Commonwealth Numbered Regulations - Explanatory Statements
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CRIMINAL CODE (TERRORIST ORGANISATION--BOKO HARAM) REGULATIONS 2017 (F2017L00842)
EXPLANATORY STATEMENT
Select Legislative Instrument 2017 No.
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code (Terrorist Organisation--Boko Haram) Regulations 2017
The purpose of the Criminal Code (Terrorist Organisation--Boko Haram) Regulations 2017 (the Regulations) is to specify Boko Haram for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code.[1] Boko Haram is currently specified for this purpose by the Criminal Code (Terrorist Organisation--Boko Haram) Regulation 2014, which is repealed by the Regulations. Details of the Regulations are set out in Attachment A.
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.
Paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code provides that regulations can specify organisations for the purposes of the definition of 'terrorist organisation'.
Subsection 102.1(2) of the Criminal 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), the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act or advocates the doing of a terrorist act.
The Attorney-General is satisfied on reasonable grounds that Boko Haram is engaged in, preparing, planning, assisting in or fostering the doing of a-terrorist act, or advocates the doing of a terrorist act. In coming to this position, the Attorney-General has taken into consideration an unclassified Statement of Reasons provided by the Director-General of Security, as well as advice from the Australian Government Solicitor (AGS). The Statement of Reasons is at Attachment B.
Effect of the instrument
Division 102 of the Criminal Code sets out the following offences relating to terrorist organisations
* directing the activities of a terrorist organisation
* being a member of a terrorist organisation
* recruiting persons to a terrorist organisation
* receiving training from, providing training to or participating in training with a terrorist organisation
* getting funds to, from or for a terrorist organisation
* providing support to a terrorist organisation, and
* associating with a terrorist organisation.
The Regulations ensure that the offences in Division 102 of the Criminal Code continue to apply to conduct relating to Boko Haram. Regulations specifying Boko Haram as a terrorist organisation have been in effect since 2014.
The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
The Regulations commence on the day after it is registered. Subsection 102.1(3) of the Criminal 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.
Consultation
The unclassified Statement of Reasons was prepared by the National Threat Assessment Centre in the Australian Security Intelligence Organisation, in consultation with the Department of Foreign Affairs and Trade and the Attorney‑General's Department (AGD). AGD also consulted the Centre for Counter-Terrorism Coordination in the Department of the Prime Minister and Cabinet and sought the advice of the AGS to inform the decision of the Attorney-General.
Subsection 102.1(2A) of the Criminal 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 Criminal 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. The Attorney-General wrote to the Leader of the Opposition enclosing the information upon which he was satisfied that Boko Haram met the legislative criteria for listing.
The Intergovernmental Agreement on Counter-Terrorism Laws (June 2004) (the IGA) requires that the Commonwealth Government consult with the governments of the states and territories prior to making regulations specifying an organisation for the purposes of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code. The IGA provides that if a majority of the states and territories object to the making of such a regulation within a time frame nominated by the Commonwealth, and provide reasons for their objections, the Commonwealth will not make the regulation at that time.
The Attorney-General wrote, on behalf of the Prime Minister, to the Premiers and Chief Ministers of the states and territories. A majority of the states and territories did not object to the making of the Regulations within the time frame nominated by the Attorney-General.
Statement of Compatibility with Human Rights
Overview
The Criminal Code (Terrorist Organisation--Boko Haram) Regulations 2017 (the Regulations) specifies Boko Haram for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code.
The object of the Regulations is to identify Boko Haram as a terrorist organisation under Australian law, and put the organisation and members of the public on notice of that fact. Notification is important to help people avoid engaging in activities which might constitute an offence under Division 102 of the Criminal Code in relation to Boko Haram.
The Regulations, which are part of Australia's terrorist organisation listing regime, support the application of the offences in Division 102 of the Criminal Code, the object of which is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia. In particular, the Regulations provide that the offence of associating with a terrorist organisation in section 102.8 of the Criminal Code applies in relation to associating with Boko Haram.
Terrorist organisations, including Boko Haram, present a threat to the security of Australia and often seek to harm Australians and our democratic institutions. The statutory definition of a 'terrorist organisation' requires that these bodies directly or indirectly engage in, prepare, plan, assist in or foster the doing of a terrorist act which includes the causing of serious harm to persons or death and serious damage to property (refer to Attachment B for details).
Human rights implications
The Regulations promote the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR):
* the inherent right to life in Article 6.
The Regulations limit the following human rights contained in the ICCPR:
* the right to freedom of expression in Article 19, and
* the right to freedom of association in Article 22.
The inherent right to life in Article 6
Article 6 of the ICCPR provides that countries have a duty to take appropriate steps to protect the right to life and to investigate arbitrary or unlawful killings and punish offenders. The Regulations, and the terrorist organisation listing regime more broadly, ensure that the offence provisions in Division 102 of the Criminal Code apply to certain conduct in relation to listed terrorist organisations. These offence provisions operate to penalise conduct that presents a significant risk to life, both in Australia and overseas, and, in conjunction with the terrorist organisation listing regime, also act as a deterrent to that conduct. Deterring the conduct, and thereby preventing the risk to life, promotes the inherent right to life expressed in Article 6 of the ICCPR.
The right to freedom of expression in Article 19
Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. However, Article 19(3) provides that freedom of expression may be limited if it is necessary to achieve a legitimate purpose, including for the protection of national security. The Regulations, and the terrorist organisation listing regime more broadly, limit the right to freedom of expression to the extent that persons are prohibited from directing the activities of, recruiting for, providing support to or associating with terrorist organisations, including Boko Haram. The restrictions on freedom of expression are justified on the basis that such conduct could jeopardise the security of Australia, the personal safety of its population and its national interests and the restrictions are reasonable, necessary and proportionate to the objective of protecting Australia's national security.
The right to freedom of association in Article 22
Article 22 of the ICCPR protects the right of all persons to group together voluntarily for a common goal and to form and join an organisation. Article 22(2) provides that this right may be limited for the purpose of national security. The Regulations, and the terrorist organisation listing regime more broadly, limit the right of freedom of association to prevent people engaging with and participating in terrorist organisations, in this instance Boko Haram.
The offence of associating with a terrorist organisation in section 102.8 of the Criminal Code is limited in its application to an organisation that is a listed terrorist organisation under the definition of 'terrorist organisation' in paragraph 102.1(1)(b) of the Criminal Code. The offence does not apply if the association is with a close family member and relates to a matter of family or domestic concern, or takes place in the course of practicing a religion in a place used for public religious worship, or the association is only for the purpose of providing humanitarian aid or only for the purpose of providing legal advice or legal representation.
Due to the severity of the danger posed by terrorist organisations, it is reasonable, necessary and proportionate to limit the right of individuals who, by their association with a terrorist organisation, pose a threat to Australians.
General safeguards and accountability mechanisms
Whilst the Regulations may limit the right to freedom of expression and the right to freedom of association with Boko Haram, the Regulations are subject to the safeguards outlined below. The limits on these rights 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.
The Criminal Code provides safeguards and accountability mechanisms requiring prior consultation and enabling review of the Regulations, including the following:
* the Commonwealth must consult with the states and territories in accordance with the Intergovernmental Agreement on Counter-Terrorism Laws of 25 June 2004, and the Regulations may only be made if a majority of the states and territories do not object to the Regulations within a reasonable time specified by the Commonwealth
* under subsection 102.1(2A) of the Criminal Code the Minister must arrange for the Leader of the Opposition to be briefed in relation to the proposed Regulations
* under subsection 102.1(3) the Criminal Code, the Regulations will cease to have effect on the third anniversary of the day on which they takes effect
* subsection 102.1(4) of the Criminal Code 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 by written notice published in the Gazette, with the effect of the Minister's declaration that the Regulations listing the organisation cease to have effect and the organisation is de-listed as a terrorist organisation under Division 102 of the Criminal Code
* subsection 102.1(17) of the Criminal Code provides that an individual or an organisation may make a de-listing application to the Minister
* the Regulations may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Criminal Code, and
* both Houses of Parliament may disallow the Regulations within the applicable disallowance period, which is 15 sitting days after the Regulations are laid before that House, as provided for in subsection 102.1A(4) of the Criminal Code.
Conclusion
The Regulations are compatible with human rights because they promotes the protection of human rights. To the extent that the terrorist organisation listing regime, of which the Regulations are part, may also limit human rights, those limitations achieve a legitimate purpose and are reasonable, necessary and proportionate.
Attachment A
Details of the Criminal Code (Terrorist Organisation-- Boko Haram) Regulations 2017
Section 1 - Name
This section would provide that the title of the Regulation is the Criminal Code (Terrorist Organisation--Boko Haram) Regulations 2017.
Section 2 - Commencement
This section would provide for the commencement of each paragraph in the instrument, as set out in the table.
Subsection (1) would provide that each provision in the instrument specified in column 1 of the table commences in accordance with column 2 of the table, and that any other statement in column 2 has effect according to its terms. Columns 1 and 2 would provide that the Regulations commence the day after the instrument is registered.
The note to subsection (1) would clarify that the table only relates to the provisions of this instrument as originally made, and that it will not be amended to deal with any later amendments to the instrument.
Subsection (2) would provide that information in column 3 of the table is not part of the instrument. It is designed to assist readers, and may be updated or changed in any published version of these Regulations. Column 3 is empty at the time of making the instrument.
Section 3 - Authority
This section would provide that the Regulations are made under the Criminal Code Act 1995.
Section 4 - Schedules
This section would provide each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned and that any other item in a Schedule has effect according to its terms. Schedule 1 to the instrument would repeal the whole of the Criminal Code (Terrorist Organisation--Boko Haram) Regulation 2014.
Section 5 - Terrorist organisation -- Boko Haram
Subsection (1) would provide that for paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code, the organisation known as Boko Haram is specified.
Subsection (2) would provide that Boko Haram is also known by the following names:
(a) Group of the Followers of the Prophet for Propagation and Holy Struggle
(b) Islamic State in West Africa
(c) Jama'atu Ahlis Sunna Lidda'awati Wal-Jihad
(d) Nigerian Mujahideen
(e) Nigerian Taliban
(f) People Committed to the Propagation of the Prophet's Teachings and Jihad
(g) Western Education is Forbidden
(h) Wilayat Gharb Afriqiyah
(i) Yusuffiya Movement
(j) Yusuffiya Sect
Schedule 1--Repeals
Schedule 1 would provide that Criminal Code (Terrorist Organisation-- Boko Haram) Regulation 2014 is repealed.
The Criminal Code (Terrorist Organisation-- Boko Haram) Regulation 2014 specifies Boko Haram as a terrorist organisation for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code. The proposed clause would ensure there is no duplication where the new Regulations are made before the current Regulation ceases to have effect.
Attachment B
| STATEMENT OF REASONS FOR BOKO HARAM | |
| Also known as: Group of the Followers of the Prophet for Propagation and Holy Struggle; | |
| This statement is based on publicly available information about Boko Haram. To the Australian Government's knowledge, this information is accurate, reliable and has been corroborated by classified information. | |
| 1. | 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; or b) advocates the doing of a terrorist act. For the purposes of listing a terrorist organisation under the Criminal Code, the doing of a terrorist act includes the doing of a specific terrorist act, the doing of more than one terrorist act and the doing of a terrorist act, even if a terrorist act does not occur. |
| 2. | Background to this listing The Australian Government first proscribed the organisation on 26 June 2014. |
| 3. | Terrorist activity of the organisation Objectives Boko Haram's primary objective is the establishment of an Islamic State under Shariah law in Nigeria. Its secondary objective is the wider imposition of Islamic rule beyond Nigeria. On 7 March 2015, Boko Haram pledged its allegiance to the proscribed terrorist organisation Islamic State and its aims are consistent with those of Islamic State. Directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts To achieve its objectives, Boko Haram continues to conduct attacks against military and civilian targets in Nigeria, Niger, Cameroon, Chad and foreign interests in those countries. Tactics employed include ambushes, armed attacks, bombings, suicide attacks and kidnappings. Examples of terrorist attacks and actions for which Boko Haram is responsible, or can be reliably held responsible, since it was last listed include: * 9 December 2016: two suicide bomb attacks in a market in Madagali, Nigeria, killing 56 people. * 28 July 2016: an ambush against a United Nations convoy near Bama, Nigeria, wounding five people. * 3 June 2016: an armed attack against a military post in Bosso, Niger, killing over 30 people. * 9 February 2016: two suicide bomb attacks at an internally displaced persons camp in Dikwa, Nigeria, killing 58 people. * 20 September 2015: coordinated bomb attacks in Maiduguri, Nigeria, killing over 100 people. * 15 June 2015: two suicide bomb attacks targeting police facilities in N'Djamena, Chad, killing 34 people. * 7 March 2015: four suicide bomb attacks in Maiduguri, Nigeria, killing 54 people. * 6 February 2015: an armed attack against the town of Fotokol, Cameroon, killing 91 people. * 3-7 January 2015: Boko Haram claimed responsibility for armed attacks against Baga and nearby villages in Nigeria, with estimates of hundreds killed and thousands of structures destroyed. * 13 December 2014: an armed raid against the town of Gumsuri, Nigeria, killing 32 and kidnapping 185 people. * 16 July 2014: kidnapping of a German national in Gombe, Nigeria, rescued after six months through a military operation. Advocating the doing of terrorist acts Since Boko Haram was last listed it has continued to advocate the doing of terrorist acts, including: * In a statement posted publicly on 29 December 2016, Boko Haram leadership figure Abubakar Shekau has stated that Boko Haram intends to fight to establish a separate Islamic State and has encouraged followers to conduct killings and abductions. * In August 2016, Shekau threatened to attack Nigerian Government and military leaders and to expand Boko Haram's war beyond Nigeria. * In February 2015, Shekau threatened to disrupt Nigerian elections in March using violence. * In an interview published on 2 August 2016, Boko Haram leadership figure Abu Musab al-Barnawi stated publicly that Boko Haram is at war with the Nigerian and other regional African governments backed by Western authorities and that Boko Haram is fighting to reclaim territory taken by these powers. Al-Barnawi pledged to oppose Christian and Western influences deemed to undermine Islamist society, including using violent means. |
| 4. | Details of the organisation Boko Haram follows an extreme interpretation of Islam which is anti-Western, promotes sectarian violence and targets those who do not agree with its interpretation as infidels and apostates. Boko Haram rejects existing national borders and opposes elected governments, seeking to remove them through violence if necessary. Boko Haram is a recognised affiliate of Islamic State but its adherence to a jihadist ideology predates Islamic State's existence. Boko Haram was initially formed as a non-violent religious movement in 1995. It was made up of small bands of mainly young, middle-class Nigerians in the northern Muslim-dominated states of Nigeria. Boko Haram began its violent activities in December 2003, initiating unrest in northern Nigeria that prompted an extensive security force response. Since July 2010, Boko Haram has adopted a much more active and violent approach to advance its goals, undertaking frequent attacks of increasing complexity and effectiveness. Although territory held by Boko Haram has varied over time due to regional military operations, it has strongholds in the Sambisa Forest in Nigeria, islands in Lake Chad and the Mandara mountains on the Nigeria-Cameroon border. Leadership It is unclear whether any individual has overall control of Boko Haram. Abubakar Shekau assumed leadership of Boko Haram in July 2010 and was the leader at the time of its first proscription. However, Islamic State leadership nominated Abu Musab al-Barnawi as Boko Haram's leader in March 2016 following apparent internal dissatisfaction with Shekau's leadership. Although this has resulted in a more decentralised and factionalised leadership structure, both leadership figures retain their loyalty to Islamic State and share its ideology and objectives. In addition to leadership disputes, Boko Haram's regional commanders reportedly also have a large degree of autonomy in conducting operations in pursuit of Boko Haram's objectives. Membership Boko Haram's total membership is uncertain but is estimated at thousands to tens of thousands of members, with members originating chiefly from north eastern Nigeria and neighbouring regions. Boko Haram has incurred numerous losses following Nigerian and regional military coalition operations against the group since 2015 but reinforces its numbers through voluntary and forced recruitment. Recruitment and funding Boko Haram exploits poor economic and social conditions in north eastern Nigeria and neighbouring regions to attract members. Recruits are drawn by Boko Haram's ability to provide economic prospects for its members and to avoid persecution by the group. Recruits also join Boko Haram through coercion from the group or pressure from associates and family members. The group bolsters its recruited numbers through kidnappings, forcing captives to serve the group. Some captives, including women and children, are forced to conduct attacks, including suicide bombings. Boko Haram funds itself primarily through criminal activities such as arms and human trafficking, extortion, bank robberies, looting and kidnap-for-ransom operations. Historically, Boko Haram also reportedly received funds and weapons from al-Qa'ida in the Lands of the Islamic Maghreb. The current state of financial ties with other terrorist groups, such as Islamic State and al-Qa'ida, is unclear. Links to other terrorist organisations Boko Haram is an officially recognised affiliate of, and ideologically aligned with, Islamic State. Boko Haram has historical ties with al-Qa'ida in the Lands of the Islamic Maghreb and al-Shabaab but these have dissipated due to Boko Haram leadership's more recent alignment with Islamic State. Links to Australia There are no known links between Boko Haram and Australia. Threats to Australian interests Boko Haram has not made statements specifically threatening Australians or Australian interests; however, the group has issued statements threatening Westerners and Western interests in general. Listed by the United Nations or like-minded countries Nigeria approved the proscription of Boko Haram as a terrorist organisation under Nigerian law in May 2013. This was followed by the United Kingdom in July 2013, the United States in November 2013, Canada in December 2013 and New Zealand in March 2014. The United Nations listed Boko Haram as an entity subject to sanctions in the ISIL (Da'esh) and Al-Qaida Sanctions List on 22 May 2014. Engagement in peace or mediation processes Since it was last listed, Boko Haram has not participated in peace or mediation processes with the Governments of Nigeria, Niger, Cameroon or Chad. |
| 5. | Conclusion On the basis of the above information, ASIO assesses that Boko Haram is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts or advocates the doing of terrorist acts, involving threats to human life and serious damage to property. In the course of pursuing its objectives, Boko Haram is known to have committed or threatened actions that: a) cause, or could cause, death, serious harm to persons, serious damage to property, endanger life (other than the life of the person taking the action), or create a serious risk to the health or safety of the public or a section of the public; b) are intended to have those effects; c) are done with the intention of advancing Boko Haram's political, religious or ideological causes; d) are done with the intention of intimidating the government of one or more foreign countries; and e) are done with the intention of intimidating the public or sections of the public. |