National security

Strict liability offences

14.49   A number of submissions to this inquiry have identified strict liability offences relating to counter-terrorism and national security as examples of an unjustified imposition of strict or absolute liability.^[66]

Associating with a terrorist organisation

14.50   The Law Council of Australia raised concerns about ss 102.5(2) and 102.8 of the Criminal Code, which impose strict liability for training with or associating with a terrorist organisation. These provisions are discussed in greater detail in Chapter [x], dealing with freedom of association. The Law Council of Australia and the UNSW Law Society criticised the provisions for expanding the reach of criminal liability to conduct which does not indicate culpability.

14.51   The Attorney-General’s Department argued that the default elements

need to be clarified, first by applying strict liability to the question of whether the organisation is a proscribed or listed organisation and secondly by introducing a new offence that the person was reckless as to the nature of the organisation.^[67]

14.52   The Security Legislation Review Committee, chaired by Simon Sheller QC OA, considered this submission, and stated in its report (the Sheller Report) that, it ‘does not regard it as according with justice and proportionate to apply strict liability to offences under either ss 102.5 or 102.8’.^[68] Further, it concluded that offences that carry penalties of 25 years (s 102.5) and three years (s 102.8) should not be subject to strict liability.^[69]

14.53   The Sheller Report also concluded that:

Even if strict liability applies only to make it unnecessary for the prosecution to prove that the organisation is a terrorist organisation as a result of proscription, the defendant is denied by the process of proscription any opportunity to resist the factual conclusion that it is a terrorist organisation, at any time, either by resisting the process of proscription, which results in the executive act of proscription, or at the trial for the offence.^[70]

14.54   The Council of Australian Governments, in its 2013 review of counter-terrorism legislation, adopted the Sheller report’s comments relating to s 102.5,^[71] and recommended the repeal of s 102.8.^[72]

Financial transactions

14.55   Under ss 20 and 21 of the Charter of the United Nations Act 1945 (Cth), strict liability applies such that a person does not need to know that any use of, dealing with, or making available of an asset is not in accordance with a notice under the Act. The Attorney-General, in response to the Scrutiny of Bills Committee’s initial concerns stated that the imposition of strict liability

is necessary to ensure that the offences can be effectively prosecuted … if the prosecution was required to prove not only that the defendant was aware that the asset was a freezable asset but also that he or she was aware that a particular dealing with the asset was not in accordance with a notice under section 22, defendants would be able to avoid liability by demonstrating that they did not turn their minds to the question of whether there was a notice permitting the dealing … A person who acts in the mistaken but reasonable belief that a dealing is in accordance with a notice would be able to rely on the defence of mistake of fact under section 9.2 of the Criminal Code.^[73]

14.56   Notwithstanding the Attorney-General’s justification, the Scrutiny of Bills Committee was concerned these provisions may trespass upon personal rights and liberties, and left the question for resolution by the Senate as a whole.

Disclosure of information

14.57   Section 34ZS of the Australian Security Intelligence Organisation Act 1979 (Cth)imposes strict liability in relation to the disclosure of operational information concerning a warrant issued under s 34D by the subject of the warrant or a legal representative. Chapter 3 discusses this provision in greater detail, including the ALRC’s recommendations in relation to such secrecy provisions.

Declared area offences

14.58   The UNSW Law Society, Gilbert and Tobin Centre for Public Law and Australian Lawyers for Human Rights identified s 119.2 of the Criminal Code, as inserted by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth). The discussion below focuses on concerns relating to the imposition of strict liability. The extent to which this provision encroaches on freedom of movement is discussed in Chapter 6.

14.59   Section 119.2 criminalises the entry or presence in an area in a foreign country, which is a declared area, unless it is for the purpose of a limited list of approved purposes.

14.60   Under s 119.2, and applying the default fault elements set out in s 5.6 of the Criminal Code,the prosecution is required to prove the following fault elements:

• the person intentionally enters, or remains in, an area in a foreign country, knowing that it is an area in a foreign country; and

• the person is reckless as to whether the area is an area declared by the Foreign Affairs Minister under s 119.3.

14.61   A number of stakeholders and parliamentary committees raised concerns about this provision. While these criticisms do not relate to the imposition of strict liability, it highlights that s 119.2 of the Criminal Code potentially imposes criminal liability in the absence of culpable or problematic conduct.

14.62   The Gilbert and Tobin Centre for Public Law submitted that, while not expressed as an offence of strict liability, s 119.2 operates such that, in effect, it is an offence of strict liability. Criminal liability is established, prima facie, when a person enters or remains in a declared area. The Gilbert and Tobin Centre for Public Law noted that ‘the prosecution need not establish, for example, that the person travelled to the area for the purpose of engaging in terrorism’.^[74] It contends that the provision is problematic because it is the malicious purpose of engaging in terrorism, rather than the mere fact of travel, ‘which should render the conduct an appropriate subject for criminalisation’.^[75] Australian Lawyers for Human Rights echoed the concerns raised by the Gilbert and Tobin Centre for Public Law.^[76]

14.63   The Scrutiny of Bills Committee raised concerns about the breadth of this provision, noting that ‘it appears that the offence is made out simply for being in a declared area’.^[77] Following consideration of the legitimate purposes set out in s 119.2(3) of the Criminal Code, the Scrutiny of Bills Committee stated:

The potential difficulty with this provision, however, is that the legitimate purposes are listed and it is not clear that the listed purposes cover the field of purposes which would demonstrate that there was no intent to support terrorist groups or engage in terrorist activities overseas.^[78]

14.64   The Attorney-General in his response to the committee, noted the following passage from the Parliamentary Joint Committee on Intelligence and Security:

The areas targeted by the ‘declared area’ provisions are extremely dangerous locations in which terrorist organisations are actively engaging in hostile activities. The Committee notes the declared area provisions are designed to act as a deterrent to prevent people from travelling to declared areas. The Committee considers it is a legitimate policy intent for the Government to do this and to require persons who choose to travel to such places despite the warnings to provide evidence of a legitimate purpose for their travel. This is particularly the case given the risk individuals returning to Australia who have fought for or been involved with terrorist organisations present to the community.^[79]

14.65   The Human Rights Committee also noted that a person could commit the offence without intending to engage in or support terrorist activity.^[80]

14.66   The UNSW Law Society conducted a proportionality analysis of the provision, and noted that a provision which includes an intent to engage in hostile or terrorist activity as an element of the offence would be a less rights-encroaching alternative.^[81]