Sections 119.2 and 119.3 of the Criminal Code: Declared areas

National security Terrorism Human rights Australia
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This is one of three reports provided simultaneously to the Prime Minister as required by s 6(1B) of the INSLM Act. Each report concerns counter-terrorism legislation which, unless renewed, is due to expire by 7 September 2018.

The INSLM Act requires me to provide reports of these reviews by 7 September 2017 so that the PJCIS can undertake its own review of the same laws within six months (s 6(1B)).

Each report is self-contained, although there are some common chapters concerning the national security and counter-terrorism landscape, relevant human rights and other obligations, and constitutional and inter-governmental arrangements.

My recommendations can only be fully understood by considering each report as a whole; however for the convenience of readers, I now provide a brief summary of my conclusions detailed in this report.

This review concerns the ‘declared areas’ provisions in div 119 of the Criminal Code. In essence, the provisions provide for the Foreign Affairs Minister to make a declaration in to an area where the Minister is satisfied that one or more listed terrorist organisations are engaging in hostile activity.

It is an offence to enter, or remain in, a declared area. It is not necessary for the prosecution to establish an intent, for example, to commit a terrorist act in that area – such an offence already exists. These provisions are, with the exception of Denmark where there is an analogous offence, unique.

It is a defence to a declared area offence if the accused can show that the sole purpose of being in the declared area is one of a narrowly defined list of purposes.

For the reasons which follow, I recommend these laws be continued, subject to a declaration being reviewable by the PJCIS at its discretion at any time prior to the declaration ceasing to have effect or being revoked by the Minister.

I also recommend that the Commonwealth consider (noting in particular the potential issues set out in paragraphs 8.18 - 8.35 of this report) making a regulation under, or an amendment to, the provisions to allow an individual to seek permission from the Foreign Affairs Minister (following advice from the Attorney-General) to enter into and remain in a declared area for such period and on such conditions as the Minister may choose to impose.

Provided the review provision is amended as recommended above, I recommend that the laws be continued for a further period of five years. I do so in substance because, as to the matters in s 6(1)(a) of the INSLM Act, I conclude that the laws have the capacity to be effective (noting that no prosecution of the declared area offence has occurred).

As to the matters in s 6(1)(b) of the INSLM Act, I have considered Australia’s human rights, counter-terrorism and international security obligations, and intergovernmental agreements within Australia, and I conclude that the laws are:

  • consistent with the obligations referred to above and contain appropriate safeguards for protecting the rights of individuals
  • proportionate to the current threats of terrorism and to national security
  • necessary.

Finally, consistent with s 6(1)(d) of the INSLM Act, I have considered whether the legislation considered in this review is being used for any matter unrelated to counter-terrorism and national security. In the conduct of this review there was no evidence to suggest this.

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