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2002-2003
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
CRIMINAL CODE AMENDMENT (HAMAS AND
LASHKAR-E-TAYYIBA) BILL 2003
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable Philip Ruddock MP)
CRIMINAL CODE AMENDMENT
(HAMAS AND
LASHKAR-E-TAYYIBA) BILL 2003
GENERAL OUTLINE
The Criminal Code Amendment (Hamas and
Lashkar-e-Tayyiba) Bill 2003 (the Bill) amends the Criminal Code Act 1995
(the Criminal Code) to enhance the Commonwealth’s ability to combat
terrorism.
This Bill creates a basis for the identification and listing
of Hamas’ military wing (Izz al-Din al Qassam Brigades) and
Lashkar-e-Tayyiba as terrorist organisations under Australian law, if the
Minister is satisfied that either or both Hamas’ Izz al-Din al Qassam
Brigades and / or Lashkar-e-Tayyiba are engaged in terrorist activities. (Note:
the terms ‘Hamas organisation’ and ‘Lashkar-e-Tayyiba
organisation’ are used in the Bill to refer to Hamas’ Izz al-Din al
Qassam Brigades and / or Lashkar-e-Tayyiba respectively.) The effect of this is
to avoid the requirement that an organisation be first identified in, or
pursuant to, a decision of the United Nations Security Council relating wholly
or partly to terrorism, or using a mechanism established under the decision, as
a condition precedent to specifying the organisation in regulations as a
terrorist organisation. Neither Hamas’ Izz al-Din al Qassam Brigades or
Lashkar-e-Tayyiba have been identified in a relevant decision.
The Bill
inserts a provision whereby if either or both organisations are listed in a
regulation made under the Bill, and the Minister subsequently ceases to be
satisfied that either or both organisations are directly or indirectly engaged
in terrorist activity, a declaration to that effect must be made. The result of
such a declaration will be that any listing of the relevant organisation will
cease to have effect.
Schedule 1 will commence on 5 November 2003, the date the legislation
was introduced into the House of Representatives to allow for the retrospective
operation of the regulations if necessary. If regulations are made, they could
operate retrospectively from the time at which a public announcement is made by
a Minister stating the Government’s intention to list either or both the
Hamas organisation and / or the Lashkar-e-Tayyiba organisation in
regulations.
Financial Impact
It is not expected that the
Bill will have a direct financial impact.
NOTES ON
CLAUSES
Clause 1: Short Title
This clause is a formal
provision specifying the short title of the Bill
Clause 2:
Commencement
The Bill when passed will be taken to have commenced on 5 November
2003.
Clause 3: Schedule(s)
Clause 3 provides that each Act
specified in a Schedule is amended as set out in the Schedule concerned.
Schedule 1 – Regulations relating to Hamas Organisation and Lashkar-e-Tayyiba Organisation
Item 1 – The Schedule (subsection 102.1(1) of the Criminal
Code)
Item 1 inserts a definition of ‘Hamas
Organisation’ into subsection 102.1(1). ‘Hamas organisation’
is defined to mean Hamas’ Izz al-Din al Qassam Brigades by whatever name
the organisation is known from time to time, and any organisation derived from
that organisation.
Item 2 – The Schedule (subsection 102.1(1)
of the Criminal Code)
Item 2 inserts a definition of
‘Lashkar-e-Tayyiba Organisation’ into subsection 102.1(1).
‘Lashkar-e-Tayyiba organisation’ is defined to mean the
Lashkar-e-Tayyiba Organisation by whatever name the organisation is known from
time to time, and any organisation derived from that organisation.
Item 3 – The Schedule (subsection 102.1(1) of the Criminal
Code at the end of the definition of terrorist
organisation)
Item 3 inserts two new paragraphs into the
definition of ‘terrorist organisation’ to include a Hamas
organisation (paragraph (c)) and a Lashkar-e-Tayyiba organisation (paragraph
(d)) where those organisations have been specified in regulations as terrorist
organisations
Item 4 – The Schedule (subsection 102.1(7) of the
Criminal Code)
Proposed Subsection
102.1(7)
Item 4 repeals the existing subsection 102.1(7) and
replaces it with a new subsection 102.1(7) to enable a Hizballah organisation, a
Hamas organisation and / or a Lashkar-e-Tayyiba organisation to be specified in
regulations as terrorist organisations if the Minister is satisfied on
reasonable grounds that the particular organisation is directly or indirectly
engaged in, preparing, planning, assisting in or fostering the doing of a
terrorist act, whether or not the terrorist act has occurred or will occur.
It will remain a requirement for the Minister to be satisfied that the
relevant organisation is engaged in terrorist activity.
Item 5
– The Schedule (subsection 102.1(8) of the Criminal Code)
Item 5 makes provision for subsection 102.1(8) to apply to a Hamas
organisation or a Lashkar-e-Tayyiba organisation. This, in effect, creates a
sunset clause that provides that if regulations are made for the purpose of
listing either or both organisations as terrorist organisations the regulations
will only be valid for two years from the date they are made unless, during that
time, the regulations are repealed or otherwise cease to have effect, or new
regulations are made which are, in substance, the same.
Item 6
– The Schedule (paragraph 102.1(8)(b) of the Criminal Code)
Item 6 extends the application of paragraph 102.1(8)(b) to include
regulations made under the proposed subsection (10A) dealing with a Hamas
organisation and proposed subsection (10C) dealing with a Lashkar-e-Tayyiba
organisation.
Item 7 – The Schedule (after subsection 102.1(10)
of the Criminal Code)
Proposed subsections 102.1(10A) - (10D) insert mechanisms making ineffective a listing of a Hamas organisation or a Lashkar-e-Tayyiba organisation, in the event that the Minister ceases to be satisfied of certain matters, colloquially referred to as ‘de-listing’. In the event that the conditions specified in paragraphs (10A)(a) and (b) and (10C)(a) and (b) are satisfied, subsections 102.1(10A) and 102.1(10C) obliges the Minister to make a declaration, to be published in the Gazette, detailing the matters described in those paragraphs.
This provision requires the Minister to publish a written notice of his or her decision to “de-list” either or both organisations. The regulation(s) will cease to have effect from the date of that declaration. This does not prevent authorities from investigating and, if appropriate, prosecuting for offences committed in relation to either or both organisations (membership of a terrorist organisation; directing activities of a terrorist organisation etc.) where these offences occurred prior to the de-listing of the relevant organisation.
This provision provides the Minister with the ability to make a determination about the suitability of continuing to specify either or both organisations in regulations, which is independent of the initial decision to specify that organisation in regulations, and to “de-list” the organisation where such a course of action is determined by the Minister to be appropriate. These provisions are of course predicated on the Minister making a decision to specify either or both organisations in regulations.
Proposed Subsections 102.1(10B) and (10D)
Proposed subsections 102.1(10B) and 10(D) provide that either or both
organisations, if de-listed under subsections 102.1(10A) or (10C), may be
subsequently re-listed. This provision takes account of the potentially changing
nature of the organisation, in terms of such factors as leadership,
organisational aspirations, activity, etc.
Item 8 – The Schedule
(after subsection 102.1(11) of the Criminal Code)
Proposed subsections 102.1(11A) and (11B) introduce mechanisms allowing for the listing of either or both organisations in regulations to operate retrospectively, subject to paragraphs 102.1(11A)(a)-(c) and 102.1(11B)(a)-(c), from the time of a public announcement made by the Minister, or another Minister.
Paragraphs (11A)(a) and (11B)(a) ensure that the retrospective operation of the regulation(s) does not pre-empt the decision-making process of the Minister which is required before either or both organisation can be specified in regulations.
Paragraphs (11A)(b) and (11B)(b) then require the Minister to make a public announcement to that effect. The listing of either or both organisations will commence from the time of that announcement. That announcement must also be published on the internet and in major daily newspapers pursuant to subsection 102.1(12).
Paragraphs (11A)(c) and (11B)(c) provide that a regulation specifying either
or both organisations to be a terrorist organisation must be made within 60 days
of the day on which the Act receives Royal Assent in order for it to operate
retrospectively from the date of the announcement for the purposes of the
subsection. Paragraphs (11A)(c) and (11B)(c) effectively operate as sunset
clauses, limiting the period of time in which regulations with retrospective
application can be made to 60 days after Royal Assent.
Item 9 –
The Schedule (subsection 102.1(12) of the Criminal Code)
Item 9 makes provision for subsection 102.1(12) to apply to a Hamas organisation ((11A)(b)) or a Lashkar-e-Tayyiba organisation ((11B)(b)).
Subsection 102.1(12) requires that any announcement made regarding the
listing of the Hizballah organisation, the Hamas organisation and / or the
Lashkar-e-Tayyiba organisation must be published on the Internet and in a
newspaper circulating in each State and the Northern Territory if the listing is
to take effect from the date of the announcement rather than from the date the
relevant regulations are made.
Item 10 – The Schedule
(subsection 102.1(13) of the Criminal Code)
Item 10 makes provision for subsection 102.1(13) to apply to a Hamas organisation (paragraph 10A) or a Lashkar-e-Tayyiba organisation (paragraph 10C) in the same way it applies to a Hizballah organisation (paragraph 9).
Subsection 102.1(13) provides that, if a regulation ceases to have effect as
a result of this section, section 50 of the Acts Interpretation Act
1901 applies. This means that, in the event a regulation
ceases to have effect pursuant to this section, certain matters, consequent upon
the operation of that regulation while in force and necessary for the proper
operation of the regulation, will not be affected despite the
regulation subsequently ceasing to have effect.
Item 11 –
The Schedule (at the end of section 102.1 of the Criminal Code)
Proposed Subsections 102.1(15) and (16)
Item 11 provides that both a Hamas organisation and a Lashkar-e-Tayyiba organisation can still be listed as terrorist organisations under the existing paragraph (b) in the definition of a terrorist organisation.
The provision ensures that the scope of operation of paragraph 102.1(1)(b) is not diminished in relation to its potential applicability to either or both organisations, notwithstanding that paragraphs 102.1(1)(d) and (e) (definition of terrorist organisation) apply exclusively to the organisations respectively. That is, paragraphs 102.1(1)(d) and (e) are not intended to constitute the sole mechanism by which either or both organisations might be identified as a terrorist organisation for the purposes of section 102.1.
Item 12 – The Schedule (paragraph 102.3(1)(b) of the Criminal Code)
This item ensures that paragraph 102.3(1)(b) in relation to terrorist organisation membership offences applies to a Hamas organisation (paragraph (d)) and a Lashkar-e-Tayyiba organisation (paragraph (e)) in the same way it applies to a Hizballah organisation (paragraph (c)).