Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Revocation Instrument 2019—Mosul District, Ninewa Province, Iraq

Administered by Attorney-General's Department

Legislation au F2019L01670 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Foreign Affairs

 

Criminal Code Act 1995

 

Criminal Code (Foreign Incursions and Recruitmen­t—Declared Areas) Revocation Instrument 2019—Mosul District, Ninewa Province, Iraq

 

The Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Revocation Instrument 2019—Mosul District, Ninewa Province, Iraq (the Revocation Instrument) is a legislative instrument made under subsection 119.3(5A) of the Criminal Code Act 1995 (the Criminal Code).

 

Purpose

 

The purpose of the Revocation Instrument is to revoke the declaration of Mosul District, Ninewa Province, Iraq, which was made on 1 March 2018.

 

Background

 

Division 119 of the Criminal Code contains Australia’s foreign incursions and recruitment offences. Section 119.2 of the Criminal Code makes it an offence if a person enters, or remains in, a declared area in a foreign country, and at any time when the person is in the area, that person is an Australian citizen, a resident of Australia, a holder of a visa under the Migration Act 1958, or has voluntarily put themselves under the protection of Australia. The maximum penalty for this offence is 10 years’ imprisonment.

 

Under subsection 119.3(1) 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 of the foreign country.  

 

On 1 March 2018, the then Minister for Foreign Affairs declared Mosul District, Ninewa Province, Iraq under subsection 119.3(1) of the Criminal Code in the Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Declaration 2018—Mosul District, Ninewa Province, Iraq. This declaration was made on the basis that a listed terrorist organisation (the Islamic State of Iraq and the Levant (ISIL)) was engaging in hostile activity in Mosul District, Ninewa Province, Iraq. This declaration made it an offence under section 119.2 of the Criminal Code to enter, or remain in, Mosul District, Ninewa Province in Iraq (subject to exceptions for legitimate purposes).  

 

Under subsection 119.3(5A) of the Criminal Code, the Minister for Foreign Affairs may revoke a declaration if that Minister considers it necessary or desirable to do so. The Minister for Foreign Affairs has considered the advice of Australian Government agencies and the relevant legislative and non-legislative factors, including that while ISIL continues to engage in hostile activity in Mosul District, Ninewa Province, Iraq, ISIL does not exercise territorial control in Mosul District and there is little difference between the scale of ISIL’s activities in the Mosul District and some other parts of Iraq. On the basis of agency advice and the relevant legislative and non-legislative factors, the Minister for Foreign Affairs considers it necessary or desirable to revoke the declaration of Mosul District, Ninewa Province, Iraq.

 


Consultation

 

Consultation on the instrument was undertaken with key stakeholders. Pursuant to section 17 of the Legislative Instruments Act 2003, the Minister for Foreign Affairs is satisfied that appropriate consultation has occurred. In particular, consultation was undertaken with:

  • Attorney-General’s Department
  • Australian Border Force
  • Australian Federal Police
  • Australian Geospatial-Intelligence Organisation
  • Australian Secret Intelligence Service
  • Australian Security Intelligence Organisation
  • Australian Signals Directorate
  • Department of Defence
  • Department of Foreign Affairs and Trade
  • Department of Home Affairs
  • Department of the Prime Minister and Cabinet, and
  • Office of National Intelligence

 

Regulation Impact Statement

 

The Office of Best Practice Regulation (OBPR) was consulted and advised that a Regulatory Impact Statement is not required: OBPR ID 25794.

 

Details

 

Details of the Revocation Instrument are set out in Attachment A.

 

A Statement of Compatibility with Human Rights is set out at Attachment B and has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Revocation Instrument is compatible with human rights.

 

The Revocation Instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003.

 

The Revocation Instrument commences on the day that it is registered on the Federal Register of Legislation.

 

 


Attachment A

 

Notes on sections

 

Section 1 - Name of Declaration

 

Section 1 sets out the title of the Revocation Instrument as the Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Revocation Instrument 2019—Mosul District, Ninewa Province, Iraq.

 

Section 2 – Commencement

 

Section 2 provides that the Revocation Instrument commences on the same day that it is registered on the Federal Register of Legislation.

 

Section 3 – Authority

Section 3 notes the Revocation Instrument is made under subsection 119.3(5A) of the Criminal Code, which enables the Minister for Foreign Affairs to revoke a declaration made under subsection 119.3(1) if that Minister considers it necessary or desirable to do so.

 

Section 4 – Revocation of declaration

 

Section 4 revokes the Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Declaration 2018—Mosul District, Ninewa Province, Iraq. This section indicates that it is no longer a criminal offence for a person to enter, or remain in, Mosul District, Ninewa Province in Iraq.

 

 


Attachment B

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Criminal Code (Foreign Incursions and Recruitmen­t—Declared Areas) Revocation Instrument 2019—Mosul District, Ninewa Province, Iraq

 

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the instrument

 

The purpose of this instrument is to revoke the declaration of Mosul District, Ninewa Province, Iraq, which was made on 1 March 2018.

 

Human rights implications

 

This instrument engages the right to freedom of movement in article 12 of the International Covenant on Civil and Political Rights (ICCPR). To the extent that the declaration of Mosul District, Ninewa Province, Iraq, may have limited the right to freedom of movement under article 12 of the ICCPR, the Revocation Instrument removes this potential limitation. The Revocation Instrument allows a person to enter into, or remain in, the Mosul District, Ninewa Province, Iraq, without committing a criminal offence. However, the Australian Government maintains its advice that Australians should not travel to Iraq at this time.

 

The Revocation Instrument does not have the effect of engaging or diminishing any applicable rights or freedoms.

 

Conclusion

 

The Revocation Instrument is compatible with human rights because it engages the right to freedom of movement and does not raise any human rights issues.

Overview

The Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Revocation Instrument 2019—Mosul District, Ninewa Province, Iraq, made under the Criminal Code Act 1995, addresses the need to revoke the previously declared status of Mosul District in Iraq as a dangerous area for Australian citizens and residents. This legislative instrument was introduced to respond to changing circumstances regarding the control and activities of listed terrorist organisations in the area. Enacted by the Minister for Foreign Affairs, the instrument revokes the earlier declaration that made it an offence for Australian citizens or residents to enter or remain in the area, which was made on 1 March 2018 due to the hostile activities of ISIL in the region. The policy objective of the Revocation Instrument is to adjust Australia's legal stance on foreign incursions based on updated assessments of the security situation in Iraq, facilitating a more nuanced approach to protecting Australian nationals while considering broader regional dynamics.

Scope and Application

The Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Revocation Instrument 2019—Mosul District, Ninewa Province, Iraq is a legislative instrument that revokes the declaration of Mosul District in Ninewa Province, Iraq, which was previously made on 1 March 2018. This instrument applies to Australian citizens, residents of Australia, holders of a visa under the Migration Act 1958, or those who have voluntarily put themselves under the protection of Australia who may enter or remain in the specified area. By revoking the declaration, it removes the criminal offence under section 119.2 of the Criminal Code Act 1995 for such persons to enter or remain in the area. The revocation is based on the Minister for Foreign Affairs' consideration that, while ISIL continues to engage in hostile activities in Mosul District, there is little difference between the scale of ISIL’s activities in Mosul District and other parts of Iraq, and that ISIL does not exercise territorial control in the area. The Revocation Instrument has a Commonwealth jurisdictional reach, being made under the authority of the Criminal Code Act 1995. The instrument does not specify any exclusions, exemptions, or thresholds. It commences on the day it is registered on the Federal Register of Legislation. Consultation on the instrument was undertaken with key stakeholders, and a Regulatory Impact Statement was deemed unnecessary. The instrument is compatible with human rights, as it removes a potential limitation on the right to freedom of movement, while the Australian Government still advises against travel to Iraq.

Key Provisions

The Criminal Code (Foreign Incursions and Recruitment—Declared Areas) Revocation Instrument 2019—Mosul District, Ninewa Province, Iraq, made under subsection 119.3(5A) of the Criminal Code Act 1995, revokes the earlier declaration of Mosul District, Ninewa Province, Iraq, which was made on 1 March 2018 (Section 4). This instrument effectively removes the criminal penalties associated with entering or remaining in the declared area. The revocation is based on the Minister for Foreign Affairs' consideration that the conditions which led to the initial declaration no longer warrant the restrictions placed on Australian citizens and residents. The obligations imposed by this Act on Australian citizens and residents are now lifted, meaning they can travel to Mosul District, Ninewa Province, Iraq, without the risk of incurring criminal penalties as previously defined in section 119.2 of the Criminal Code (Section 4). However, it is important to note that while the criminal liability for entering or remaining in the declared area has been revoked, the Australian Government still advises against travel to Iraq due to potential security and safety risks. Breach of the original declaration under section 119.2 of the Criminal Code Act 1995 carried a maximum penalty of 10 years' imprisonment (Section 119.2). With the revocation of the declaration, there are no longer any criminal penalties for entering or remaining in the Mosul District, Ninewa Province, Iraq. However, individuals who contravened the declaration prior to its revocation may still be subject to the applicable penalties as per the original legislation, if pursued under the law. In summary, the Revocation Instrument serves to remove the legislative barriers for Australians to enter or remain in the previously declared area, aligning with the Minister for Foreign Affairs' assessment of current conditions. It also highlights the continuing advisory stance against travel to Iraq, underscoring the importance of safety and security considerations despite the legislative changes.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.