The hearing forms part of the intelligence and security committee statutory review into sections of the criminal code that make it an offence to enter or remain in an area the Minister for Foreign Affairs has deemed to be a “declared zone”. The committee’s chair Andrew Hastie said it is important to review now as terrorism remains a critical threat. 

“Despite the travel restrictions imposed by the COVID-19 response, terrorism remains a considerable threat to Australia and considering the laws remains an important task. It is important to continue to review Australia’s national security and counterterrorism powers to ensure we are effectively managing the ongoing security threat,” he said. 

While the LCA did not oppose the enactment of laws that places some limitations with the freedom of movement of an individual Australian to prevent people from engaging in terrorism-related activities in foreign countries, it is a longstanding concern that the declared areas regime does not meet the “basic standards of proportionality”. 

This offence, LCA claims, will criminalise a person’s mere presence at a deemed place in a foreign country, which needs not be under the effective control of a listed terrorism organisation as a precondition to be listed as a “declared area” by the minister.

“Consequently, application and enforcement of the offence are substantially dependent on the exercise of broad discretion by law enforcement agencies and ministers, which creates unacceptably high risks of arbitrary operation,” president Pauline Wright said. 

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The risk is further compounded by the inclusion of a narrow offence-specific section in the legislation for persons who are present in a declared area for reasons that can be proven to be entirely unrelated to terrorism but are not prescribed as “permitted”. 

The LCA recommended the declared areas regime should be repealed and a reliance should instead be placed on enforcing the wide range of the existing preparatory and ancillary offences in the criminal code.