Terrorism-Related Offences: Entering or Remaining in a Declared Area

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Iraq and Syria

A woman is facing court over allegations she entered and remained in parts of Syria that were off-limits to Australians at the time.

It is alleged the 31-year old travelled to Syria in 2014 to join her husband in areas of the country under the control of Islamic State, a declared terrorist organisation of which her husband became a member the year prior. Police claim the woman was aware of her husband’s activities at the time.

After her husband died in 2018, the woman was taken in at Al Roj Internally Displaced Persons Camp before returning to Australia in August 2022.

She is currently residing in the town of Young which is located in the South West Slopes region of New South Wales.

An investigation by the Australian Federal Police, the NSW Police Force and its specialist Joint Counter Terrorism Team (JCTT) led to search warrants being executed in Young and Parklea, after which the woman was charged with one count of entering or remaining in a declared area.

Authorities have made clear there is no information to suggest the woman is currently a threat to the Australian community.

Her case is currently listed in Griffith Local Court and police have been ordered to serve their brief of evidence on the defence.

Repatriated citizens may face charges 

In October last year, the Federal Government announced a ‘staged repatriation’ of about 60 Australian women and children from Syria – the wives, sons and daughters of slain or jailed Islamic State combatants, who have been held for more than three years in detention camps in the north-east of the nation.

Many of these people are in poor physical heath and suffer from mental health conditions resulting from traumatisation and detention. 

Bringing them home and doing everything possible to reintegrate them into the community certainly appears to be the humanitarian thing to do, but the reality is that some are likely to face criminal charges on return to Australia for having entered and stayed in areas our government declared off-limits to our citizens and residents at the time.

The offence of entering or remaining in a declared area

Entering or remaining in a declared area is an offence under section 119.2 of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of 10 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You entered or remained in an area of a foreign country,
  2. The area was declared by the Foreign Minister under 119.3 of the Act, and
  3. You were an Australian citizen or resident, held an Australian visa or voluntarily put yourself under Australia’s protection.

Section 119.3 provides a mechanism for the Foreign Minister of Australia to ‘declare’ an area for the purpose of the law if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area. 

You are not guilty of the offence if you establish ‘on the balance of probabilities’ that you entered the area solely for one or more of the following purposes:

  • Providing aid of a humanitarian nature,
  • Satisfying an obligation to appear before a court or other body exercising judicial power,
  • Performing an official duty for the Commonwealth, a State or a Territory,
  • Performing an official duty for the government of a foreign country or the government of part of a foreign country (including service in the armed forces of the government of a foreign country), where that performance would not be a violation of the law of the Commonwealth, a State or a Territory,
  • Performing an official duty for the United Nations, or an agency of the United Nations, or the International Committee of the Red Cross,
  • Making a news report of events in the area, where the person is working in a professional capacity as a journalist or is assisting another person working in a professional capacity as a journalist,
  • Making a bona fide visit to a family member, or
  • Any other purpose prescribed by the regulations.

The offence also does not apply to those in the area solely in the course of service in the armed forces of the government of a foreign country, and any armed force declared as excluded.

According to the Australian government, the offence of entering or remaining in a declared area is intended to ‘act as a deterrent to prevent people from travelling to declared areas, given the risk to the Australian community posed by individuals who have fought for or otherwise supported terrorist organisations offshore and seek to return to Australia.’ 

Which areas are declared?

No areas are currently declared under the Act. 

The previously declared were the Mosul District of the Ninewa province of Iraq, which was declared from 2 March 2015 to 19 December 2019 and Al-Raqqa province in Syria, which was declared from 5 December 2014 to 28 November 2017.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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