EXPLANATORY STATEMENT
Select Legislative Instrument 2016 No.
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code (Terrorist Organisation—Jabhat al-Nusra) Amendment Instrument 2016
The Criminal Code (Terrorist Organisation—Jabhat al-Nusra) Regulation 2016 (the Regulations) specifies the organisation Jabhat al‑Nusra for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.[1] The purpose of the Criminal Code (Terrorist Organisation—Jabhat al-Nusra) Amendment Instrument 2016 (the instrument) is to amend the Regulations to include the alias Jabhat Fatah al‑Sham as a name by which Jabhat al‑Nusra is also known. Details of the instrument are provided at Attachment A.
Subsection 102.1AA(1) of the Criminal Code provides that the Minister may, by legislative instrument, amend the regulations specifying an organisation for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) to do either or both of the following:
- include the alias in the regulations if the Minister is satisfied on reasonable grounds that the organisation is referred to by another name (the alias), in addition to, or instead of, a name used to specify the organisation in the regulations, or
- remove the former name from the regulations if the Minister is satisfied on reasonable grounds that the organisation no longer uses a name (the former name) used in the regulations to specify the organisation.
The Regulations came into effect on 28 June 2016. Section 5 of the Regulations provides that Jabhat al‑Nusra is also known as Al-Nusra Front, Al-Nusrah Front, Al-Nusrah Front for the People of the Levant, Jabhat al-Nusra li-Ahl al‑Sham Min Mujahideen al-Sham fi Sahat al‑Jihad, Jabhat al-Nusrah, Jabhet al-Nusra, Support Front for the People of Syria from the Mujahideen of Syria in the Places of Jihad and The Victory Front.
On 28 July 2016, the leader of Jabhat al‑Nusra announced in a publicly released video that Jabhat al‑Nusra’s name had changed to Jabhat Fatah al‑Sham. On advice from the Director‑General of Security, the Minister is satisfied that the video is authentic and that Jabhat Fatah al‑Sham is another name by which the terrorist organisation Jabhat al‑Nusra is now known. The Director‑General of Security has provided a statement in respect of the new alias for Jabhat al-Nusra, which is at Attachment B. Accordingly, the instrument will add the name Jabhat Fatah al‑Sham to the list provided at section 5 of the Regulations.
Effect of the instrument
The Regulations and the instrument enable the offence provisions in Division 102 of the Criminal Code to apply to persons in relation to Jabhat al-Nusra, including where the organisation is using, or is known by, the alias Jabhat Fatah al‑Sham.
Division 102 of the Criminal 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, 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.
Section 102.9 of the Criminal Code provides that section 15.4 (extended geographical jurisdiction—category D) applies to an offence against Division 102 of the Criminal Code. The effect of applying section 15.4 is that offences in Division 102 of the Criminal 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 instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The instrument commences on the day after it is registered. Pursuant to subsection 102.1AA(3) of the Criminal Code, amendment of regulations for the purposes of subsection 102.1AA(2) does not affect when the amended regulations cease to have effect under section 102.1, which is the third anniversary of the day on which they take effect unless the regulation is repealed or ceases earlier. Accordingly, the Criminal Code (Terrorist Organisation—Jabhat al-Nusra) Regulation 2016 will cease to have effect on 28 June 2019.
Consultation
Prior to making the instrument the Minister took into consideration the advice of the Director‑General of Security, in consultation with the Department of Foreign Affairs and Trade and the Centre for Counter Terrorism Coordination in the Department of Prime Minister and Cabinet, as well as advice from the Australian Government Solicitor.
Statement of Compatibility with Human Rights
Overview
The Criminal Code (Terrorist Organisation—Jabhat al-Nusra) Regulation 2016 (the Regulations) makes it an offence to direct the activities, become a member of, recruit for, train, get funds to, from or for, provide support to, or associate with Jabhat al-Nusra. These offences are provided in Subdivision B of Division 102 of the Criminal Code. The Criminal Code (Terrorist Organisation—Jabhat al-Nusra) Amendment Instrument 2016 (the instrument) provides that Jabhat al‑Nusra is also known as Jabhat Fatah al‑Sham.
The object of the instrument is to ensure that the Regulations reflect the known aliases of Jabhat al‑Nusra and to put the organisation and members of the public on notice that Jabhat Fatah al‑Sham is another name for the organisation, which is a terrorist organisation under Australian law. The Regulations, which are part of Australia’s terrorist organisation listing regime, support 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.
Terrorist organisations, including Jabhat al‑Nusra, 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.
Human rights implications
The instrument engages the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR):
- prohibition on retrospective criminal laws in Article 15.
The instrument is part of Australia’s terrorist organisation listing regime, which engages the following human rights contained in the ICCPR:
- the inherent right to life in Article 6
- the right to freedom of expression in Article 19, and
- the right to freedom of association in Article 22.
Prohibition on retrospective criminal laws in Article 15
The instrument supports the operation of the prohibition on retrospective criminal laws by ensuring the public is aware that Jabhat Fatah al‑Sham is another name by which the listed terrorist organisation, Jabhat al‑Nusra, is known. If the instrument were not made it would still be open for a court to find in a prosecution that Jabhat Fatah al‑Sham and Jabhat al‑Nusra are the same organisation. However, the instrument advises the public that this is the case and clarifies the law for prospective application.
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 Regulations, and the terrorist organisation listing regime more broadly, ensure 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 instrument, and more broadly the terrorist organisation listing regime, 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 Jabhat al-Nusra. 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 instrument, and more broadly the terrorist organisation listing regime, limits the right of freedom of association to prevent people engaging with and participating in terrorist organisations, in this instance Jabhat al‑Nusra.
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.
Conclusion
The instrument is compatible with human rights because it promotes the protection of human rights. To the extent that the terrorist organisation listing regime, of which the instrument is 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 – Jabhat al-Nusra) Amendment Instrument 2016
Section 1 – Name
This section provides that the title of the Regulation is the Criminal Code (Terrorist Organisation—Jabhat al-Nusra) Amendment Instrument 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 whole of the Amendment Instrument commences on the day 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.
Section 3 – Authority
This section provides that the instrument is made under subsection 102.1AA(2) of the Criminal Code.
Section 4 – Schedules
This section provides that the instrument specified in Schedule 1 is amended as set out in Schedule 1.
Schedule 1—Amendments
Schedule 1 amends the Criminal Code (Terrorist Organisation—Jabhat al-Nusra) Regulation 2016.
Item 1 After paragraph 5(2)(e)
This item inserts a new subparagraph (ea) after paragraph 5(2)(e) to include Jabhat Fatah al‑Sham as a name by which Jabhat al-Nusra is also known.
Attachment B
The Director‑General of Security has provided the following statement in respect of the new alias for Jabhat al-Nusra:
On 28 July 2016, the leader of Jabhat al-Nusra, Abu Muhammad al-Jawlani, announced in a publicly released video that Jabhat al-Nusra’s name had changed to Jabhat Fatah al‑Sham.[2] ASIO is satisfied that the video is authentic.
[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.
[2] Al Jazeera, 29 July 2016