EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 23

 

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

 

Criminal Code Act 1995

 

CRIMINAL CODE AMENDMENT REGULATIONS 2005 (No. 1)

 

 

Section 5 of the Criminal Code Act 1995 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.  The Schedule to the Act sets out the Criminal Code (the Code).

 

Division 102 of the Code sets out the offences in relation to terrorist organisations, which are: directing the activities of a terrorist organisation; being a member of a terrorist organisation; recruiting persons to a terrorist organisation; receiving training from or providing training to a terrorist organisation; and receiving funds from or making available funds, support or resources to a terrorist organisation. 

 

Paragraphs (a) to (e) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code define a ‘terrorist organisation’ to be:

·        an organisation engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (paragraph (a));

·        an organisation specified in the regulations (paragraph (b));

·        a Hizballah organisation (paragraph (c));

·        a Hamas organisation (paragraph (d)); or

·        a Lashkar-e-Tayyiba organisation (paragraph (e)).

 

The purpose of the Regulations is to amend the Criminal Code Regulations 2002 to specify the organisation Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn and its aliases: Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn (TQJBR); TQJBR; the al-Zarqawi network; al-Tawhid; Jama’at al-Tawhid wa’al-Jihad; Al-Tawhid and al-Jihad; The Monotheism and Jihad Group; Qaida of the Jihad in the Land of the Two Rivers; Al-Qa’ida of Jihad in the Land of the Two Rivers; Al-Qa’ida of Jihad Organization in the Land of the Two Rivers; The Organisation of Jihad’s Base in the Country of the Two Rivers; The Organisation Base of Jihad/Country of the Two Rivers; The Organisation Base of Jihad/Mesopotamia; Tanzeem Qa’ida al-Jihad/Bilad al Raafidaini; Kateab al-Tawhid; Brigades of Tawhid; Unity and Jihad Group; Unity and Holy Struggle; and Unity and Holy War for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.  The effect of specifying the organisation is to enable the offence provisions in Division 102 of the Code to apply to persons with links to this organisation.

 

Subsection 102.1(2) of the Code provides that before the Governor-General makes regulations specifying an organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code, the Minister must be satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.

 

The Criminal Code Amendment (Terrorist Organisations) Act 2004, which received Royal Assent on 10 March 2004 and commenced on that day, substituted subsection 102.1(2) of the Code.  Prior to this amendment, in addition to the requirement outlined above, subsection 102.1(2) also required that the Minister be satisfied on reasonable grounds that the Security Council of the United Nations had made a decision relating to terrorism and which identified the organisation as one to which the decision related.  The removal of this requirement allows the Australian Government to list terrorist organisations based on Australia’s national interest and security needs and the advice of Australian intelligence organisations.

 

Subsection 102.1(2A) of the Code provides that before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code, the Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.

 

Pursuant to subsection 102.1(3) of the Code, regulations for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ cease to have effect on the second anniversary of the day on which they take effect.

 

Section 102.9 of the Code provides that section 15.4 (extended geographical jurisdiction – category D) applies to an offence against Division 102 of the Code.  The effect of applying section 15.4 is that offences in Division 102 of the Code apply to conduct (or the results of such conduct) constituting the alleged offence whether or not the conduct (or the result) occurs in Australia.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instrument Act 2003. 

 

The Regulations commenced the day after they were registered on the Federal Register of Legislative Instruments.

 

Attachment

 

Details of the Criminal Code Amendment Regulations 2005 (No. 1)

 

Regulation 1 provides that the Regulations are the Criminal Code Amendment Regulations 2005 (No. 1).

 

Regulation 2 provides that the Regulations commence on the day after they are registered.

 

Regulation 3 provides that Schedule 1 to the Regulations amends the Criminal Code Regulations 2002.

 

Item 1 of Schedule 1 specifies the organisation Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn and its aliases: Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn (TQJBR); TQJBR; the al-Zarqawi network; al-Tawhid; Jama’at al-Tawhid wa’al-Jihad; Al-Tawhid and al-Jihad; The Monotheism and Jihad Group; Qaida of the Jihad in the Land of the Two Rivers; Al-Qa’ida of Jihad in the Land of the Two Rivers; Al-Qa’ida of Jihad Organization in the Land of the Two Rivers; The Organisation of Jihad’s Base in the Country of the Two Rivers; The Organisation Base of Jihad/Country of the Two Rivers; The Organisation Base of Jihad/Mesopotamia; Tanzeem Qa’ida al-Jihad/Bilad al Raafidaini; Kateab al-Tawhid; Brigades of Tawhid; Unity and Jihad Group; Unity and Holy Struggle; and Unity and Holy War for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code Act 1995.  The effect of specifying Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn and its aliases is that the offence provisions in Division 102 of the Code apply to persons with links to this organisation.