Review of the ‘declared area’ provisions
The submission to the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) regarding its inquiry into the ‘declared area’ provisions under sections 119.2 and 119.3 of the Criminal Code Act 1995 (Cth) (Criminal Code) was prepared by the Law Council.
The Law Council is grateful for the assistance of its National Criminal Law Committee and National Human Rights Committee in the preparation of this submission.
Subsection 119.2(1) of the Criminal Code makes it an offence for a person to enter or remain in a declared area. A ‘declared area’ is one declared as such by the Minister for Foreign Affairs and Trade.1 A number of ‘legitimate purpose’ exceptions to subsection 119.2(1) are provided for in subsection 119.2(3).2
The Law Council notes that the PJCIS’s inquiry follows the release of the recent Independent National Security Legislation Monitor’s (INSLM) report on Sections 119.2 and 119.3 of the Criminal Code: Declared Areas.3 While accepting that the declared area provisions are necessary, proportionate, have the capacity to be effective and should continue for a further five years,4 the INSLM has made two principal recommendations to improve the operation of the provisions. Briefly, these are that there should be: a periodic review by the PJCIS of declared areas at its discretion; and a Ministerial pre-authorisation process to enter and remain in a declared area.5
The Law Council remains concerned that the declared area provisions may not be consistent with Australia’s international human rights obligations. Should the declared area offence provisions remain, the Law Council supports the above two recommendations of the INSLM aimed at the improvement of the laws. However, in light of concerns regarding the practical implementation of a Ministerial preauthorisation regime, the Law Council considers that there should be an appropriate expansion of the legitimate purposes exception which would not reduce the deterrent effect of the offence. The expansion should include: bona fide, necessary and urgent business to protect the legitimate business interests domiciled in the foreign country; and providing legal advice to an Australian citizen.
Additionally, in the event that the INSLM’s recommendation regarding a Ministerial pre-authorisation process is not adopted, judicial discretion, guided by appropriate statutory criteria, should be permitted to assist in determining what may be regarded as a ‘legitimate purpose’.
You can read the full submission below.