House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

NOTES ON CLAUSES

Preliminary

Clause 1 – Short title

1. This clause provides for the short title of the Act to be the Counter-Terrorism Legislation Amendment (Declared Areas) Act 2024.

Clause 2 – Commencement

2. This clause provides for the commencement of each provision in the Bill, as set out in the table. Item 1 in the table provides that the whole of the Bill would commence on the day after the Bill receives Royal Assent.

3. The note in clause 2 clarifies that the commencement table deals only with provisions in the Bill as originally enacted, and will not be revised to address any further amendments that may be made after the Bill has passed.

Clause 3 – Schedules

4. This clause provides that legislation specified in a Schedule to the Bill would be amended as set out in the applicable items in the relevant Schedule. Any other items in a Schedule to the Bill would have effect according to its terms.

Criminal Code Act 1995

Item 1 – Subsection 119.2(6) of the Criminal Code

5. Item 1 would omit the date '2024' and substitute it with the date '2027' in subsection 119.2(6) of the Criminal Code Act 1995 (Criminal Code).

6. The effect of this amendment would be to extend the operation of the offence for entering or remaining in a declared area by three years to 7 September 2027. Extending the offence by three years reflects the continued appropriateness of the provisions and is consistent with the previous two extensions made in 2018 and 2021 in accordance with recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS). This would allow for continued, periodic review of the appropriateness of this framework.

Item 2 – At the end of section 119.3 of the Criminal Code

7. Item 2 would insert a sunset provision at the end of section 119.3 that provides that section 119.3, which allows the Minster for Foreign Affairs to declare an area for the purposes of section 119.2, ceases to have effect at the end of 7 September 2027.

8. The effect of this item would be to ensure that section 119.3 sunsets at the same time as section 119.2 (as amended by item 1 of the Bill) reflecting that there would be no utility in enabling the Minister for Foreign Affairs to declare an area without a mechanism for enforcing the declaration.

Intelligence Services Act 2001

Item 3 – Paragraph 29(1)(bbaa)

9. Item 3 would repeal paragraph 29(1)(bbaa) of the Intelligence Services Act 2001 (Intelligence Services Act), which provides that the PJCIS may, should it resolve to do so, review the operation, effectiveness and proportionality of sections 119.2 and 119.3 of the Criminal Code prior to 7 January 2024. The PJCIS did not resolve to undertake such a review. As this mandate is exhausted, it is appropriate that this provision is repealed.

10. The Intelligence Services Legislation Amendment Bill 2023, currently before Parliament, would amend the Intelligence Services Act to allow the PJCIS to review and inquire into any counter-terrorism or national security legislation prior to its sunsetting, removing the requirement for a bespoke mandate to be provided to the PJCIS to review the declared areas provisions ahead of sunsetting in 2027.