Criminal Code Amendment Regulations 2005 (No. 10)

Administered by Attorney-General's Department

Legislation au F2005L01202 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 86

 

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2005 (No. 10)

 

 

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; being an associate of 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 HAMAS’ Izz al-Din al-Qassam Brigades 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.

 

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.

 

Subsection 102.1(1) of the Code prescribes HAMAS’ Izz al-Din al-Qassam Brigades as a terrorist organisation.  Schedule 1A Part 2 was inserted by Statutory Rules 2003 No. 285 with effect on 9 November 2003 and will cease to have effect on 9 November 2005.  This organisation was listed as HAMAS' Izz al-Din al- Qassam Brigades and its aliases, Harakat al-Muqawama  al-Islamiya (commonly referred to as HAMAS, translated as The Islamic Resistance Movement);  Izz al-Din al-Qassam Brigades;  Harakat al-Muqawama al-Islamiya's Izz al-Din al-Qassam Brigades; Harakat al-Muqawama al-Islamiya -- Izz  al-Din al-Qassam Brigades; Hamas -- Izz al-Din al-Qassem; Hamas Izz al-Din al-Qassem Brigades; Hamas Izz al-Din al-Qassam Brigades.  The Regulations continue the listing of this organisation for a further 2 years. 

Although HAMAS’ Izz al-Din al-Qassam Brigades has another 6 months before the second anniversary of its original listing, it was re-listed to early ensure that all regulations are being made in a uniform and free standing manner and to ensure that terrorist organisations do not sunset prematurely.

 

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.

 

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.

 

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.

 

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

 

The Regulations commenced on 5 June 2005.

 

 

 

 

 

Overview

The Criminal Code Amendment Regulations 2005 (No. 10) were introduced by the Australian Parliament to address the need to specify particular organisations as terrorist entities under the Criminal Code Act 1995. These regulations were made under the authority of the Attorney-General, in line with the provisions of Section 5 of the Act, which empowers the Governor-General to make regulations necessary for carrying out or giving effect to the Act. The key policy objective of these regulations was to ensure that the criminal provisions related to terrorist organisations could be applied to individuals with links to specified entities. Specifically, the regulations aimed to extend the application of these provisions to Hamas' Izz al-Din al-Qassam Brigades by specifying it as a terrorist organisation. The regulations also ensured compliance with the requirement that the Minister be satisfied on reasonable grounds that the organisation was involved in terrorist activities, as well as the need to brief the Leader of the Opposition on the proposed regulation before it could be enacted.

Scope and Application

The Criminal Code Amendment Regulations 2005 (No. 10) apply to the Criminal Code Act 1995, specifically amending the Criminal Code to designate Hamas’ Izz al-Din al-Qassam Brigades as a terrorist organisation under the Code’s definition. This designation allows the provisions outlined in Division 102, which cover various terrorist-related offences, to apply to individuals associated with this organisation. The geographic reach of these provisions is national, with extended jurisdiction under section 15.4, meaning the offences apply regardless of where the conduct occurs. The regulations are in effect for a period of two years and were put into force to ensure that the listing of terrorist organisations is consistent and timely. The Minister must be satisfied on reasonable grounds that the organisation is involved in terrorist activities, and the Leader of the Opposition must be briefed before these regulations are made. The Regulations are a legislative instrument governed by the Legislative Instruments Act 2003 and commenced on 5 June 2005.

Key Provisions

The Criminal Code Amendment Regulations 2005 (No. 10) primarily serve to specify HAMAS’ Izz al-Din al-Qassam Brigades as a terrorist organisation for the purposes of the Criminal Code Act 1995 (the Act). This specification is made under subsection 102.1(1) of the Act, which defines a ‘terrorist organisation’ and includes, in paragraph (b), the requirement to list specific organisations through regulation. By doing so, the Regulations extend the application of the Act's provisions against terrorist organisations to this particular group, thus facilitating enforcement against its members and associates. The Regulations also outline that these specifications cease to have effect two years after their commencement, as mandated by subsection 102.1(3) of the Act. The Regulations impose specific obligations on parties and entities governed by the Act. For instance, the Act requires that before regulations are made to specify an organisation as a terrorist organisation, the Minister must be satisfied on reasonable grounds that the organisation is involved in terrorist activities, as outlined in subsection 102.1(2) of the Act. Furthermore, subsection 102.1(2A) mandates that the Leader of the Opposition in the House of Representatives must be briefed about the proposed regulation. This ensures that the legislative process is transparent and that key stakeholders are informed of regulatory changes. Failure to comply with the provisions of the Act and the Regulations can result in significant legal consequences. Section 102.9 of the Code extends the geographical jurisdiction of the offences under Division 102 of the Code, meaning that the offences apply regardless of where the conduct or its results occur. Breaches of these provisions can lead to criminal charges, with the potential for severe penalties. Although the explanatory statement does not specify exact penalties, offences related to terrorist organisations under the Criminal Code Act 1995 can attract significant penalties, including lengthy imprisonment terms, reflecting the serious nature of these activities.

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