I recently published a post that was critical of the Court of Appeal’s 2018 decision in the case of Dacre & Ors v R.1 That judgment established a problematic construction of s 119.4 of the Criminal Code, which is the offence of preparing to enter a foreign country with the intention to engage in hostile activity. On the basis of flawed reasoning, six people were sentenced to significant terms of imprisonment for conduct that was not connected to any actual or even anticipated harm. This is an egregious violation of fundamental principles of just punishment in a liberal society.
In this post, I extend my criticism of that judgment further. I will argue here that the precedent set by the case of Dacre creates a disturbing uncertainty in the law, it potentially violates the principle of legality. By relieving the prosecution of an obligation to prove every element of the offence, the Court of Appeal has enabled a situation whereby the scope and subject matter of the law are unknowable in advance, and are left to be determined by the prosecutor and security agencies on the basis of the political climate at the time.
In our current environment where governments are becoming militant in their objections to legitimate forms of popular opposition, and their rhetoric conflates protest and terrorism, the concerns raised by the uncertainty of this provision are substantial.
This post will not repeat the factual basis of the Dacre case, or the full analysis of the Court of Appeal’s reasoning in their interlocutory decision. It is suggested that the first part of this post be read before this one.
1. The charge
The components of s 119.4 of the Criminal Code (Cth) are:
- A person engages in conduct2
- That conduct is preparatory to3
- Entering a foreign country with the intention of engaging in hostile activity.4
Hostile activity is5:
- Any conduct
- that is done with the intention of achieving one of the following objectives:
- Overthrowing by force or violence the government of that country
- Intimidating the public or part of the public of that or any other foreign country
- Causing death or bodily injury to anyone holding a public office
- Destroying or damaging any real or personal property belonging to a government.
The offence itself is vague. It attaches to preparatory conduct, not an actual wrong. The definition of “hostile activity” is unclear. The ultimate anticipated harm (hostile activity) is extraterritorial. And it involves two degrees of mens rea—entering a country with an intention to engage in conduct; and that that future conduct, whatever it might be, would itself be done with an intention to engage in hostile activity. Instead of criminalising particular acts—for example bombing an embassy—it criminalises a political goal. A degree of uncertainty arises already: how does one prove beyond reasonable doubt that those two degrees of intention can be imputed to the accused, especially at the preparatory stage?
To further obscure the provision, the Prosecution in the case of Dacre charged it with two degrees of complicity as well – the six co-accused entered an agreement to prepare for at least one of them to enter a foreign country, on the understanding that that person would enter the country with the intention of encouraging or participating with others who are engaging in conduct characterised as hostile activity. So, five accused, A, are guilty by virtue of their complicity with another person, B, who sought to enter a foreign country (the Philippines); and that person B is guilty (in Australia) by virtue of his anticipated complicity with others, C, who sought to engage in hostile activity (in the Philippines). Therefore A are convicted for the harms that C may commit by virtue of B’s goals and intentions, even if there is no other connection between A and C.
The final affront, however, was delivered when the Court of Appeal found in the case of Dacre that B’s actual intentions (ie, B’s connection with C) need not be particularised. It was not necessary (and indeed not possible) for the Prosecution to prove who B intended to encourage or assist, or what form such encouragement would take. It was deemed sufficient that B intended to encourage “persons of the Islamic faith who intended to overthrow the government of the Philippines by force or violence”, without specifying what B’s acts of encouragement might be. This was in essence the subject of the interlocutory appeal.
2. The uncertainty
The argument raised by the defence in Dacre was that without particularising what conduct B intended to engage in, the offence provision could have captured “anything from engaging in armed conflict, to planting bombs, to singing protest songs or to cheering at a rally.’”6 In other words, without further particulars, the provisions could be used just as easily to criminalise peaceful protest as insurgency.
This uncertainty arises partly on account of the drafting of the provision. “Hostile activity” is itself imprecise. Overthrowing by force or violence the government of a country; intimidating the public or part of the public; causing bodily injury to anyone holding public office; or damaging any property belonging to the government all encompass a wide range of possible conduct. Even if the offence were an offence of simply engaging in hostile activity overseas, without the double mens rea, the double complicity and the preparatory element, it would be a complicated provision to work with.
In light of the precedent set by Dacre, however, this provision could be used in a troubling variety of circumstances. The fact that a person who only intends to encourage others who are engaging in questionable conduct, or, even just agrees to help someone else who intends to encourage others who are engaging in questionable conduct, extends the possible range of application to almost any conduct that is motivated by one’s political convictions.
Let’s explore for a moment the range of activities that could constitute an offence under this provision. Imagine that I was born or raised in Hong Kong, but am now resident in Australia. I have a strong commitment to democratic principles and have been concerned at the expanding influence of China in the region, not least of all into Hong Kong. I have been watching with some concern the movements of the mainland China to assert ever greater reach into the governance of Hong Kong. When protests against the Extradition Bill start, I am sympathetic to the movement. I agree with their position and wish to join my voice with theirs.
When the Bill is withdrawn and the protests persist in support of a wider array of complaints, including police accountability and greater democratic accountability of lawmakers, I agree. I not only sympathise with the movement, but I believe in its importance. I have no intention to engage in violence myself, but I have defended the actions of protestors in text messages to my friends when they have cut down surveillance cameras or occupied government buildings. I would like to go back to Hong Kong and support the movement in order to express my political convictions. I may march, I may hand out water and energy candies to protestors, I may participate in logistics planning. I don’t know yet and I don’t know anyone who is already involved in the protest movement.
There have been over a million people protesting in Hong Kong in recent months. As is well known from media coverage, some of these protests have become violent. The police and the military are engaged. Bands of men in white t-shirts have been assaulting protestors. Government buildings and public spaces have been damaged. The Chinese government has compared protestors to terrorists. But by no stretch of the imagination have most protestors engaged in violence. Indeed, most have been peaceful.
The definition of “hostile activity” would capture cutting down surveillance cameras (damaging government property) and probably even marching en masse (intimidating part of the public). If I entered Hong Kong with the intention to engage in this conduct, I would commit an offence under s 119.1 of the Code. If I prepared to do this, I would commit an offence under s 119.4.
If I did not intend to engage in this conduct, but intended to protest peacefully, I would still be caught by this provision. The prosecution would merely charge that I intended to support or encourage those who were damaging government property or intimidating the public. Through intercept material, evidence could be produced of conversations with my friends where I condone taking down state surveillance cameras. In moments of exasperation or enthusiasm, I may have written messages expressing my resentment of the Chinese and Hong Kong governments, or made positive comments about a protestor throwing a petrol bomb at a police station. All this would support the prosecution case that I intended to encourage others who intended to engage in acts of force against the government. The Prosecution need not show that I myself had any intention to engage in violence. Simply having political sympathies with a protest movement would be sufficient to prosecute me, especially when there are some people, however few, who are engaging in violence in support of the same political goals.
Likewise if I was an American left-wing feminist activist who wanted President Trump impeached. What if I was preparing to travel to the United States to join a march on Washington? Because there might be others who share my political convictions and resort to violence, like the Antifa movement, I could be prosecuted for intending to join with others to intimidate part of the public, or even encouraging others who intended to overthrow the government by force or violence.
Not only that, but if my mother helped me to buy my suitcase, pack my umbrella or knit my pink hat, she too could be prosecuted and convicted. It needn’t even be proven that she shared my political views, as long as she supported me in mine.
Prosecuting my mother for knitting my pink hat to be worn in the women’s march on Washington is the legal equivalent, without embellishment, of the prosecution of Murat Kaya in the case of Dacre. It falls as squarely into the offence provision in the same manner as does the prosecution of a Melbourne man for helping his friend buy a boat. Murat Kaya got three years and four months imprisonment.
But we aren’t reading about these other prosecutions in the newspaper. State security agencies don’t have the will to investigate people with democratic sympathies who may travel to Hong Kong. There would be an outcry if the OPP pursued charges against people for participating in political life overseas, if their political values were aligned with mainstream Australian values. So, does this mean that intending to protest in Hong Kong is illegal or not? Is helping your friend pack their bags illegal or not? By reference to the law, it is. But by reference to common sense, it’s not. And herein lies the problem.
The only limitation on the scope of this law is the exercise of prosecutorial discretion and the decisions of intelligence agencies on where to direct their investigative resources. There is no way to know what conduct this offence provision actually captures until you find yourself charged.
3. Prosecutorial discretion
In a decision on the scope of the statutory definition of terrorism in the UK, the Supreme Court expressed its disapproval at the inappropriate breadth of discretion left to the prosecution under that country’s counter-terrorism legislation. In the case of R v Gul,7 the Court was asked to decide if Mohammed Gul had a legitimate defence to the charge of possessing and disseminating terrorist material, when the material in question was composed of videos of insurgent attacks on military targets in the context of non-international armed conflict in Libya. It was argued that in the context of international law, these were not acts of terrorism, they were legitimate acts of war. Therefore, this was not terrorist material.
In finding that they were powerless to read a limitation into the statutory definition to bring the legislation in line with international law, the Court proffered this criticism of the fundamentally indeterminate scope of terrorism law:
36. The Crown’s reliance on prosecutorial discretion is intrinsically unattractive, as it amounts to saying that the legislature, whose primary duty is to make the law, and to do so in public, has in effect delegated to an appointee of the executive, albeit a respected and independent lawyer, the decision whether an activity should be treated as criminal for the purposes of prosecution. Such a statutory device, unless deployed very rarely indeed and only when there is no alternative, risks undermining the rule of law. It involves Parliament abdicating a significant part of its legislative function to an unelected DPP, or to the Attorney General, who, though he is accountable to Parliament, does not make open, democratically accountable decisions in the same way as Parliament. Further, such a device leaves citizens unclear as to whether or not their actions or projected actions are liable to be treated by the prosecution authorities as effectively innocent or criminal – in this case seriously criminal.8
The Court stopped short of making orders on the “unattractive” scope of discretion left to the Prosecution, as that was not a remedy open to them in Mohammed Gul’s appeal.
It was however open to the Court to decide the certainty of a criminal offence provision and make appropriate orders in the case of R (Purdy) v DPP.9 The offence in issue in Purdy was encouraging or assisting another person’s suicide.10 As stated by one Law Lord:
Ms Purdy wished to travel to Switzerland to access medically assisted dying in a jurisdiction where it was lawful to do so. She would require the assistance of her husband but wanted to know if upon his return he would be prosecuted for assisting her. She was not requesting that he be granted immunity from prosecution, she simply wanted to know the scope and ambit of the law so she could make a decision accordingly. She had noted that others who had been in a similar position as her husband had not all been prosecuted upon their return to the UK.
The House of Lords found that the law as drafted was clear, but because of the systematic ambiguity in its application, it failed for uncertainty. In deciding whether the law satisfied the principle of legality, the court held that the law must be accessible and foreseeable.
If a law fails to satisfy the principle of legality, and that law forms the basis of a prosecution and detention, one might infer that the exercise of state power against that individual is arbitrary.
4. Certainty and the rule of law
A legitimate exercise of prosecutorial discretion is where the prosecutor decides, on the basis of available evidence and public interest, whether or not to prosecute or what charges to lay. It is wholly inappropriate for the Prosecutor to decide what conduct the law proscribes. For example, it would be acceptable for the Prosecution to decide not to prosecute a 14-year-old child for stealing a chocolate bar from a corner store. It would be inappropriate for the Prosecution to quietly decide that the offence of theft did not extend to chocolate bars, 14-year-olds or, perhaps, corporate executives.
The principle of legal certainty can mean many things. But at its core, it means that laws should be sufficiently clear that individuals living in society can know them, and order their conduct and affairs in accordance with them. The principle is violated when legal rules are so vague that one cannot know whether one’s conduct is lawful or unlawful. As it currently stands, an individual in Australia cannot know if going to Hong Kong to protest or going to the United States to march on Washington is lawful or unlawful.
As the UK Supreme Court identified, this uncertainty means that the actual subject matter of the offence provision is not determined by the legislature—ie, elected officials who are accountable to the voting public and media—but by unelected members of prosecution and security forces. Their decisions are not transparent or subject to debate. They cannot be removed from office for making decisions that are not consistent with the values of the electorate. It is likely that a law prohibiting people from travelling overseas to fight with ISIS would be well received by the voting public. It is also likely that a law prohibiting peaceful pro-democracy protest in China or the United States would generate considerable discomfort. However, when one provision can be used in an indeterminate range of circumstances, this choice is not put to voters.
It is fundamentally inappropriate for the scope and subject matter of a criminal law to be determined by an unelected and unaccountable branch of the executive. The law’s legitimate authority is derived entirely from the process by which the law is made. This fundamental uncertainty of the law—which goes beyond the uncertainty in the Purdy case above because it is the text itself that is unclear—constitutes an illegitimate delegation of lawmaking power, and ought to be the subject of constitutional challenge.
The practical consequences of this departure from proper law-making process are also significant. This offence is one that targets individuals on the basis of their political beliefs and their willingness to act on them.13
The men in Dacre were prosecuted under this law because fundamentalist Islamic ideas are, at least on the surface, politically objectionable.14 The Western cultural imagination draws strong associations between political Islam and terrorism. These associations are fed by images on television and fearmongering public discourse. It is because of this that the prosecution of these men appeared legitimate, whereas the prosecution of pro-democracy activists may not.
And yet we see in Australia rhetoric that increasingly associates protest with criminality. This heightens the stigma against protest and over time changes the cultural acceptance of oppositional political opinion. There are calls by ministers to imprison environmental activists and vegans. Even people convicted of minor drug offences and assaults are not necessarily jailed—but political efforts are being made to ensure that those voicing their political beliefs against a government that doesn’t want to hear them, are. With uncertain legislation that enables prosecution on virtually any evidence of unfavourable political opinions, there is nothing in the law to stop arrests and convictions of any individual selected by ASIO as a “person of interest”.
Section 119.4 is an extraterritorial offence, but it is a slippery slope. Once legitimate political protest is criminalised in Australia, the move to criminalise protest abroad does not seem far-fetched. In that case, the will to prosecute will be determined not by Australian voters at all, but by security agencies and foreign policy.
The rule of law at its most basic means a society governed by universally applicable laws that are impartially administered and knowable in advance—general, prospective and clear. The opposite is a society where power is exercised by a few according to their own designs, purposes, means and whims. Public power that is not prescribed by and limited by the law is arbitrary. Offences of this nature corrode the rule of law by giving the government license to prosecute and imprison people on the basis of their political commitments, without having to justify their actions to the general public. With no serious human rights protection, with no constitutional protection of the rule of law,15 and with a state bent on increasing its powers of surveillance, on limiting and controlling the media and punishing people for legitimate political protest, we must be concerned.
  VSCA 150.
 Criminal Code Act 1995 (Cth), s 119.4(1)(a).
 Criminal Code Act 1995 (Cth), s 119.4(1)(b).
 Criminal Code Act 1995 (Cth), s 119.1(a).
 Criminal Code Act 1995 (Cth), s 117.1, definition “engage in hostile activity”.
 Dacre & Ors v R  VSCA 150, .
  UKCS 64.
 Ibid -. (Emphasis added)
  UKHL 45.
 Suicide Act 1961 (R 9 & 10 Eliz 2) (c. 60), s 2(1).
 R (Purdy) v DPP  UKHL 45  (Lord Hope of Craighead).
 Ibid, . The remedy was to order the OPP to publish a guidance note on when and how the provision would be enforced. This remedy was appropriate in the circumstances because of the qualifying paragraph that required the consent of the Director of Public before charges can be laid under this provision. That policy can be found: https://www.cps.gov.uk/legal-guidance/suicide-policy-prosecutors-respect-cases-encouraging-or-assisting-suicide
 And, of course, their capacity. With the rapid increase in highly invasive powers of surveillance, capacity to gather evidence against a political target is a non-issue.
 But only when they are held by individuals. When the same Wahabist-Salafist tradition forms the basis of a state religion, as in the case of Saudi Arabia, Australia enthusiastically engages through commerce and arms trade.
 This will be the subject of my next post.