CRIMINAL CODE AMENDMENT (HIZBALLAH) BILL 2003 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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CRIMINAL CODE AMENDMENT (HIZBALLAH) BILL 2003

2002-2003

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

CRIMINAL CODE AMENDMENT (HIZBALLAH) BILL 2003

EXPLANATORY MEMORANDUM

(Circulated by authority of the Attorney-General,
the Honourable Daryl Williams AM QC MP)

CRIMINAL CODE AMENDMENT
(HIZBALLAH) BILL 2003

GENERAL OUTLINE

The Criminal Code Amendment (Hizballah) 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 the Hizballah External Security Organisation as a terrorist organisation under Australian law, if the Minister is satisfied that the Hizballah External Security Organisation is engaged in terrorist activity. 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.

The Bill inserts a provision which, if the organisation is listed in a regulation made under the Bill, in the event that the Minister ceases to be satisfied that the Hizballah External Security Organisation is directly or indirectly engaged in terrorist activity, provides for a declaration to be made to that effect. The result of such a declaration will be that any listing of the organisation will cease to have effect.

Schedule 1 will commence immediately after the commencement of Schedule 1 to the Criminal Code Amendment (Terrorism) Act 2003. The Criminal Code Amendment (Terrorism) Act 2003 re-inserts a new Part 5.3 into the Criminal Code Act 1995 to give effect to the State reference of constitutional powers to the Commonwealth. The Criminal Code Amendment (Terrorism) Act 2003 commenced on 29 May 2003.

The Bill introduces a mechanism enabling a listing in a regulation of the Hizballah External Security Organisation, if one is made, to operate retrospectively from the time at which a public announcement is made by a Minister stating the Government’s intention to specify the Hizballah External Security 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

Subclause 2(1) provides that each provision of the Criminal Code Amendment (Hizballah) Act (2003) listed in column 1 of the table in clause 2 commences, or is taken to have commenced, on the day specified in column 2 of the table.

Sections 1 – 3 will commence on the day the Act receives the Royal Assent.

Schedule 1 – Amendments

Item 1 – The Schedule (subsection 102.1(1) of the Criminal Code)

Item 1 inserts paragraph (c).

Proposed subsection 102.1(1)(c) defines ‘Hizballah Organisation’ to mean the Hizballah External Security Organisation, and whatever name the organisation is known by from time to time, and any organisation derived from that organisation. This provision means that the Act will continue to operate with respect to the Hizballah External Security Organisation and its derivatives even if that organisation changes its name.

For the purpose of the definition of ‘terrorist organisation’, the Hizballah External Security Organisation is a terrorist organisation if that is organisation is specified by regulations for the purposes of this paragraph. That is, that it meets the criteria set out in subsections (7), (8) and (9).

Item 3 – The Schedule (subsection 102.1 (7), (8), (9), (10), (11), (12), (13), and (14) of the Criminal Code)

Proposed Subsection 102.1(7)

Proposed subsection 102.1(7) enables the Hizballah External Security Organisation to be specified in regulations as a terrorist organisation if the Minister is 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, whether or not the terrorist act has occurred or will occur.

It will remain a requirement for the Minister to be satisfied that the organisation is engaged in terrorist activity.

Proposed Subsection 102.1(8)

Proposed subsection 102.1(8) is, in effect, a sunset clause that provides that if a regulation is made for the purpose of listing the Hizballah External Security Organisation as a terrorist organisation it will only be valid for two years from the date it is 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.

Proposed Subsection 102.1(9)

Proposed subsection 102.1(9) inserts a mechanism making ineffective a listing of the Hizballah External Security 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 (a) and (b) are satisfied, subsection 102.1(9) obliges the Minister to make a declaration, to be published in the Gazette, detailing the matters described in those paragraphs. Paragraph (a) makes clear that subsection 102.1(9) applies to the Hizballah External Security Organisation, if specified in regulations as provided for in paragraph 102.1(1)(c) (definition of ‘terrorist organisation’). Paragraph (b) identifies the matters about which the Minister must have ceased to be satisfied in order for subsection 102.1(9) to operate.

This provision requires the Minister to publish a written notice of his decision to “de-list” the Hizballah External Security Organisation. The regulation 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 the Hizballah External Security Organisation (membership of a terrorist organisation; directing activities of a terrorist organisation etc.) where these offences occurred prior to the de-listing of that organisation.

This provision provides the Minister with the ability to make a determination about the suitability of continuing to specify the Hizballah External Security Organisation 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 the Hizballah External Security Organisation in regulations.

Proposed Subsection 102.1(10)

Proposed subsection 102.1(10) provides that the Hizballah External Security Organisation, if de-listed under subsection 102.1(9), 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.

Proposed Subsection 102.1(11) and (12)

Proposed subsection 102.1(11) introduces a mechanism allowing for the listing of the Hizballah External Security Organisation in regulations to operate retrospectively, subject to paragraphs 102.1(11)(a)-(c), from the time of a public announcement made by the Minister, or another Minister, as described in paragraph (b).

Paragraph (a) creates as a condition-precedent to the retrospective operation of the listing of the Hizballah External Security Organisation in regulations the requirement that the Minister be satisfied on reasonable grounds of certain matters in relation to the organisation; that is, the matters required for listing the organisation under subsection 102.1(7). This paragraph ensures that the retrospective operation of the regulation does not pre-empt the decision-making process of the Minister which is required before the Hizballah External Security Organisation can be specified in regulations.

Paragraph (b) then requires the Minister to make a public announcement to that effect. The listing of the Hizballah External Security Organisation 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). The announcement must be made on the same day that the Attorney-General makes a determination that he or she is satisfied of the conditions set out in subsection 102.1(7) for the purposes of paragraph 102.1(10)(a).

Paragraph (c) provides that a regulation specifying the Hizballah External Security Organisation to be a terrorist organisation 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. Paragraph (c) effectively operates as a sunset clause, limiting the period of time in which regulations with retrospective application can be made to 60 days after the commencement of the Act.

Proposed Subsection 102.1(13)

Proposed 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.

Proposed Subsection 102.1(14)

The provision ensures that the scope of operation of paragraph 102.1(1)(b) is not diminished in relation to its potential applicability to the Hizballah External Security Organisation, notwithstanding that paragraph 102.1(1)(c) (definition of terrorist organisation) applies exclusively to that organisation. That is, paragraph 102.1(1)(c) is not intended to constitute the sole mechanism by which Hizballah External Security Organisation might be identified as a terrorist organisation for the purposes of section 102.1.

Item 4 – 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 includes paragraph 102.1(1)(c), the definition of terrorist organisation that is specific to the Hizballah External Security Organisation.

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