EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 48

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2007 (No. 4)

 

 

Section 5 of the Criminal Code Act 1995 (the Act) provides that the Governor‑General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. The Schedule to the Act sets out the Criminal Code (the Code).

 

Division 102 of the Code sets out the offences in relation to terrorist organisations, which are: directing the activities of a terrorist organisation; being a member of a terrorist organisation; recruiting persons to a terrorist organisation; receiving training from or providing training to a terrorist organisation; being an associate of and receiving funds from or making available funds, support or resources to a terrorist organisation.

 

Section 102.9 of the Code provides that section 15.4 (extended geographical jurisdiction - category D) applies to an offence against Division 102 of the Code. The effect of applying section 15.4 is that offences in Division 102 of the Code apply to conduct (or the results of such conduct) constituting the alleged offence whether or not the conduct (or the result) occurs in Australia.

 

‘Terrorist organisation’ in subsection 102.1(1) of the Code is defined as:

 

·        an organisation directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act occurs) (paragraph (a)); or

·        an organisation specified in the regulations (paragraph (b)).

 

The purpose of the Regulations is to amend the Criminal Code Regulations 2002 to specify the Islamic Movement of Uzbekistan (IMU) also known as the Islamic Movement of Turkestan, and the Islamic Party of Turkestan for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

The IMU was initially listed as a terrorist organisation under the Criminal Code Amendment Regulations 2003 (No.6) which took effect on 11 April 2003 and was
re-listed as a terrorist organisation under the Criminal Code Amendment Regulations 2005 (No.4) which took effect on 11 April 2005.

 

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to the IMU. Details of the Regulations are set out in Attachment A.

 

Paragraph 102.1(2) of the 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) of the Code, the Minister must be satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

 

In determining whether he is satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, the Minister takes into consideration unclassified Statements of Reasons prepared by the Australian Security Intelligence Organisation (ASIO) in consultation with the Department of Foreign Affairs and Trade, as well as advice from the Australian Government Solicitor. The Statement of Reasons in respect of the IMU is at Attachment B.

 

Subsection 102.1(2A) of the 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 Code, the Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.

 

Prior to the making of the Regulations, consultations were held with the Department of Foreign Affairs and Trade, ASIO and the Australian Government Solicitor. In addition, an offer for a briefing was extended to the Federal Leader of the Opposition and the State and Territory Attorneys-General were advised.

 

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

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

 

 

 

 

 

 

Attachment A

 

 

Details of the Criminal Code Amendment Regulations 2007 (No. 4)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2007 (No. 4).

 

Regulation 2 – Commencement

 

This regulation provides that the Regulations commence on the day after they are registered.

 

Regulation 3 – Amendment of Criminal Code Regulations 2002

 

This Regulation notes that Schedule 1 amends the Criminal Code Regulations 2002.

 

Schedule 1 – Amendments

 

Item [1] – Regulation 4J

 

This item provides that the existing regulation 4J, ‘Terrorist organisations – Islamic Movement of Uzbekistan (IMU)’, is to be substituted with the new regulation 4J.

 

Subregulation 4J(1) provides that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code Act 1995 (the Code), the organisation known as the Islamic Movement of Uzbekistan (IMU) is specified.

 

The effect of this subregulation is that the Islamic Movement of Uzbekistan (IMU) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4J(2) provides that for the purposes of subregulation (1),
the Islamic Movement of Uzbekistan (IMU) is also known by the following names:

 

(a)        Islamic Movement of Turkestan; and

(b)       Islamic Party of Turkestan.

 

ATTACHMENT B

 

Islamic Movement of Uzbekistan (IMU)
(Also known as: Islamic Party of Turkestan, Islamic Movement of Turkestan)

The following information is based on publicly available details about the Islamic Movement of Uzbekistan (IMU). These details have been corroborated by material from intelligence investigations into the activities of the IMU and by official reporting. ASIO assesses that the details set out below are accurate and reliable.

The IMU is listed in the United Nations 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the governments of the United Kingdom, United States and Canada.

Current status of the IMU

The IMU formed in the late 1990s and is composed of Islamic extremists from Uzbekistan and other Central Asian states. It opposes the current Uzbek regime. The IMU’s area of operation includes Uzbekistan, Afghanistan, Tajikistan, Pakistan, Kyrgyzstan and Iran.

In 2001, the group announced that it had changed its name to the Islamic Party of Turkestan. The motivation for this is unclear, although it is probably intended to signal a change in emphasis from anti-Uzbek government activities to a wider radical Islamic agenda. The organisation has, however, continued to be known as the IMU.

On 11 September 2006 - the fifth anniversary of the coordinated attacks in the US - the IMU leadership renewed their commitment to attack the governments of Central Asia and issued personal threats against the Uzbek, Tajik and Kyrgyz Presidents. The statement reinforced the IMU leadership’s commitment to al-Qa’ida’s ideology of global jihad and continued anti-Western rhetoric.

The IMU has conducted terrorist attacks against civilian, government and foreign targets in Central Asia. The group’s tactics include hostage-taking (including foreigners), firearms attack and car bombings. The IMU conducted a bomb attack in June 2005 and in early 2006 was involved in armed attacks against a detention centre and customs and border posts. Kyrgyz and Tajik police operations in April, August and November 2006 discovered numerous weapons and supplies which were attributed to the IMU.

The IMU has close ties with al-Qa’ida and the former Taliban government. Senior IMU leaders have held positions in the al-Qa’ida hierarchy. The IMU receives funding from criminal activities such as drug trafficking, donations from sympathisers and from al-Qa’ida.

The IMU continue to recruit fighters and IMU members fight alongside the Taliban and al-Qa’ida against coalition and Pakistani forces in Afghanistan and northern Pakistan. The Ferghana Valley, where the Uzbek, Kyrgyz and Tajik borders converge, is a fertile recruiting ground for the IMU and the IMU has successfully exploited widespread poverty in its recruitment strategy.

IMU members have received training in camps in Afghanistan, some controlled by al-Qa’ida or the Taliban. IMU training camps continue to exist in Pakistan and Afghanistan. IMU members have been trained in the use of small arms, poisons, explosives (including land mines) and religious ideology.

Despite the IMU’s losses in Afghanistan during the US intervention and the movement of fighters from the IMU to the Islamic Jihad Group (IJG) – an IMU splinter group – the group remains active and continues to have the capability and intent to conduct terrorist attacks.

Objectives

The IMU’s initial objective was to overthrow the Uzbek regime and replace it with an Islamic state. However, the IMU’s goals have broadened to include the establishment of a radical Islamic caliphate in Turkestan, an area stretching from the Caspian region to Xinjiang in western China.

Leadership and membership

The IMU was founded by Tohir Yuldashev and Juma Namangani. Tahir Yoldashev is the IMU’s political and ideological leader. Military strategist Juma Namangani probably died fighting the US-led coalition in Afghanistan in 2001.

The IMU attracts support from a variety of ethnic backgrounds, principally Uzbeks, Kyrgyz, Tajiks, Kazakhs, Chechens and Uighurs from western China. Estimates of the membership of the IMU vary from 200 to 2000.

Terrorist activities

Recent terrorist attacks and activities for which the IMU has claimed responsibility or for which responsibility has been reliably attributed include:

·        31 January 2005: car bomb attack against the Ministry of Emergency Situations in the centre of Dushanbe, Tajikistan;

·        12 June 2005: bomb attack against the Ministry of Emergency Situations in Dushanbe, Tajikistan wounding twelve people;

·        25 January 2006: armed attack on prison in an attempt to free a prisoner resulting in the death of the chief of the detention centre in Kairakum, Tajikistan; and

·        12 May 2006: IMU members were involved in armed attacks on border and customs posts in Kyrgyzstan and Tajikistan.

Conclusion

ASIO assesses that the IMU is continuing to prepare, plan and foster the commission of acts involving threats to human life and serious damage to property. Although the organisation suffered significant loses during the Afghanistan conflict, it has attracted recruits from a variety of countries within the region, and has a history of working with other international terrorist organisations from which it may draw support

The Criminal Code provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied that:

(i)                  the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); or

(ii)                the organisation advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

On the basis of the above information, ASIO assesses that the IMU remains active, and is directly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to the IMU are terrorist acts as they:

(i)                  are done with the intention of advancing a political cause, namely, the objective of establishing a radical Islamist caliphate in Turkestan

(ii)                are intended to coerce or influence by intimidation the government of a foreign country, namely the states of Central Asia and/or intimidate sections of the public; and

(iii)               constitute acts which cause serious physical harm to persons, including death, as well as serious damage to property.

This assessment is corroborated by information provided by reliable and credible intelligence sources.