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CRIMINAL CODE AMENDMENT REGULATIONS 2007 (NO. 9) (SLI NO 125 OF 2007)
Select Legislative Instrument 2007 No. 125
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code Amendment Regulations 2007 (No. 9)
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’ is defined in subsection 102.1(1) of the Code as:
· an organisation specified in the regulations (paragraph (b)).
The purpose of the Regulations is to amend the Criminal Code Regulations 2002 to specify the organisation Hizballah’s External Security Organisation (ESO), also known as Islamic Jihad Organisation and Hizballah International, for the purpose 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 ESO. Details of the Regulations are set out in Attachment A.
Pursuant to subsection 102.1(3) of the Code, 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.
The ESO was first listed as a terrorist organisation by Criminal Code Amendment Regulations 2003 (No. 9) which took effect from 5 June 2003. It was re-listed as a terrorist organisation by Criminal Code Amendment Regulations 2005 (No. 9) which took effect from 5 June 2005.
Paragraph 102.1(2)(a) 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 in consultation with the Department of Foreign Affairs and Trade, as well as advice from the Australian Government Solicitor. The Statements of Reasons in respect of the ESO 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 Regulations.2
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.
Details of the Criminal Code Amendment Regulations 2007 (No. 9)
Regulation 1- Name of Regulations
This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2007 (No. 9).
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 provides that Schedule 1 amends the Criminal Code Regulations 2002.
Schedule 1 – Amendments
Item  – Regulation 4Q
This item provides that the existing regulation 4Q, ‘Terrorist organisations – Hizballah’s External Security Organisation (ESO)’, is to be substituted with the new regulation 4Q.
Subregulation 4Q(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 Hizballah’s External Security Organisation is specified.
The effect of this subregulation is that Hizballah’s External Security Organisation is specified as a terrorist organisation under subsection 102.1(1) of the Code.
Subregulation 4Q(2) provides that for the purposes of subregulation
Hizballah’s External Security Organisation is also known by the following names:
(a) Hizballah International;
(b) Islamic Jihad Organisation.
Hizballah’s External Security Organisation (ESO)
(Also known as: Islamic Jihad Organisation and Hizballah International)
The following information is based on publicly available details about the organisation known as Hizballah’s External Security Organisation (ESO). These details have been corroborated by material from intelligence investigations into the activities of Hizballah’s ESO. ASIO assesses that the details set out below are accurate and reliable.
Hizballah’s External Security Organisation has been listed as a terrorist organisation by the government of the United Kingdom. Hizballah (including the ESO) has been listed as a terrorist organisation by the governments of the United States and Canada.
Current status of Hizballah’s ESO
Formed in Lebanon in 1982 in the wake of the Israeli occupation of southern Lebanon, Hizballah (“Party of God”) emerged as a splinter group of former Amal clerics inspired by the Iranian Revolution. By the end of 1984, Hizballah had become an umbrella group covering several smaller organisations including the Lebanese al-Dawa Party, Islamic Amal and the Islamic Students Union. Hizballah evolved into a multi-faceted organisation including political, social and military components supported by Iran and Syria. The functions of the organisation include legitimate political and social activities. The ESO constitutes a distinct terrorist wing within Hizballah’s structure.
Hizballah, including the ESO, receives substantial support from Iran, including financial, training, weapons, political and military assistance. Syria is also a significant supporter, particularly in the provision of political and military assistance.
In the 2006 conflict with Israel, Hizballah utilised Iranian-supplied military resources including Unmanned Aerial Vehicles (UAV) and a wide variety of short to long range rockets. It is assessed the ESO has access to these or similar resources.
The ESO is based in Lebanon. Hizballah has an international infrastructure including cells; charitable organisations; and business enterprises (both legal and illegal) in the Middle East, Asia, Africa, Europe and North and South America, from which it derives significant financial support. In the Tri-Border area of South America alone it is estimated that Hizballah has raised millions of dollars through activities such as drug and arms smuggling and product piracy. It is assessed that the ESO would benefit from these funds.
Hizballah elements, under the direction of Imad Mughniyeh, provide training, operational support and material to Palestinian extremist groups, including the Palestinian Islamic Jihad, Hamas’ Izz al-Din al-Qassam Brigades and Shia militia elements in Iraq. It is assessed elements of the ESO are likely involved in these activities.
Hizballah is committed to armed resistance to the state of Israel and aims to liberate all Palestinian territories and Jerusalem from “Israeli occupation”. Ultimately, Hizballah aims to create a Shia Islamic state in Lebanon and remove all Western and Israeli influences in the region. The ESO has undertaken terrorist acts in Israel and other countries in support of Hizballah objectives.
Leadership and membership
There is limited information about the ESO leadership. Reports indicate that Imad Mughniyeh, head of the Jihad Council within Hizballah’s Shura Council, has responsibility for the ESO. Mughniyeh continues to be one of the FBI’s most wanted terrorists and has been indicted for planning and participating in the hijacking of a commercial aircraft in June 1985 during which a US citizen was tortured and killed.
Hizballah is governed by Sheikh Hassan Nasrallah through a Shura Council, which presides over administrative, legislative, executive, judicial, political and military matters in consultation with Iran. The ESO, however, exercises autonomy distinct from the conventional military structure.
Hizballah’s ESO engagement in terrorist activities
The ESO is responsible for a series of suicide bomb attacks, aircraft hijackings and kidnappings of Western and Israeli/Jewish targets in Israel, Western Europe and South America dating back to the early 1980s. Major terrorist attacks for which responsibility has been reliably attributed to the ESO include:
· A bomb attack against the Israeli embassy in Buenos Aires in 1992, which killed 28;
· A bomb attack on a Jewish cultural centre in Buenos Aires in 1994, which killed 96; and
· A bomb attack in Bangkok in 1994, probably targeting the Israeli Embassy, that was inadvertently thwarted by a traffic accident involving the truck carrying the explosives on its way to the target.
The ESO maintains its capacity to undertake significant terrorist attacks and, in February 2007, there were renewed reports that Mughniyeh was undertaking contingency planning for future attacks. It is assessed such planning includes identification and surveillance of prospective targets.
· The ESO has made efforts to recruit and infiltrate individuals into Israel to conduct acts of terrorism following the commencement of the second intifada in 2000 and has also been involved in at least three major attempts to smuggle arms to Palestinian militants since 2001;
· In October 2000, the ESO carried out the kidnapping of Israeli businessman Elhanan Tennenbaum in the UAE, who was only released in January 2004 after negotiations between Hizballah and the Israeli government, which were facilitated by German authorities; and
· Throughout the 1990s, ESO’s operatives were actively involved in the recruitment of South-east Asian Sunni Muslims, planning attacks and gathering intelligence on US and Israeli shipping activities in the Malacca Straits.
Given the clandestine nature of the group, the ESO’s activities do not have a high profile and the ESO does not claim responsibility for terrorist attacks. However, there is no indication the intent of the ESO has changed or its capability has diminished. Based on the above information, it is assessed that the ESO continues to have the capability and intent to conduct further terrorist attacks. It is assessed the ESO is active internationally and it is likely the ESO will undertake attacks if and when the opportunity arises, and in accordance with the strategic priorities of the ESO’s parent organisation, Hizballah, or its state sponsors. The ESO’s close association with Syria and Iran means that it could draw on significant resources for future activities.
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 Hizballah’s ESO is directly or indirectly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to the Hizballah’s ESO are terrorist acts as they:
(i) are done with the intention of advancing a political cause, namely, creating a Shia Islamic state in Lebanon and removing all Western and Israeli influences in the region;
(ii) are intended to coerce or influence by intimidation the governments of foreign countries including Israel, and/or intimidate sections 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.