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 Sinai Province) 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 Sinai Province) Regulations 2022 (the Regulations) specify Islamic State Sinai Province 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 Sinai Province 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 Sinai Province.

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 Sinai Province as a listed terrorist organisation.

Terrorist organisations, including Islamic State Sinai Province, 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 Sinai Province. 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 Sinai Province.

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 Sinai Province, 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 Sinai Province) Regulations 2022

Section 1 - Name

1.        This section provides that the title of the Regulations is the Criminal Code (Terrorist Organisation--Islamic State Sinai Province) 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 Sinai Province) Regulations 2019.

Section 5 - Terrorist organisation - Islamic State Sinai Province

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 Sinai Province is specified.

10.  The effect of specifying Islamic State Sinai Province 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 Sinai Province.

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

*         Aknaf Bayt al-Maqdis

*         Aknaf Beit al-Maqdis

*         Ansar Bayt al-Maqdes

*         Ansar Bayt al-Maqdis (ABM)

*         Ansar Beit al-Maqdis

*         Ansar Jerusalem

*         ISIL-Sinai

*         ISIL Sinai Province

*         ISIS-Sinai

*         ISIS-SP

*         Islamic State in the Sinai

*         Islamic State of Iraq and ash-Sham-Sinai

*         Islamic State of Iraq and Syria Sinai Province

*         Islamic State of Iraq and the Levant-Sinai

*         Islamic State of Iraq and the Levant-Sinai Province

*         Islamic State-Sinai Province

*         IS-Sinai

*         Jamaat Ansar Beit al-Maqdis

*         Jamaat Ansar Beit al-Maqdis fi Sinaa

*         Sinai Province

*         Supporters of Jerusalem

*         Supporters of the Holy Place

*         The State of Sinai

*         Wilayat Sinai.

Schedule 1--Repeals

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

13.  The 2019 Regulations specify the organisation Islamic State Sinai Province 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 Sinai Province 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 Sinai Province (IS-Sinai). To the Australian Government's knowledge, this information is accurate, reliable and has ben corroborated by classified information where available.

Name of the organisation

Islamic State Sinai Province

Known aliases

Islamic State of Iraq and the Levant-Sinai Province; Islamic State of Iraq and the Levant-Sinai; Islamic State of Iraq and ash-Sham-Sinai; Islamic State of Iraq and Syria Sinai Province; ISIL Sinai Province; Islamic State-Sinai Province; Islamic State in the Sinai; Wilayat Sinai; The State of Sinai; ISIL-Sinai; IS-Sinai; ISIS-SP; ISIS-Sinai; Sinai Province; Ansar Bayt al-Maqdis (ABM); Ansar Beit al-Maqdis; Ansar Bayt al-Maqdes; Aknaf Bayt al-Maqdis; Aknaf Beit al-Maqdis; Ansar Jerusalem; Supporters of Jerusalem; Jamaat Ansar Beit al-Maqdis; Jamaat Ansar Beit al-Maqdis fi Sinaa; Supporters of the Holy Place.

Legislative basis for listing a terrorist organisation

Division 102 of the Criminal Code Act 1995 (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-Sinai as a terrorist organisation under the Criminal Code with effect from 29 November 2016. IS-Sinai was re-listed, effective on 29 November 2019.

Details of the organisation

IS-Sinai is a Sunni religiously motivated violent extremist group located in Egypt's Sinai Peninsula. IS-Sinai is an officially recognised Islamic State of Iraq and the Levant (ISIL) affiliate that adheres to ISIL's global jihadist ideology and follows an extreme interpretation of Islam, which is anti-Western, promotes sectarian violence and targets those that do not agree with its interpretations as infidels and apostates.

IS-Sinai seeks to assist ISIL to establish an Islamic caliphate covering historic greater Syria (Iraq, Syria and other parts of the Levant). ISIL has tasked IS-Sinai to help establish the caliphate in Egypt's Sinai and, over the longer-term, historic Palestine (Israel and the Palestinian Territories). In achieving this, IS-Sinai seeks to eliminate the Egyptian government and to realise ISIL's goal of establishing a Salafist-orientated Islamic state in Egypt.

On 9 November 2014, Egypt-based extremist group Ansar Bayt al-Maqdis (ABM) pledged allegiance to ISIL and its then leader, Abu Bakr al Baghdadi. Following the pledge, the group adopted the name IS-Sinai and became a recognised ISIL affiliate. IS-Sinai has pledged allegiance to successive Islamic State leaders, most recently Abu al-Hassan al-Hashemi al-Qurayshi.

Before pledging allegiance to ISIL, ABM mainly carried out attacks against Israeli and Egyptian Government interests, including Egypt's tourism industry. Since becoming an affiliate of ISIL, IS-Sinai has also claimed attacks on foreign and sectarian interests, including the bombing of a Russian passenger aircraft, the execution of a Croatian citizen, and attacks on Egyptian Coptic Christians.

Leadership

Details of IS-Sinai's leadership structure are limited, however it is expected that IS-Sinai has a similar leadership structure to ISIL in Iraq and Syria, with an overall leader and a number of provincial or regional cells. It is likely that some legacy members of the ABM leadership remain, despite a number of key members being killed or having defected in recent years.

*         April 2022: IS-Sinai claimed Israeli air strikes had killed prominent IS-Sinai military leader Abu Omar al-Ansari.

*         September 2021: senior IS-Sinai jurist Muhammad Sa'ad Kamel al-Sai'id, also known as Abu Hamza al-Qadi, defected to Egyptian authorities.

*         March 2021: prominent IS-Sinai leader Salim Salma Said Mahmoud al-Hamadin was killed in a security force operation.

Membership

The majority of IS-Sinai members are Egyptian nationals, including from the marginalised, and underdeveloped North Sinai, many are likely to be former members of ABM. The group also likely comprises members from across mainland Egypt, and a number of foreigners, including Palestinians.

Estimates from 2020 put the group's numbers at approximately 800-1200 fighters, however this has probably declined due to consistent counter-terrorism operations, low morale and the defection of key members.

Recruitment and funding

IS-Sinai uses domestic issues in Egypt, propaganda, and its terrorist record to attract recruits. In the Sinai, the demilitarisation of the region following the 1979 Israel-Egypt Peace Treaty, difficult economic conditions and a perception of neglect from the mainland influences IS-Sinai recruitment.

IS-Sinai likely relies on income from its smuggling operations to and from northern Africa and the Gaza Strip, and other criminal enterprises, to fund terrorist operations. In addition, as a recognised affiliate, IS-Sinai likely receives some funding from ISIL in Syria and Iraq.

Links to other groups

IS-Sinai remains an affiliate of, and ideologically aligned with, ISIL and has received support and guidance from ISIL senior leadership.

IS-Sinai has had a fractious relationship with Hamas elements in Gaza. Despite ideological differences, IS-Sinai and Hamas have historically cooperated due to familial links, cross-border pragmatism, common interests, and arms smuggling; however, while cooperation endures, the relationship has deteriorated on both sides. In January 2018, IS-Sinai released a video which showed the execution of an accused Hamas smuggler for smuggling weapons to Hamas' Izz al-Din al Qassam Brigades. The group has also urged attacks on Hamas in its propaganda.

ISIL and Hamas are both proscribed terrorist organisations under Australia's Criminal Code Act 1995.

Terrorist activity

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

IS-Sinai conducts regular small arms, light weapon and improvised explosive device (IED) attacks in Egypt's North Sinai. The majority of its attacks target Egyptian security forces, anti-ISIL tribal militias, local civilians and infrastructure; however Western, Israeli and sectarian interests have also been attacked.

Attacks IS-Sinai is assessed to have undertaken include:

*         18 June 2022: A dual IED attack on a joint Egyptian military and Sinai tribal militia patrol in Rafah, North Sinai, killing at least five. IS-Sinai claimed responsibility for this attack on 19 June 2020.

*         11 May 2022: An attack on an Egyptian military checkpoint in western Rafah, North Sinai. IS-Sinai killed at least five and possibly up to 12 Egyptian soldiers. IS-Sinai claimed responsibility for this attack on 14 May.

*         7 May 2022: IS-Sinai engaged in an attack on an Egyptian military outpost in western North Sinai, southwest of Bir al-Abd city. IS-Sinai claimed the attack on 8 May 2022 and said that it had killed all 17 Egyptian soldiers present, seized their weapons, and burnt the site, whereas Egyptian officials confirmed 11 deaths and five injuries during the attack.

o   IS-Sinai praised this attack and indicated more attacks would follow: 'Let the apostates know that this is only some of the revenge for the imprisoned Muslim women in Rafah and that the wheel of jihad in Sinai continues to turn, by the permission of Allah the Almighty."

*         30 April 2022: IS-Sinai detonated a gas pipeline after rigging it with explosives to the east of Bir al-Abd city, North Sinai. IS-Sinai sporadically attacks gas pipelines in North Sinai likely to target both Egyptian state economic interests and Israel, which exports gas to Egypt.

*         24 and 26 April 2022: ISIL's Amaq News Agency released videos showing IS-Sinai's executions of three men, accused of being 'spies' for Sinai tribal militias in Bir al-Abd, North Sinai. IS-Sinai often publicises attacks on perceived collaborators to dissuade local Bedouin from assisting Egyptian regime forces.

*         27 March 2022: Three small-scale operations in North Sinai:

o   the killing of two tribal militiamen via sniper fire in Rafah city;

o   wounding an unspecified number of Egyptian soldiers during an attack on a military checkpoint on the coast of Rafah; and

o   destroying a vehicle and injuring those onboard in an IED attack south of Sheikh Zuweid.

*         12 August 2021: A roadside IED attack against an Egyptian military vehicle in Rafah, North Sinai. The attack killed eight Egyptian soldiers and wounded six. IS-Sinai claimed responsibility for this attack.

*         21 July 2020: IS-Sinai conducted a multi-mode attack using vehicle-borne IEDs, various small arms and light weapons on an Egyptian army camp in Bir al-Abd, North Sinai. While IS-Sinai claimed it had killed 40 and wounded 60 others, Egyptian authorities claimed to have 'foiled' the attack, which had killed two soldiers and injured four. IS-Sinai subsequently occupied at least four nearby villages, planting IEDs and raising ISIL's flag. From October to December 2020, at least 15 civilians were killed by booby-trapped IEDs left by IS-Sinai when returning to their villages.

*         30 April 2020: IS-Sinai killed 10 Egyptian soldiers and injured three others by detonating an IED under a military vehicle in Bir al-Abd, North Sinai. The Egyptian military acknowledged 10 of its troops had been killed or wounded in the attack. IS-Sinai claimed responsibility for this attack on 1 May 2020.

Advocating attacks

IS-Sinai regularly claims attacks through official ISIL media channels and publications, including ISIL's al-Naba and Amaq News Agency, and via social media. It praises these attacks as being against apostates, infidels and spies, and seeks to portray them as religiously justified.

*         17 April 2021: IS-Sinai released the propaganda video 'The Makers of the Epics', which showcased its recent attacks - including multiple attacks against Egyptian military targets, and the execution of three Egyptian civilians accused of collusion - and encouraged further violence in the Sinai.

o   An IS-Sinai fighter rallied his colleagues by citing Qur'anic verses of the duty to fight and seek reward from God. He urged fighters to wage jihad followed by clips of fighters planting improvised explosive devices. He assured his colleagues of victory, while encouraging them to seek paradise in the afterlife.

o   Separately, an IS-Sinai fighter threatened further attacks against Christians before executing a local Coptic Christian: 'Our message to the Crusaders in all parts of the world is this: As you kill, you will be killed, and as you take prisoner, you will be taken prisoner. And as for you, O Christians of Egypt: This is the consequence of your loyalty to the Egyptian army, which is no longer useful to its own soldiers and cannot benefit you.’

Other considerations

Links to Australia and threats to Australian interests

There are no known direct links between IS-Sinai and Australia.

IS-Sinai has expressed anti-Western sentiment in its rhetoric. It likely views the West, and the United States in particular, as supporters of Israel and Egypt, its primary adversaries; and complicit in global anti-ISIL operations.

Listings by likeminded countries or the United Nations

IS-Sinai is listed as a terrorist organisation by the Governments of the US and Canada, and in New Zealand is a designated terrorist group pursuant to United Nations UNSC resolution 1373. It is also listed under its former name, ABM, by the Government of the United Kingdom. The Islamic State or Islamic State of Iraq and the Levant is listed under the United Nations Security Council resolution 2253 (2015) which expands on the United Nations Security Council resolution 1267 (1999) Sanctions Committee's consolidated list.

Engagement in peace or mediation processes

IS-Sinai is not engaged in any peace talks with the Egyptian Government.

Conclusion

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

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

*         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

*         are intended to have those effects

*         are done with the intention of advancing IS-Sinai's political, religious or ideological causes

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

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