ATTACHMENT A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Criminal Code (Terrorist Organisation--The Base) Regulations 2021

This Disallowable Legislative Instrument 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.

Overview of the Disallowable Legislative Instrument

The Criminal Code (Terrorist Organisation--The Base) Regulations 2021 (the Regulations) specify the organisation The Base 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 specify The Base as a terrorist organisation under Australian law, and to put the organisation and members of the public on notice of that fact. Notification is important to help people avoid engaging in activities that might constitute an offence under Division 102 of Part 5.3 of the Criminal Code in relation to The Base.

The Regulations, which are part of Australia's terrorist organisation listing regime, support the application of the offences in Division 102 of Part 5.3 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 offence of associating with a terrorist organisation in section 102.8 of the Criminal Code applies in relation to associating with The Base as a listed terrorist organisation.

Terrorist organisations, including The Base, 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 an organisation directly or indirectly engages in, prepares, plans, assists in or fosters the doing of a terrorist act or, in relation to a listed terrorist organisation, that the organisation advocates the doing of a terrorist act.

Human rights implications

The Regulations engage the following rights:

*         the inherent right to life in Article 6 of the International Covenant on Civil and Political Rights (ICCPR)

*         the right to freedom of expression in Article 19 of the ICCPR, and

*         the right to freedom of association in Article 22 of the ICCPR.

The inherent right to life in Article 6

Under Article 6 of the ICCPR, 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 The Base. 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 The Base.

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 The Base, 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 in the House of Representatives 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 take 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 being 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 15 sitting days after the Regulations are laid before that House, as provided for in section 42 of the Legislation Act 2003, and noting that this period may be extended by operation of subsection 102.1A(4) of the Criminal Code if the Parliamentary Joint Committee on Intelligence and Security reviews the Regulations and tables its report during the applicable disallowance period for that House.

Conclusion

The Regulations are compatible with human rights because they promote the right to life. To the extent that the Regulations limit human rights, those limitations are for a legitimate purpose and are reasonable, necessary and proportionate.

 

The Hon Karen Andrews MP
Minister for Home Affairs

 

 

Attachment B

Details of the Criminal Code (Terrorist Organisation--The Base) Regulations 2021

 

Section 1 - Name

 

1.      This section provides that the title of the Regulations is the Criminal Code (Terrorist Organisation--The Base) Regulations 2021.

 

Section 2 - Commencement

 

2.      This section provides for the commencement of each provision in the Regulations, as set out in the table.

 

3.      Subsection 2(1) provides that each provision in the Regulations, as 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 provide that the Regulations commence in their entirety on the day after the Regulations are registered on the Federal Register of Legislation.

                                                                                                        

4.      The note below subsection 2(1) clarifies that the table only relates to the provisions of the Regulations as originally made, and will not be amended to deal with any subsequent amendments of the instrument.

 

5.      Subsection 2(2) provides that the information in column 3 of the table is not part of the Regulations. It is designed to assist readers of the Regulations.

 

Section 3 - Authority

 

6.      This section provides that the Regulations are made under the Criminal Code Act 1995.

 

Section 4 - Terrorist organisation - The Base

 

7.      Section 4 provides that, for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code, the organisation known as The Base is specified.

 

8.      The effect of specifying The Base as a terrorist organisation is to ensure that offences under Subdivision B of Division 102 of Part 5.3 of the Criminal Code that relate to terrorist organisations are able to operate in relation to conduct in connection with The Base. In particular, the offences under section 102.8 (associating with terrorist organisations) apply only in relation to organisations that have been specified by a regulation to be a terrorist organisation under paragraph (b) of subsection 102.1(1).

 

 

Attachment C

Statement of Reasons

Listing of The Base as a terrorist organisation under the Criminal Code Act 1995

This Statement of Reasons is based on publicly available information about The Base. To the Australian Government's knowledge, this information is accurate, reliable and has been corroborated by classified information where available.

Name of the organisation

The Base

Known aliases

No known aliases

Legislative basis for listing a terrorist organisation

Division 102 of the Criminal Code Act 1995 (the Criminal Code) provides that for an organisation to be listed as a terrorist organisation, the Minister for Home Affairs 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; 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.

Background to this listing

The Base has not previously been listed under the Criminal Code.

Details of the organisation

The Base is a nationalist and racist violent extremist (NRVE) group founded in 2018 by United States (US)-born Rinaldo Nazzaro (AKA Norman Spear, Roman Wolf). It operates as a decentralised movement modelled on 'leaderless resistance', in which regional cells adhere to a shared ideology and common purpose, but have limited contact.

The Base espouses a national socialist and accelerationist ideology - preparing and pushing for a 'race war', which it believes will cause societal collapse and the subsequent creation of a 'white ethno-state'. As accelerationists, members of The Base believe societal collapse can be expedited through violence, including lone-actor terrorist attacks.

The Base is directly inspired by Siege, a compilation of newsletters, interviews and speeches written by prominent national socialist James Mason. In Siege, Mason calls for destruction of the 'System' (the perceived Jewish-controlled state) through violence and subsequent installation of a national socialist regime. Mason proposes strategies and tactics to achieve this, predominantly leaderless resistance involving lone-actor terrorist attacks. In February 2021, Mason was proscribed as a terrorist entity by the Government of Canada.

The Base's decentralised structure was intended to protect the broader network if any one cell was compromised. In spite of this, multiple members were arrested in early 2020 when covert attack planning was disrupted by US law enforcement. Although law enforcement disruptions degraded the group's ability to operate, The Base continued to exist as an organisation - a leaked draft manifesto from early 2021 stated 'The Base was forced underground, bruised but not broken'.

Recent information indicates remaining members of The Base, including Nazzaro, are rebuilding the group - including through recruiting new members and organising paramilitary training events. This follows an unsuccessful attempt by Nazzaro to establish a group separate from The Base in late 2020, an idea which he had abandoned by March 2021. Given the group's accelerationist ideology, history of covert attack planning, likely recent increase in operational security measures, and continued paramilitary training activities, available information supports a conclusion that The Base continues to prepare its members to engage in violence against ethnic minorities and ideological opponents.  

In response to Canada proscribing the Base as a terrorist organisation in February 2021, Nazzaro claimed the group was not a terrorist organisation, but rather a 'survivalism and self-defence network'. However, The Base has been consistently marketed as a 'legal' survivalism and self-defence network since at least 2019, while at the same time preparing, planning and advocating terrorist acts. Although The Base has likely increased its operational security since being 'forced underground' in 2020, it is unlikely that the group's objectives, which involve accelerating the collapse of society through violence, have changed.

Leadership

Although the group primarily operates in the US, its founder Rinaldo Nazzaro has reportedly resided in Russia since 2018. Nazzaro stepped down from formal leadership of The Base in 2020, after which the group was briefly led by US national Justen Watkins.

Media reporting from May 2021 indicates Nazzaro has retaken leadership of The Base and reconfigured the organisation in April 2021 to protect it from infiltrators. He stated that the entire group was compartmentalised and that only he knew the number of members. Nazzaro claimed The Base does not have formal leadership, though he is described as the 'lead network administrator'.

Membership                                       

Current membership numbers for The Base are unclear following the disruption of covert attack planning and arrests of multiple members in 2020. The group is known to have had more than 50 members in 2019 and has recently revived recruitment efforts.

Despite the promotion of autonomous cells, prior to 2020 Nazzaro and other leadership figures vetted new recruits via a process of online and face-to-face interviews, where potential recruits were expected to present a convincing narrative of their conversion to national socialism or white nationalism. The Base stated it was open to all nationalists, including members of other nationalist organisations.

In 2019, the group's social media accounts showed purported members from US-based cells in in Georgia, California, New York City and the Great Lakes Region. The group claims to have actively recruited in Canada and Australia.

Links to other organisations                                                     

The Base has significant prior links to other NRVE groups, having shared a number of members with the ideologically-aligned Atomwaffen Division (AWD) and eco-fascist group Green Brigade. AWD is proscribed as a terrorist organisation by the Governments of Canada and the United Kingdom. Before founding The Base, Nazzaro was a member of NRVE group Northwest Front.

Terrorist activity

Directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act

The Base continues to plan paramilitary training camps in the US for its members and ideologically supportive individuals. Given the violent accelerationist ideology held by the group's leadership figures, these activities are likely intended not only to prepare members to survive the collapse of society, but to increase the group's capability to engage in violence against ethnic minorities and ideological opponents.

*         In April 2021, The Base advertised training courses for tactical communications, signals intelligence (including defending against 'enemies' using electronic warfare) and 'trekking training' via its Telegram channel, to be run in North Carolina in June 2021. A further 'trekking' course was advertised in July 2021 to be held in Oregon in August 2021. In all cases participants were required to undergo vetting prior to attending.

o   Although information as to the conduct of these recent activities is limited, The Base has previously provided tactical and firearms training to members under the guise of teaching 'survival' skills - likely to increase the group's capability to engage in violence against ethnic minorities and ideological opponents.

*         In October and November 2019, members of The Base attended a training camp in Georgia that, according to US law enforcement, consisted of tactical training, firearms drills and the ritual sacrifice of an animal. This training was reportedly intended to prepare members of The Base to fight in a 'race war' following the collapse of society.

o   Three attendees at this camp were arrested for allegedly planning the murder of ideological opponents in December 2019, while three others have been convicted of offences connected with alleged preparations for a terrorist attack in January 2020.

*         In August 2019, members of The Base, including Nazzaro, attended a training camp in Pennsylvania, at which they reportedly engaged in firearms training and discussed the anticipated 'race war'.

o   Two attendees at this camp have been convicted of offences connected with alleged preparations for a terrorist attack in January 2020.

Members of The Base have covertly planned and prepared for violence in order to advance the group's political and ideological causes, and are assessed to have been acting in their capacity as members of the group. Other members of The Base have made threats or expressed a desire to engage in violence targeting ethnic minorities or ideological opponents, and possess the capability to do so.

*         In January 2020, The Base members and US citizens, Luke Lane, Jacob Kaderli and Michael Helterbrand, were arrested and charged with conspiracy to commit murder and participation in a criminal gang over a plan to murder a married couple whom they believed were members of far-left movement Antifa. The group conducted reconnaissance of the intended victims' residence in December 2019 and discussed weapons and tactics to be used in the attack - which they intended to carry out in February 2020.

o   Lane, Heltebrand and Kaderli attended the 2019 Georgia training camp held by The Base, and Lane and Kaderli had previously discussed their opposition to Antifa with other members, including the possibility of using lethal violence.

*         In January 2020, The Base members Brian Lemley, William Bilbrough and Patrik Mathews, were arrested and charged with firearms and illegal alien offences. US citizens Lemley and Bilbrough harboured Mathews, a Canadian recruiter for The Base and former soldier, who crossed into the US illegally after he became subject to a counter-terrorism investigation by Canadian authorities. From December 2019 to their arrest, Lemley, Bilbrough and Mathews allegedly engaged in preparations for a terrorist attack either at or in advance of an upcoming gun rights rally in Richmond, Virginia. They discussed options for carrying out violence, including ambushing civilians and police officers, assassinating a pro-gun control politician, and sabotaging power lines. They had acquired and trained with a functioning assault rifle to use in the attack alongside other firearms, and had stockpiled a significant quantity of ammunition. Mathews told his co-accused that his goal was to "create instability" and "incite leftist violence" to provoke a civil war. Mathews had previously made propaganda videos advocating terrorism on behalf of The Base (see below).

o   Lemley, Bilbrough and Mathews attended the 2019 Georgia training camp held by The Base, and Lemley and Bilbrough previously attended the 2019 Pennsylvania training camp. Bilbrough was sentenced to 5 years' imprisonment in December 2020. Lemley and Mathews were each sentenced to 9 years' imprisonment in October 2021. Prosecutors argued that long sentences were justified on grounds of the offences having involved or promoted terrorism.

*         In November 2019, The Base and AWD member Richard Tobin was charged with conspiracy against rights. In September 2019, Tobin allegedly directed other members of The Base to damage and vandalise minority-owned properties, including synagogues. He told investigators that he had previously considered conducting acts of violence against African-Americans and sexual minorities, including suicide bombing. Tobin pled guilty in February 2021.

Advocates the doing of a terrorist act

The Base communicates via encrypted messaging platforms, and up to at least early 2020 members have reportedly used the group's private channels to discuss violence against African- and Jewish-Americans, glorify historical mass shooters, and share instructions on the manufacture of explosives. Prominent members of The Base have encouraged political violence in propaganda and online communications, and in doing so are likely to have been speaking in a leadership capacity. Key examples include:

*         In February 2021, founder Rinaldo Nazzaro posted to Telegram praising a recent unattributed cyber-attack - which allegedly sought to introduce harmful chemicals into the city's water supply - on a water treatment plant in Oldsmar, Florida. Nazzaro denied responsibility but stated "I do like the infrastructure angle, very smart. If whoever did this could repeat it on a large scale, the situation would get pretty interesting. You need a demand though - remember: goal -> strategy -> tactics." Previous propaganda by The Base has featured the poisoning of water supplies as a method for accelerating the collapse of society, and Nazzaro has previously used social media posts to indirectly encourage supporters to engage in violence.

o   In April 2021, Nazzaro posted to BitChute "Being militant is a necessary component of successfully resisting an oppressive totalitarian system like the one currently ruling the United States with an iron fist." This statement, while not overtly encouraging terrorism, is consistent with the group's ongoing engagement in paramilitary training - likely to increase the capability of its members to engage in violence.

*         In early 2020, then-leader Justen Watkins shared a manifesto online in which he promoted violence against ethnic minorities, including "I will train with firearms, explosives, knives, Ryder trucks and anything else I have to destroy this kike system which is genociding my people!" and "To victory with pure unadulterated Aryan violence! Hail terrorgram!" Watkins also made multiple social media posts encouraging the murder of Jews, for example a picture of a firearm with the caption "Solid cure for Judaism". Watkins and another member of The Base were arrested in October 2020 for allegedly harassing and intimidating a family they believed were linked to an anti-fascist activist.

*         In late 2019, The Base recruiter Patrik Mathews made a series of propaganda videos in which he discussed killing people to benefit "the movement" and his view that Antifa protestors should be subject to "assassination", stating: "They want bad guys so bad, they can have it ... We will give them white supremacist terrorists if that's what they want ... Give them what they deserve" and "Your two options are as follows. Option number one, prepare for the collapse. Option number two, bring the collapse ... Derail some trains, kill some people and poison some water supplies. You better be ready to do those things."

o   Although it is unknown whether the videos were disseminated prior to Mathews' arrest, it is likely the videos were intended to promote terrorism to ideologically supportive individuals. Mathews and two other members have since been convicted of offences relating to preparations for a terrorist attack in January 2020.

*         In February 2019, Nazzaro posted to Twitter "Antifa is the unofficial extrajudicial militia of the repressive globalist anti-white ruling elite ... we must take matters into our own hands to neutralise Antifa intimidation and harassment." In January 2020, three members of The Base were arrested for allegedly planning the murder of persons they believed to be Antifa members.

*         In September 2018, Nazzaro posted to Twitter "What are the most egregious examples of anti-white hate crimes in the last year that you can think of which received national media attention but where justice has not been served for one reason or another? That's your target list" and "Create a list of every anti-white hate crime you can think of and in which there was a miscarriage of justice - these people have names and addresses. Go forth and balance the scales."

Other considerations

Links to Australia and threats to Australian interests

Widespread media coverage in March 2021 reported that Nazzaro appointed a Perth-based individual as a recruiter during late 2019 and claimed that seven Australia-based individuals had been members of The Base. However, as of early 2020, media reported that only one of these potential recruits had become a member. There has been no information to indicate that The Base is still active or has continued to recruit in Australia.

A successful terrorist attack directed or inspired by The Base could result in harm to Australians, and the group's activities and propaganda have the potential to inspire Australian violent extremists.

Listings by likeminded countries or the United Nations

The Base is currently proscribed as a terrorist organisation by the Governments of Canada and the United Kingdom.

Conclusion

On the basis of the above information, the Australian Government assesses that The Base is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts, and advocates the doing of terrorist acts.