Commonwealth Numbered Regulations - Explanatory Statements

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CRIMINAL CODE AMENDMENT REGULATION 2012 (NO. 6) (SLI NO 59 OF 2012)

EXPLANATORY STATEMENT

Select Legislative Instrument 2012 No. 59

Issued by the authority of the Attorney-General

 Criminal Code Act 1995

Criminal Code Amendment Regulation 2012 (No. 6)

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 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 102.1(1)(a)); or

*         an organisation specified in the regulations (paragraph 102.1(1)(b)).

The purpose of the Regulation is to amend the Criminal Code Regulations 2002
(Criminal Code Regulations) to specify Hizballah's External Security Organisation, also known as Foreign Action Unit, Hizballah ESO, Hizballah International, Islamic Jihad Organisation, Revolutionary Justice 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 Regulation enables the offence provisions in Division 102 of the Code to continue to apply to persons with links to Hizballah's External Security Organisation (Hizballah ESO).  Details of Regulation 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 she 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 an unclassified Statement 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 Hizballah 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 regulation.

Prior to making the Regulation, 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 offered the Leader of the Opposition a briefing.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.  Subsection 102.1(3) of the Code provides that regulations for the purposes of paragraph (b) of the definition of 'terrorist organisation' cease to have effect on the third anniversary of the day on which they take effect.

Statement of Compatibility with Human Rights

Objective

The object of the Criminal Code Amendment Regulation 2012 (No. 6) is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia.  This will engage the inherent right to life expressed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR). 

The object of the Regulation also engages Article 19 and Article 22 of the ICCPR.  Whilst Article 19 protects the right to freedom of expression, this right may be subject to restrictions which include protecting national security.  The right to freedom of association in Article 22 of the ICCPR protects the right to form and join associations to pursue common goals, such as political parties.  Article 22(2) provides that freedom of association may be subject to restrictions imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

The Criminal Code Amendment Regulation 2012 (No. 6) would make it an offence under Division 102 of the Criminal Code, to direct the activities, become a member of, recruit, train or receiving training, get funds to, from or for Hizballah's ESO, and provide support or associate with Hizballah's ESO.  

The offence in subsection 102.8 of the Criminal Code of associating with a terrorist organisation is limited in its application only to an organisation that is a listed organisation under Criminal Code Regulations.  The offence does not apply if the association is with a close family member, or takes place in the course of practising a religion in a place used for public religious worship, or the association is for the purpose of providing humanitarian aid or for the purpose of providing legal advice or representation. 

Whilst the Criminal Code Amendment Regulation 2012 (No. 6) may limit the right to freedom of association with Hizballah's ESO, the association offence is subject to the safeguards outlined above.  The general limits of the right to freedom of association with Hizballah's ESO are reasonable, necessary and proportionate, and are in the interests of public safety and national security, after taking into consideration the direct and indirect terrorist activities of the organisation, which threaten human life, as detailed in the Statement of Reasons (at Attachment B).

The Criminal Code offences in Division 102 applying to terrorist organisations do not target any specific religious or ethnic group and are designed to promote security and protect all members of the community from the threat of terrorism, regardless of national or ethnic origins or religious beliefs.

The information in the Statement of Reasons (Attachment B) supports the Attorney-General's decision made on reasonable grounds, that Hizballah's ESO satisfies the criteria for listing as a terrorist organisation under subsection 102.1(2) of the Criminal Code. 

There are safeguards and accountability mechanisms in the Act providing for consultation and enabling review of Criminal Code Amendment Regulation 2012
(No. 6) specifying an organisation as a terrorist organisation.  These measures include the following:

*         the Commonwealth must consult with the States and Territories in accordance with the Inter-Governmental Agreement on Counter-Terrorism Laws.  The Criminal Code Amendment Regulation 2012 (No. 6) may only be made if a majority of the States and Territories do not object to the regulation within a reasonable time

*         under subsection 102.1(2A) the Minister must arrange for the Leader of the Opposition to be briefed in relation to the proposed regulation

*         under subsection 102.1(3) the Criminal Code Amendment Regulation 2012 (No. 6) will cease to have effect on the third anniversary of the day on which it takes effect

*         subsection 102.1(4) provides that if the Minister ceases to be satisfied of the criteria necessary for listing an organisation under subsection 102.1(2) of the Criminal Code, the Minister must make a declaration to that effect.  The effect of the Minister's declaration is that the organisation is de-listed as a terrorist organisation under Division 102 of the Criminal Code

*         subsection 102.1(17) provides that an individual or an organisation may make a de-listing application to the Minister

*         the Criminal Code Amendment Regulation 2012 (No. 6) may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Act, and

*         both Houses of Parliament may disallow the Criminal Code Amendment Regulation (No. 6) within the applicable disallowance period which is 15 sitting days after the regulation was laid before that House, as provided in subsection 102.1A(4).

Conclusion

The Regulation is compatible with human rights because it advances the protection of human rights, and to the extent that it may also limit human rights, those limitations are reasonable and proportionate.

Attachment A

Details of the Criminal Code Amendment Regulation 2012 (No. 6)

Section 1- Name of Regulation

This section provides that the title of the Regulation is the Criminal Code Amendment Regulation 2012 (No. 6).

Section 2 - Commencement

This section provides that the Regulation commences on the day after it is registered. 

Section 3 - Amendment of Criminal Code Regulations 2002

This section provides that Schedule 1 amends the Criminal Code Regulations 2002.

Schedule 1 - Amendments

Item [1] - Regulation 4Q

This item substitutes the existing regulation with a new regulation 4Q to provide 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. 

Subsection 4Q(1) provides that Hizballah's External Security Organisation is specified as a terrorist organisation under subsection 102.1(1) of the Code.

Subsection 4Q(2) provides that for the purposes of subsection (1), Hizballah's External Security Organisation is also known by the following names: 

(a)    Foreign Action Unit;

(b)   Hizballah ESO;

(c)    Hizballah International;

(d)   Islamic Jihad Organisation;

(e)    Revolutionary Justice Organisation;

(f)    Special Operations Branch.

Attachment B

Hizballah's External Security Organisation (ESO)

(Also known as: Foreign Action Unit; Hizballah ESO; Hizballah International; Islamic Jihad Organisation; Revolutionary Justice Organisation; and Special Operations Branch)

The following information is based on publicly available details about the ESO.  To the Australian Government's knowledge, these details are accurate and reliable and have been corroborated by classified information.

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, 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 organization

The Hizballah Context

Hizballah is a pragmatic political organization with deep roots in Lebanese society.  Founded in 1982 with Iranian assistance during the Israeli occupation of southern Lebanon, Hizballah evolved into a multi-faceted organization including political, social and military components supported by Iran and Syria.

Within Lebanon, Hizballah represents the Lebanese Shia community, the country's largest sect, and maintains a social welfare network that encompasses education and health services. Currently, it has two ministerial portfolios and constitutes an integral part of the ruling March 8 coalition.

As a fully-fledged political organisation, Hizballah engages with numerous international organizations and governments. For example, Hizballah liaises with the United Nations Interim Force in Lebanon (UNIFIL) in the context of the management of the cease-fire in southern Lebanon.

Hizballah also maintains a highly capable and well-resourced military structured ostensibly to resist Israeli aggression, but also to defend and promote Shia interests in the context of Lebanon's historical and ongoing sectarian divisions. In 2006 it fought against the Israeli Defence Force and since then has been arming itself in preparation for future conflict. Hizballah receives training, funding and military equipment from Iran and Syria and is a highly sophisticated military actor.

The ESO Objectives

The External Security Organisation is a discrete branch within Lebanese Hizballah responsible for the planning, coordination and execution of terrorist attacks against Hizballah's enemies outside of Lebanon. 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 seen the ESO operate independently of the parent body and become one of the best organized terrorist groups in the world.

The ESO was set up by Imad Mughniyah, who has been described variously as the head of Hizballah's security section, a senior intelligence official and as one of the founders of Hizballah. After Imad Mughniyah fled to Iran following Hizballah's 1983 attack on the US military in Beirut, the 'international wing' grew out of the military wing to become a separate branch under Mughniyah's control. This is thought to be the genesis of Hizballah's 'international wing' or the ESO.

The ESO was led by Mughniyah until his assassination in Damascus in 2008. There have been no major acts of terrorism specifically attributed to the ESO since 1994.  Nevertheless, Hizballah has vowed to retaliate against Israel for Israel's perceived role in Mughniyah's assassination.  The ESO is likely to be responsible for planning future terrorist attacks against Israeli interests to this end.

Leadership and Membership

Little is known about the current structure or membership of the ESO. It remains a covert and highly secretive organization that has been successful in restricting information about its organizational structure and membership. Its current leader is Talal Hamiyah.

Terrorist activity of the organization

Directly or indirectly engaged in the doing of terrorist acts

Neither Hizballah nor the ESO have publically admitted responsibility for any terrorist attacks outside Lebanon. Nevertheless, the ESO is widely considered responsible for at least two major attacks against Israeli/Jewish interests outside of Lebanon in the early 1990s: the attack of the Israeli embassy in Buenos Aires in 1992, and the attack on the Argentine Israelite Mutual Association (AIMA) in Buenos Aires in 1994.

*         On 17 March 1994, a truck laden with explosives was used to destroy the Israeli Embassy in Buenos Aires, Argentina. 29 people were killed, and 242 injured. Although Hizballah denied involvement, responsibility for the attack was claimed in the name of the Islamic Jihad Organisation, which cited its motive as revenge for Israel's assassination of Hizballah Secretary-General Abbas al-Musawi in February of that year. The Islamic Jihad Organisation is widely considered to be synonymous with the ESO. Argentinean authorities eventually issued an arrest warrant for then ESO leader Mughniyah for organising the attack.

*         On 18 July 1994, a van carrying explosives was detonated outside the AIMA, killing 85 people and injuring more than 300. In 1999, Argentine authorities issued an arrest warrant for Mugniyah for his alleged involvement. No group has claimed responsibility for the attack and Hizballah has repeatedly denied accusations that it conducted the attack. However, the Argentinean authorities concluded that ESO was responsible.

Directly or indirectly preparing and/or planning terrorist attacks

In January 2012 Thai authorities announced the arrest in Bangkok of an individual allegedly linked to Hizballah and in possession of explosive precursors. The individual denied being connected to Hizballah and it remains uncertain whether the explosive materials were intended for use in Thailand or for shipment elsewhere. Nonetheless, any Hizballah connection almost certainly would be through the ESO and points to ESO's on-going interest in, and preparations for, terrorist activities outside Lebanon.

In addition, in 2008 alleged ESO operative Ali Karaki was arrested in Baku, Azerbaijan, and charged with plotting to bomb the Israeli Embassy.

Directly or indirectly assisting in the doing of terrorist acts

Hizballah elements provide training, operational support and material to Palestinian extremist groups, including the Palestinian Islamic Jihad and HAMAS's Izz al-Din al-Qassam Brigades, both of which are proscribed entities, and Shia militant elements in Iraq. Although these activities are undertaken by units within Hizballah specifically created for these tasks, elements of the ESO are likely involved.

Conclusion

Due to the secretive nature of the ESO, it is difficult to gather detailed information about the group's role and activities. However, there is no indication that the ESO's role has changed in recent times, and considering Hizballah's stated desire to avenge the death of Imad Mughniyah, and the recent arrest of a probable Hizballah operative in Bangkok, it is likely that the ESO retains its separate terrorist function within Hizballah's overall organizational structure.

On the basis of the above information, ASIO assessed the ESO continues to directly and/or indirectly engage in conducting, preparing, planning, assisting, advocating or fostering the doing of terrorist acts, involving threats to life and serious property damage. This assessment is corroborated by information provided by reliable and credible intelligence sources.

In the course of pursuing its objectives the ESO is known to have committed or threatened action:

*         that causes, or could cause, serious damage to property, the death of persons or endanger a person's life;

*         with the intention of advancing Hizballah's political, religious or ideological causes; and

*         with the intention of intimidating the global public and sections of the global public.

Other Relevant Information

The United Kingdom and New Zealand have listed Hizballah's ESO as a terrorist organization under 'Hizballah's Military Wing'. Hizballah as a whole (including ESO) has been listed as a terrorist organization by governments of the United States and Canada.

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