EXPLANATORY STATEMENT
Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Declaration 2015—Mosul District, Ninewa Province, Iraq
The Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Declaration 2015—Mosul District, Ninewa Province, Iraq (the declaration) is made under subsection 119.3(1) of the Criminal Code.
Background
Division 119 of the Criminal Code contains Australia’s foreign incursions and recruitment offences. Section 119.2 of the Code makes it an offence for a person to intentionally enter, or remain in, a declared area in a foreign country where the person is reckless as to whether the area is a declared area. The maximum penalty for this offence is 10 years’ imprisonment.
Under section 119.3 of the Criminal Code, the Minister for Foreign Affairs may declare an area in a foreign country for the purposes of section 119.2 if the Minister is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area. The Islamic State (also known as the Islamic State of Iraq and the Levant, or ISIL), which is a listed terrorist organisation under the Criminal Code, is engaging in a hostile activity in the district of Mosul in the Ninewa province of Iraq.
Purpose
The declaration makes it an offence under section 119.2 of the Criminal Code to enter, or remain in, Mosul district, Ninewa province in Iraq, except where the person has done so solely for a legitimate purpose or purposes.
Explanation and effect of provisions
Section 1 ‑ Name of Declaration
Section 1 sets out the title of the declaration as the Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Declaration 2015—Mosul District, Ninewa Province, Iraq.
Section 2 – Commencement
Section 2 provides that the declaration commences on the day after it is registered.
Section 3 – Authority
Section 3 notes the Minister for Foreign Affairs has the power to make the declaration under subsection 119.3(1) of the Criminal Code.
Section 4 – Declared area in foreign country
Section 4 provides that the area covered by the declaration is Mosul district, Ninewa province, Iraq. Section 4 attaches two maps (marked ‘A’) to show the geographical area that the declaration covers. Mosul district is located in the Ninewa province of Iraq and is bordered by the districts of Al Hadr, Tall Afar, Tall Kayf and Al Hamdaniyah in Ninewa province and the provinces of Arbil and Salah ad Din.
Statement of Compatibility with Human Rights
This statement has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed under the definition of ‘human rights’ in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The declaration is compatible with these human rights because it is a lawful, necessary and proportionate response to protect Australia’s national security. The declaration, which is made under section 119.3 of the Criminal Code, will result in the offence under section 119.2 applying to Mosul district, Ninewa province, Iraq. The Minister for Foreign Affairs can make a declaration if the Minister is satisfied that a listed terrorist organisation is engaging in hostile activity in an area of a foreign country.
The Islamic State (also known as the Islamic State of Iraq and the Levant or ISIL) is a listed terrorist organisation under the Criminal Code. It operates across much of Iraq and Syria, but it has a significant and enduring presence in Mosul district, which is its main base for operations in Iraq. ISIL’s activities, including in the district of Mosul, and calls by ISIL’s leadership, have attracted thousands of foreign fighters, including Australians, who have travelled to Iraq to join ISIL and engage in hostile activity.
It is appropriate for the Minister to declare Mosul district in Ninewa province, Iraq under subsection 119.3(1) of the Criminal Code as ISIL is engaging in hostile activity in the area. The declaration promotes the safety of Australians, including those who might be seeking to travel to Mosul district, Ninewa province, Iraq and those who may be at risk of harm posed by persons returning from Mosul district, Ninewa province, Iraq. Consistent with subsection 119.3(2A) of the Criminal Code, the declaration does not cover an entire country.
As a result of the declaration, it will be a criminal offence under section 119.2 of the Criminal Code for a person to enter, or remain in, Mosul district, Ninewa province, Iraq, where the person is reckless as to whether the area has been declared. The Attorney‑General’s consent to prosecute will be required before a prosecution under section 119.2 can commence and the Commonwealth Director of Public Prosecutions is required to consider the public interest in line with their prosecutorial policy prior to the commencement of a prosecution.
The ‘declared area offence’ under section 119.2 addresses two pressing and substantial concerns. The first concern is that Australians who enter or remain in conflict areas put their own lives at risk; the Australian Security Intelligence Organisation has advised that at least 20 Australians have died in the Syria and Iraq conflicts in the past year. The second concern is that foreign conflicts provide a significant opportunity for Australians to develop the necessary capability and ambition to undertake terrorist acts overseas and within Australia.
A person prosecuted for an offence under section 119.2 of the Criminal Code for entering or remaining in Mosul district, Ninewa province, Iraq will maintain the right to a fair trial and presumption of innocence in accordance with article 14 of the International Covenant on Civil and Political Rights (ICCPR). A defendant will bear no burden of proof unless they seek to raise facts constituting a defence that their presence in Mosul district was solely for a legitimate purpose or purposes. Should a defendant choose to rely on the exception at subsection 119.2(3), they bear an evidential burden to adduce or point to evidence that suggests a reasonable possibility that their travel to the district of Mosul in Ninewa province, Iraq was solely for a legitimate purpose or purposes. The prosecution retains the legal burden and must disprove any legitimate purpose defence raised beyond a reasonable doubt, in addition to proving the elements of the offence.
Subsection 119.3(7) of the Criminal Code provides for the review of the declaration by the Parliamentary Joint Committee on Intelligence and Security before the end of the disallowance period.
To the extent that the declaration may limit the right to freedom of movement under article 12 of the ICCPR the limitation is lawful and proportionate. The declaration does not remove the ability to enter or remain in Mosul district in the Ninewa province of Iraq for a legitimate purpose or purposes. A limitation can be justified if it is in the interest of national security. The risk of a successful terrorist attack occurring in Australia is high and the limitation imposed by the declaration is necessary to assist in the prevention of an attack on Australian soil by individuals who have gained terrorist capabilities by engaging in hostile activities with a listed terrorist organisation. This is particularly so given that ISIL is using Mosul district, Ninewa province, Iraq as a base of operations and Australians have travelled to Iraq and Syria to participate in the foreign conflict.
Conclusion
The declaration is compatible with human rights because it is a lawful, necessary and proportionate response to protect Australia’s national security.
Consultation
Consultation on this declaration was undertaken with key stakeholders. Pursuant to section 17 of the Legislative Instruments Act 2003, the Minister for Foreign Affairs is satisfied that appropriate and reasonably practical consultation has occurred.
On 23 February 2015, the Prime Minister announced that the Government was considering declaring Mosul district in the Ninewa province of Iraq under section 119.3 of the Criminal Code. The announcement was widely reported in the media. Efforts were made to draw the announcement to the attention of people who might be affected by this Declaration, including:
- an announcement on the Smartraveller website
- an email to people registered for Living Safe Together updates
- an email to the Australian Council for International Development and International Development Contractors Group.
In addition to publicising the announcement, particular consultation was undertaken with:
- Attorney-General’s Department
- Australian Customs and Border Protection Service
- Australian Crime Commission
- Australian Federal Police
- Australian Geospatial-Intelligence Organisation
- Australian Secret Intelligence Service
- Australian Security Intelligence Organisation
- Department of Defence
- Department of Foreign Affairs and Trade
- Department of Immigration and Border Protection
- Department of Prime Minister and Cabinet
- The Government of Iraq
- The Australian representative of the Kurdistan Regional Government
- A range of representatives of communities who might be affected by this Declaration
The Minister for Foreign Affairs has also arranged for the Leader of the Opposition in the House of Representatives to be briefed in relation to this declaration in accordance with subsection 119.3(3) of the Criminal Code.