association, is reasonable, necessary and proportionate.

53. Accordingly, the continuation of the declared areas provisions for a further three years does not limit the right to association in Article 22 of the ICCPR, except to the extent that it is reasonable, necessary and proportionate to achieving the legitimate objectives identified above. The legitimate purpose exceptions, requirement for the Minister for Foreign Affairs to revoke a declaration if he or she is no longer satisfied of the legislative criteria, and PJCIS oversight provide additional safeguards. These ensure that there is an appropriate balance between individual rights and freedoms, and the need to protect Australia from threats of terrorism.

Conclusion

54. To the extent that the Bill limits human rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate aim.