EXPLANATORY STATEMENT
Select Legislative Instrument 2017 No.
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code (Terrorist Organisation—Islamic State) Regulations 2017
The purpose of the Criminal Code (Terrorist Organisation—Islamic State) Regulations 2017 (the Regulations) is to specify Islamic State for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.[1] Islamic State is currently specified for this purpose by the Criminal Code (Terrorist Organisation—Islamic State) Regulation 2014, which is repealed by the Regulations. Details of the Regulations are set out in Attachment A.
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.
Paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code provides that regulations can specify organisations for the purposes of the definition of ‘terrorist organisation’.
Subsection 102.1(2) of the Criminal 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), the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act or advocates the doing of a terrorist act.
The Attorney-General is satisfied on reasonable grounds that Islamic State is engaged in, preparing, planning, assisting in or fostering the doing of a‑terrorist act, or advocates the doing of a terrorist act. In coming to this position, the Attorney-General has taken into consideration an unclassified Statement of Reasons provided by the Director‑General of Security, as well as advice from the Australian Government Solicitor (AGS). The Statement of Reasons is at Attachment B.
Effect of the instrument
Division 102 of the Criminal Code sets out the following offences relating to terrorist organisations
- directing the activities of a terrorist organisation
- being a member of a terrorist organisation
- recruiting persons to a terrorist organisation
- receiving training from, providing training to or participating in training with a terrorist organisation
- getting funds to, from or for a terrorist organisation
- providing support to a terrorist organisation, and
- associating with a terrorist organisation.
The Regulations ensure that the offences in Division 102 of the Criminal Code continue to apply to conduct relating to Islamic State. Regulations specifying Islamic State as a terrorist organisation have been in effect since 2005.
The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
The Regulations commence on the day after it is registered.
Overview
The Criminal Code Act 1995, enacted in 1995, serves as the principal legislation for federal criminal law in Australia. It establishes the framework for various criminal offences and procedures, including those related to terrorism. The Criminal Code (Terrorist Organisation—Islamic State) Regulations 2017 were introduced to address the need for specifying the Islamic State as a terrorist organisation under Australian law, thereby enabling the application of relevant criminal provisions against individuals associating with or supporting this organisation. Authorised by the Criminal Code Act 1995, the policy objective of these regulations is to safeguard national security and public safety by delineating specific organisations that engage in terrorist activities, thus preventing and penalising such conduct under Australian law.
Scope and Application
The Criminal Code (Terrorist Organisation—Islamic State) Regulations 2017 applies to the Islamic State, also known as several other names, as specified in the regulations. The Regulations, issued under the authority of the Attorney-General, serve to specify Islamic State as a terrorist organisation for the purposes of the Criminal Code Act 1995. The Attorney-General has determined, based on reasonable grounds, that Islamic State meets the criteria for being a terrorist organisation as defined in the Act. The Regulations ensure that the criminal provisions related to terrorist organisations, as outlined in Division 102 of the Criminal Code, continue to apply to conduct associated with Islamic State. The Regulations are subject to consultation and review processes, including notification to the Leader of the Opposition and the possibility of disallowance by both Houses of Parliament. They also adhere to the Intergovernmental Agreement on Counter-Terrorism Laws, which requires consultation with state and territory governments before making such regulations. The Regulations will cease to have effect three years after their commencement unless otherwise specified.
Key Provisions
- The Criminal Code (Terrorist Organisation—Islamic State) Regulations 2017 specifies Islamic State for the purposes of the definition of ‘terrorist organisation’ in the Criminal Code. The Regulations aim to identify Islamic State as a terrorist organisation under Australian law and to notify the public of this status. They ensure that the offences in Division 102 of the Criminal Code, which protect national security and public safety, continue to apply to conduct relating to Islamic State.
- These Regulations impose obligations on individuals and entities to refrain from engaging in activities that would constitute an offence under Division 102 of the Criminal Code in relation to Islamic State. This includes prohibitions on directing the activities of, recruiting for, providing support to, or associating with Islamic State. The Regulations are part of Australia’s terrorist organisation listing regime, which seeks to prevent and deter terrorist activities.
- There are severe consequences for breaching the provisions of the Criminal Code relating to terrorist organisations. Under the Criminal Code, individuals found guilty of offences such as directing the activities of a terrorist organisation, being a member, recruiting, receiving or providing training, getting funds for, or providing support to a terrorist organisation, can face imprisonment. For example, the offence of directing the activities of a terrorist organisation carries a maximum penalty of 10 years' imprisonment. The offence of being a member of a terrorist organisation carries a maximum penalty of 7 years' imprisonment, while the offence of recruiting for a terrorist organisation carries a maximum penalty of 5 years' imprisonment. The Regulations ensure that Islamic State is subject to these offences under Division 102 of the Criminal Code.
- The Regulations also contain safeguards and accountability mechanisms to ensure they are compatible with human rights. For example, the Attorney-General must be satisfied on reasonable grounds that Islamic State meets the criteria for being listed as a terrorist organisation. The Regulations may only be made if a majority of the states and territories do not object within a specified timeframe. The Regulations will cease to have effect three years after commencement unless renewed. Individuals and entities also have the right to apply for de-listing.
- In summary, the Regulations identify Islamic State as a terrorist organisation under Australian law, impose obligations to avoid engaging in prohibited conduct, and provide for severe penalties for breaches of the related Criminal Code offences. The Regulations contain safeguards to ensure they are compatible with human rights and do not operate arbitrarily.
- Area of Law
- Criminal Law
- Instrument
- Regulation
- Concepts
- Offence Provisions
- Regulatory Standards
- Reporting & Disclosure Obligations
- Enforcement Powers
