EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 213

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2009 (No. 14).

 

 

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.

 

Paragraphs (a) and (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code define a ‘terrorist organisation’ 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 the Hamas’ Izz al-Din al-Qassam Brigades also known as Ezzedeen Al‑Qassam Brigades and Izz al-Din Al-Qassem Brigades, for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

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

 

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 (whether or not a terrorist act has occurred or will occur) or advocates 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 and the Australian Government Solicitor. The Statement of Reasons in respect of the 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, the Prime Minister wrote to the Premiers and Chief Ministers of the States and Territories and the Attorney-General has provided a written briefing to the Federal Leader of the Opposition.

 

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

 

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments. Subsection 102.1(3) of the Code provides when the regulations will sunset.

 

 

 

 

 

 

 

Attachment A

 

Details of the Criminal Code Amendment Regulations 2009 (No. 14)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2009 (No. 14).

 

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 a new regulation 4U.

 

New subregulation 4U(1) provides that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code (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 will continue to be specified as a terrorist organisation under subsection 102.1(1) of the Code for a further 2 years.

 

Subregulation 4U(2) provides that for the purposes of subregulation (1),
Hamas’ Izz al-Din al-Qassam Brigades is also known by the following names:

 

(a)        Ezzedeen Al-Qassam Brigades;

(b)       Izz al-Din Al-Qassem Brigades.

 

Attachment B

 

Hamas’ Izz al-Din al-Qassam Brigades

(aka Ezzedeen Al-Qassam Brigades and Izz al-Din Al-Qassem Brigades)

 

The following information is based on publicly available details about Hamas’s Izz al-Din al-Qassam Brigades (the Brigades).  These details are accurate and reliable and have been corroborated by classified information.  Hamas’ other branches, covering political, communal and welfare issues are not included in this proscription statement of reasons.

 

Basis for listing a terrorist organisation

 

Division 102 of the Criminal Code provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied on reasonable grounds that the organisation:

 

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

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

 

Details of the organisation

 

Hamas is an Arabic acronym for the Harakat Muqawama Islamia, or Islamic Resistance Movement. It was founded during the first Intifada in 1987 as an offshoot of the Palestinian branch of the Muslim Brotherhood. Hamas is an extremist Sunni organisation which in its 1988 founding charter called for the creation of an Islamic state in place of Israel and the Occupied Territories. The Brigades were established in 1992 to provide Hamas with an armed option to support its political objectives. Hamas’ main power base is the Gaza Strip, although it does have supporters in the West Bank. In 2006 Hamas won a decisive victory in the Palestinian elections which gave it a majority of seats – 76 out of 132. This allowed Hamas to oppose peace negotiations with Israel as the lead party in the Palestinian Authority (PA) and introduce a more traditional Islamic way of life.

Following the 2006 elections, long standing animosity between Hamas and Fatah rose in intensity until Hamas initiated a decisive crackdown in Gaza against Fatah which resulted in the death of hundreds of Fatah members and supporters. In June 2007 elected Hamas officials were ousted from their positions in the PA government in the West Bank and replaced by rival Fatah members and independents. Hamas retained control of the Gaza Strip and has engaged in another round of arrests and executions of Fatah members following the withdrawal of Israeli forces from Gaza in January 2009.

Hamas as an organisation has distinct political and military wings. The military wing is also known as the Executive Force. The Brigades are an armed element of the military wing and operate independently of the other sections of Hamas. They are divided into a number of independent and specialised cells. While the Brigades are an integral part of Hamas, they also operate independently and at times at odds with Hamas’ stated aims. The Brigades have their own website and regularly release advice of rocket and mortar attacks against Israeli interests independently of the Hamas political leadership. On 14 November 2008 the Brigades used their website to threaten Israel of a “harsh and painful” response to any Israeli ‘Calm’ violations.[1] There was no indication of any consultation with Hamas political leadership before the announcement was made.

The Brigades have the will and capability to launch terrorist attacks inside Israel. They have a substantial weapons inventory of light automatic weapons and grenades, improvised rockets, mortars, bombs, suicide belts and explosives. The Brigades fire ‘Qassam’ rockets and mortar shells into Israel on a regular basis. The group engages in military style training, including training in Iran and Syria on a range of weapons designed to inflict significant casualties on Israeli civilian and military targets.

The Brigades, with two other groups, were responsible for the action which led to the death of two Israeli soldiers and the kidnapping of Corporal Gilat Shalit in June 2006. Shalit is still being held by Hamas but there are indications he may eventually be exchanged for Palestinian prisoners held by Israel.

There had been a period of relative peace from June 2008 due to an Egyptian initiated cease-fire. However, violence escalated in November 2008 when rockets launched into Israel went from two per month in September and October to 190 in November. Hamas claimed the increased rocket attacks were in retaliation for Israeli forces crossing into Gaza and killing six Hamas fighters on 4 November 2008. Both sides accused each other of breaking the cease-fire although Israel was prepared to extend it beyond 19 December 2008 but Hamas refused.

In the recent conflict between Israel and Hamas in Gaza, the Brigades were actively involved in the fighting. The Brigades claimed responsibility for many attacks, including actions against Israeli Special Forces, and firing numerous rockets into Israel. They also announced 48 of their fighters were killed.

The Brigades go to great lengths to keep their organisational structure, planning and operations secret. The group is organised into discrete cells with each cell practising a need-to-know policy. The identity of the group’s leaders is usually kept secret to avoid targeted attacks by Israel. In September 2005, the Brigades did publish the names of its seven commanders on its website. Mohammed Deif was identified as the general commander. In July 2006 Deif and two other Brigades leaders were injured in an Israeli air raid and it is not clear if Deif is still the leader. Estimates of the group’s rank and file strength vary from a few hundred to many thousands, with a large pool of people seeking to join its ranks.

 

Terrorist activity of the organisation

 

Hamas (through the Brigades) seeks to destroy the state of Israel and establish an Islamist Palestinian state in the existing Gaza Strip, West Bank and Israel. It will not enter into peace talks with Israel and its leaders have stated Hamas cannot live with an Israeli state. Since January 2004 senior Hamas officials have indicated on a number of occasions a long term truce might be negotiated on the basis of an Israeli withdrawal from the territories captured in 1967. The Brigades conduct terrorist attacks in support of Hamas’ political objectives. Recent attacks for which responsibility has been claimed by, or reliably attributed to the Brigades, have included:

• June 2006: the death of two Israeli soldiers and the kidnapping of Corporal Gilat Shalit;
• February 2008: a suicide attack in Dimona killed and injured a number of people;
• November 2008: the Brigades announced on its website it had fired a total of 43 Qassam rockets and a number of mortar shells at several Israeli civilian and military targets;
• November 2008: five Grad rockets were fired from the Gaza Strip at the Israeli city of Ashqelon; and
• January 2009: numerous rockets fired into Israel.

In January 2009 the Brigades claimed 48 of its fighters had been killed in fighting Israeli forces in Gaza.

 

As demonstrated, the Brigades are directly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted the acts attributable to the Brigades are terrorist acts as they:

(i)                  are done with the intention of advancing a political cause, namely, destruction of the state of Israel, and establishment of an Islamic state in the current Israel, Gaza Strip and West Bank;

(ii)                are intended to coerce or influence by intimidation the governments of foreign countries, including Israel and/or intimidate the Israeli public; and

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

 

Other relevant information

 

Hamas’ Izz al-Din al-Qassam Brigades (the Brigades) have been proscribed as a terrorist organisation by the government of the United Kingdom. Hamas (including the 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.