Commonwealth Numbered Regulations - Explanatory Statements

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CRIMINAL CODE AMENDMENT REGULATIONS 2004 (NO. 3) 2004 NO. 284

EXPLANATORY STATEMENT

STATUTORY RULES 2004 NO. 284

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

Criminal Code Act 1995

CRIMINAL CODE AMENDMENT REGULATIONS 2004 (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; or 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)).

Part 2 of the Criminal Code Regulations 2002 (the Principal Regulations) provides that the organisations mentioned in Schedule 1 of those Regulations are specified for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code.

Paragraph 102.1(3) of the Code states that regulations for the purpose 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 2 of Schedule 1 to the Principal Regulations was inserted on 27 October 2002 by Statutory Rules 2002 No 250 and will cease to have effect on 27 October 2004.

The purpose of the proposed Regulations is to omit item 2 of Schedule 1 to the Principal Regulations and to create a new Regulation 4B to the Principal Regulations specifying the name of Jemaah Islamiyah, the network in southeast Asia, founded by the late Abdullah Sungkar and its aliases: 'Jema'ah Islamiyah'; 'Jemaah Islamiya'; 'Jemaah Islamiah'; 'Jamaah Islamiyah'; and 'Jama'ah Islamiyah' for the purposes of paragraph (b) of the definition of 'terrorist organisation' in section 102.1, and in order to apply the offence provisions in Division 102 of the Code to persons with links to Jemaah Islamiyah.

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.

The Criminal Code Amendment (Terrorist Organisations) Act 2004, which received Royal Assent and commenced on 10 March 2004, substituted subsection 102.1(2) of the Code. Prior to amendment, in addition to the requirement outlined above, that subsection also required that the Minister must be satisfied on reasonable grounds that the Security Council of the United Nations had made a decision relating to terrorism and which identified the organisation as one to which the decision related. The removal of this requirement allows the Australian Government to list terrorist organisations based on Australia's national interest and security needs and the advice of Australian intelligence organisations.

Subsection 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.

Details of the proposed Regulations are set out in the Attachment.

The proposed Regulations would commence on the date of their notification in the Gazette.

The Minute recommended that the Regulations be made in the form proposed.

Authority: Section 5 of the Criminal Code Act 1995.

ATTACHMENT

Details of the proposed Criminal Code Amendment Regulations 2004 (No. 3).

Regulation 1 would provide that the Regulations are the Criminal Code Amendment Regulations 2004 (No. 3).

Regulation 2 would provide that the Regulations commence on the date of the notification in the Gazette.

Regulation 3 would provide that Schedule 1 to the Regulations amends the Criminal Code Regulations 2002.

Item 1 of Schedule 1 would insert a new regulation 4B into the Criminal Code Regulations 2002 naming the organisation Jemaah Islamiyah, the network in southeast Asia, founded by the late Abdullah Sungkar and its aliases 'Jema'ah Islamiyah'; 'Jemaah Islamiya'; 'Jemaah Islamiah'; 'Jamaah Islamiyah'; and 'Jama'ah Islamiyah'. Insertion of the new regulation 4B would specify that organisation as a terrorist organisation for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code Act 1995.

Item 2 of Schedule 1 would omit item 2 of Schedule 1 to the Criminal Code Regulations 2002, removing the name of Jemaah Islamiyah and its aliases from the list of terrorist organisations referred to in regulation 4.


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