EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 266

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2007 (No. 11)

 

 

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.

 

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.

 

‘Terrorist organisation’ in subsection 102.1(1) of the Code is defined as:

 

·        an organisation directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs) (paragraph (a)); or

·        an organisation specified in the regulations (paragraph (b)).

 

The purpose of the Regulations is to amend the Criminal Code Regulations 2002 to specify Hamas’ Izz al-Din al-Qassam Brigades also known as Ezzedeen Al-Qassam Brigades for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

Hamas’ Izz al-Din al-Qassam Brigades was initially listed as a terrorist organisation under the Criminal Code Amendment Regulations 2005 (No. 10) which took effect on 9 November 2003.

 

Hamas’ Izz al-Din al-Qassam Brigades was re-listed as a terrorist organisation under the Criminal Code Amendment Regulations 2005 (No. 10) which took effect on 5 June 2005 and was re-listed by Criminal Code Amendment Regulations 2005 (No. 13) which took effect on 7 October 2005.

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to Hamas’ Izz al-Din al-Qassam Brigades. Details of the Regulations are set out in Attachment A.

 

Paragraph 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 (whether or not a terrorist act has occurred or will occur).

 

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) in consultation with the Department of Foreign Affairs and Trade, as well as advice from the Australian Government Solicitor. The Statement of Reasons in respect of Hamas’ Izz al-Din al‑Qassam Brigades is at Attachment B.

 

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.

 

Prior to the making of the Regulations, consultations were held with the Department of Foreign Affairs and Trade, ASIO and the Australian Government Solicitor. In addition, an offer for a briefing was extended to the Federal Leader of the Opposition and the State and Territory Premiers and Chief Ministers were advised.

 

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 on the Federal Register of Legislative Instruments.

 

 

 

 

 

 

 

Attachment A

 

 

Details of the Criminal Code Amendment Regulations 2007 (No. 11)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2007 (No. 11).

 

Regulation 2 – Commencement

 

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

 

Regulation 3 – Amendment of Criminal Code Regulations 2002

 

This Regulation notes that Schedule 1 amends the Criminal Code Regulations 2002.

 

Schedule 1 – Amendments

 

Item [1] – Regulation 4U

 

This item provides that the existing regulation 4U, ‘Terrorist organisations – Hamas’ Izz al-Din al-Qassam Brigades’, is to be substituted with the new regulation 4U.

 

Subregulation 4U(1) 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 Hamas’ Izz al-Din al-Qassam Brigades is specified.

 

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

 

Subregulation 4U(2) provides that for the purposes of subregulation (1),
Hamas’ Izz al-Din al-Qassam Brigades is also known by the name Ezzedeen Al‑Qassam Brigades.

 

 

 

ATTACHMENT B

Hamas’ Izz al-Din al-Qassam Brigades

(Also known as Ezzedeen Al-Qassam Brigades)

The following information is based on publicly available details about Hamas’ Izz al‑Din al-Qassam Brigades. These details have been corroborated by material from intelligence investigations into the activities of the Brigades. ASIO assesses that the details set out below are accurate and reliable.

Hamas’ Izz al-Din al-Qassam Brigades (the Brigades) has been proscribed as a terrorist organisation by the government of the United Kingdom. Hamas (including the Izz al-Din al-Qassam Brigades) has been proscribed as a terrorist organisation by the governments of the United States and Canada. Hamas is also listed by the European Union for the purposes of its anti-terrorism financing measures.

Current status of Hamas’ Izz al-Din al-Qassam Brigades

Hamas is a radical Sunni organisation which emerged from the Palestinian branch of the Muslim Brotherhood in late 1987, shortly after the commencement of the first Intifada. The Brigades is the military wing of Hamas and its activities are distinct from the political and community activities of Hamas. The military wing emerged during the first Intifada, with the primary objective of creating a coherent military organisation to further Hamas' aims. In mid 1991, the military wing of Hamas became known as the Izz al-Din al-Qassam Brigades.

While the Brigades constitutes a ‘wing’ of Hamas, it operates independently and against the publicly stated aims of Hamas. Continued attacks by the Brigades during ceasefire periods in 2005 and 2006 indicate that peace initiatives announced by its parent organisation, Hamas, are not observed or binding on the Brigades. For example, on 29 June 2005, during a ceasefire period, the Brigades claimed credit for rocket attacks against the Israeli settlements of Netzer Hazani and Kissufim. On 26 November 2006, immediately following the commencement of a ceasefire, the Brigades claimed credit for launching rockets at civilian targets inside Israel.

The primary areas of operations for the Brigades are Israel and the Palestinian Territories. The Brigades operates as a network of independent cells directed by the Brigades leadership. Co-ordinating with the Palestinian Islamic Jihad (PIJ), the Brigades conducted a number of suicide bombings in the mid 1990's in an attempt to derail the Middle East peace process. The Brigades continues to conduct terrorist attacks, including joint operations with other Palestinian groups.

Funding for Hamas largely comes from Palestinian expatriates and supporters in Saudi Arabia and the Gulf Arab states.  Some of the funds collected are channelled into the Brigades through specific charitable organisations located in the Palestinian Territories, which also provide support to the families of Hamas activists who have been killed.  Iran provides some direct financial assistance for Hamas and it is assessed that some funding is channelled to support the operational capacity of the Brigades.

The Brigades has an ongoing intent and capability to conduct terrorist acts. Despite a decline in attacks attributed to the Brigades from late 2005 to mid 2006, the Brigades claimed the launch of hundreds of rockets, missiles and mortar shells in 2006. Attacks and statements by the Brigades indicate its arsenal also includes small arms, explosives and grenades. In April 2007, the spokesman for the Brigades warned that the group remains ‘fully prepared’ for action. The Brigades continues to claim responsibility for attacks.

Objectives

Hamas aims to establish an Islamic Palestinian state which would include the territory of the current state of Israel. The Brigades engages in terrorist acts in support of Hamas’ political objectives.

Leadership and membership

Historically the leadership of the Brigades has been unclear. Following the assassination of Hamas leaders in 2004, the identities of leaders were hidden. However, in September 2005, the Brigades identified its leader, Mohammed Deif, and other senior and geographic commanders of the Brigades.

There is mobility of roles and activities between the civilian, military and welfare elements of Hamas and the Brigades is able to draw candidates for terrorist operations from Hamas-sponsored mosques and facilities.

Hamas’ Izz al-Din al-Qassam Brigades engagement in terrorist activities

Recent terrorist attacks for which responsibility has been claimed by, or reliably attributed to the Brigades, have included:

• July 2006: Two separate rocket attacks on Ashkelon;
• October 2006: Homemade shells fired at Sederot;
• October 2006: Rocket attacks on Ashkelon;
• November 2006: Several separate rocket attacks against civilian targets inside Israel, including Sederot, Ziqim, and the Western Negev;
• May 2007: Rocket attacks against several Israeli locations including Sederot, Kefar Maymon and Nir Oz; and
• June 2007: Five mortar shells fired at Israeli military vehicles and soldiers near the Kissufim Crossing in central Gaza.

Conclusion

The Criminal Code provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied that:

(i)                  the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); or

(ii)                the organisation advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

On the basis of the above information, ASIO assesses that Hamas’ Izz al-Din al‑Qassam Brigades is directly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to the Izz al-Din al-Qassam Brigades are terrorist acts as they:

(i)                  are done with the intention of advancing a political cause, namely, to end Israeli occupation in Palestine and establish an Islamic state;

(ii)                are intended to coerce or influence by intimidation the government of a foreign country, namely Israel and/or intimidate a section of the public; and

(iii)               constitute acts which cause serious physical harm to persons, including death, as well as serious damage to property.

This assessment is corroborated by information provided by reliable and credible intelligence sources.