Thursday, 25 February 2021
Intelligence and Security Joint Committee; Report
I'm pleased to table the report of the Parliamentary Joint Committee on Intelligence and Security in respect of the declared area provisions.
Report made a parliamentary paper in accordance with standing order 39(e).
by leave—Section 119.2 of the Criminal Code Act 1995 makes it an offence to enter or remain in an area in a foreign country that has been declared by the Minister for Foreign Affairs under section 119.3 of the same act. These are extraordinary provisions which were introduced in late 2014 in response to an extraordinary set of circumstances. At the time, our security agencies advised us that approximately 160 Australians had travelled to Syria and Iraq to join extremist groups and participate in the then ongoing conflicts in those countries. These measures, along with a number of other measures that were introduced at the same time, were designed to deal with the threat posed by returning foreign fighters and the problem of Australian nationals heading over to Syria and Iraq in the first place.
To date, there have only been two areas declared by the Minister for Foreign Affairs under section 119.3 of the Criminal Code: al-Raqqa province in Syria and the Mosul district in Iraq. Both of those declarations have since been revoked. Only one person has been charged under section 119.2, and the individual charged was ultimately not prosecuted for the declared areas offence but for other, more serious offences.
Given the limited use of these powers, the significant developments in Syria and Iraq since 2014 and the introduction of a range of new powers over the last six years, a number of submitters told the committee that the declared areas provisions were no longer necessary and so should be repealed. Ultimately, the committee has unanimously agreed with the position put to the committee by government agencies that the provisions should not be repealed at this time. However, we've made it very clear that these provisions should be reassessed by the committee over the course of the next three years and that, unless the parliament determines that the provisions remain necessary, the declared areas provisions should be repealed on 7 September 2024.
We've also recommended that the Criminal Code should be amended to allow Australian citizens to request an exemption from the Minister for Foreign Affairs to travel to a declared area. This would introduce an important degree of flexibility to a regime that is anything but flexible and allow, in appropriate circumstances, Australians to travel to declared areas for legitimate reasons that are currently not covered by the exemptions listed in section 119.2.
As I said at the outset of these brief remarks, the declared areas provisions are extraordinary provisions that were introduced in response to an extraordinary set of circumstances. We must never lose sight of that and, as the committee recognises in this bipartisan report, the moment these provisions cease to be necessary, they should be repealed.
I would like to thank the non-government and government submitters to this inquiry. However, I would like to make a brief comment in closing about the contribution of the Australian Federal Police to the inquiry, which was generally very helpful. I do not think that the parliament or the Australian people are well served by the Australian Federal Police's description of the declared areas regime as just another 'tool in the toolbox'. That was the expression used by the Australian Federal Police during the committee's public hearing. Regrettably, the committee has become accustomed to the Department of Home Affairs using that banal expression to describe a whole range of extraordinary powers that have been introduced over the last seven years to deal with very specific threats. The language that we use to describe powers like the declared areas provisions matters. The department and all government agencies should not lose sight of the fact that many of the powers this parliament has provided to agencies, especially since 2001, are among the most extraordinary powers that any parliament in any democracy has given to its security and intelligence agencies. We need to keep that steadily in mind. The powers need to be regarded as extraordinary not just by this parliament, and not just by the Australian people, but also by the agencies that have been given these powers in the first place.