Commonwealth Numbered Regulations - Explanatory Statements

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CRIMINAL CODE AMENDMENT REGULATIONS 2005 (NO. 13) (SLI NO 214 OF 2005)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 214

 

Issued by the authority of the Attorney-General

 

Subject -   Criminal Code Act 1995

 

                  Criminal Code Amendment Regulations 2005 (No. 13)

 

 

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; being an associate of and receiving funds from or making available funds, support or resources to a terrorist organisation.

 

Subsection 102.1(1) of the Code defines a 'terrorist organisation' to be:

*        an organisation engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act;

*        an organisation specified in the regulations;

*        a Hizballah organisation;

*        a Hamas organisation; or

*        a Lashkar-e-Tayyiba organisation.

 

The purpose of the Regulations is to amend the Criminal Code Regulations 2002 to specify the following organisations for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code:

 

 

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to the organisations specified.

 

Subsection 102.1(3) of the Code provides regulations for the purposes 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.

 

Repeal of Related Regulations and Re-listing of certain Organisations

 

The Regulation repeals Criminal Code Amendment Regulations 2005 (No. 10) and re‑lists HAMAS' Izz al-Din al-Qassam Brigades under a new Regulation for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code. 

 

The Regulation repeals Criminal Code Amendment Regulations 2005 (No. 11) and re-lists Lashkar-e-Tayyiba (LeT) under a new Regulation for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code.

 

The Regulation repeals the Criminal Code Amendment Regulations 2005 (No. 12) and re-lists Palestinian Islamic Jihad (PIJ) under a new Regulation for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code.

 

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.l.(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.

 

In determining whether he is satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, the Minister takes into consideration unclassified Statements of Reasons prepared by the Australian Security Intelligence Organisation (ASIO), as well as advice from the Chief General Counsel the Australian Government Solicitor and the Department of Foreign Affairs and Trade. 

 

Prior to the making of the Regulations, consultations were held with the Department of Foreign Affairs, ASIO and the Australian Government Solicitor.  Further consultation will be held with the Federal Leader of the Opposition and the Attorneys‑General of the States and Territories.

 

The attached Statements of Reasons clarifies that Palestinian Islamic Jihad (PIJ) and HAMAS' Izz al-Din al-Qassam Brigades have not been proscribed by the United Nations.  The Statements of Reasons for Lashkar-e-Tayyiba (LeT) clarifies an error of fact concerning membership of an alleged LeT cell in Australia.

 

The re-issued Statements of Reasons enable the Minister to continue to be satisfied on reasonable grounds that the organisations are engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.

 

Subsection 102.1(2A) of the 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 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.

 

Section 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.

 

The Act specifies no other conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.

 

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commenced on the day after they were registered by the Federal Register of Legislative Instruments. 

 

 

 


Attachment

 

Details of the proposed Criminal Code Amendment Regulations 2005 (No. 13)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2005 (No.13 ).

 

Regulation 2 -- Commencement

 

This regulation provides the Regulations commence on the day after they are registered. 

 

Regulation 3 -- Repeal

 

This regulation provides that the following Regulations are repealed:

 

(a)                Criminal Code Amendment Regulations 2005 (No. 10)

(b)               Criminal Code Amendment Regulations 2005 (No. 11)

(c)                Criminal Code Amendment Regulations 2005 (No. 12)

 

Regulation 4 -- Amendment of Criminal Code Regulations 2002

 

This regulation provides that Schedule 1 amends the Criminal Code Regulations 2002 (the Principal Regulations).

 

Schedule 1 -- Amendments

 

Item [1] -- Regulation 4P

 

This item provides that Regulation 4P is to be omitted.

 

Item [2] -- Regulations 4R and 4S

 

This item provides that Regulations 4R and 4S are to be substituted with new Regulations 4T, 4U and 4V.

 

Regulation 4T is headed 'Terrorist organisations -- Palestinian Islamic Jihad (PIJ)'.  Subparagraph (1) of Regulation 4T provides that for paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code Act 1995 (the Code), the organisation known as Palestinian Islamic Jihad (PIJ) is specified. 

 

The effect of this subparagraph is that Palestinian Islamic Jihad (PIJ) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subparagraph (2) of Regulation 4T provides that for the purposes of subparagraph (1), Palestinian Islamic Jihad (PIJ) is also known by the following names:  Islamic Jihad Palestine (IJP); Islamic Jihad -- Palestine Faction; and Islamic Holy War.

 

Regulation 4U is headed 'Terrorist organisations -- HAMAS'Izz al-Din al-Qassam Brigades'.  Subparagraph (1) of Regulation 4U provides that for paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code, the organisation known as HAMAS'Izz al-Din al-Qassam Brigades is specified.

 

The effect of this subparagraph is that HAMAS'Izz al-Din al-Qassam Brigades is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Regulation 4V is headed 'Terrorist organisations -- Lashkar-e-Tayyiba (LeT)'.  Subparagraph (1) of Regulation 4U provides that for paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code, the organisation known as Lashkar-e-Tayyiba (LeT) is specified.

 

The effect of this subparagraph is that Lashkar-e-Tayyiba (LeT) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subparagraph (2) of Regulation 4T provides that for the purposes of subparagraph (1), Lashkar-e-Tayyiba (LeT) is also known by the following names:  Lashkar-e-Toiba; Lashkar-e-Taiba; Army of the Pure and Righteous; Paasban-e-Kashmir; Paasban-i-Ahle-Hadith; Jamaat-ud-Dawa.

 


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