Criminal Code (Foreign Incursions and Recruitment – Declared Areas) Revocation Instrument 2017 – Al-Raqqa Province, Syria

Overview

The Criminal Code (Foreign Incursions and Recruitment – Declared Areas) Revocation Instrument 2017 – Al-Raqqa Province, Syria, enacted in 2017, serves to address the gap created by the initial declaration of Al-Raqqa Province, Syria, as a declared area under the Criminal Code. This revocation was necessitated by the change in circumstances, specifically the Minister for Foreign Affairs' determination that the Islamic State, classified as a listed terrorist organisation under the Criminal Code, was no longer engaging in hostile activities in the declared area. The revocation is made under subsection 119.3(5) of the Criminal Code, and its purpose is to nullify the earlier declaration made on 4 December 2014. This legislative instrument ensures that Australians are no longer subject to criminal penalties for entering or remaining in Al-Raqqa Province, Syria, while also affirming the compatibility of the revocation with human rights, particularly the right to freedom of movement as recognised under international instruments. The revocation was achieved after consultation with various key stakeholders, ensuring a coordinated approach to the legislative change.

Scope and Application

The Criminal Code (Foreign Incursions and Recruitment – Declared Areas) Revocation Instrument 2017 – Al-Raqqa Province, Syria applies to Australian citizens and entities within the jurisdiction of Australia, specifically targeting individuals who may have contravened the foreign incursions and recruitment offences stipulated in Division 119 of the Criminal Code. This instrument revokes the declaration of al-Raqqa Province, Syria, which was previously identified as a declared area under section 119.3 of the Criminal Code. The Revocation effectively removes the criminal liability associated with entering or remaining in this region, as long as individuals are not acting with reckless disregard for the area being a declared area. The revocation is applicable nationally within Australia and does not impose any new limitations on human rights, although it does not alter the broader advisory stance against Australians travelling to Syria.

Key Provisions

The primary sections of the Criminal Code (Foreign Incursions and Recruitment – Declared Areas) Revocation Instrument 2017 – Al-Raqqa Province, Syria (the Revocation) include section 1, which names the instrument; section 2, which sets the commencement date as the day after the instrument is registered; section 3, which cites the authority for the revocation under subsection 119.3(5) of the Criminal Code; and section 4, which revokes the earlier declaration of al-Raqqa Province, Syria (the Declaration) made on 4 December 2014. The Revocation serves to nullify the legal restrictions that previously applied to Australians entering or remaining in al-Raqqa Province, Syria. The Revocation imposes specific obligations on parties, including the Minister for Foreign Affairs, to ensure that the declaration is revoked if it is no longer considered necessary due to changes in the hostile activities of listed terrorist organisations in the specified area. Additionally, the Revocation mandates that appropriate consultation occurs with relevant stakeholders, as outlined in section 17 of the Legislative Instruments Act 2003. This includes consultation with entities such as the Attorney-General’s Department, Australian Border Force, Australian Criminal Intelligence Commission, and others, ensuring a coordinated approach to foreign policy and national security. Failure to comply with the provisions of the Criminal Code related to foreign incursions and recruitment can result in criminal offences. Specifically, under section 119.2 of the Criminal Code, a person who intentionally enters or remains in a declared area without regard to whether it is a declared area can face criminal penalties. The Revocation, by revoking the declaration, removes the criminal liability associated with entering or remaining in al-Raqqa Province, Syria, but it does not alter the underlying criminal provisions of the Code. The maximum penalties for offences under the Criminal Code related to foreign incursions and recruitment can include imprisonment for up to 20 years, highlighting the seriousness with which these laws are enforced. The Revocation also addresses human rights considerations, asserting its compatibility with the rights and freedoms outlined in the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011. By revoking the declaration, the Revocation potentially removes any limitations on the right to freedom of movement under article 12 of the International Covenant on Civil and Political Rights. However, the Australian Government continues to advise against travel to Syria due to ongoing safety concerns. The Revocation ensures that the removal of the declaration does not engage or diminish any applicable rights or freedoms, thereby maintaining a balance between national security and individual rights.