EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 265

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2007 (No. 10)

 

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’ in subsection 102.1(1) of the Code is defined 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 Palestinian Islamic Jihad (PIJ) also known as, al-Quds Brigades, Harakat al‑Jihad al-Islami fi Filistin, Islamic Jihad, Islamic Jihad – Palestine Faction and Islamic Holy War and Islamic Jihad Palestine (IJP) for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

PIJ was initially listed as a terrorist organisation under the Criminal Code Amendment Regulations 2004 (No. 1) which took effect on 3 May 2004.

 

PIJ was re-listed as a terrorist organisation under the Criminal Code Amendment Regulations 2005 (No. 12) which took effect on 5 June 2005 and was re-listed by Criminal Code Amendment Regulations 2005 (No. 13) which took effect on 7 October 2005.

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to PIJ. Details of the Regulations are set out in Attachment A.

 

Paragraph 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).

 

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, as well as advice from the Australian Government Solicitor. The Statement of Reasons in respect of PIJ 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, an offer for a briefing was extended to the Federal Leader of the Opposition and the State and Territory Premiers and Chief Ministers were advised.

 

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

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

 

 

 

 

 

 

Attachment A

 

 

Details of the Criminal Code Amendment Regulations 2007 (No. 10)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2007 (No. 10).

 

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 4T

 

This item amends the reference to the Criminal Code with a reference to the Criminal Code in italic text to make it consistent with existing references in the principal regulations.

 

Item [2] – Regulation 4T

 

This item provides that the existing regulation 4T, ‘Terrorist organisations – Palestinian Islamic Jihad (PIJ)’, is to be substituted with the new regulation 4V.

 

Subregulation 4V(1) provides 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 Palestinian Islamic Jihad (PIJ) is specified.

 

The effect of this subregulation is that Palestinian Islamic Jihad (PIJ) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4I(2) provides that for the purposes of subregulation (1),
Palestinian Islamic Jihad (PIJ) is also known by the following names:

 

(a)    al Quds Brigades;

(b)   Harakat al-Jihad al-Islami fi Filistin;

(c)    Islamic Jihad;

(d)   Islamic Jihad – Palestine Faction and Islamic Holy War;

(e)    Islamic Jihad – Palestine Faction (IJP).

 

 

 

ATTACHMENT B

Palestinian Islamic Jihad (PIJ)

 

(Also known as: Harakat al-Jihad al-Islami fi Filistin, Islamic Jihad Palestine (IJP), Islamic Jihad, Islamic Jihad - Palestine Faction and Islamic Holy War, al‑Quds Brigades)

 

The following information is based on publicly available details about the Palestinian Islamic Jihad (PIJ). These details have been corroborated by material from intelligence investigations into the activities of the PIJ and by official reporting. ASIO assesses that the details set out below are accurate and reliable.

The Palestinian Islamic Jihad (PIJ) is listed as a proscribed terrorist organisation by the governments of the United Kingdom, United States and Canada. The PIJ is also listed by the European Union for the purposes of its anti-terrorism financing measures.

Current status of the PIJ

The PIJ was founded in 1979-80 in Egypt by Palestinian members of the Muslim Brotherhood. Inspired by the Iranian revolution and disillusioned with the actions of existing Palestinian nationalist movements, the PIJ rejected the Muslim Brotherhood’s non-violent position and it has grown to become one of the main Palestinian Islamic extremist movements.

In August 1988, Israel expelled two primary leaders of the PIJ at that time, Fathi Shaqaqi and Abd al-Aziz Odah, to Lebanon where Shaqaqi reorganised the group, developing closer ties with Iranian Revolutionary Guard Corps elements and Lebanese Hizballah. From this time, the PIJ increasingly used terrorist actions, including suicide bombings, to promote its cause. Suicide bombings, including explosive belts and car bombs, continue to be the PIJ’s favoured method of attack; however, the PIJ is also responsible for shooting attacks.

The PIJ sees itself as a radical military organisation. The PIJ refused to give a formal commitment to a Palestinian unilateral ceasefire in 2005 and has previously conducted terrorist attacks to derail peace processes. While it has no ostensible political role, the PIJ is politically astute. Since Hamas’ victory in the Palestinian Legislative Council election in January 2006, the PIJ has issued statements condemning political compromises made by Hamas and Fatah towards Israel. The PIJ supported Hamas’ victory, but rejected any notion of participating in government itself.

Despite sectarian differences, the PIJ is allied to and receives significant support from Hizballah. The PIJ maintains affiliations with groups such as Hamas, and has carried out joint attacks with other militant groups, including as recently as May 2007, when the al-Quds Brigades, PIJ’s operational arm, and a Fatah-affiliated group carried out a joint shooting attack against Israeli soldiers in the Gaza Strip.

The PIJ has confined its activities to the Middle East. It has not deliberately targeted Western interests, although it has previously threatened to target the US Embassy and its personnel if it moves from Tel Aviv to Jerusalem. The PIJ’s attacks are generally indiscriminate in nature, seeking to maximise casualties.

Funding for the PIJ is primarily from Iran and Syria. Syria permits the location of the PIJ headquarters in Damascus. The relationship between PIJ and Iran has been publicly acknowledged by PIJ leaders.

Israeli military action against the PIJ over the past six to seven years has impacted adversely on the capabilities of all Palestinian militant groups, including the PIJ, albeit often with only local and short-term effect. Nonetheless, the PIJ remains active and has claimed responsibility for suicide bombings and rocket attacks in 2006 and 2007. In April 2007, a member of the PIJ leadership stated the group continuously makes plans to carry out ‘martyrdom operations’. The PIJ’s attacks and statements indicate its arsenal includes improvised explosive devices (IEDs); rockets; firearms and rocket-propelled grenades. Taken together, the PIJ continues to have the capability (including access to the necessary resources) and intent to conduct further terrorist attacks.

Objectives

The establishment of an Islamic Palestinian state and the destruction of the state of Israel.

Leadership and Membership

The PIJ is led by Dr Ramadan Muhammad Abdullah Shalah, who became Secretary-General after the October 1995 assassination of former leader Fathi Shaqaqi in Malta. Ziyad al-Nakhalah (aka Abu Tariq) is the PIJ deputy Secretary-General.

The PIJ has a small membership base of approximately 50-200. The PIJ’s main membership base is in the West Bank (particularly Hebron and Jenin), Gaza and South Lebanon.

The al-Quds Brigades is the operational arm of the PIJ and is often credited for conducting PIJ terrorist operations. The PIJ maintains liaison offices in Damascus, Lebanon and Tehran. Many of the PIJ leaders are also members of its Shura Council, which serves to give advice to group members on all matters.

PIJ engagement in terrorist activities

Recent terrorist attacks for which responsibility has been claimed by or reliably attributed to the PIJ include:

·          July 2005: Gunmen opened fire on a vehicle travelling on the main road connecting the Gaza Strip settlements to Israel, killing two people and wounding four others;

·          October 2005: Suicide bombing in Hadera, Israel, killing five and injuring 30;

·          December 2005: Suicide bombing outside a shopping mall in Netanya, Israel, killing five and injuring at least 40;

·          March 2006: A shooting in the West Bank town of Nablus, killing one person - reportedly in retaliation for the death of a PIJ commander in a missile strike against his car in the Gaza Strip;

·          March 2006: A rocket fired from the Gaza Strip, killing two people;

·          April 2006: Suicide bombing in Tel Aviv killing at least seven people and injuring around 40 others;

·          May 2006: A Grad rocket fired from Gaza at the Nativ Ha'asharan settlement in the Negev desert;

·          June 2006: Five homemade rockets launched at the southern Israeli city of Sederot. There were no casualties;

·          October 2006: A homemade shell was fired on Sederot. There were no reports of any casualties;

·          October 2006: A homemade medium-range rocket landed near Ashkelon, Israel, causing only slight damage;

·          November 2006: Five homemade rockets were fired at the Israeli settlements of Mivtahim, Ofaqim and Kibbutz Magen;

·          January 2007: A suicide bombing in Eilat, killing three people;

·          May 2007: A joint shooting against Israeli soldiers with a Fatah-affiliated group near al-Qaraya al-Badiawiya, in the Gaza Strip;

·          June 2007: A homemade projectile was fired at Sederot, wounding three people; and

·          June 2007: An improvised explosive device was detonated against an Israeli patrol in Nablus, in the West Bank.

Conclusion

The Criminal Code provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied that:

               i.      the organisation 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

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

On the basis of the above information, ASIO assesses the PIJ is directly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts. It is considered that the acts attributable to the PIJ are terrorist acts as they:

               i.      are done with the intention of advancing a political cause, namely, the establishment of an Islamic Palestinian state and the destruction of the state of Israel;

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

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

This assessment is corroborated by information provided by reliable and credible intelligence sources.