Kylea Tink (North Sydney, Independent) Share this | Hansard source

I want to start my speech today by drawing our country's attention to the fact that the Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024 impacts the rights of Australian citizens, and it impacts the rights of all Australian citizens. For this reason, I think that the bill requires scrutiny and deserves true scrutiny. As a member of the Parliamentary Joint Committee on Human Rights, I want to particularly draw attention to the human rights concerns raised by the committee in relation to this bill and previous bills dealing with declared areas provisions.

Unlike what we just heard from the member for Kennedy, this is not about people entering our country. This is about people leaving our country and travelling to various parts around the world. Ultimately, the view of the committee when we reviewed this legislation was set out in the Human rights scrutiny report: report 3 of 2024. It found: 'It has not been demonstrated that the extension of these provisions is compatible with human rights.' The human rights raised by the committee previously in relation to these provisions remain a concern—namely, that the declared areas provisions do not contain sufficient safeguards or flexibility to constitute a proportionate limit on rights and that questions regarding the necessity of the measure have not been addressed.

To be clear, I recognise—and the committee absolutely recognised—that this bill aims to achieve an important objective, that being the protection of Australia's national security interests. The declared areas provisions provide the minister with the power to declare certain areas of a foreign country where a listed terrorist organisation is engaging in a hostile activity, making it an offence to enter or stay in the area without a legitimate reason. The intention of those powers is to enable the disruption and prosecution of returning foreign terrorist fighters and their associates. These provisions are ultimately intended to deter Australians, including families, from travelling to dangerous conflict areas where listed terrorist organisations are engaging in hostile activities and to protect against the possibility of terrorist attacks in Australia. And, to be clear, I wholeheartedly support those intentions and that ambition. However, while this is a legitimate and vital objective, particularly in light of our recently upgraded terrorism threat level, it should not come at the cost of fundamental human rights. We in this place must critically consider whether the measures outlined are proportionate to the stated objective.

The declared area offence provisions engage and limit a number of human rights, including the rights to equality, nondiscrimination, a fair trial, freedom of movement and liberty. When this bill was originally passed in 2014, the Australian Labor Party, the Australian Greens, Independents and various legal, human rights and other interest groups expressed concern with the new offence of entering declared areas. In particular, concerns were raised regarding the limitation on the freedom of movement and the onus of the evidential burden being placed on the defendant through the use of the exceptions to the offence.

Human rights issues were again raised by various interest groups during the 2021 Parliamentary Joint Committee on Intelligence and Security review in relation to the declared areas provisions. Again, these concerns questioned the need for the provisions and raised the possible human rights limitations on freedom of movement and otherwise legitimate activities. I don't believe these concerns have been adequately addressed.

In its most recent report, the Parliamentary Joint Committee on Human Rights reiterated again the concerns that it had raised regarding human rights in relation to the previous bills dealing with the declared areas provisions and drew these again to the attention of the Attorney-General and the wider parliament. In summarising its concerns, the committee stated:

The committee has previously found that while the provisions likely pursue a legitimate objective (namely, that of seeking to prevent terrorist acts), there were questions whether the provisions were necessary, and, in particular, the measures did not appear to be proportionate, and therefore were likely to be incompatible with a range of human rights … As such, the committee considers that it has not been demonstrated that the extension of these provisions is compatible with human rights.

I also want to note that the Parliamentary Joint Committee on Intelligence and Security, in its 2021 review of the provisions, recommended that the Criminal Code Act 1995 be amended to allow Australian citizens to request an exemption to travel to a declared area for reasons not listed in the Criminal Code but which are not otherwise illegitimate under Australian law. Ultimately, the government then did not support the exception that was recommended. Thus there may be a number of innocent reasons that a person may want to enter or remain in a declared area that currently would not bring a person within the scope of the legitimate purpose defence.

Despite attempts by the parliamentary joint committee, despite the findings of the inquiry and despite the submissions that were received from others engaged across the human rights movement, the government has not amended this legislation. And while, in times when our nation is facing fear, it is understandable that we will move quickly to adopt legislation that we feel protects us, surely at a time when we have the opportunity to seriously review something and assess whether we got it right the first time is the moment we should be ensuring that we fix any mistakes that may have previously been built into the legislation.

As highlighted by the Parliamentary Joint Committee on Human Rights, there is currently a clear lack of sufficient safeguards or flexibility to constitute a proportionate limit on rights as seen in this legislation. For that reason, and as a member of the committee, I cannot support the bill in its current form.

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