Last updated 3 March 2020
The federal parliament introduced a wide range of offences and powers in response to Islamic State and the threat of foreign fighters.
The declared area offence (s 119.2 Criminal Code Act 1995 (Cth) (Criminal Code)), provides a maximum penalty of 10 years imprisonment where a person enters or remains in an area of a foreign country declared by the Foreign Minister to be a ‘declared area’. There are no other elements to this offence such as an intention to engage in hostile activity or terrorism. There is a list of specified exemptions such as for visiting family members, providing humanitarian aid and producing professional news reports. However, this list does not include a range of other legitimate reasons why somebody might travel to a foreign country such as to visit friends, conduct business or commercial transactions, or participate in a religious pilgrimage.
The offence of advocating terrorism (s 80.2C Criminal Code) provides a maximum penalty of five years imprisonment where a person ‘… counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence’. This goes beyond the ordinary law of incitement, as it extends to the promotion of unlawful acts, and it does not require that the person advocating terrorism intends anyone to rely on their words to commit an unlawful act.
The Australian Citizenship Act 2007 (Cth) allows the Australian citizenship of dual nationals involved in terrorism to be revoked. The person’s citizenship will be revoked automatically if they engage in a range of terrorism-related conduct overseas, including fighting for a declared terrorist organisation. The Minister for Immigration may also declare that a dual national ceases to be an Australian citizen if the person has been convicted of certain offences relating to terrorism and sentenced to a period of imprisonment of six years or more.
In addition to these specific measures targeting foreign fighters, many other offences and powers were introduced or updated around this time. Existing offences for intelligence officers who disclose classified information were strengthened, and telecommunications companies must now retain customer metadata for a period of two years. That metadata, which includes the time, date and location of every telephone call, SMS or email, can be accessed by the Australian Security Intelligence Organisation and enforcement agencies, including police, without a warrant.