Criminal Code Amendment Regulations 2005 (No. 13)

Administered by Attorney-General's Department

Legislation au F2005L02976 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 214

 

Issued by the authority of the Attorney-General

 

Subject -  Criminal Code Act 1995

 

 Criminal Code Amendment Regulations 2005 (No. 13)

 

 

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.

 

Subsection 102.1(1) of the Code defines a ‘terrorist organisation’ to be:

  • an organisation engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act;
  • an organisation specified in the regulations;
  • a Hizballah organisation;
  • a Hamas organisation; or
  • a Lashkar-e-Tayyiba organisation.

 

The purpose of the Regulations is to amend the Criminal Code Regulations 2002 to specify the following organisations for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code:

 

  • HAMAS’ Izz al-Din al-Qassam Brigades;
  • Palestinian Islamic Jihad (PIJ) and its aliases Islamic Jihad Palestine (IJP), Islamic Jihad – Palestine Faction and Islamic Holy War; and
  • Lashkar-e-Tayyiba (LeT) and its aliases Lashkar-e-Toiba; Lashkar-e-Taiba; Army of the Pure and Righteous; Paasban-e-Kashmir; Paasban-i-Ahle-Hadith; Jamaat‑ud-Dawa.

 

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to the organisations specified.

 

Subsection 102.1(3) of the Code provides 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.

 

Repeal of Related Regulations and Re-listing of certain Organisations

 

The Regulation repeals Criminal Code Amendment Regulations 2005 (No. 10) and re‑lists HAMAS’ Izz al-Din al-Qassam Brigades under a new Regulation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code. 

 

The Regulation repeals Criminal Code Amendment Regulations 2005 (No. 11) and re-lists Lashkar-e-Tayyiba (LeT) under a new Regulation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

The Regulation repeals the Criminal Code Amendment Regulations 2005 (No. 12) and re-lists Palestinian Islamic Jihad (PIJ) under a new Regulation for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

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.l.(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.

 

In determining whether he is satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, the Minister takes into consideration unclassified Statements of Reasons prepared by the Australian Security Intelligence Organisation (ASIO), as well as advice from the Chief General Counsel the Australian Government Solicitor and the Department of Foreign Affairs and Trade. 

 

Prior to the making of the Regulations, consultations were held with the Department of Foreign Affairs, ASIO and the Australian Government Solicitor.  Further consultation will be held with the Federal Leader of the Opposition and the Attorneys‑General of the States and Territories.

 

The attached Statements of Reasons clarifies that Palestinian Islamic Jihad (PIJ) and HAMAS’ Izz al-Din al-Qassam Brigades have not been proscribed by the United Nations.  The Statements of Reasons for Lashkar-e-Tayyiba (LeT) clarifies an error of fact concerning membership of an alleged LeT cell in Australia.

 

The re-issued Statements of Reasons enable the Minister to continue to be satisfied on reasonable grounds that the organisations are 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 Act specifies no other conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.

 

 

Details of the Regulations are set out in the Attachment.

 

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

 

The Regulations commenced on the day after they were registered by the Federal Register of Legislative Instruments. 

 

 

 


Attachment

 

Details of the proposed Criminal Code Amendment Regulations 2005 (No. 13)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2005 (No.13 ).

 

Regulation 2 – Commencement

 

This regulation provides the Regulations commence on the day after they are registered. 

 

Regulation 3 – Repeal

 

This regulation provides that the following Regulations are repealed:

 

(a)                Criminal Code Amendment Regulations 2005 (No. 10)

(b)               Criminal Code Amendment Regulations 2005 (No. 11)

(c)                Criminal Code Amendment Regulations 2005 (No. 12)

 

Regulation 4 – Amendment of Criminal Code Regulations 2002

 

This regulation provides that Schedule 1 amends the Criminal Code Regulations 2002 (the Principal Regulations).

 

Schedule 1 – Amendments

 

Item [1] – Regulation 4P

 

This item provides that Regulation 4P is to be omitted.

 

Item [2] – Regulations 4R and 4S

 

This item provides that Regulations 4R and 4S are to be substituted with new Regulations 4T, 4U and 4V.

 

Regulation 4T is headed ‘Terrorist organisations – Palestinian Islamic Jihad (PIJ)’.  Subparagraph (1) of Regulation 4T provides that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code Act 1995 (the Code), the organisation known as Palestinian Islamic Jihad (PIJ) is specified. 

 

The effect of this subparagraph is that Palestinian Islamic Jihad (PIJ) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subparagraph (2) of Regulation 4T provides that for the purposes of subparagraph (1), Palestinian Islamic Jihad (PIJ) is also known by the following names:  Islamic Jihad Palestine (IJP); Islamic Jihad – Palestine Faction; and Islamic Holy War.

 

Regulation 4U is headed ‘Terrorist organisations – HAMAS’Izz al-Din al-Qassam Brigades’.  Subparagraph (1) of Regulation 4U provides that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code, the organisation known as HAMAS’Izz al-Din al-Qassam Brigades is specified.

 

The effect of this subparagraph is that HAMAS’Izz al-Din al-Qassam Brigades is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Regulation 4V is headed ‘Terrorist organisations – Lashkar-e-Tayyiba (LeT)’.  Subparagraph (1) of Regulation 4U provides that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code, the organisation known as Lashkar-e-Tayyiba (LeT) is specified.

 

The effect of this subparagraph is that Lashkar-e-Tayyiba (LeT) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subparagraph (2) of Regulation 4T provides that for the purposes of subparagraph (1), Lashkar-e-Tayyiba (LeT) is also known by the following names:  Lashkar-e-Toiba; Lashkar-e-Taiba; Army of the Pure and Righteous; Paasban-e-Kashmir; Paasban-i-Ahle-Hadith; Jamaat-ud-Dawa.

 

Overview

The Criminal Code Amendment Regulations 2005 (No. 13) were enacted to address the need to update the list of terrorist organisations under the Criminal Code Act 1995, thereby ensuring that the legal framework is current and reflects the evolving nature of terrorist threats. These Regulations were made by the Governor-General under the authority granted by the Criminal Code Act 1995, which allows for the specification of matters required or necessary for carrying out or giving effect to the Act. The primary objective of these Regulations is to amend the Criminal Code Regulations 2002 to specify additional organisations as terrorist entities, ensuring that the provisions targeting terrorist activities can be effectively applied to those involved with these groups. The Regulations list specific organisations such as HAMAS’ Izz al-Din al-Qassam Brigades, Palestinian Islamic Jihad and its aliases, and Lashkar-e-Tayyiba and its aliases, thereby expanding the scope of the offence provisions in Division 102 of the Criminal Code.

Scope and Application

The Criminal Code Amendment Regulations 2005 (No. 13) apply to individuals and entities that are connected to organisations specified as terrorist entities under the Criminal Code. The Act defines a 'terrorist organisation' as an entity engaged in, preparing, planning, assisting in, or fostering the doing of a terrorist act, or one specified by regulation, or a Hizballah, Hamas, or Lashkar-e-Tayyiba organisation. These Regulations specifically list additional organisations, namely HAMAS’ Izz al-Din al-Qassam Brigades, Palestinian Islamic Jihad (PIJ) with its aliases, and Lashkar-e-Tayyiba (LeT) with its aliases, as terrorist organisations. The Act has a national jurisdictional reach, as it applies to conduct occurring both within and outside Australia. The Regulations repeal previous related Regulations and re-list the specified organisations under new provisions, ensuring that the offences related to terrorist activities in Division 102 of the Criminal Code apply to these newly specified organisations. The Regulations also note that they cease to have effect two years from the date of their commencement.

Key Provisions

The Criminal Code Amendment Regulations 2005 (No. 13) primarily serve to specify certain organisations as terrorist entities under the Criminal Code Act 1995 (section 102.1(1)(b)). These regulations detail which groups are considered terrorist organisations, which is crucial for the application of the various offences related to terrorist activities outlined in Division 102 of the Code (subsection 102.1(1)). Specifically, the regulations identify HAMAS’ Izz al-Din al-Qassam Brigades, Palestinian Islamic Jihad (PIJ) and its aliases, and Lashkar-e-Tayyiba (LeT) and its aliases as terrorist organisations. This specification allows the provisions in Division 102 to apply to individuals linked to these groups. These regulations impose specific obligations on parties governed by them, particularly those involved in the oversight and enforcement of counter-terrorism laws. For instance, the Minister must be satisfied on reasonable grounds that these organisations are involved in terrorist activities before any regulation can be made (subsection 102.1(2)). Additionally, the Minister must arrange for the Leader of the Opposition to be briefed about the proposed regulation (subsection 102.1(2A)). These obligations ensure that the regulatory process is both informed and transparent, involving key stakeholders in the decision-making process. Failure to comply with the provisions of these regulations can result in significant legal consequences. The offences and penalties outlined in Division 102 of the Code apply to conduct occurring both within and outside Australia, thanks to the application of section 15.4 (subsection 102.9). Offences under this division can attract severe penalties, including imprisonment for significant periods. For instance, directing the activities of a terrorist organisation carries a maximum penalty of life imprisonment (subsection 102.2(1)). Being a member of a terrorist organisation can result in imprisonment for up to 10 years (subsection 102.3(1)), while recruiting for such organisations can lead to a maximum penalty of 15 years imprisonment (subsection 102.4(1)). These stringent penalties reflect the seriousness of the offences and the need for robust enforcement of counter-terrorism laws.

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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.