EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 77

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2009 (No. 7)

 

 

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 Hizballah’s External Security Organisation and its aliases ESO, Hizballah International, Islamic Jihad Organisation and Special Operations Branch, 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 Hizballah’s External Security Organisation. 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 Hizballah’s External Security Organisation 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 Federal Leader of the Opposition was provided with a written brief regarding the Regulations.

 

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. 7)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2009 (No. 7).

 

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 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 (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 (1),
Hizballah’s External Security Organisation is also known by the following names:

 

(a)        ESO;

(b)       Hizballah International;

(c)        Islamic Jihad Organisation;

(d)       Special Operations Branch.

Attachment B

 

Hizballah’s External Security Organisation

(Also known as: ESO, Islamic Jihad Organisation, Hizballah International and Special Operations Branch)

 

The following information is based on publicly available details about Hizballah’s External Security Organisation (ESO). The United Kingdom has listed Hizballah’s External Security Organisation as a terrorist organisation under ‘Hizballah’s Military Wing’. Hizballah (including ESO) has been listed as a terrorist organisation by the governments of the United States, Canada and Israel.

 

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. Hizballah operates as a recognised political party and sanctioned ’resistance group’ in Lebanon with representation in parliament and the Lebanese Cabinet.

 

After senior member Imad Mughniyah fled to Iran after the 1983 attack on the US military in Beirut, the ‘international wing’ grew out of the military wing to become a separate branch. This is thought to be the genesis of Hizballah's 'international wing', or 'External Security Organisation (ESO)’.

 

ESO constitutes a distinct terrorist wing within Hizballah’s structure. Since entering the Lebanese Parliament in 1992 and the Government in 1995, Hizballah has sought to strengthen its public image as a respected resistance movement and lessen its reputation as a terrorist group. This has encouraged the terrorist network to operate independently of the parent organisation and become among the best organised terrorist networks in the world. While Mughniyah was considered one of the world’s most capable and dangerous terrorists, his death in February 2008 is unlikely to reduce ESO’s effectiveness in the long term. ESO’s current leader, Talal Hamiyah was a long-time associate of Mughniyah and he will continue ESO’s activities with minimal disruption.

 

Hizballah, including ESO, receives substantial support from Iran, in the form of 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.  As part of Hizballah, and given ESO’s direct contact with Iran, these or similar resources would be available to ESO.

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 Hizballah has raised millions of dollars through activities such as drug and arms smuggling and product piracy.  ESO is likely to have access to this funding.  

Since the attack against US Marines in Beirut in 1983, and two attacks against Israeli interests in Argentina in 1992 and 1994 (discussed in more detail below) Hizballah has established an insurgent capability in Iraq with support from Iran.  ESO continues to operate on a global basis gathering intelligence to be used in terrorist attack planning, collecting money by both legal and illegal methods, recruiting and training terrorists and acquiring weapons.  There is reporting to indicate ESO is planning attacks against Israeli or Jewish targets outside Israel to avenge the death of Mughniyah. 

Hizballah provides training, operational support and material to Palestinian extremist groups, including the Palestinian Islamic Jihad, Hamas’ Izz al-Din al-Qassam Brigades, both of which are currently proscribed entities, and Shia militia elements in Iraq.  Elements of ESO are likely involved in these activities. 

 

Objectives

 

Hizballah is committed to armed resistance to the state of Israel and aims to ‘liberate’ all Palestinian territories and Jerusalem from Israeli ‘occupation’. Hizballah actively promotes terrorist attacks in the Palestinian arena to reduce the possibility of agreements or accords between Palestinians and Israel. Ultimately, Hizballah aims to create a Shia Islamic state in Lebanon and remove all Western and Israeli influences in the region. ESO has undertaken terrorist acts against Israeli and other interests in support of these objectives.

 

Leadership and membership

 

Little is known about ESO. It is a covert and highly secretive organisation and it has been successful in restricting information about its organisational structure and membership. Its leader is Talal Hamiyah.

 

Hizballah ESO engagement in terrorist activities

 

The attack against the US Marine barracks in Beirut in October 1983 which killed 241 US servicemen gave Hizballah world wide attention for the first time. Further violent attacks in Lebanon and around the world in the 1980’s demonstrated Hizballah’s capacity for violence. The 1992 bombing of the Israeli Embassy and the 1994 bombing of a Jewish cultural centre in Buenos Aires are the most well known of the attacks conducted outside of Lebanon. These attacks are widely accepted as being planned and executed by Mughniyah and ESO .

 

The Hizballah ESO had a record of regular terrorist attacks against mainly Israeli and US targets up until the early 1990’s. As a result of the Israeli withdrawal from southern Lebanon in 2000, Hizballah concentrated on targets in Israel and the Palestinian Territories. Even after the 2006 military confrontation with Israel, Hizballah’s ability to launch terrorist attacks was not completely destroyed. It has since built up a significant rocket and anti-aircraft capability with the assistance of Iran. Its rockets can now reach deep into Israel.

 

Hizballah has established an insurgent capability in Iraq, engaging in assassinations, kidnappings and bombings. The Hizballah units have been set up with the encouragement and resources of Iran’s Revolutionary Guards al Qods Brigades. Hizballah has also established a special training cell known as Unit 3800 (previously known as Unit 2800) specifically to train Shia fighters prior to action in Iraq. . Available reporting does not specifically identify these terrorist units as ESO entities. However, as ESO’s primary role is international terrorism, it is likely to be heavily involved in the activities of Unit 3800 and the attacks against the Iraqi Government and Coalition forces.

Given the clandestine nature of the group, ESO’s activities do not have a high profile and it does not claim responsibility for terrorist attacks.  However, there is no indication the intent of ESO has changed or its capability has diminished.  ESO is active internationally and it is likely it will continue to undertake attacks or contribute to attack planning if and when the opportunity arises, in accordance with the strategic priorities of ESO’s parent organisation, Hizballah, or its state sponsors.  ESO’s close association with Syria and Iran means it could draw on significant resources for future activities.

At the funeral of former ESO head Imad Mughniyah, assassinated in February 2008, Hizballah Secretary-General said he welcomed open war with Israel as a means of avenging the death of Mughniyah.

Due to the secretive nature of ESO, it is difficult to gather information on its role and activities.  However, ESO still exists as a discrete organisation under the umbrella of Hizballah but with a separate leadership and direct links to Iran.  ESO has a history of terrorist activity and as terrorism is such a fundamental part of its raison d’être, there is nothing to suggest its terrorist purposes have changed.  Given its close links to Iran and Syria, ESO has the capability to execute its terrorist objectives.  Hizballah uses a separate terrorist arm to conduct attacks and accordingly recent terrorist activity generally attributed to Hizballah is likely to have been conducted by ESO, either wholly or as a major contributor. On this basis and previous evidence of terrorist activity, it is assessed ESO is still directly preparing, planning, assisting in or fostering the doing of terrorist acts.