Commonwealth Numbered Regulations - Explanatory Statements

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CRIMINAL CODE (TERRORIST ORGANISATION--JAMA'AT NUSRAT AL-ISLAM WAL-MUSLIMIN) REGULATIONS 2023 (F2023L01426)

EXPLANATORY STATEMENT

Issued by the authority of the Attorney-General

Criminal Code Act 1995

Criminal Code (Terrorist Organisation - Jama'at Nusrat al-Islam wal-Muslimin)

Regulations 2023

The purpose of the Criminal Code (Terrorist Organisation - Jama'at Nusrat al-Islam wal-Muslimin) Regulations 2023 (the Regulations) is to specify the organisation known as Jama'at Nusrat al-Islam wal-Muslimin for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code Act 1995 (the Criminal Code).

Section 5 of the Criminal Code provides that the Governor-General may make regulations prescribing matters required or permitted by the Criminal Code to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to 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 AFP 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. Subsection 100.1(1) provides that, for Part 5.3 of the Criminal Code, the AFP Minister is the Minister administering the Australian Federal Police Act 1979. Under the Administrative Arrangements Order made by the Governor-General on 23 June 2022, and which commenced on 1 July 2022, this is the Attorney-General.

The AFP Minister is satisfied on reasonable grounds that the organisation Jama'at Nusrat al-Islam wal-Muslimin is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act. In coming to this position, the AFP Minister has taken into consideration unclassified information provided by the relevant agencies (the Statement of Reasons at Attachment C).

Effect of the instrument

Division 102 of Part 5.3 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 enable Jama'at Nusrat al-Islam wal-Muslimin to continue to be recognised as a terrorist organisation for the purposes of the offence provisions in Division 102 of 5.3 of the Criminal Code.

The Regulations repeal the Criminal Code (Terrorist Organisation - Jama'at Nusrat al-Islam wal-Muslimin) Regulations 2020, which would otherwise cease to have effect on 3 November 2023 by operation of subsection 102.1(3) of the Criminal Code. Making new regulations ensures that the organisation Jama'at Nusrat al-Islam wal-Muslimin continues to be specified for the purposes of paragraph (b) of the definition of terrorist organisation.

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

The Regulations commence on 3 November 2023. 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.

A Statement of Compatibility with Human Rights has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Regulations are compatible with human rights. A copy of this Statement is at Attachment A.

Further details of the Regulations are set out in Attachment B.

Consultation

The Intergovernmental Agreement on Counter-Terrorism Laws (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 paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code. The IGA provides that if a majority of States and Territories object to the making of such a regulation within a timeframe 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 States and Territories did not object to the making of the Regulations within the timeframe nominated by the AFP Minister.

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 AFP 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 Jama'at Nusrat al-Islam wal-Muslimin meets the legislative requirements for listing.

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 - Jama'at Nusrat al-Islam wal-Muslimin) Regulations 2023

This Disallowable 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-- Jama'at Nusrat al-Islam wal-Muslimin) Regulations 2023 (the Regulations) specify Jama'at Nusrat al-Islam wal-Muslimin 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 that Jama'at Nusrat al-Islam wal-Muslimin is 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 Jama'at Nusrat al-Islam wal-Muslimin.

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 offence of associating with a terrorist organisation in section 102.8 of the Criminal Code applies in relation to associating with Jama'at Nusrat al-Islam wal-Muslimin as a listed terrorist organisation.

Terrorist organisations, including Jama'at Nusrat al-Islam wal-Muslimin, 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 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 Jama'at Nusrat al-Islam wal-Muslimin. 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 Jama'at Nusrat al-Islam wal-Muslimin. 

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 Jama'at Nusrat al-Islam wal-Muslimin, 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) of 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 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.

Conclusion

The Regulations are compatible with human rights because they promote 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 are for a legitimate purpose and are reasonable, necessary and proportionate.

The Honourable Mark Dreyfus KC MP

Attorney-General

ATTACHMENT B

Details of the Criminal Code (Terrorist Organisation - Jama'at Nusrat al-Islam wal-Muslimin) Regulations 2023

Section 1 - Name

This section would provide that the title of the proposed Regulations is the Criminal Code (Terrorist Organisation -- Jama'at Nusrat al-Islam wal-Muslimin) Regulations 2023.

Section 2 - Commencement

This section would provide for the Regulations to commence on 3 November 2023.

Section 3 - Authority

This section would provide that the Criminal Code (Terrorist Organisation -- Jama'at Nusrat al-Islam wal-Muslimin) Regulations 2023 are made under the Criminal Code Act 1995.

Section 4 - Schedules

This section would provide that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Section 5 - Terrorist organisation-- Jama'at Nusrat al-Islam wal-Muslimin

Subsection 5(1) would provide that, for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code Act 1995 (the Criminal Code) the organisation known as Jama'at Nusrat al-Islam wal-Muslimin is specified.

Division 102 of the Criminal Code provides a range of offences relating to interactions with  terrorist organisations.

Subsection 5(2) provides a list of 27 names that Jama'at Nusrat al-Islam wal-Muslimin is also known as:

a)      al-Mulathamun Battalion;

b)      al-Murabitoun;

c)      al-Murabitun;

d)     Ansar al-Din;

e)      Ansar Dine;

f)       Force de Libération du Macina;

g)      GNIM;

h)      Group for Support of Islam and Muslims;

i)        Group for Supporting Islam and Muslims;

j)        Group of Support for Islam and All Muslims;

k)      Group to Support Islam and Muslims;

l)        GSIM;

m)    Islam and Muslims' Support Group;

n)      JNIM;

o)      Jamaat Nosrat al-Islam wal-Mouslimin;

p)      Jama'a Nusrah al-Islam wa al-Muslimin;

q)      Jama'ah Nusrah al-Islam wal-Muslimin;

r)       Jama'at Nusrat al-Islam wal Muslimeen;

s)       Jama'at Nusrat al-Islam wal Muslimin;

t)       Katibat Macina;

u)      Macina Liberation Front;

v)      NIM

w)    Nusrat al-Islam wal Muslimeen;

x)      Nusrat al-Islam wal Muslimin;

y)      the Sentinels;

z)      Sahara Emirate;

aa)   Union for Supporting Islam and Muslims.

Schedule 1-- Repeals

Criminal Code (Terrorist Organisation-- Jama'at Nusrat al-Islam wal-Muslimin) Regulations 2020 

Schedule 1 would repeal the Criminal Code (Terrorist Organisation-- Jama'at Nusrat al-Islam wal-Muslimin) Regulations 2020. 

ATTACHMENT C

Statement of Reasons - Jama'at Nusrat al-Islam wal-Muslimin