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--Islamic State in Libya) Regulations 2022

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--Islamic State in Libya) Regulations 2022 (the Regulations) specify Islamic State in Libya 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 Islamic State in Libya 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 that might constitute an offence under Division 102 of Part 5.3 of the Criminal Code in relation to Islamic State in Libya.

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. In particular, the offence of associating with a terrorist organisation in section 102.8 of the Criminal Code applies in relation to associating with Islamic State in Libya as a listed terrorist organisation.

Terrorist organisations, including Islamic State in Libya, 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, 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 Islamic State in Libya. 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 Islamic State in Libya.

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 paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) 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 Islamic State in Libya, 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 AFP 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 AFP Minister ceases to be satisfied of the criteria necessary for listing an organisation under subsection 102.1(2) of the Criminal Code, the AFP Minister must make a declaration to that effect by written notice published in the Gazette, with the effect of the AFP 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 AFP 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 Disallowable Legislative Instrument is compatible with human rights because it promotes the right to life. To the extent that it limits 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--Islamic State in Libya) Regulations 2022

Section 1 - Name

1.        This section provides that the title of the Regulations is the Criminal Code (Terrorist Organisation--Islamic State in Libya) Regulations 2022.

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 29 November 2022.

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 - Schedules

7.        This section provides that each instrument specified in a Schedule to the Regulations is amended or repealed as set out in the applicable items in the Schedule concerned. Any other item in a Schedule to the Regulations has effect according to its terms.

8.        Schedule 1 to the Regulations repeals the whole of the Criminal Code (Terrorist Organisation--Islamic State in Libya) Regulations 2019.

Section 5 - Terrorist organisation - Islamic State in Libya

9.        Subsection 5(1) 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 Islamic State in Libya is specified.

10.  The effect of specifying Islamic State in Libya as a terrorist organisation is to ensure that offences in Subdivision B of Division 102 of Part 5.3 of the Criminal Code that relate to terrorist organisations are able to operate, where the appropriate elements are satisfied, in relation to conduct in connection with Islamic State in Libya.

11.  Subsection 5(2) provides a list of names by which the organisation Islamic State in Libya is also known, at paragraphs 5(2)(a) to (m):

*         Islamic State-Libya

*         Islamic State of Iraq and al-Sham in Libya

*         Islamic State of Iraq and al-Sham-Libya

*         Islamic State of Iraq and Syria in Libya

*         Islamic State of Iraq and Syria-Libya

*         Islamic State of Iraq and the Levant in Libya

*         Islamic State of Iraq and the Levant-Libya

*         Wilayat al-Tarabulus

*         Wilayat Barqa

*         Wilayat Barqah

*         Wilayat Fezzan

*         Wilayat Tarablus

*         Wilayat Tripolitania.

Schedule 1--Repeals

12.  Item 1 of Schedule 1 to the Regulations repeals the Criminal Code (Terrorist Organisation--Islamic State in Libya) Regulations 2019 (the 2019 Regulations).

13.  The 2019 Regulations specify the organisation Islamic State Islamic State in Libya for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code. Subsection 102.1(3) of the Criminal Code provides that the 2019 Regulations cease to have effect on 29 November 2022, being the third anniversary of the day on which they took effect.

14.    While the 2019 Regulations would otherwise have ceased to have effect on this date, repealing the 2019 Regulations provides clarity and ensures there is no duplication where the new Regulations are made before the 2019 Regulations cease to have effect.

Attachment C

Statement of Reasons

Listing Islamic State in Libya as a terrorist organisation under Division 102 of Part 5.3 of Chapter 5 of the Criminal Code Act 1995

This Statement of Reasons is based on publicly available information about Islamic State in Libya (IS-Libya). To the Australian Government's knowledge, this information is accurate, reliable and has been corroborated by classified information where available.

Name of the organisation

Islamic State in Libya

Known aliases

Islamic State-Libya; Islamic State of Iraq and the Levant-Libya; Islamic State of Iraq and the Levant in Libya; Islamic State of Iraq and al-Sham in Libya; Islamic State of Iraq and al-Sham–Libya; Islamic State of Iraq and Syria in Libya; Islamic State of Iraq and Syria-Libya; Wilayat Barqa; Wilayat Barqah; Wilayat Fezzan; Wilayat Tripolitania; Wilayat Tarablus; Wilayat al-Tarabulus.

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 AFP Minister 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, subsection 102.1(20) of the Criminal Code describes that 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 Australian Government first listed IS-Libya as a terrorist organisation under the Criminal Code on 29 November 2016. IS-Libya was re-listed, effective on 29 November 2019.

Details of the organisation

IS-Libya was formed in Dernah, Libya by local returnees from Syria, many of whom had fought as part of the Islamic State-affiliated Battar Brigade. These returnees, who established the Islamic Youth Shura Council in Dernah in 2014, received an Islamic State delegation in September 2014 and subsequently pledged allegiance to Islamic State leader Abu Bakr al-Baghdadi.

IS-Libya is an officially recognised Islamic State affiliate adhering to Islamic State's global jihadist ideology and following an extreme interpretation of Islam which is anti-Western, promotes sectarian violence and violently targets those who do not agree with its interpretation. IS-Libya seeks to assist Islamic State in its goal of creating an Islamic caliphate.

IS-Libya shares Islamic State's goals of consolidating territory under its control and expanding its territorial gains within Libya. The group's stated aim is for Libya to be the 'vanguard of the Caliphate'. IS-Libya has made public its aims to establish three Islamic State provinces in Libya - Barqah, Fezzan and Tripolitania - and remove the United Nations-backed transitional Government of National Accord.

In November 2014, the then Islamic State leader, al-Baghdadi, announced that he had accepted the oath of allegiance from the Islamic Shura Youth Council and created the IS-Libya 'branch'. Al-Baghdadi declared three wilayats or provinces: Barqa (eastern Libya) with Derna as its headquarters; Tarablus (Tripoli) with Sirte as its headquarters; and Fezzan (southern Libya). Following the fall of Sirte to government forces in late 2016, and other losses, IS-Libya retreated into the desert areas of central Libya where it re-built its fighting forces.

In December 2018, IS-Libya recommenced attacks in major population centres.

Following the death of Islamic State leader Abu Ibrahim al-Hashimi al-Quraysh, in March 2022 IS-Libya publicly pledged allegiance to the 'new caliph' of Abu-Hassan al-Hashimi Al-Quraysh.

Leadership

Islamic State leadership in Syria and Iraq have appointed the close aides of former Islamic State leader Abu Bakr al-Baghdadi to lead IS-Libya. IS-Libya was led by Iraqi national Abu Nabil until November 2015, when he was killed in a United States airstrike. Following his death, IS-Libya was led by Abdul Qadr al-Najdi until he was killed by the Libyan National Army in Sabha, Libya in September 2020. Since then, IS-Libya has not publicly named who its leader is.

Membership

IS-Libya's membership is estimated to be around 50 fighters with hundreds of other supporters not involved in conflict. The majority of its members are foreigners emanating predominantly from North African and sub-Saharan African countries, with many from Tunisia and Sudan.

Recruitment and funding

IS-Libya uses domestic issues to recruit Libyans who felt aggrieved and marginalised in post-Gaddafi Libya. The group encourages defectors from armed Libyan groups and has paid fighters to join the group. IS-Libya has also recruited Muslims through calls to fulfil their obligation of immigration to the lands of Islam and by paying foreign fighters.

IS-Libya is largely self-funded through black-market activities, including taxation of smugglers, and also receives funding from Islamic State in Syria and Iraq through emissaries. Other funding sources include extortion, kidnapping for ransom, armed robbery, smuggling and selling antiquities.

Links to other groups

IS-Libya remains an affiliate of, and ideologically aligned with, Islamic State and has received support and guidance from Islamic State senior leadership.

Terrorist activity

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

To advance its ideology and achieve its objectives, IS-Libya has engaged in terrorist attacks and kidnappings against a wide range of targets in North Africa.

Attacks for which IS-Libya has claimed responsibility, and is assessed to have undertaken include:

*         18 April 2022: IS-Libya detonated a car bomb against a Libyan National Army (LNA) camp, killing at least one person.

*         24 January 2022: IS-Libya attacked a LNA militia convoy in southern Sabha Province, killing two militiamen.

*         6 June 2021: IS-Libya bombed a police checkpoint in the town of Sabha, killing two people.

*         23 May 2020: IS-Libya bombed a security point manned by LNA soldiers in the town of Traghan, southern Libya, resulting in no casualties.

On the basis of these incidents, IS-Libya is assessed to have directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.

Other considerations

Links to Australia and threats to Australian interests

There are no known links between IS-Libya and Australia.

IS-Libya has not made statements specifically threatening Australians or Australian interests. However, IS-Libya has issued statements threatening Westerners and Western interests in general.

*         4 July 2018: The IS-Libya video entitled 'The Point of Death' called on its fighters to attack the US and its allies, who it characterised as adversaries to the establishment of a Caliphate in Libya.

Listings by likeminded countries or the United Nations

IS-Libya was listed by the United Nations under UNSCR 1267 on 4 March 2020.

IS-Libya was designated as a foreign terrorist organisation by the US State Department in May 2016.

The New Zealand Government designated IS-Libya as a terrorist entity on 4 March 2020.

Engagement in peace or mediation processes

IS-Libya has not participated in peace talks with the Libyan Government and did not participate in United Nations-brokered negotiations to form a national unity government in Libya.

Conclusion

On the basis of the information above, the Australian Government assesses that IS-Libya is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts, involving threats to human life and serious damage to property.

In the course of pursuing its objectives, IS-Libya is known to have committed or threatened actions that:

*         cause, or could cause, death, serious harm to persons, serious damage to property, endangered 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;

*         are intended to have those effects;

*         are done with the intention of advancing political, religious or ideological causes;

*         are done with the intention of coercing or intimidating the government of one or more foreign countries; and

*         are done with the intention of intimidating the public or sections of the public.