EXPLANATORY STATEMENT
Select Legislative Instrument 2016 No.
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code (Terrorist Organisation—Islamic State Sinai Province) Regulation 2016
The purpose of the Criminal Code (Terrorist Organisation—Islamic State Sinai Province) Regulation 2016 (the Regulation) is to specify Islamic State Sinai Province for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.[1] Islamic State Sinai Province has not previously been specified for this purpose under the Criminal Code.
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 Sinai Province 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 Regulation ensures that the offences in Division 102 of the Criminal Code apply to conduct relating to Islamic State Sinai Province.
The Regulation is a legislative instrument for the purposes of the Legislation Act 2003.
The Regulation commences on the day after it is registered. Subsection 102.1(3) of the Criminal Code provides that regulations for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ cease to have effect on the third anniversary of the day on which they take effect.
Consultation
The unclassified Statement of Reasons was prepared by the National Threat Assessment Centre in the Australian Security Intelligence Organisations, in consultation with the Department of Foreign Affairs and Trade and the Attorney‑General’s Department (AGD). AGD also consulted the Centre for Counter‑Terrorism Coordination in the Department of the Prime Minister and Cabinet and sought the advice of the AGS to inform the decision of the Attorney‑General.
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 regulation. The Attorney‑General wrote to the Leader of the Opposition enclosing the information upon which he was satisfied that Islamic State Sinai Province met the legislative criteria for listing.
The Intergovernmental Agreement on Counter‑Terrorism Laws (June 2004) (the IGA) requires that the Commonwealth Government consult with the governments of the states and territories prior to making regulations specifying an organisation for the purposes of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code. The IGA provides that if a majority of the states and territories object to the making of such a regulation within a time frame nominated by the Commonwealth, and provide reasons for their objections, the Commonwealth will not make the regulation at that time.
The Attorney‑General wrote, on behalf of the Prime Minister, to the Premiers and Chief Ministers of the states and territories. A majority of the states and territories did not object to the making of the Regulation within the time frame nominated by the Attorney‑General.
Statement of Compatibility with Human Rights
Overview
The Criminal Code (Terrorist Organisation—Islamic State Sinai Province) Regulation 2016 (the Regulation) specifies Islamic State Sinai Province for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code.
The object of the Regulation is to identify Islamic State Sinai Province as a terrorist organisation under Australian law, and put the organisation and members of the public on notice of that fact. Notification is important to help people avoid engaging in activities which might constitute an offence under Division 102 of the Criminal Code in relation to Islamic State Sinai Province.
The Regulation, which is part of Australia’s terrorist organisation listing regime, supports the application of the offences in Division 102 of the Criminal Code, the object of which is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia. In particular, the Regulation provides that the offence of associating with a terrorist organisation in section 102.8 of the Criminal Code applies in relation to associating with Islamic State Sinai Province.
Terrorist organisations, including Islamic State Sinai Province, present a threat to the security of Australia and often seek to harm Australians and our democratic institutions. The statutory definition of a ‘terrorist organisation’ requires that these bodies directly or indirectly engage in, prepare, plan, assist in or foster the doing of a terrorist act which includes the causing of serious harm to persons or death and serious damage to property (refer to Attachment B for details).
Human rights implications
The Regulation promotes the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR):
- the inherent right to life in Article 6.
The Regulation limits the following human rights contained in the ICCPR:
- the right to freedom of expression in Article 19, and
- the right to freedom of association in Article 22.
The inherent right to life in Article 6
Article 6 of the ICCPR provides that countries have a duty to take appropriate steps to protect the right to life and to investigate arbitrary or unlawful killings and punish offenders. The Regulation, and the terrorist organisation listing regime more broadly, ensures that the offence provisions in Division 102 of the Criminal Code apply to certain conduct in relation to listed terrorist organisations. These offence provisions operate to penalise conduct that presents a significant risk to life, both in Australia and overseas, and, in conjunction with the terrorist organisation listing regime, also act as a deterrent to that conduct. Deterring the conduct, and thereby preventing the risk to life, promotes the inherent right to life expressed in Article 6 of the ICCPR.
The right to freedom of expression in Article 19
Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. However, Article 19(3) provides that freedom of expression may be limited if it is necessary to achieve a legitimate purpose, including for the protection of national security. The Regulation, and the terrorist organisation listing regime more broadly, limits the right to freedom of expression to the extent that persons are prohibited from directing the activities of, recruiting for, providing support to or associating with terrorist organisations, including Islamic State Sinai Province. The restrictions on freedom of expression are justified on the basis that such conduct could jeopardise the security of Australia, the personal safety of its population and its national interests and the restrictions are reasonable, necessary and proportionate to the objective of protecting Australia’s national security.
The right to freedom of association in Article 22
Article 22 of the ICCPR protects the right of all persons to group together voluntarily for a common goal and to form and join an organisation. Article 22(2) provides that this right may be limited for the purpose of national security. The Regulation, and the terrorist organisation listing regime more broadly, limits the right of freedom of association to prevent people engaging with and participating in terrorist organisations, in this instance Islamic State Sinai Province.
The offence of associating with a terrorist organisation in section 102.8 of the Criminal Code is limited in its application to an organisation that is a listed terrorist organisation under the definition of ‘terrorist organisation’ in paragraph 102.1(1)(b) of the Criminal Code. The offence does not apply if the association is with a close family member and relates to a matter of family or domestic concern, or takes place in the course of practicing a religion in a place used for public religious worship, or the association is only for the purpose of providing humanitarian aid or only for the purpose of providing legal advice or legal representation.
Due to the severity of the danger posed by terrorist organisations, it is reasonable, necessary and proportionate to limit the right of individuals who, by their association with a terrorist organisation, pose a threat to Australians.
General safeguards and accountability mechanisms
Whilst the Regulation may limit the right to freedom of expression and the right to freedom of association with Islamic State Sinai Province, the Regulation is subject to the safeguards outlined below. The limits on these rights are reasonable, necessary and proportionate, and are in the interests of public safety and national security, after taking into consideration the direct and indirect terrorist activities of the organisation, which threaten human life.
The Criminal Code provides safeguards and accountability mechanisms requiring prior consultation and enabling review of the Regulation, including the following:
- the Commonwealth must consult with the states and territories in accordance with the Intergovernmental Agreement on Counter‑Terrorism Laws of 25 June 2004, and the Regulation may only be made if a majority of the states and territories do not object to the Regulation within a reasonable time specified by the Commonwealth
- under subsection 102.1(2A) of the Criminal Code the Minister must arrange for the Leader of the Opposition to be briefed in relation to the proposed Regulation
- under subsection 102.1(3) the Criminal Code, the Regulation will cease to have effect on the third anniversary of the day on which it takes effect
- subsection 102.1(4) of the Criminal Code provides that if the Minister ceases to be satisfied of the criteria necessary for listing an organisation under subsection 102.1(2) of the Criminal Code, the Minister must make a declaration to that effect by written notice published in the Gazette, with the effect of the Minister’s declaration that the Regulation listing the organisation cease to have effect and the organisation is de-listed as a terrorist organisation under Division 102 of the Criminal Code
- subsection 102.1(17) of the Criminal Code provides that an individual or an organisation may make a de‑listing application to the Minister
- the Regulation may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Criminal Code, and
- both Houses of Parliament may disallow the Regulation within the applicable disallowance period, which is 15 sitting days after the Regulation was laid before that House, as provided for in subsection 102.1A(4) of the Criminal Code.
Conclusion
The Regulations are compatible with human rights because they promote the protection of human rights. To the extent that the terrorist organisation listing regime, of which the Regulations are part, may also limit human rights, those limitations achieve a legitimate purpose and are reasonable, necessary and proportionate.
Attachment A
Details of the Criminal Code (Terrorist Organisation—Islamic State Sinai Province) Regulation 2016
Section 1 – Name
This section provides that the title of the Regulation is the Criminal Code (Terrorist Organisation—Islamic State Sinai Province) Regulation 2016.
Section 2 – Commencement
This section provides for the commencement of the instrument, as set out in the table.
Subsection (1) provides that each provision in the instrument specified in column 1 of the table commences in accordance with column 2 of the table, and that any other statement in column 2 has effect according to its terms. Columns 1 and 2 provide that the instrument commences on the after it is registered.
The note to subsection (1) clarifies that the table only relates to the provisions of this instrument as originally made, and that it will not be amended to deal with any later amendments to the instrument.
Subsection (2) provides that information in column 3 of the table is not part of the instrument. It is designed to assist readers, and may be updated or changed in any published version of this instrument. Column 3 is empty at the time of making the instrument.
Section 3 – Authority
This section provides that the Regulation is made under the Criminal Code Act 1995.
Section 4 – Terrorist organisation—Islamic State Sinai Province
Subsection (1) provides that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code, the organisation known as Islamic State Sinai Province.
Subsection (2) provides that Islamic State Sinai Province is also known by the following names:
(a) Aknaf Bayt al-Maqdis;
(b) Aknaf Beit al-Maqdis;
(c) Ansar Bayt al-Maqdes;
(d) Ansar Bayt al-Maqdis (ABM);
(e) Ansar Beit al-Maqdis;
(f) Ansar Jerusalem;
(g) IS-Sinai;
(h) ISIL-Sinai;
(i) ISIL Sinai Province;
(j) Islamic State in the Sinai;
(k) Islamic State of Iraq and the Levant-Sinai;
(l) Islamic State of Iraq and the Levant-Sinai Province;
(m) Islamic State-Sinai Province;
(n) Jamaat Ansar Beit al-Maqdis;
(o) Jamaat Ansar Beit al-Maqdis fi Sinaa;
(p) Sinai Province;
(q) Supporters of Jerusalem;
(r) Supporters of the Holy Place;
(s) The State of Sinai; and
(t) Wilayat Sinai.
Attachment B
STATEMENT OF REASONS FOR ISLAMIC STATE SINAI PROVINCE | |
Also known as: Islamic State of Iraq and the Levant-Sinai Province; Islamic State of Iraq and the Levant-Sinai; ISIL Sinai Province; Islamic State-Sinai Province; Islamic State in the Sinai; Wilayat Sinai; The State of Sinai; IS-Sinai; ISIL-Sinai; Sinai Province; Ansar Bayt al-Maqdis (ABM); Ansar Beit al-Maqdis; Ansar Bayt al-Maqdes; Aknaf Bayt al-Maqdis; Aknaf Beit al-Maqdis; Ansar Jerusalem; Supporters of Jerusalem; Jamaat Ansar Beit al-Maqdis; Jamaat Ansar Beit al-Maqdis fi Sinaa; Supporters of the Holy Place. | |
This statement is based on publicly available information about Islamic State Sinai Province (IS-Sinai). To the Australian Government’s knowledge, this information is accurate, reliable and has been corroborated by classified information. | |
1. | Basis for listing a terrorist organisation Division 102 of the Criminal Code 1995 provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied on reasonable grounds that the organisation: a) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or b) advocates the doing of a terrorist act. For the purposes of listing a terrorist organisation under the Criminal Code, the doing of a terrorist act includes the doing of a specific terrorist act, the doing of more than one terrorist act and the doing of a terrorist act, even if a terrorist act does not occur. |
2. | Background to this listing The Australian Government has not previously proscribed IS‑Sinai as a terrorist organisation under the Criminal Code. |
3. | Terrorist activity of the organisation Objectives IS-Sinai is an officially-recognised Islamic State affiliate that adheres to Islamic State’s global jihadist ideology and follows an extreme interpretation of Islam which is anti-Western, promotes sectarian violence and targets those that do not agree with its interpretations as infidels and apostates. IS‑Sinai seeks to assist Islamic State to establish an Islamic caliphate covering historic greater Syria (Iraq, Syria and other parts of the Levant). Islamic State has tasked IS-Sinai to help establish the caliphate in Egypt’s Sinai and, over the longer-term, historic Palestine (Israel and the Palestinian Territories). IS‑Sinai has undertaken the following to advance its ideology and achieve its objectives: Directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts IS-Sinai directly engages in terrorist attacks and kidnappings inside Egypt, primarily targeting Egyptian security forces, but also Israeli and Western interests. Attacks claimed by, or reliably attributed to, IS-Sinai include:
Advocating the doing of terrorist acts Although public announcements directly from IS-Sinai are rare, the group has advocated the doing of terrorist acts. Attacks that IS-Sinai has advocated for include:
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4. | Details of the organisation IS-Sinai is a Sunni extremist group located in the Sinai Peninsula in Egypt. On 9 November 2014, Egypt-based extremist group Ansar Bayt al-Maqdis (ABM) and members of the Gaza‑based Mujahidin Shura Council in the Environs of Jerusalem (MSC) pledged allegiance to the Islamic State and its leader, Abu Bakr al‑Baghdadi. Following the pledges and the subsequent merging of ABM and MSC, the group adopted the name IS‑Sinai and became a recognised Islamic State affiliate. Before pledging allegiance to Islamic State, ABM mainly carried out attacks against Israeli and Egyptian Government interests, including Egypt’s tourism industry. Since aligning itself with Islamic State, the scale and ferocity of IS-Sinai attacks has increased, and it has conducted attacks against Western interests. Leadership Details of IS-Sinai’s leadership circle are unclear, although it is likely that IS-Sinai’s top leadership remains similar to that under ABM. However, a number of key members have been killed or left the group following its pledge to Islamic State:
It is likely that IS-Sinai has a similar leadership structure to Islamic State in Iraq and Syria, with an overall leader and a number of provincial or regional cells. Membership The majority of IS-Sinai members are Egyptian nationals from the North Sinai, including semi-nomadic Bedouin tribesmen, who are former members of ABM. The group also likely comprises several hundred members from across mainland Egypt, and a number of former members of the Gaza-based MSC, which joined ABM to form IS-Sinai. Estimates put the group’s numbers at around 1000-1500; however, early-2016 Egyptian counter-terrorism operations in the North Sinai may have reduced that number. Recruitment and funding IS-Sinai uses domestic issues in Egypt and its terrorist record to attract recruits. In the Nile Valley, high youth unemployment and anti-government sentiment amongst young Muslims drives IS-Sinai’s recruitment. In the Sinai, the demilitarisation of the region following the 1979 Israel-Egypt Peace Treaty, difficult economic conditions and a perception of harsh counter-terrorism policies towards the population influence IS-Sinai recruitment. IS-Sinai likely relies heavily on income from its smuggling operations to and from northern Africa and the Gaza Strip, and other criminal enterprises, to fund terrorist operations. There are also indications IS-Sinai receives income from foreign donors, including sympathetic militant organisations outside of Egypt. In addition, as a recognised affiliate, IS-Sinai likely receives some funding from Islamic State in Syria and Iraq. Links to other terrorist organisations IS-Sinai pledged allegiance to Islamic State leader Abu Bakr al-Baghdadi in November 2014. Given the proximity of IS-Sinai’s area of operations to Libya, and its involvement in smuggling to and from northern Africa, IS-Sinai also likely has links to Islamic State’s recognised affiliate in Libya, IS-Libya. IS-Sinai allegedly has low-level links to Hamas’ military wing, Izz al-Din al-Qassam Brigades, likely based on familial links and areas of mutual benefit, such as smuggling and training. The Izz al-Din al-Qassam Brigades is a listed terrorist organisation under the Criminal Code.
Links to Australia There are no known links between IS-Sinai and Australia. Threats to Australian interests IS-Sinai has not made any explicit statements specifically threatening Australians or Australian interests. However, the group views the West, and the United States in particular, as supporters of Israel and Egypt and expresses anti-Western sentiment in its rhetoric. Various social media accounts claiming association with the group have posted threats to Western targets.
Listed by the United Nations or like-minded countries IS‑Sinai is listed by the United Nations under UNSC resolution 1373 and as a proscribed terrorist organisation by the governments of the US and Canada. It is also listed under its former name, ABM, by the government of the UK. MSC is separately listed by the US government. Engagement in peace or mediation processes IS-Sinai is not engaged in any peace talks with the Egyptian Government. |
5. | Conclusion On the basis of the above information, ASIO assesses that IS-Sinai is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts or advocates the doing of terrorist acts, involving threats to human life and serious damage to property. In the course of pursuing its objectives, IS-Sinai is known to have committed or threatened actions that:
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[1] A ‘terrorist organisation’ is defined in subsection 102.1(1) of the Criminal Code as:
(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
(b) an organisation that is specified by the regulations for the purposes of this paragraph.