EXPLANATORY STATEMENT
Issued by the authority of the Attorney-General
Criminal Code Act 1995
On 13 March 2009, the regulation proscribing the Islamic Army of Aden (IAA) as a terrorist organisation for the purposes of the definition of terrorist organisation in paragraph 102.1(b) was made. That regulation would have expired on 12 March 2012.
Subsection 102.1(4) of the Criminal Code provides that:
“If: (a) an organisation is specified by regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in this section; and
(b) the Minister ceases to be satisfied of either of the following (as the case requires):
(i) that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur);
(ii) that the organisation advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur);
the Minister must, by written notice published in the Gazette, make a declaration to the effect that the Minister has ceased to be so satisfied. The regulations, to the extent to which they specify the organisation, cease to have effect when the declaration is made.”
The purpose of the declaration is for the regulation proscribing the Islamic Army of Aden (IAA) as a terrorist organisation to cease to have effect. Prior to making the declaration, the Attorney-General received advice from the Australian Security Intelligence Organisation and the Australian Government Solicitor.
As subsection 102.1(4) of the Criminal Code was enacted in 2004, prior to the commencement of section 56 of the Legislative Instruments Act 2003 (LI Act) in 2005, gazettal is not required. Subsection 56 of the LI Act states:
“If enabling legislation in relation to a legislative instrument as in force at any time before the commencing day required the text of the instrument, or particulars of its making, to be published in the Gazette, the requirement for publication in the Gazette is taken, in relation to any such instrument made on or after that day, to be satisfied if the instrument is registered.”
The declaration is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The declaration took effect on the day after registration.
Overview
The Criminal Code Act 1995, enacted by the Australian Parliament, aims to provide a comprehensive framework for criminal law across Australia. One significant aspect of this legislation is the proscription of terrorist organisations, which was expanded by the regulation in 2009 that listed the Islamic Army of Aden (IAA) as a terrorist organisation. This regulation was set to expire in 2012, prompting the need for a declaration under subsection 102.1(4) of the Criminal Code to ensure the regulation would cease to have effect. The declaration, made by the Minister, signifies that the organisation no longer met the criteria for being considered a terrorist organisation, reflecting a shift in the perceived threat level or activities of the IAA. This legislative action was informed by advice from the Australian Security Intelligence Organisation and the Australian Government Solicitor, aligning with the policy objective to protect national security by effectively managing the list of proscribed terrorist organisations.
Scope and Application
The regulation under the Criminal Code Act 1995 that proscribed the Islamic Army of Aden (IAA) as a terrorist organisation was subject to the conditions outlined in the Act, specifically in subsection 102.1(4). This regulation, which was initially set to expire on 12 March 2012, was intended to cease its effect if the Minister was no longer satisfied that the IAA was engaged in or advocating terrorist acts. The Attorney-General, having received advice from relevant security and legal entities, made a declaration that the regulation would cease to have effect, and this declaration was registered under the Legislative Instruments Act 2003, which means it did not require gazettal as the Act was amended post-enactment of the original subsection. This regulation applies to the IAA as a specified terrorist organisation within the meaning of the Criminal Code, with its reach extending across the Commonwealth of Australia. There are no stated exclusions or exemptions in this particular regulation, and its application is straightforward without the need for additional subordinate instruments to extend or restrict its application.
Key Provisions
The main operative sections of this legislation concern the proscription of the Islamic Army of Aden (IAA) as a terrorist organisation. Section 102.1(b) of the Criminal Code Act 1995 defines "terrorist organisation," and the regulation, as detailed in the explanatory statement, specifies the IAA under this definition. Subsection 102.1(4) of the Criminal Code provides the process for ceasing to proscribe an organisation as a terrorist group if the Minister is no longer satisfied that the organisation meets the criteria for such a designation. This includes making a written declaration, which then leads to the regulation ceasing to have effect.
The Act imposes obligations on the Minister and other relevant authorities to ensure that the proscription of terrorist organisations is based on current and accurate information. Specifically, if the Minister determines that the IAA no longer meets the criteria for being a terrorist organisation, they must make a declaration, effectively removing the IAA from the list of proscribed terrorist groups. This process is designed to maintain the relevance and effectiveness of the proscription list, ensuring that only those organisations actively engaged in or advocating for terrorist acts are targeted.
Any failure to comply with the provisions of the Act could lead to significant legal consequences. Although the explanatory statement does not detail specific offences or penalties, breaches of the Criminal Code Act 1995 or the Legislative Instruments Act 2003 could result in various civil or criminal penalties. For instance, under the Criminal Code Act, aiding or being part of a proscribed terrorist organisation can lead to severe penalties, including imprisonment. Additionally, under the Legislative Instruments Act, failure to properly register or publish a legislative instrument could also attract penalties. The precise penalties would depend on the nature and severity of the breach, as well as other relevant legal provisions.