Wednesday, 29 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
I did not want to necessarily jump in ahead of the Attorney-General, if he wanted to respond, but I had some further questions for the Attorney-General, to make sense of how this would actually work in practice. As to being accused of using hypothetical examples: I think it is actually very much the role of this chamber to be saying: 'This is the law you want us to pass. How will it actually work on the ground? How will it be interpreted? What are the likely consequences, and the effects on people's lives?'
Attorney-General, you were saying that this is not a departure from traditional legal principles of criminal law. You have not acknowledged that what it does effectively do is to criminalise something that is without any intention on the part of a person. It criminalises something that would have been perfectly legitimate before the offence became law. But I am interested specifically to ask why the offence departs so significantly from the Attorney-General's Department's own guide to drafting Commonwealth offences which provides, for example, that:
The requirement for proof of fault is one of the most fundamental protections in criminal law. This reflects the premise that it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk (ie recklessness).
In this case, I am genuinely trying to understand what the fault is if you are going to criminalise what is perfectly legitimate travel. Is that the fault? Is the fault being in the declared area and staying there, or going into a declared area when in fact no malice or wrong intentions are necessary to create the offence? It is just a matter of having to prove when you come back that you had what the government considers to be a legitimate purpose. And we will go into the inadequacies in what legitimate purposes are in a minute.