Commonwealth Numbered Regulations - Explanatory Statements
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CRIMINAL CODE (TERRORIST ORGANISATION--ISLAMIC STATE IN LIBYA) REGULATION 2016 (F2016L01813)
EXPLANATORY STATEMENT
Select Legislative Instrument 2016 No.
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code (Terrorist Organisation--Islamic State in Libya) Regulation 2016
The purpose of the Criminal Code (Terrorist Organisation--Islamic State in Libya) Regulation 2016 (the Regulation) is to specify Islamic State in Libya for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code.[1] Islamic State in Libya has not previously been specified for this purpose under the Criminal Code.
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.
Paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code provides that regulations can specify organisations for the purposes of the definition of 'terrorist organisation'.
Subsection 102.1(2) of the Criminal 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), the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act or advocates the doing of a terrorist act.
The Attorney-General is satisfied on reasonable grounds that Islamic State in Libya is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates the doing of a terrorist act. In coming to this position, the Attorney-General has taken into consideration an unclassified Statement of Reasons provided by the Director-General of Security, as well as advice from the Australian Government Solicitor (AGS). The Statement of Reasons is at Attachment B.
Effect of the instrument
Division 102 of the Criminal Code sets out the following offences relating to terrorist organisations
* directing the activities of a terrorist organisation
* being a member of a terrorist organisation
* recruiting persons to a terrorist organisation
* receiving training from, providing training to or participating in training with a terrorist organisation
* getting funds to, from or for a terrorist organisation
* providing support to a terrorist organisation, and
* associating with a terrorist organisation.
The Regulation ensures that the offences in Division 102 of the Criminal Code apply to conduct relating to Islamic State in Libya.
The Regulation is a legislative instrument for the purposes of the Legislation Act 2003.
The Regulation commences on the day it is registered. Subsection 102.1(3) of the Criminal Code provides that regulations for the purposes of paragraph (b) of the definition of 'terrorist organisation' cease to have effect on the third anniversary of the day on which they take effect.
Consultation
The unclassified Statement of Reasons was prepared by the National Threat Assessment Centre in the Australian Security Intelligence Organisation, in consultation with the Department of Foreign Affairs and Trade and the Attorney-General's Department (AGD). AGD also consulted the Centre for Counter-Terrorism Coordination in the Department of the Prime Minister and Cabinet and sought the advice of the AGS to inform the decision of the Attorney-General.
Subsection 102.1(2A) of the Criminal 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 Criminal 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. The Attorney General wrote to the Leader of the Opposition enclosing the information upon which he was satisfied that Islamic State in Libya met the legislative criteria for listing.
The Intergovernmental Agreement on Counter-Terrorism Laws (June 2004) (the IGA) requires that the Commonwealth Government consult with the governments of the states and territories prior to making regulations specifying an organisation for the purposes of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code. The IGA provides that if a majority of the states and territories object to the making of such a regulation within a time frame nominated by the Commonwealth, and provide reasons for their objections, the Commonwealth will not make the regulation at that time.
The Attorney-General wrote, on behalf of the Prime Minister, to the Premiers and Chief Ministers of the states and territories. A majority of the states and territories did not object to the making of the Regulation within the time frame nominated by the Attorney-General.
Statement of Compatibility with Human Rights
Overview
The Criminal Code (Terrorist Organisation--Islamic State in Libya) Regulation 2016 (the Regulation) specifies Islamic State in Libya for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code.
The object of the Regulation is to identify Islamic State in Libya as a terrorist organisation under Australian law, and put the organisation and members of the public on notice of that fact. Notification is important to help people avoid engaging in activities which might constitute an offence under Division 102 of the Criminal Code in relation to Islamic State in Libya.
The Regulation, which is part of Australia's terrorist organisation listing regime, supports the application of the offences in Division 102 of the Criminal Code, the object of which is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia. In particular, the Regulation provides that the offence of associating with a terrorist organisation in section 102.8 of the Criminal Code applies in relation to associating with Islamic State in Libya.
Terrorist organisations, including Islamic State in Libya, present a threat to the security of Australia and often seek to harm Australians and our democratic institutions. The statutory definition of a 'terrorist organisation' requires that these bodies directly or indirectly engage in, prepare, plan, assist in or foster the doing of a terrorist act which includes the causing of serious harm to persons or death and serious damage to property (refer to Attachment B for details).
Human rights implications
The Regulation promotes the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR):
* the inherent right to life in Article 6.
The Regulation limits the following human rights contained in the ICCPR:
* the right to freedom of expression in Article 19, and
* the right to freedom of association in Article 22.
The inherent right to life in Article 6
Article 6 of the ICCPR provides that countries have a duty to take appropriate steps to protect the right to life and to investigate arbitrary or unlawful killings and punish offenders. The Regulation, and the terrorist organisation listing regime more broadly, ensures that the offence provisions in Division 102 of the Criminal Code apply to certain conduct in relation to listed terrorist organisations. These offence provisions operate to penalise conduct that presents a significant risk to life, both in Australia and overseas, and, in conjunction with the terrorist organisation listing regime, also act as a deterrent to that conduct. Deterring the conduct, and thereby preventing the risk to life, promotes the inherent right to life expressed in Article 6 of the ICCPR.
The right to freedom of expression in Article 19
Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. However, Article 19(3) provides that freedom of expression may be limited if it is necessary to achieve a legitimate purpose, including for the protection of national security. The Regulation, and the terrorist organisation listing regime more broadly, limits the right to freedom of expression to the extent that persons are prohibited from directing the activities of, recruiting for, providing support to or associating with terrorist organisations, including Islamic State in Libya. The restrictions on freedom of expression are justified on the basis that such conduct could jeopardise the security of Australia, the personal safety of its population and its national interests and the restrictions are reasonable, necessary and proportionate to the objective of protecting Australia's national security.
The right to freedom of association in Article 22
Article 22 of the ICCPR protects the right of all persons to group together voluntarily for a common goal and to form and join an organisation. Article 22(2) provides that this right may be limited for the purpose of national security. The Regulation, and the terrorist organisation listing regime more broadly, limit the right of freedom of association to prevent people engaging with and participating in terrorist organisations, in this instance Islamic State in Libya.
The offence of associating with a terrorist organisation in section 102.8 of the Criminal Code is limited in its application to an organisation that is a listed terrorist organisation under the definition of 'terrorist organisation' in paragraph 102.1(1)(b) of the Criminal Code. The offence does not apply if the association is with a close family member and relates to a matter of family or domestic concern, or takes place in the course of practicing a religion in a place used for public religious worship, or the association is only for the purpose of providing humanitarian aid or only for the purpose of providing legal advice or legal representation.
Due to the severity of the danger posed by terrorist organisations, it is reasonable, necessary and proportionate to limit the right of individuals who, by their association with a terrorist organisation, pose a threat to Australians.
General safeguards and accountability mechanisms
Whilst the Regulation may limit the right to freedom of expression and the right to freedom of association with Islamic State in Libya, the Regulation is subject to the safeguards outlined below. The limits on these rights are reasonable, necessary and proportionate, and are in the interests of public safety and national security, after taking into consideration the direct and indirect terrorist activities of the organisation, which threaten human life.
The Criminal Code provides safeguards and accountability mechanisms requiring prior consultation and enabling review of the Regulation, including the following:
* the Commonwealth must consult with the States and Territories in accordance with the Intergovernmental Agreement on Counter-Terrorism Laws of 25 June 2004, and the Regulation may only be made if a majority of the states and territories do not object to the Regulation within a reasonable time specified by the Commonwealth
* under subsection 102.1(2A) of the Criminal Code the Minister must arrange for the Leader of the Opposition to be briefed in relation to the proposed Regulation
* under subsection 102.1(3) the Criminal Code, the Regulation will cease to have effect on the third anniversary of the day on which it takes effect
* subsection 102.1(4) of the Criminal Code provides that if the Minister ceases to be satisfied of the criteria necessary for listing an organisation under subsection 102.1(2) of the Criminal Code, the Minister must make a declaration to that effect by written notice published in the Gazette, with the effect of the Minister's declaration that the Regulation listing the organisation cease to have effect and the organisation is de-listed as a terrorist organisation under Division 102 of the Criminal Code
* subsection 102.1(17) of the Criminal Code provides that an individual or an organisation may make a de-listing application to the Minister
* the Regulation may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Criminal Code, and
* both Houses of Parliament may disallow the Regulation within the applicable disallowance period, which is 15 sitting days after the Regulation was laid before that House, as provided for in subsection 102.1A(4) of the Criminal Code.
Conclusion
The Regulation is compatible with human rights because it promotes the protection of human rights. To the extent that the terrorist organisation listing regime, of which the Regulation is part, may also limit human rights, those limitations achieve a legitimate purpose and are reasonable, necessary and proportionate.
Attachment A
Details of the Criminal Code (Terrorist Organisation--Islamic State in Libya) Regulation 2016
Section 1 - Name
This section provides that the title of the Regulation is the Criminal Code (Terrorist Organisation--Islamic State in Libya) Regulation 2016.
Section 2 - Commencement
This section provides for the commencement of the instrument, as set out in the table.
Subsection (1) provides that each provision in the instrument specified in column 1 of the table commences in accordance with column 2 of the table, and that any other statement in column 2 has effect according to its terms. Columns 1 and 2 provide that the instrument commences on the day after it is registered.
The note to subsection (1) clarifies that the table only relates to the provisions of this instrument as originally made, and that it will not be amended to deal with any later amendments to the instrument.
Subsection (2) provides that information in column 3 of the table is not part of the instrument. It is designed to assist readers, and may be updated or changed in any published version of this instrument. Column 3 is empty at the time of making the instrument.
Section 3 - Authority
This section provides that the Regulation is made under the Criminal Code Act 1995.
Section 4 - Terrorist organisation--Islamic State in Libya
Subsection (1) provides that for paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code, the organisation known as Islamic State in Libya is specified.
Subsection (2) provides that Islamic State in Libya is also known by the names:
(a) IS-Libya;
(b) Islamic State-Libya;
(c) Islamic State of Iraq and the Levant-Libya;
(d) Islamic State of Iraq and al-Sham-Libya;
(e) Islamic State of Iraq and Syria-Libya;
(f) Wilayat al-Tarabulus;
(g) Wilayat Barqa;
(h) Wilayat Barqah;
(i) Wilayat Fezzan;
(j) Wilayat Tripolitania; and
(k) Wilayat Tarablus.
Attachment B
| STATEMENT OF REASONS FOR ISLAMIC STATE IN LIBYA | |
| Also known as: IS-Libya; Islamic State-Libya; Islamic State of Iraq and the Levant-Libya; Islamic State of Iraq and al-Sham-Libya; Islamic State of Iraq and Syria-Libya; Wilayat Barqa; Wilayat Barqah; Wilayat Fezzan; Wilayat Tripolitania; Wilayat Tarablus; Wilayat al-Tarabulus | |
| This statement is based on publicly available information about the Islamic State in Libya (IS-Libya). To the Australian Government's knowledge, this information is accurate, reliable and has been corroborated by classified information. | |
| 1. | Basis for listing a terrorist organisation Division 102 of the Criminal Code 1995 provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied on reasonable grounds that the organisation: a) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or b) advocates the doing of a terrorist act. For the purposes of listing a terrorist organisation under the Criminal Code, the doing of a terrorist act includes the doing of a specific terrorist act, the doing of more than one terrorist act and the doing of a terrorist act, even if a terrorist act does not occur. |
| 2. | Background to this listing The Australian Government has not previously proscribed Islamic State in Libya (IS-Libya) as a terrorist organisation under the Criminal Code. |
| 3. | Terrorist activity of the organisation Objectives IS-Libya is an officially recognised Islamic State affiliate that adheres to Islamic State's global jihadist ideology and follows an extreme interpretation of Islam which is anti-Western, promotes sectarian violence and targets those that do not agree with its interpretation as infidels and apostates. IS-Libya seeks to assist Islamic State with its long-term goal of creating an Islamic caliphate. IS-Libya supports Islamic State's goals of consolidating territory under its control and aims to expand its territorial gains within Libya. The group has stated its aim is for Libya to be the 'vanguard of the Caliphate'. IS-Libya aims to establish three Islamic State provinces in Libya: Barqah, Fezzan and Tripolitania and remove the United Nations-backed transitional Government of National Accord. This is substantiated by public statements made by IS-Libya to that effect. IS-Libya has undertaken the following to advance its ideology and achieve its objectives: Directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts IS-Libya has engaged in terrorist attacks and kidnappings against a wide range of targets in North Africa. Attacks for which IS-Libya has claimed responsibility include: * 7 January 2016: at least 47 people were killed when a vehicle-borne improvised explosive device (VBIED) detonated at a police training centre in Zliten, Libya. IS-Libya claimed responsibility for the attack. * 4 January 2016: IS-Libya militants attacked an oil export terminal in As Sidrah, Libya, killing two people and setting an oil storage tank on fire. * 6 March 2015: nine foreign oil workers were kidnapped by IS-Libya militants from the al-Ghani oilfield, near the town of Zalla, Libya. Eight Libyan guards were killed during the abduction. * 21 February 2015: three VBIEDs exploded in the town of Qubbah, Libya, killing at least 31 people. IS-Libya claimed responsibility for the attack. * 27 January 2015: two IS-Libya militants attacked the Corinthia Hotel in Tripoli, Libya, killing nine including five foreigners. * 12 January 2015: IS-Libya claimed responsibility for the kidnapping of 21 Coptic Christians in Sirte, Libya. IS-Libya subsequently released a video on 15 February 2015 depicting the execution of the hostages. Advocating the doing of terrorist acts IS-Libya has publically advocated terrorist attacks in order to further its objectives. Public statements in which IS-Libya has advocated terrorist attacks include: * 26 March 2016: IS-Libya released a video praising the March 2016 attacks in Brussels and threatened similar attacks on countries that attack IS branches. |
| 4. | Details of the organisation IS-Libya was formed in the city of Dernah in Libya by local returnees from Syria, many of whom had fought as part of the Islamic State-affiliated Battar Brigade. These returnees, who established the Islamic Youth Shura Council in Dernah in 2014, received an Islamic State delegation in Leadership Islamic State leadership in Syria and Iraq have appointed close aides of Islamic State leader Abu Bakr al-Baghdadi to lead IS-Libya. IS-Libya was led by Iraqi national Abu Nabil until November 2015, when he was killed in a United States airstrike. Since his death, IS-Libya has been led by Abdul Qadr al-Najdi. Membership IS-Libya's membership is estimated between 3000 and 5000. The majority of its members are foreign, emanating predominantly from North African and sub-Saharan African countries. Within this, the majority are from Tunisia and Sudan. Recruitment and funding Both Islamic State and IS-Libya have called on Muslims to fulfil their obligation of immigration to the lands of Islam and called upon foreign fighters to immigrate to Libya. Further, IS-Libya has called upon other groups within the region to commit to Islamic State and has paid fighters, particularly sub-Saharan Africans, to join the group. Within Libya, IS-Libya uses domestic issues to attract recruits, drawing on locals who felt aggrieved and marginalised in the post-Gaddafi Libya. The group has encouraged defectors from local Libyan groups. IS-Libya is largely self-funded through taxation within and in the vicinity of Sirte, Libya, and receives relatively small amounts of funding from Islamic State in Syria and Iraq through emissaries. Other funding sources include extortion, armed robbery, smuggling and selling antiquities. Links to other terrorist organisations IS-Libya remains an affiliate of, and ideologically aligned with, Islamic State and has received support and guidance from Islamic State senior leadership. Links to Australia There are no known links between IS-Libya and Australia. Threats to Australian interests IS-Libya has not made statements specifically threatening Australians or Australian interests. However, IS-Libya has issued statements threatening Westerners and Western interests in general. * 2 December 2015: IS-Libya released a video lauding the November 2015 attacks in Paris and threatening attacks in the United States. * 24 February 2015: IS-Libya released a video claiming its presence will serve as a base to launch attacks in Europe. Listed by the United Nations or like-minded countries IS-Libya is listed as a proscribed terrorist organisation by the government of the US and is included in the UK government's listing of Islamic State of Iraq and the Levant. The United Nations and other like-minded countries have not listed IS-Libya at this time. Engagement in peace or mediation processes IS-Libya has not participated in peace talks with the Libyan Government and did not participate in United Nations-brokered negotiations to form a national unity government in Libya. |
| 5. | Conclusion On the basis of the above information, ASIO assesses IS-Libya is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts or advocates the doing of terrorist acts, involving threats to human life and serious damage to property. In the course of pursuing its objectives, IS-Libya is known to have committed or threatened actions that: * cause, or could cause, death, serious harm to persons, serious damage to property, endangered life (other than the life of the person taking the action), or create a serious risk to the health or safety of the public or a section of the public; * are intended to have those effects; ยท are done with the intention of advancing IS-Libya's political, religious or ideological causes; * are done with the intention of intimidating the government of one or more foreign countries; and * are done with the intention of intimidating the public or sections of the public.
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