Wednesday, 29 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
It would not be causing a great deal of concern among legal commentators who are familiar with testing 'sole purpose'. It might cause vexation to Professor Ben Saul—Professor Saul is an international lawyer—but it would not be causing a lot of concern to practitioners and legal commentators who understand that, in many areas of the law, courts are every day seized of determining the question of purpose in determining the question of state of mind. That includes determining whether or not a person's purposes in engaging in a particular act are a sole purpose or one of a variety of purposes. This is not hard, Senator.
Let me give you an example in a practical sense of why it is necessary to have a sole purpose test if one is to invoke one of the variety of exemptions. One of the exemptions in proposed section 119.23(g) is making a bona fide visit to a family member. I imagine, Senator Wright, that you think that it should be all right for a person who makes a bona fide visit to a family member not to be caught by this prohibition. But let us say that a person would have travelled to a declared area and, in the course of making a bona fide visit to a family member, were also to facilitate the travel to, let us say, a township in northern Iraq under the control of ISIL, were also to facilitate the travel of foreign fighters to that township or were also to provide financial or other material sustenance to ISIL. Then, unless we have a sole purpose test, the ordinary law would be that as long as it was a substantial purpose, then the defence would be available. So if the person in the hypothetical case I have given were to say: 'It may well be that I travelled to this particular township in order to assist ISIL but, as it happens, my brother lives in this township and I actually did visit him and my desire to visit my brother was a bona fide desire to make a family visit.' We cannot have what I think we both acknowledge to be a legitimate exemption used as a mask or a pretext or a ruse to conceal purposes which, I am sure you would agree with me, ought not to be legitimate. But unless we have a sole purpose test, that could happen.