EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 50

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2007 (No. 6)

 

 

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 Egyptian Islamic Jihad (EIJ) also known as al-Jihad, al-Takfir, Al-Jihad al-Islami, El-Gihad, Islamic Group, Islamic Jihad, International Justice Group, Jihad Group, New Jihad Group, Qaeda al-Jihad, Talaa’al al‑Fateh, Vanguards of Conquest and World Justice Group for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

The EIJ was first listed as a terrorist organisation by Criminal Code Amendment Regulations 2003 (No. 3) which took effect from 11 April 2003. It was re-listed as a terrorist organisation by Criminal Code Amendment Regulations 2005 (No. 5) which took effect from 11 April 2005.

 

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to the EIJ. 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 EIJ 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. 6)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2007 (No. 6).

 

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 4M

 

This item provides that the existing regulation 4M, ‘Terrorist organisations – Egyptian Islamic Jihad (EIJ)’, is to be substituted with the new regulation 4M.

 

Subregulation 4M(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 Egyptian Islamic Jihad (EIJ) is specified.

 

The effect of this subregulation is that the Egyptian Islamic Jihad (EIJ) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4M(2) provides that for the purposes of subregulation (1),
the Egyptian Islamic Jihad (EIJ) is also known by the following names:

 

(a)        al-Jihad;

(b)       al-Takfir;

(c)        Al-Jihad al-Islami;

(d)       El-Gihad;

(e)        Islamic Group;

(f)         Islamic Jihad;

(g)        International Justice Group;

(h)        Jihad Group;

(i)          New Jihad Group;

(j)         Qaeda al-Jihad;

(k)       Talaa’al al‑Fateh;

(l)          Vanguards of Conquest; and

(m)      World Justice Group.

 

ATTACHMENT B

 

Statement of Reasons

Egyptian Islamic Jihad (EIJ)

 

(Also known as: El-Gihad; al-Jihad; Jihad Group; Islamic Jihad; Al-Jihad al-Islami; New Jihad Group; Qaeda al-Jihad; Talaa’al al-Fateh; Vanguards of Conquest; al-Takfir; World Justice Group; International Justice Group, Islamic Group).

 

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

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

Current status of EIJ

The EIJ emerged as a coalition of Sunni Islamic radical groups that split from the Muslim Brotherhood, an Egyptian Islamic political movement, in the late 1970s. Following the EIJ’s assassination of Egyptian President Anwar Sadat in 1981, actions by the Egyptian authorities constrained its capability within Egypt.

During the 1990s, the domestic EIJ faction continued to carry out attacks against targets in Egypt. Meanwhile, senior EIJ member (now al-Qa’ida deputy) Dr Ayman al-Zawahiri and the international faction of EIJ forged links with al-Qa’ida and affiliated groups. In February 1998 the EIJ joined al-Qa’ida and other extremist organisations in issuing a declaration under the banner of the ‘World Islamic Front’ announcing a jihad against ‘Jews’ and ‘Crusaders’ and stating the US and its allies need to be expelled from the Middle East.

The EIJ exists as two factions – the international and the domestic. The international faction, led by al-Qa’ida deputy Ayman al-Zawahiri, is largely subsumed within al-Qa’ida and has the same goals as that group. Terrorist activities by the EIJ international faction are likely credited to al-Qa’ida rather than the EIJ. The domestic faction is mostly inactive due to successful, sustained actions by Egyptian authorities. There is no evidence that this has led to the creation of two separate organisations.

Objectives

The EIJ aims to overthrow of the Egyptian Government and the establishment of an Islamic state. More broadly, the international branch has adopted the global jihadist goals of al-Qa’ida.

Leadership and Membership

The leader of the domestic faction of EIJ is Abbud al-Zumar. Al-Zumar is currently in prison in Egypt.

EIJ’s spiritual leader is Omar Ahmed Abdul Rahman, an Egyptian cleric currently in prison in the US for his role in the 1993 World Trade Centre bombing.

Estimates of the size of the EIJ membership vary. It is estimated to have a core membership of several hundred, with several thousand supporters.

EIJ engagement in terrorist activities

Consistent with its primary goals, the EIJ initially conducted armed attacks against high-level Egyptian government personnel and Egyptian facilities. As the EIJ’s goals became intertwined with those of al-Qa’ida and the EIJ became frustrated with its inability to overthrow the Egyptian Government, the EIJ concentrated on attacks against Egyptian targets outside Egypt and US interests.

The Egyptian security and police services have been effective in reducing the operational capability of the EIJ in Egypt and attacks that can be reliably attributed to the group have declined. However, despite the reported merger of EIJ with al-Qa’ida, there is no indication the EIJ has retreated from its objectives or has ceased terrorist activities. In October 2005 the US Government identified a several Egyptian nationals as EIJ members who had provided training and material support to al-Qa’ida. A statement in March 2006 attributed to the EIJ’s spiritual leader, Omar Ahmed Abdul Rahman expressed the anti-Egypt sentiment of the EIJ and called for jihad in seeking his release from US custody. Ayman al-Zawahiri remains a significant symbol and leader of global jihad and is still considered the leader of the international EIJ faction. On 27 July 2006, al-Zawahiri issued a video statement calling on Muslims to target the interests of “all the countries” who participated in the “assault against the Muslims” in countries including Afghanistan and Iraq, a reference taken to include Australia. In June 2006, EIJ member Abu Hamza al-Muhajir (also known as Abu Ayyub al-Masri), who had a senior position in al-Qa’ida, was appointed as leader of Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn (commonly known as al-Qa’ida in Iraq), following the death of Abu Musab al-Zarqawi.

Based on this information, it is reasonable to conclude that the EIJ, including EIJ members active in the al-Qa’ida network, continue to have the capability and intent to conduct further terrorist attacks. It is assessed the EIJ is active internationally and it is likely EIJ will undertake attacks if and when the opportunity arises. The group's close association with al-Qa'ida means it could draw on significant resources for future activities.

Terrorist attacks and activities which have been claimed by or reliably attributed to EIJ include:

·         Oct 1981: assassination of Egyptian President Anwar Sadat;

·         Aug 1993: attempted assassination of the Egyptian Interior Minister Hassan al-Alfi using a VBIED;

·         Nov 1993: attempted assassination of the Egyptian Prime Minister Atef Sikdi by vehicle borne improvised explosive device (VBIED);

·         Nov 1995: assassination of an Egyptian diplomat in Geneva;

·         Nov 1995: suicide truck-bomb attack against the Egyptian embassy in Pakistan, killing 17 people; and

·         1998: an attack against the US Embassy in Albania was disrupted.

 

 

Conclusion

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 members of the EIJ remain active and are directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts. It is considered that the acts attributable to EIJ are terrorist acts as they:

(i)                  are done with the intention of advancing a political cause, namely, the establishment of a radical Sunni Islamic state in Egypt;

(ii)                are intended to coerce or influence by intimidation the governments of foreign countries, including Egypt, 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.