EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 176
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code (Repeal of Amendments) Regulations 2009
The following regulations, specifying four organisations for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code Act 1995 (Criminal Code), were made on 24 June 2009 and took effect on 26 June 2009:
Criminal Code Amendment Regulations 2009 (No. 8)
Criminal Code Amendment Regulations 2009 (No. 9)
Criminal Code Amendment Regulations 2009 (No. 10)
Criminal Code Amendment Regulations 2009 (No. 11)
These regulations were made as a result of a clerical error.
The purpose of the Regulations is therefore to repeal these regulations that were made in error. Regulations to specify the four organisations for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code may be made at a later date, after consultation requirements have been met.
Details of the Regulations are set out in Attachment A.
The Regulations have retrospective effect as it is necessary that the repeal of the four regulations that were made in error is backdated to the date before they took effect. The Regulations therefore take effect on 25 June 2009. The result is that the regulations listing the four organisations as terrorist organisations at that time, before the four regulations that were made in error came into force on 26 June 2009, are reinstated.
Subsection 12(2) of the Legislative Instruments Act 2003 provides that a legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person, or liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration. The Attorney-General has provided a statement that he is satisfied that no such disadvantage or liabilities will be imposed as a result of the Regulations taking effect before the date on which they are registered.
Subsection 102.1(2A) of the Criminal 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 Criminal Code, the Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed Regulations.
Prior to the making of the Regulations, the Attorney-General has provided a written briefing to the Federal Leader of the Opposition.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Attachment A
Details of the Criminal Code (Repeal of Amendments) Regulations 2009
Regulation 1- Name of Regulations
This regulation provides that the title of the Regulations is the Criminal Code (Repeal of Amendments) Regulations 2009.
Regulation 2 – Commencement
This regulation provides that the Regulations are taken to have commenced on 25 June 2009.
Regulation 3 – Repeal of legislative instruments
This regulation repeals the following regulations:
(a) Criminal Code Amendment Regulations 2009 (No. 8)
(b) Criminal Code Amendment Regulations 2009 (No. 9)
(c) Criminal Code Amendment Regulations 2009 (No. 10)
(d) Criminal Code Amendment Regulations 2009 (No. 11).
Note
The note to the Regulations clarifies that, as the repeal takes effect from before the instruments commenced, the amendments made by these instruments are taken never to have come into effect.
Overview
The Criminal Code (Repeal of Amendments) Regulations 2009 were enacted to address a clerical error in the previously made Criminal Code Amendment Regulations 2009 (Nos. 8, 9, 10, and 11). These regulations were made under the authority of the Attorney-General and took effect on 25 June 2009, with a retrospective application to 24 June 2009 to ensure that the erroneous regulations never came into effect. The objective of these repeal regulations is to reinstate the status quo ante, where the incorrect amendments are nullified, thus preserving the pre-existing legal framework. The necessity for this repeal was confirmed by the Attorney-General, who assured that no adverse consequences would arise from the retrospective effect of these Regulations. Additionally, the Attorney-General ensured that the Leader of the Opposition was duly briefed in accordance with the legislative requirements set out in the Criminal Code.
Scope and Application
The Criminal Code (Repeal of Amendments) Regulations 2009 applies to the Commonwealth of Australia and is designed to correct a clerical error in previously made regulations that inadvertently listed certain organisations as terrorist organisations. These regulations effectively repeal the erroneous Criminal Code Amendment Regulations 2009 (No. 8, 9, 10, and 11) that were made on 24 June 2009 and which took effect on 26 June 2009. The repeal has retrospective effect, taking force on 25 June 2009, effectively nullifying the impact of the erroneous regulations and reinstating the prior status quo. The scope of these regulations is narrowly focused on the correction of this specific error, with the understanding that future regulations to list terrorist organisations will adhere to the requisite consultation processes. The regulations do not impose any liabilities or disadvantages on individuals or entities, as confirmed by the Attorney-General under the Legislative Instruments Act 2003.
Key Provisions
The Criminal Code (Repeal of Amendments) Regulations 2009 (Regulations) were made to correct a clerical error in the previously issued Criminal Code Amendment Regulations 2009 (Nos. 8, 9, 10, and 11). These Regulations aim to repeal the erroneous amendments and restore the legal framework as it existed prior to the erroneous regulations taking effect. The Regulations were issued on 24 June 2009 and, by virtue of their retrospective effect, are deemed to have taken effect on 25 June 2009, the day before the erroneous regulations were set to come into force on 26 June 2009 (Regulation 2). This retrospective effect ensures that the legal status quo is maintained without any unintended disruption or disadvantage to individuals or entities.
The Regulations mandate the repeal of the four erroneous regulations (Regulation 3). By doing so, the Regulations reinstate the legal provisions that were in place before the erroneous regulations were enacted. This means that any actions or statuses that occurred under the mistaken regulations are treated as if they never occurred, preserving the legal rights and obligations as they existed prior to the error. The Regulations are explicit in their intent to nullify the effects of the erroneous amendments entirely, thereby maintaining the integrity of the Criminal Code Act 1995.
The Regulations impose no direct obligations or requirements on any party or entity, as their primary function is to rectify a legislative error rather than to impose new duties. However, they do implicitly require adherence to the restored legal framework that existed prior to the erroneous regulations. This means that individuals and entities must continue to comply with the laws and regulations as they were understood before the erroneous amendments were introduced.
In terms of legal consequences, the Regulations themselves do not create any new offences or penalties. Instead, their purpose is to eliminate any unintended legal effects caused by the erroneous regulations. It is important to note that any actions taken under the mistaken regulations are treated as if they never happened, thus avoiding any retroactive penalties or liabilities. The Regulations are designed to ensure that the law remains consistent and that no individual or entity is unfairly disadvantaged by the clerical error.
The process for making these Regulations was in compliance with the Legislative Instruments Act 2003, which governs the creation and effect of legislative instruments in Australia. The Attorney-General provided a statement under subsection 12(2) of the Legislative Instruments Act 2003, assuring that no individual or entity would be disadvantaged by the retrospective effect of the Regulations. Furthermore, the Minister fulfilled the requirement under subsection 102.1(2A) of the Criminal Code to brief the Leader of the Opposition regarding the proposed Regulations. These procedural safeguards ensure that the Regulations were made in accordance with the necessary legal and parliamentary processes.