Jailing Australians who travel to 'no-go' zones will 'violate human rights'

Proposed Australian laws that would allow the jailing of citizens who travel to declared “no-go zones” are likely to be incompatible with human rights, a multi-party committee has warned.

The parliamentary joint committee on human rights called on the government to justify key elements of counter-terrorism legislation that the Coalition wants to push through the Senate on Wednesday.

The 10-member committee, which includes representatives of the Coalition, Labor and the Greens, argued that the new declared area provisions were likely to infringe on rights to a fair trial, the presumption of innocence, freedom of movement, the prohibition against arbitrary detention, and non-discrimination.

Under the proposal, the foreign affairs minister could declare an area where listed terrorist groups were engaging in hostile activity as an effective “no-go zone”. A person could be jailed for up to 10 years for entering or remaining in such an area unless they did so solely for a legitimate purpose captured by specific exemptions.

In a report published on Tuesday, the human rights committee said “a person could commit the offence without actually knowing that the area was declared, and without any intention of engaging in or supporting terrorist activity”.

“A person accused of entering or remaining in a declared area would bear an evidential burden – that is, they would need to provide evidence that they were in a declared area solely for a legitimate purpose,” it said.

The committee said, in practice, defendants could be placed “in the difficult position of having to prove a negative”.

It also warned that “the conviction and detention of an individual for being in a declared area where no evidence has been provided of a nefarious intent could be arbitrary for the purposes of international human rights law”.

The committee said the list of defences was “relatively narrow” and did not include visiting friends, transacting business, retrieving personal property, attending to personal or financial affairs or to undertake a religious pilgrimage.

“Accordingly, there appear to be a number of significant, innocent reasons why a person might enter or remain in a declared zone, but that would not bring a person within the scope of the sole legitimate purpose defence,” the report said.

Labor announced on Tuesday it would support the foreign fighters bill, but would move several amendments including a broadening of exemptions to the declared area provisions.

The human rights committee, chaired by the Liberal senator Dean Smith, called on the government to provide advice justifying other elements of the bill, including whether the new provisions against advocating terrorism were drafted too broadly.

The committee said the attorney general, George Brandis, should also explain “whether the proposed introduction of the power to suspend passports for up to 14 days is compatible with the right to freedom of movement, and particularly whether the limitation is reasonable and proportionate to the achievement of its stated objective”.

In presenting the report to the Senate, Smith the human rights committee’s job was to present a “technical and bipartisan” examination of legislation.

Smith said it was “not the ambition of this committee to be inconvenient to the desire and duty of governments to protect citizens from the harm of others and the deliberate evils of terrorism”.

“But the scrutiny role of this committee … must always be to shine a light on real and possible breaches of those fundamental rights and liberties; the right of freedom for arbitrary detention, the right to freedom of movement, the right to a fair trial, the right to presumption of innocence, the right to privacy, the rights to freedom of expression and association.”

Smith said legislation could limit human rights “if it can be shown to be reasonable necessary and proportionate in pursuit of a legitimate objective”

“The [government’s] statement of compatibility does not fully explain why the measures are necessary in pursuit of a legitimate objective, in particular it does not explain how and why existing law enforcement and intelligence gathering powers are insufficient to prevent serious threats to Australia’s national security interests,” he said.

The Senate continued to debate the legislation on Tuesday, with Labor and Coalition speakers broadly supporting the measures but crossbench senators raising concerns.

The Labor senator Jacinta Collins said the opposition had worked with government members of the intelligence and security committee to secure “substantive” amendments to the bill, including “insisting on necessary safeguards for the fundamental democratic freedoms which characterise our society and our way of life in Australia”.

The Liberal senator Sean Edwards said the first responsibility of government was the safety of its citizens. Edwards said the government need to stop Australians travelling to join terrorist groups “otherwise we would be exporting our national security liabilities” and also create a domestic security risk when the radicalised fighters returned home.

The Liberal Democratic senator David Leyonhjelm said he was worried the new provisions on terrorism advocacy were “broad enough to take in a general statement endorsing revolutionary violence with no particular audience in mind”.

Leyonhjelm told the Senate: “I’m happy to say I support the overthrow of Kim Jong-un [in North Korea] and Robert Mugabe [in Zimbabwe] and I wouldn’t mind if there was a bit of advocating terrorism to achieve that. What does that make me?”

The independent senator Nick Xenophon said he would not support the bill as it currently stood, as any response must be “measured and considered and effective, not counterproductive”.

The Greens senator Scott Ludlam said in contrast to the previous national security bill there must be “critical thinking and analysis before the bill passes not after”.