Criminal Code Amendment Regulations 2004 (No. 5)

Administered by Attorney-General's Department

Legislation au F2004B00354 Regulations Not in force Legislative Instrument

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Criminal Code Amendment Regulations 2004 (No. 5) 2004 No. 312

EXPLANATORY STATEMENT

STATUTORY RULES 2004 NO. 312

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

Criminal Code Act 1995

CRIMINAL CODE AMENDMENT REGULATIONS 2004 (No. 5)

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; 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 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 4 of Schedule 1 to the Principal Regulations prescribes Harakat Ul-Mujahideen as a terrorist organisation. Item 4 was inserted by Statutory Rules 2002 No 270, 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 4 of Schedule 1 to the Principal Regulations and to create a new Regulation 4D to the Principal Regulations specifying the name of Jamiat ul-Ansar and its aliases: `Harakat ul-Mujahideen'; `HuM; `Al-Faran'; `Al-Hadid'; `Al-Hadith'; `Harakat ul-Ansar'; `HuA'; and `Harakat ul-Mujahidin/HuM 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 Jamiat ul-Ansar. 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 4).

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. 5).

Regulation 1 would provide that the Regulations are the Criminal Code Amendment Regulations 2004 (No. 5).

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 4D into the Criminal Code Regulations 2002 naming the organisation Jamiat ul-Ansar and its aliases `Harakat ul-Mujahideen'; `HuM'; `Al-Faran'; `Al-Hadid'; `Al-Hadith'; `Harakat ul-Ansar'; `HuA'; and `Harakat ul-Mujahidin/HuM'. Insertion of the new regulation 4D 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 4 of Schedule 1 to the Criminal Code Regulations 2002, removing the name of Harakat ul-Mujahideen and its aliases from the list of terrorist organisations.

 

Overview

The Criminal Code Amendment Regulations 2004 (No. 5) were enacted to address the issue of updating the list of terrorist organisations under the Criminal Code Act 1995. These regulations were introduced following the enactment of the Criminal Code Amendment (Terrorist Organisations) Act 2004, which streamlined the process for the Australian Government to list terrorist organisations based on national security needs, rather than requiring a decision from the United Nations Security Council. The regulations were issued under the authority of the Attorney-General and are intended to ensure that the legislation remains current and effective in combating terrorism. The overarching policy objective is to provide a clear and accessible framework for identifying and prosecuting individuals associated with terrorist organisations, thereby enhancing national security. These regulations, which commenced on the date of their notification in the Gazette, aim to replace the existing specification of Harakat Ul-Mujahideen as a terrorist organisation with a new specification of Jamiat ul-Ansar and its aliases. By doing so, the regulations update the list of designated organisations in a manner that aligns with Australia's national interests and security requirements. The streamlined approach to listing terrorist organisations is designed to simplify the regulatory framework and make it more effective in addressing contemporary terrorist threats.

Scope and Application

The Criminal Code Amendment Regulations 2004 (No. 5) amends the Criminal Code Regulations 2002 to update the list of organisations designated as terrorist entities under the Criminal Code Act 1995. These regulations apply to individuals and entities with links to terrorist organisations, specifically targeting those who direct, are members of, recruit for, train with, or provide funds to such groups. The scope of the Act extends nationally, meaning it applies across all states and territories in Australia. The regulations identify specific organisations such as Jamiat ul-Ansar, previously known as Harakat ul-Mujahideen, as terrorist entities. This designation allows the Australian government to enforce the relevant offence provisions against individuals linked to these groups, regardless of where the conduct or its effects occur. The Act also provides for the specification of new terrorist organisations through regulations, subject to the Minister being satisfied on reasonable grounds that the organisation engages in terrorist activities. These regulations come into effect on the date of their notification in the Gazette and will cease to have effect two years after they take effect, aligning with the requirements set out in the Criminal Code Act 1995.

Key Provisions

The proposed Criminal Code Amendment Regulations 2004 (No. 5) introduce significant changes to the existing framework for identifying terrorist organisations under the Criminal Code Act 1995. Section 5 of the Act empowers the Governor-General to create regulations that are necessary or convenient for the Act's implementation. This regulation, specifically, focuses on updating the list of specified terrorist organisations by removing Harakat ul-Mujahideen and adding Jamiat ul-Ansar and its aliases. The objective is to streamline the process of identifying terrorist organisations by specifying them in a single regulation rather than across multiple regulations and schedules, which was the previous approach. Under the new regulation, the obligations for parties and entities governed by the Act include adhering to the updated list of specified terrorist organisations, which now includes Jamiat ul-Ansar and its various aliases. This updated list is crucial for determining the applicability of the Act's provisions concerning terrorist activities, such as directing activities, membership, recruitment, training, and funding of terrorist organisations. These obligations ensure that individuals and entities are aware of which organisations are deemed terrorist under Australian law and must comply with the associated legal consequences. Failure to comply with the provisions of the Act in relation to terrorist organisations can lead to severe legal consequences. Offences under Division 102 of the Code, such as directing the activities of a terrorist organisation or being a member of such an organisation, can attract significant penalties. For instance, directing the activities of a terrorist organisation carries a maximum penalty of imprisonment for 10 years. Similarly, membership in a terrorist organisation is punishable by imprisonment for up to 7 years. Other offences, like recruiting for or receiving training from a terrorist organisation, also carry substantial penalties, reflecting the seriousness with which such activities are treated under Australian law. Civil and criminal consequences may also apply, including fines and further penalties for non-compliance with the Act's requirements.

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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.