Spencer Zifcak. Proportionality Lost: Australia’s New Counter-Terrorism Laws. Part 2

Mar 11, 2015

The Foreign Fighters Bill

The second tranche of counter-terrorism legislation introduced by the Attorney-General, Senator Brandis, late last year was contained in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill. This Bill (now passed into law) amended several Commonwealth Acts, most notably the Commonwealth Criminal Code. The primary purpose of these new laws is to enable the investigation, arrest, prosecution and punishment of people supporting foreign conflicts.

  1. Foreign Incursion Offences

Each of the foreign incursion offences pivots upon the definition of ‘to engage in hostile activity’. A person engages in hostile activity in a foreign country if they engage in conduct intending to:

overthrow the government of the country, or any other country, by force of violence; or

subvert society in that or any other country; or

intimidate the public in that country or any other country.

This definition substantially expands the one formerly contained in the Crimes (Foreign Incursions) Act 1978. The expansion is achieved by the inclusion of the subversion and intimidation components. Consequently, every offence added to the Criminal Code Act, which turns on the broader conception of ‘engaging in hostile conduct’ has a much expanded scope from that in existing foreign incursion laws.

So, for example, in the former law the penalty for incursion into a foreign state with the intention of engaging in hostile activity was 20 years. In the new law, the penalty for the more widely defined offence is life imprisonment. Similarly, the former law provided for a penalty of 10 years imprisonment for actions in preparation for hostile activity, whether or not that hostile activity occurs. In the Foreign Fighters legislation, the much broader offence again attracts a life sentence. The idea that preparatory conduct will attract a life sentence is of particular concern. It might, for example, catch a family member in Australia whose only relevant act is sending medicines to a relative engaged in an incursion abroad.

‘Subverting society’ is also defined extraordinarily widely. It may for instance apply to serious damage to any property, serious interference with an information system or a serious disruption to transport infrastructure. Such activities may legitimately be criminalized but the attachment of a life sentence to them is manifestly excessive.

Importantly, too, the new subversion offences are not tied directly to terrorism. Subversive activity encompasses a range of actions that need neither be intended to influence a government by intimidation nor be motivated by the advancement of a political, ideological or religious cause. Subversion takes in the disruption of electronic, communications, transport and postal systems and any and every infringement of property rights, whether or not they form part of a terrorist attack. To avoid substantial legal over-reach, therefore, these offences must be tied directly to the explicit definition of a terrorist act in the Commonwealth Criminal Code.

To appreciate the breadth of what is proposed, one might take another Timorese example. An East Timorese person who had been granted Australian citizenship or permanent residency and who returned to East Timor in the 1990s to participate in the rebellion against the genocidal Suharto regime’s oppression of the country would have been caught by the Foreign Fighters law and faced a life term. Jose Ramos Horta was resident in Australia for some time while carrying on his diplomatic work in pursuit of Timorese independence at that time. No doubt his activities consisted of advocating for, making preparations for and supporting the commission of hostile activity against the Indonesian government. It would have been a pity, given his subsequent receipt of the Nobel Peace Prize, if he had had to serve a long term of imprisonment in Australia.

  1. Declared Area Offences

The problems attached to overly broad ministerial discretion are illustrated graphically by the offences attached to travelling to ‘no go zones’. Pursuant to the Foreign Fighters law, it is an offence for a person to enter an area in a foreign country that has been declared by the Minister for Foreign Affairs as a no-go zone, where the Minister is satisfied that a listed terrorist organization is operating there. To enter or remain in a declared area attracts a penalty of 10 years imprisonment.

The relevant provisions create a list of exceptions that include, for instance, cases in which a person has entered an area to engage in humanitarian or journalistic activities or for bona fide family reasons. The exceptions are narrow however. They may not, for instance, cover business travellers, pilgrims, adventurers, ill informed tourists, people who enter inadvertently, people in transit, others who have gone to visit or support friends and so on. The exception for journalists extends only to those who are working in a professional capacity. Social media correspondents, bloggers, researchers, independent cameramen and others are unlikely to fall into the professional category.

A person picked up in a declared area is also placed at a significant legal disadvantage. To make out a case against her, a prosecutor need only demonstrate that she has been found in a zone, and that the Minister has declared the zone. Once those two requirements have been met, it becomes a matter for the accused to prove that she falls within a lawful exception. Not only that, but she is required to demonstrate that the excepted purpose for her presence in the zone is the sole purpose for her being there.

This is not strictly a case in which the presumption of innocence is negated, but it comes pretty close. The accused person must prove that they are in an area for a legitimate reason rather then the prosecution having to demonstrate that the accused’s purpose falls outside the mandated exceptions. Further, for a person to prove a negative, that is that they are not in an area for a nefarious purpose, presents formidable evidentiary difficulties.

The declared area offence should be excised from the legislation. Alternatively, the parliament should include a general defence for a person who has travelled to the area for an innocent purpose which nevertheless falls outside the present narrowly defined, legitimate reasons for travel.


It will be clear that in critical respects the new counter-terrorism laws are a disproportionate response to real but manageable threats. While it is highly unlikely that the laws canvassed here will be reviewed in the foreseeable future, a number of supplementary reforms should be considered. These would strengthen the mechanisms through which the legislation could be continuously reviewed and amended when that is found necessary.

A new person should be appointed to the Office of the Independent National Security Legislation Monitor immediately. The Office of the Inspector-General of Intelligence and Security should be given stronger powers to monitor Australia’s domestic and international intelligence agencies particularly in relation to their conduct of special intelligence operations. The Parliament’s Joint Committee on Intelligence and Security should report annually on issues and problems arising from the implementation of counter-terrorism laws.

It is imperative that the laws analyzed here should be subject to sunset terms of no longer than three years. The great problem with counter-terrorism legislation is that no government will ever wish to court the blame for a terrorist attack if ever it occurs. There is consequently, no political incentive for such legislation ever to be repealed. With all its disproportionality and violations of civil liberties, it will stay on the books indefinitely unless, by law, it must be brought to an end when national security and human rights considerations suggest that it is justified to do so.

Spencer Zifcak is Professor of International Human Rights Law

This article first appeared in Arena, see Terror Laws: Arena, No 133, 12 2014-01 2015.  www.arena.com.au

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