Last updated 22 August 2016

Five major tranches of national security legislation created new powers and offences to address the threat of foreign fighters returning from Syria and Iraq, and related home-grown terrorism, as well as a wide range of issues including intelligence whistleblowing and the mandatory retention of metadata.

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 and providing humanitarian aid. 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 with 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.

Other powers introduced in response to the threat of foreign fighters include a power for the Minister for Foreign Affairs to suspend a person’s passport and travel documents for 14 days on Australian Security Intelligence Organisation’s (ASIO) request, and an emergency visa cancellation power where ASIO suspects that a person might be a risk to security.