Criminal Code Amendment Regulations 2004 (No. 4)

Administered by Attorney-General's Department

Legislation au F2004B00353 Regulations Not in force Legislative Instrument

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Criminal Code Amendment Regulations 2004 (No. 4) 2004 No. 311

EXPLANATORY STATEMENT

STATUTORY RULES 2004 NO. 311

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

Criminal Code Act 1995

CRIMINAL CODE AMENDMENT REGULATIONS 2004 (No. 4)

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 or associating with a terrorist organisation; recruiting persons to a terrorist organisation; receiving training from or providing training to a terrorist organisation; or 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)).

Regulation 4 of the Criminal Code Regulations 2002 (the Principal Regulations) provides that the organisations mentioned in Schedule 1 to those Regulations are specified for the purposes of paragraph (b) of the definition of `terrorist organisation' in subsection 102.1(1) of the Code.

Subsection 102.1(3) of the Code states that regulations for the purpose 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.

Item 3 of Schedule 1 to the Principal Regulations prescribes Abu Sayyaf Group as a terrorist organisation. Item 3 was inserted by Statutory Rules 2002 No 269, with effect on 14 November 2002, and will cease to have effect on 14 November 2004.

The purpose of the proposed Regulations is to omit item 3 of Schedule 1 to the Principal Regulations and to create a new Regulation 4C to the Principal Regulations specifying the name of Abu Sayyaf Group and its aliases: `Abu Sayyaf Group (ASG)'; `Al Harakat Al Islamiyya (AHAI)'; `Al Harakat-ul Al Islamiyya'; `Al-Harakatul-Islamia'; `Al Harakat Al Aslamiya'; `Abou Sayaf Armed Band (ASAB)'; `Abu Sayaff Group'; `Abou Sayyef Group and Mujahideen Commando Freedom Fighters (MCFF)', for the purposes of paragraph (b) of the definition of `terrorist organisation' in section 102.1, and in order to apply the offence provisions in Division 102 of the Code to persons with links to Abu Sayyaf Group. The approach of specifying an organisation in a single regulation, as proposed in this amendment Regulation, is considered to be less confusing, having regard to the operation of subsection 102.1(3) of the Act, than the current approach which involves specifying the organisation by means of a regulation (regulation 4) and an item in Schedule 1 (item 3).

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 and commenced on 10 March 2004, substituted subsection 102.1(2) of the Code. Prior to amendment, in addition to the requirement outlined above, that subsection also required that the Minister must 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 102.9 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 proposed Regulations are set out in the Attachment.

The proposed Regulations would commence on the date of their notification in the Gazette.

The Minute recommended that the Regulations be made in the form proposed.

Authority: Section 5 of the Criminal Code Act 1995.

ATTACHMENT

Details of the proposed Criminal Code Amendment Regulations 2004 (No. 4).

Regulation 1 would provide that the Regulations are the Criminal Code Amendment Regulations 2004 (No. 4).

Regulation 2 would provide that the Regulations commence on the date of their notification in the Gazette.

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

Item 1 of Schedule 1 would insert a new regulation 4C into the Criminal Code Regulations 2002 naming the organisation Abu Sayyaf Group and its aliases `Abu Sayyaf Group (ASG)'; `Al Harakat Al Islamiyya (AHAI)'; `Al Harakat-ul Al Islamiyya'; Al-Harakatul-Islamia'; "Al Harakat Al Aslamiya'; `Abou Sayaf Armed Band (ASAB)'; `Abu Sayaff Group'; `Abou Sayyef Group and Mujahideen Commando freedom Fighters (MCFF)'. Insertion of the new regulation 4C would specify that organisation as a terrorist organisation for the purposes of paragraph (b) of the definition of `terrorist organisation' in subsection 102.1(1) of the Criminal Code Act 1995.

Item 2 of Schedule 1 would omit item 3 of Schedule 1 to the Criminal Code Regulations 2002, removing the name of Abu Sayyaf Group and its aliases from the list of terrorist organisations.

 

Overview

The Criminal Code Amendment Regulations 2004 (No. 4) were enacted to amend the Criminal Code Regulations 2002 and address the issue of outdated references to terrorist organisations within the regulations. Enacted by the Australian Parliament, these regulations aim to ensure the continued effectiveness of the Criminal Code Act 1995 by updating the list of specified terrorist organisations. The policy objective behind these amendments is to align the legislative framework with current intelligence and national security needs, allowing the Australian government to respond swiftly to emerging threats without the procedural delays previously imposed by United Nations Security Council decisions. These regulations were designed to streamline the process of updating the list of terrorist organisations, reflecting Australia’s national interests and security considerations.

Scope and Application

The Criminal Code Amendment Regulations 2004 (No. 4) concern the modification of the Criminal Code Regulations 2002, specifically addressing the listing of terrorist organisations under the Criminal Code Act 1995. These regulations apply to individuals and entities associated with the Abu Sayyaf Group, an organisation defined as a terrorist entity under Australian law due to its involvement in terrorist activities. The amendment process involves the insertion of a new regulation, 4C, into the Criminal Code Regulations 2002, which lists the Abu Sayyaf Group and its aliases as a terrorist organisation. This amendment aims to streamline the regulation by consolidating the specification of the organisation in a single regulation rather than dispersing it across a regulation and a schedule. The regulations have a national jurisdictional reach, and their application is not confined to specific geographic areas within Australia. The regulations will cease to have effect on the second anniversary of their commencement date, as per subsection 102.1(3) of the Criminal Code Act 1995, necessitating periodic updates to keep pace with evolving security threats.

Key Provisions

The proposed Criminal Code Amendment Regulations 2004 (No. 4) aim to update and clarify the regulations concerning terrorist organisations by amending the Criminal Code Regulations 2002. Regulation 1 identifies these regulations as the Criminal Code Amendment Regulations 2004 (No. 4). Regulation 2 stipulates that these regulations will come into effect on the date of their notification in the Gazette. Regulation 3 amends Schedule 1 of the Criminal Code Regulations 2002, specifically by inserting a new regulation 4C and omitting an existing item. Under the new regulation 4C, the Abu Sayyaf Group and its multiple aliases are designated as a terrorist organisation for the purposes of the definition in subsection 102.1(1) of the Criminal Code Act 1995. This inclusion aims to streamline the identification of the organisation under the Act. Conversely, item 2 of Schedule 1 removes item 3, which previously listed the Abu Sayyaf Group and its aliases, from the schedule. This amendment ensures that the regulation concerning the Abu Sayyaf Group is consolidated in a single regulation, simplifying its identification and application within the Act. The regulations impose obligations on the parties or entities they govern by ensuring that the Minister is satisfied on reasonable grounds that the organisation is involved in terrorist activities before it is listed as a terrorist organisation. This requirement is set out in subsection 102.1(2) of the Criminal Code, which has been amended to remove the need for a United Nations Security Council decision identifying the organisation. This amendment allows for the listing of terrorist organisations based on Australia's national security needs and intelligence advice. Breach of the provisions in Division 102 of the Criminal Code, which cover offences related to terrorist organisations, can result in serious legal consequences. Subsection 102.9 of the Code stipulates that section 15.4 (extended geographical jurisdiction - category D) applies to offences under Division 102. This means that individuals can be prosecuted for these offences regardless of where the conduct or its results occur. Penalties for such offences can include significant fines and imprisonment, reflecting the seriousness of involvement with terrorist organisations. The exact penalties depend on the specific offence committed and the jurisdiction in which it is prosecuted.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.