EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 51

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2007 (No. 7)

 

 

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 Army of Aden (IAA) also known as Aden Abyan Islamic Army (AAIA), Aden Islamic Army, Army of Mohammed, Islamic Army of Aden Abayan, Jaish Adan al Islami, and Muhammed’s Army for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

The IAA was initially listed as a terrorist organisation under the Criminal Code Amendment Regulations 2003 (No. 5) which took effect on 11 April 2003 and was re‑listed as a terrorist organisation under the Criminal Code Amendment Regulations 2005 (No. 8), 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 IAA. 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 IAA 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. 7)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2007 (No. 7).

 

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 4N

 

This item provides that the existing regulation 4N, ‘Terrorist organisations – Islamic Army of Aden (IAA)’, is to be substituted with the new regulation 4N.

 

Subregulation 4N(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 Army of Aden (IAA) is specified.

 

The effect of this subregulation is that the Islamic Army of Aden (IAA) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4N(2) provides that for the purposes of subregulation (1),
the Islamic Army of Aden (IAA) is also known by the following names:

 

(a)        Aden Abyan Islamic Army (AAIA);

(b)       Aden Islamic Army;

(c)        Army of Mohammed;

(d)       Islamic Army of Aden Abayan;

(e)        Jaish Adan al Islami; and

(f)         Muhammed’s Army.

 

ATTACHMENT B

 

Islamic Army of Aden (IAA)

 

(Also known as: Aden Abyan Islamic Army (AAIA); Islamic Army of Aden Abayan; Aden Islamic Army; Muhammed’s Army/Army of Mohammed; Jaish Adan al Islami)

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

The Islamic Army of Aden (IAA) is listed in the United Nations 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the governments of the United Kingdom and Canada. The United States has designated the IAA as a terrorist organisation on the Terrorist Exclusion List.

Current status of the IAA

The IAA is a Sunni Islamic extremist group and was formed in 1996 as a splinter group of the Yemeni Islamic Jihad. The IAA first came to public prominence in 1998 when it issued statements detailing its intention to overthrow the Yemeni government and implement Sharia law; and called for operations against US and other Western interests in Yemen.

The IAA predominantly operates in the southern governates of Yemen – particularly Aden and Abyan. The IAA has been involved in a number of terrorist attacks against the Yemeni and Western interests. It has used bombings and kidnappings as a means of furthering its goals. In 1998, the IAA kidnapped 16 Western tourists. Four of the tourists, including an Australian, were killed in a rescue attempt. The IAA also claimed responsibility for the suicide bomb attack against the USS Cole on 12 October 2000.

The IAA is associated with al-Qa’ida and has made public statements in support of Usama bin Laden, al-Qa’ida and its terrorist activities.

Although current specific funding arrangements for the group are unknown, the IAA is believed to conduct criminal activities such as kidnapping as a means of raising money through ransom and to apply pressure to the Yemeni government. It may also have received some funding through al-Qa’ida.

Counter-terrorism operations by Yemeni authorities over the last few years have reduced the size of the group and limited its operational effectiveness. However, the IAA has not been deterred and there is no indication the intent of the IAA has changed. IAA members have continued to be arrested, including the reported arrest of IAA members suspected of involvement in terrorist activities in Iraq. The involvement of the IAA in Iraq, and the possible return of IAA operatives to Yemen, as well as the group’s association with al-Qa’ida from which the IAA could draw on significant resources for future activities means that IAA could undertake terrorist activities if and when the opportunity arises.

Objectives

The IAA aims to overthrow the current Yemeni government and establish an Islamic state. More broadly, the IAA is committed to support al-Qa’ida’s global jihad.

Leadership and membership

The IAA’s founder and former leader Zain al-Abidin al-Mihdar (aka Abu al-Hassan) was executed in 1999 for his role in the 1998 kidnappings of 16 Western tourists in Yemen. Al-Mihdar and other founding members were veterans of the struggle in Afghanistan against the Soviets. Khaled Abdennabi assumed leadership of the IAA before surrendering to authorities in June 2003. In return for his cooperation Abdennabi received a Presidential pardon that same year. Abdennabi has since made statements on behalf of the group but it is unclear whether he is the current leader.

The current strength of the IAA is unknown, but is likely to be between 30 to 100 core members divided into a number of small groups or cells.

IAA engagement in terrorist activities

Security operations by the Yemeni authorities have restricted the IAA’s capabilities within Yemen. However, on the basis of available information, it is assessed that IAA operatives still exist in Yemen. It is assessed that the IAA will undertake terrorist activities if and when the opportunity arises. The group’s association with al-Qa’ida means the IAA could draw on significant resources for future activities.

Terrorist attacks and plans for terrorist attacks for which responsibility has been claimed by, or reliably attributed to, the IAA, have included:

·        Aug 2002: three Yemenis belonging to the IAA were convicted of carrying out bombing attacks in the southern port of Aden on 1 January 2001;

·        21 Jun 2002: attack on a military medical convoy, injuring 7 soldiers;

·        Jun 2003: arrest of four alleged IAA members and seizure of a car packed with hand grenades, explosives and rocket-propelled grenades that had been used in the attack on a military medical convoy on 21 June 2003;

·        25 Jun 2003: clash between IAA members and government troops at the group’s hideout in Harat – captured IAA members revealed they were waiting for orders to carry out terrorist operations;

·        Oct 2003: a planned car bomb attack against the US, UK and German embassies in Sana’a allegedly involving the IAA was disrupted;

·        Mar/Apr 2006: arrest of IAA members suspected of planning to travel to Iraq to fight foreign forces.

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 the IAA remains active and is directly or indirectly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to the IAA are terrorist acts as they:

(i)                  are done with the intention of advancing a political cause, namely, the replacement of the Yemeni government with an Islamic state;

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