Submission to Inquiry into the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 Cth

Abstract

The proposed s.119.2 offence involves entry into, or remaining in an area in a foreign country and that area has been declared by legislative instrument by the Minister for Foreign Affairs under s.119.3 as satisfied that a listed terrorist organisation is engaging in hostile activity in that area of the foreign country. It is accordingly an entry or presence based offence, founded on a presumption that entry into or remaining in a declared area is for purposes of terrorism or for a terrorist act, unless a sole purpose exception can then be established on an evidential burden under s.l19.2 (3). It is apparent from the Explanatory Memorandum to the Bill that the fault elements of both knowledge and recklessness will apply in relation to the fact of declaration of an area within the terms of s.119.3 1. Accordingly, under a standard whereby the person may not have actual knowledge of the declaration of an area under s.119.3, the defendant is put to an evidential burden to satisfy at least one of the seven sole purpose legitimate purposes under s.119.2 (3) or an additional purpose prescribed by regulations under s.1l9.2 (3) (h).