EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 57
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
Criminal Code Act 1995
Criminal Code Amendment Regulations 2005 (No. 3)
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 proposed Regulations is to amend the Criminal Code Regulations 2002 to specify, for a second time, the organisation Jaish-e-Mohammad and its aliases: Jaish-i-Mohammad; Jesh-e-Mohammadi; Jaish-e-Mohammad-e-Tanzeem; Tehrik-al-Furgan; Tehrik-al-Furqaan; Khuddam-ul-Islam; and Army of Mohammad 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 would be 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.
Item 12 of Schedule 1 to the Principal Regulations prescribes Jaish-I-Mohammed as a terrorist organisation. Jaish-i-Mohammad is an alias of Jaish-e-Mohammad and was inserted by Statutory Rules 2003 No. 63 with effect on 11 April 2003 under the spelling at that time of Jaish-I-Mohammed and will cease to have effect on 11 April 2005. The proposed Regulations would continue the listing of this organisation for a further 2 years.
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 11 April 2005.
Overview
The Criminal Code Amendment Regulations 2005 (No. 3) were enacted to amend the Criminal Code Regulations 2002 by the Australian Government, and they came into effect on 11 April 2005. This legislative instrument was developed in response to the need to address gaps in the Criminal Code Act 1995 by identifying and specifying particular terrorist organisations that are engaged in, preparing, planning, assisting in, or fostering the doing of terrorist acts. The regulations were issued under the authority of the Attorney-General and are intended to enhance the enforcement of the Act by expanding the definition of 'terrorist organisation' to include Jaish-e-Mohammad and its various aliases. This expansion ensures that the provisions related to terrorist offences are applicable to individuals linked to the specified organisations, thereby reinforcing the nation's ability to combat terrorism effectively.
Scope and Application
The Criminal Code Amendment Regulations 2005 (No. 3) amends the Criminal Code Regulations 2002 to specifically identify the organisation Jaish-e-Mohammad and its aliases as a terrorist organisation under Australian law. This designation is pursuant to the definition of 'terrorist organisation' within the Criminal Code Act 1995, which encompasses organisations involved in terrorist activities or specified by regulation. The inclusion of Jaish-e-Mohammad under this definition allows the criminal provisions related to terrorist organisations to apply to individuals linked with the group. The application of these regulations extends beyond Australian borders, as the extended geographical jurisdiction provisions in the Criminal Code ensure that offences under Division 102 apply to conduct occurring outside Australia if it results in an offence within Australia. The regulations are subject to a sunset clause, expiring two years after their commencement, necessitating periodic review and renewal to maintain their efficacy in addressing evolving threats.
Key Provisions
The Criminal Code Amendment Regulations 2005 (No. 3) amend the Criminal Code Regulations 2002 to continue the listing of Jaish-e-Mohammad and its aliases as terrorist organisations under subsection 102.1(1)(b) of the Criminal Code Act 1995 (the Act). This amendment ensures that the offences specified in Division 102 of the Code, which pertain to terrorist organisations, will apply to individuals linked to Jaish-e-Mohammad. This includes offences such as directing the activities of a terrorist organisation (section 102.3), being a member of a terrorist organisation (section 102.4), recruiting for a terrorist organisation (section 102.5), and receiving training from or providing training to a terrorist organisation (section 102.6). The listing of the organisation under these regulations is set to remain in effect for two years from the date the regulations take effect.
The Act imposes several obligations on the parties it governs, particularly the Minister responsible for the regulations. Before the Governor-General can specify an organisation as a terrorist organisation under subsection 102.1(2) of the Code, the Minister must be satisfied on reasonable grounds that the organisation is involved in terrorist activities. Additionally, the Minister must ensure that the Leader of the Opposition in the House of Representatives is briefed about the proposed regulation, as mandated by subsection 102.1(2A) of the Code. This ensures transparency and oversight in the regulatory process.
Breaches of the provisions in Division 102 of the Code can result in severe penalties. For example, under section 102.3 of the Code, a person found guilty of directing the activities of a terrorist organisation may be subject to imprisonment for up to 25 years. Similarly, section 102.4, which pertains to being a member of a terrorist organisation, carries a maximum penalty of 10 years imprisonment. Section 102.5, which covers recruiting for a terrorist organisation, also imposes a penalty of up to 10 years imprisonment. Section 102.6, which involves receiving or providing training to a terrorist organisation, carries a maximum penalty of 15 years imprisonment. These penalties underscore the seriousness with which the Act treats offences related to terrorist organisations.