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 Frequently asked questions—declared area offence

What is the ‘declared area’ offence?

The offence of entering, or remaining in, a declared area is located at section 119.2 of the Criminal Code Act 1995. The provision makes it an offence for a person to intentionally enter, or remain in, a declared area in a foreign country where the person knows, or should know, that the area is a declared area.

The maximum penalty for this offence is 10 years’ imprisonment.

The declared area offence is designed to act as a deterrent to prevent people from travelling to declared areas. This is particularly the case given the risk individuals returning to Australia who have fought for or been involved with listed terrorist organisations present to the community.

What is a ‘declared area’?

The Minister for Foreign Affairs may declare an area in a foreign country if they are satisfied that a listed terrorist organisation is engaging in a hostile activity in that area.

The minister’s decision will be based on advice provided by Australian Government agencies in the form of a Statement of Reasons.

Whenever possible, the Statement of Reasons will be prepared as a stand-alone document, based on unclassified information about the hostile activity that a listed terrorist organisation is engaging in in that area of the foreign country. This enables the Statement of Reasons to be made available to the public, and provides transparency as to the basis on which the minister’s decision is made.

Can an entire country be declared?

The legislation provides that a declaration cannot cover an entire country.

How will I know if an area is declared?

If an area is declared, a range of notification processes will be used to ensure this information is disseminated as broadly as possible. This will include publication in the gazette, the issue of a media release, and publication on this website.. Updated travel advice will also be published on the Smartraveller website. The declaration will include a detailed description of the declared area to ensure it is readily identifiable by members of the public. The description will include a map showing the declared area and/or a detailed description that indicates clearly the area declared.

Can I travel to a declared area?

It is an offence to intentionally enter, or remain in, a declared area if you know, or should know, that the area is a declared area.

It is a defence for a person to enter, or remain in, a declared area solely for a legitimate purpose or purposes.

What are the legitimate purposes?

Legitimate purposes for travelling to a declared area are provided at subsection 119.2(3) and are limited to providing humanitarian aid, making a genuine visit to a family member, working in a professional capacity as a journalist, performing official government or United Nations duties, appearing before a court or tribunal, and any other purpose prescribed by the regulations.

How do I show that I travelled for a legitimate purpose?

A person who wishes to rely on the exception to the offence and establish that their travel to a declared area was for a sole legitimate purpose or purposes will need to provide information to the court that suggests a reasonable possibility that they travelled for a sole legitimate purpose or purposes.

Do I need to obtain pre-approval for travel to a declared area?

There is no process for obtaining pre-approval to travel to a declared area.

The Australian Government encourages everyone to register their overseas travel plans via the Smartraveller website and keep it up to date. The registration information will help the Department of Foreign Affairs and Trade to contact or find you in an emergency—whether it is a natural disaster, civil disturbance or family emergency. It may also be used to pass other information to you, such as travel advice updates.

Can I travel to a declared area to visit friends or for business or religious purposes?

Visiting friends, business purposes or religious purposes are not included in the list of legitimate purposes. A person who enters, or remains in, a declared area for these purposes could be prosecuted for the offence.