CRIMINAL CODE AMENDMENT REGULATION 2012 (NO. 7) (SLI NO 191 OF 2012) EXPLANATORY STATEMENT

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.

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.

The purpose of the regulation is to amend the Criminal Code Regulations 2002
(Criminal Code Regulations) to specify 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 regulation enables the offence provisions in Division 102 of the Code to continue to apply to persons with links to Hamas' Izz al-Din al-Qassam Brigades. Details of the 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).

The Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the regulation pursuant to subsection 102.1(2A) of the Code.

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 Hamas' Izz al-Din al-Qassam Brigades is at Attachment B.

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 Attorney-General wrote to the Premiers and Chief Ministers of the States and Territories on behalf of the Prime Minister, and the Attorney-General offered the Leader of the Opposition a briefing.

In addition to re-listing the five terrorist organisations, the regulations also omit existing regulations 4E, 4I, 4M and 4N which have ceased to have effect.

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.

This regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The object of the Criminal Code Amendment Regulation 2012 (No. 7) 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.7) makes 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 Hamas' Izz al-Din al-Qassam Brigades, and provide support or associate with Hamas' Izz al-Din al-Qassam Brigades.

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. 7) may limit the right to freedom of association with Hamas' Izz al-Din al-Qassam Brigades, the association offence is subject to the safeguards outlined above. The general limits of the right to freedom of association with Hamas' Izz al-Din al-Qassam Brigades 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 Hamas' Izz al-Din al-Qassam Brigades 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. 7) 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. 7) 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 regulation

* under subsection 102.1(3) the Criminal Code Amendment Regulation 2012 (No. 7) 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. 7) 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 2012 (No. 7) within the applicable disallowance period, as provided in subsection 102.1A(4).

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. 7)

Section 1 - Name of Regulation

This section provides that the title of the Regulation is the Criminal Code Amendment Regulation 2012 (No. 7).

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] - Regulations 4E, 4I, 4M and 4N

This item omits existing regulations 4E, 4I, 4M and 4N and Note 2 as these regulations have ceased to have effect.

Existing regulation 4E refers to Armed Islamic Group (GIA). As explained in Note 2, regulation 4E ceased to have effect on 3 November 2008 in accordance with subsection 102.1(3) of the Code.

Existing regulation 4I refers to Asbat al-Ansar (AAA). As explained in Note 2, regulation 4I ceased to have effect on 14 March 2012 in accordance with subsection 102.1(3) of the Code.

Existing regulation 4M refers to Egyptian Islamic Jihad (EIJ). As explained in Note 2, regulation 4M ceased to have effect on 31 March 2009, in accordance with subsection 102.1(3) of the Code.

Existing regulation 4N refers to the Islamic Army of Aden (IAA). On 7 December 2011 the Attorney-General made a declaration de-listing the Islamic Army of Aden under subsection 102.1(4) of the Code. This declaration came into effect on 20 December 2011 when the declaration was registered on the Federal Register of Legislative Instruments.

Item [2] - Regulation 4U

This item substitutes the existing regulation with a new regulation 4U 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 Hamas' Izz al-Din al-Qassam Brigades is specified.

Subsection 4U(2) provides that for the purposes of subsection (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's Izz al-Din al-Qassam Brigades

(Also known as: 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. 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, 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 a militant Sunni Islamist organisation and political party founded in 1987 in the Palestinian Territories during the first Intifada uprising. Hamas began as a branch of, and retains an ideological affinity with, the Muslim Brotherhood. Like its parent, Hamas is a multifaceted, well organised and relatively moderate organisation renowned for its extensive social service networks in the Palestinian Territories. Since winning a majority of seats in the Palestinian general legislative elections in 2006, and gaining control of Gaza by force in 2007, Hamas has been responsible for the administration and provision of government services including health, education and security to Gaza's inhabitants.

The Izz al-Din al-Qassam Brigades were officially established in 1991 to provide Hamas with a military capability. Originally, the Brigades were organized secretively, comprising compartmentalized cells that specialized in terrorist attacks, assassinations and kidnappings inside Israel. Since Hamas gained control of Gaza in 2007 and took up a governing role, the Brigades have been forced to develop, at least partially, into a more traditional military force. The Brigades operate predominantly in Gaza, with limited representation in the West Bank.

Objectives

As Hamas's military wing, the Brigades' objectives are subordinate to Hamas's broad political goals. Their essential aim is the unification of Israel and the Palestinian Territories under Islamic rule - a goal which entails the destruction of Israel as a political entity. Due to the disparity between Israel and Hamas's respective military resources, the Brigades have adopted terrorist tactics in their bid to defeat Israel. Most famously, they adopted the use of suicide bombings, describing them as the "F-16" of the Palestinian people.

The Brigades have never demonstrated any intent to conduct attacks outside of Israel and the Palestinian Territories or to target interests of countries other than Israel.

Leadership and Membership

The size of the Brigades is difficult to determine. International Crisis Group in 2009 described its estimated strength as 7000 - 10 000 full time members, with around 20 000 reserves. The proportion of members assigned to more standard military and security duties, and those assigned to planning terrorist attacks is not known.

Despite being Hamas's military wing and subordinate to Hamas's ideological objectives, the Brigades are structured as a distinct and discrete organisation which can survive the dissolution of Hamas's political structures. Accordingly, the Brigades operate with a significant degree of independence in their decision making.

The leader of the Brigades is Mohammed Deif, who has held the position since 2002.

The Brigades maintain their own website, including an English language version, which publicizes their aims and activities. It is used to claim responsibility for terrorist attacks and to announce the deaths of its members as a result of Israeli airstrikes.

Hamas's funding comes from a range of both official and private sources. Saudi Arabia and Iran have traditionally been the largest sources of financial aid. Hamas collects taxes within Gaza and has limited access to Palestinian Authority funds. The amount of money earmarked specifically for the Brigades is difficult to ascertain.

Terrorist activity of the organisation

Directly or indirectly engaged in the doing of terrorist acts / Directly or indirectly preparing and/or planning terrorist acts

Since their first suicide bombing in 1993, the Brigades are reported to have killed more than 500 people in more than 350 separate terrorist attacks. Since 2005, however, the majority of the terrorist activity conducted by the Brigades has consisted of small-arms fire and rocket and mortar fire directed at Israeli military assets and communities in the vicinity of Gaza. These attacks, sometimes indiscriminate in nature, have caused significant property damage as well as deaths and injuries to military personnel and civilians. Recent terrorist attacks for which responsibility has been claimed by, or is reliably attributed to, the Brigades have included:

* 7 April 2011: an anti-tank missile struck a school bus near the Gaza strip, destroying the bus and resulting in the death of an Israeli teenager. The Brigades took responsibility for the attack, although they claimed they had not intended to target Israeli schoolchildren, and had mistaken the bus for one carrying Israeli military personnel.

* 1 September 2010: a group of Brigades members wounded two Israeli settlers near Ramallah. A subsequent statement by the Brigades threatened a wave of attacks against Israelis.

* 31 August 2010: four Israeli settlers were shot dead by the same members of the Brigades near the West Bank city of Hebron.

Directly or indirectly assisting in the doing of terrorist acts

The Brigades control supply lines to Iran, where it sends fighters for military training. These same supply lines are used by Palestinian Islamic Jihad for procurement and training. With this arrangement the Brigades are indirectly assisting Palestinian Islamic Jihad in committing terrorist acts.

Conclusion

On the basis of the above information, ASIO assesses Hamas's Izz al-Din al-Qassam Brigades continue to directly and/or indirectly engage in, prepare, plan, assist, advocate or foster 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 Hamas's Izz al-Din al-Qassam Brigades are 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; and
with the intention of advancing Hamas's Izz al-Din al-qassam Brigades' political, religious or ideological causes; and
with the intention of intimidating the public and sections of the public.

Other Relevant Information

Links to Australia

There are no known links to Australia.

Level of participation in peace negotiations

There are no current peace negotiations being conducted including the Brigades.

Other designations -

Hamas' Izz al-Din al-Qassam Brigades (the Brigades) are proscribed as a terrorist organisation by the governments of the United Kingdom and New Zealand. 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.

Hamas is also included in the DFAT Consolidated List that refers to United Nationals Council Resolution 1373 in relation to countering financing of terrorism.

Commonwealth Numbered Regulations - Explanatory Statements