The foreign fighter laws won't affect the vast majority of Australians, but they may just help the police and ASIO to prevent a terrorist attack in this country, writes Nick O'Brien.

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 is a hefty piece of legislation, the bill itself running for 164 pages and the accompanying Explanatory Memorandum running to 227 pages.

Most of what is proposed seems entirely reasonable with one major exception, and that is the 10-year 'sunset clause' on some of the changes.

Ten years is not a sunset. The bill would be just as effective with a one- or two-year sunset clause on the relevant parts of the legislation.

The Independent Reviewer of Terrorism Legislation could be tasked with providing a report to Parliament prior to any renewal. This has worked effectively elsewhere. In the UK, the Prevention of Terrorism (Temporary Provisions) Act had to be renewed by Parliament annually. The issue of the sunset clause is important as the perception of the legislation should be addressed, as well at its realities.

There will be many who will be against this legislation because it will be seen as oppressive and it comes from a Coalition Government, albeit with little opposition from across the other side of the House. Benjamin Franklin's paraphrased quote, "those who give up liberty for security deserve neither", may be oft-quoted in the context of this legislation.

But the fact is that most people will not be affected by this bill. And indeed, the proposals may assist the police and ASIO to prevent a terrorist attack in this country.

One of the more controversial aspects of the legislation is that it allows the Foreign Affairs Minister to "declare" an area in a foreign country as a no-go zone. To do this, the Minister must be satisfied that a terrorist organisation proscribed by Australia is operating in that location. It will be possible for the Minister to 'declare' an entire country.

If a person enters the declared area or remains in it, they will commit an offence. There was much speculation that the onus of proof would be reversed with respect to this clause. While the legislation does not reverse the onus of proof, it goes halfway. It is incumbent on the suspected person to 'point to' evidence that they were there for a legitimate purpose and eight legitimate reasons are listed in the bill. The prosecution then has to prove that the person was not there for the stated legitimate reason.

The reason that this legislation is needed is that, under the Crimes (Foreign Incursions and Recruitment) Act 1978, the prosecution has to prove beyond reasonable doubt that a person entered a foreign state "with intent to engage in hostile activity" or had engaged in hostile activity in that state.

Both these offences are very difficult to prove, because of the problems of converting intelligence to evidence that can stand up before an Australian court in what is basically a war zone. The new offence will be easier to prove as it removes the "hostile activity" element. There will be natural disquiet that any suspect has to provide reasons they were in a particular area to Australian authorities to avoid possible prosecution under this legislation.

Control Orders have been extended for another 10 years. Control Orders allow a court to place restrictions on a person's life without them being convicted of an offence. To date they have only been used twice but the Government, police and security agencies obviously see their worth in the heightened security environment as they are described in the Explanatory Memorandum as "an important element of the counter-terrorism strategy".

The government also gains the powers to cancel welfare payments to people who have had their passports refused or cancelled on national security grounds. Not all people who have had their passports cancelled or refused will have their welfare stopped, only "where the receipt of welfare payments was relevant to the assessed security risk posed by the individual". In other words, the Government does not want to fund someone to travel to Iraq to fight for Islamic State or allow any public money to be spent supporting terrorist groups.

Much of the other proposals in this bill seem eminently sensible. It becomes an offence to "counsel, promote, encourage or urge the doing of a terrorist act", as well as "intentionally provide training to, or intentionally receive training from a terrorist organisation where the person is reckless to the fact that the organisation is a terrorist organisation".

The legislation also allows a court to exclude evidence where it believes it has been obtained as a result of torture and importantly duress. The definition of "duress" includes a threat made to which "a reasonable person" would respond by providing the material or information.

There is no doubt in my mind that Australia is at a greater risk of a terrorist attack today than at any time this century. It is not the government which has raised the threat level to "high" for the first time since the system was introduced in 2003; it was raised by ASIO.

Whether you love them or loathe them, they are the agency tasked with assessing the threat to Australia. Whether they had any specific intelligence to elevate it, I do not know. I do know however that so called "returning fighters" are a threat to this country, and I completely agree with the Explanatory Memorandum when it says the return of foreign fighters "heightens the likelihood of the commission of terrorist acts on Australian soil".

Nick O'Brien is Associate Professor Counter Terrorism at Charles Sturt University. He was previously a police officer at Scotland Yard, London. View his full profile here.