Wednesday, 29 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
I did actually say, and I made it quite clear, that it is an effective reversal of the onus of proof, not a technical one. When we consider the fault element you are relying on, the fault is travel or remaining in the geographical area. That is the fault at the heart of this offence. I would say that that is actually a serious departure from established criminal law principles, in that traditionally crimes have been actions or behaviour that have an element that is inherently negative, malicious or harmful to other people. It is actually quite unprecedented through the enactment of a provision, through the writing of a new offence, to criminalise something that on its own is perfectly legitimate. Indeed, freedom of movement is an important human right. To talk about the fault element of the travelling or remaining in an area as being within the scope of ordinary criminal law is nonsensical. There is no inherent harm or wrongful behaviour in people exercising their right to travel. There has not been previously, and the Australian Greens and many others are very concerned at the precedent this is setting.
What I am interested in following up is what will happen to a person who is already in an area when it is declared. How will they find out that they are committing a criminal offence by remaining in that area, if they are not aware that it has been declared, and are at risk of criminal punishment upon their return to Australia.