Wednesday, 29 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
That is a very good question, if I may say so, and I am happy to be able to provide you with the answer. The provision does not depart from the Attorney-General's Department's recommended guidelines. It does make clear the fault elements. There are two aspects to it. The fault element in relation to travel to or remaining in a declared area is intention, so that the prosecution must prove beyond reasonable doubt that the person intended to travel to or intended to remain in the particular locality.
The fault element in relation to the person's knowledge of whether or not the locality was a declared area is recklessness. Earlier on in the debate I read to Senator Macdonald the Criminal Code's definition of 'recklessness' for the purposes of the generic fault provisions of that statute, and you were in the chamber when I did that, so I will not waste time reading them to you again. So, that is the answer to your question. A fault element in relation to travel or remaining there is intention. The fault element in relation to awareness of whether or not that particular locality is declared is recklessness.
While I am on my feet, Senator, I might point out, particularly since you have frequently invoked the Australian Human Rights Commission in support of your position, that the Australian Human Rights Commission, in its commentary on this provision, some of which I acknowledge is critical, actually acknowledged that there was no reversal of the onus of proof. The Human Rights Commission acknowledged that the position is exactly as I have explained to you: that a person seeking to invoke one of the defences has an evidential onus to bring forward the facts before the court so that the court can be possessed of the facts constituting the defence. But in relation to all of the elements that constitute the offence, there is no reversal of the onus or proof.