EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 160

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2008 (No. 1).

 

 

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.

 

Paragraphs (a) and (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code define a ‘terrorist organisation’ 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 Al-Qa’ida and its aliases, Al-Qaida, Al-Qaeda, Al-Jabhah al-Islamiyyah al‑’Alamiyyah li-Qital al-Yahud wal-Salibiyyin, International Front for Fighting Jews and Crusaders, International Islamic Front Against Jews and Christians, International Islamic Front for Jihad Against Jews and Crusaders, Islamic Army for the Liberation of the Holy Shrines, Islamic Army of the Liberation of the Holy Places, Islamic Salvation Foundation, Maktab al-Khidamat, Qa’idat al-Jihad, The Base, The Group for the Preservation of Holy Sites, Usama Bin Laden Network and Usama Bin Laden Organisation, for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to Al-Qa’ida. Details of the proposed Regulations are set out in Attachment A.

 

Subsection 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) or advocates 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 advice from the Australian Government Solicitor. The Statement of Reasons in respect of Al-Qa’ida 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, the Prime Minister wrote to the Premiers and Chief Ministers of the States and Territories and an offer for a briefing was extended to the Federal Leader of the Opposition.

 

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. Subsection 102.1(3) of the Code provides that regulations for the purposes of paragraph (b) of the definition of ‘terrorist organisation’ cease to have effect on the second anniversary of the day on which they take effect.

 

 

 

 

 

 

 

Attachment A

 

Details of the Criminal Code Amendment Regulations 2008 (No. 1)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2008 (No. 1).

 

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 4A

 

This item substitutes the existing regulation with a new regulation 4A to provide 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 Al-Qa’ida is specified.

 

Subregulation 4A(1) provides that Al-Qa’ida is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4A(2) provides that for the purposes of subregulation (1), Al-Qa’ida is also known by the following names:

 

(a)    Al-Qaida;

(b)   Al-Qaeda;

(c)    Al-Jabhah al-Islamiyyah al-’Alamiyyah li-Qital al-Yahud wal-Salibiyyin

(d)   International Front for Fighting Jews and Crusaders

(e)    International Islamic Front Against Jews and Christians;

(f)     International Islamic Front for Jihad Against Jews and Crusaders;

(g)    Islamic Army for the Liberation of the Holy Shrines;

(h)    Islamic Army of the Liberation of the Holy Places;

(i)      Islamic Salvation Foundation;

(j)     Maktab al-Khidamat;

(k)   Qa’idat al-Jihad;

(l)      The Base;

(m)  The Group for the Preservation of Holy Sites;

(n)    Usama Bin Laden Network;

(o)   Usama Bin Laden Organisation.

 

Attachment B

Al-Qa’ida

 

(Also known as: The Base, Al-Qaida, Al-Qaeda, Qa’idat al-Jihad, Maktab al-Khidamat, International Islamic Front for Jihad Against Jews and Crusaders, Al-Jabhah al-Islamiyyah al-‘Alamiyyah li-Qital al-Yahud wal-Salibiyyin, The Group for the Preservation of Holy Sites, Islamic Army of the Liberation of the Holy Places, Islamic Army for the Liberation of the Holy Shrines, Usama Bin Laden Network, Usama Bin Laden Organisation, Islamic Salvation Foundation, International Front for Fighting Jews and Crusaders, International Islamic Front Against Jews and Christians)

 

The following information is based on publicly available details about al-Qa’ida and its senior leadership. These details have been corroborated by material from intelligence investigations into the activities of al-Qa’ida. ASIO assesses that the details set out below are accurate and reliable.

 

Al-Qa’ida is listed in the United Nation’s 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the governments of Canada, New Zealand, the UK and the US. Al-Qa’ida is listed by the European Union for the purposes of its anti-terrorism measures.

 

Current status of al-Qa’ida

 

Al-Qa’ida is a Sunni Islamic extremist organisation whose core leadership is centred in the border regions between Afghanistan and Pakistan. In 1988, al-Qa’ida emerged from the Maktab al-Khidamat, a recruitment and fundraising network for the Afghan resistance to the Soviet Union’s occupation of Afghanistan. The impetus for establishing al-Qa’ida was to retain a common purpose for Islamic extremists following the end of the conflict with the Soviets. Usama bin Laden co-founded al-Qa’ida with Dr Abdullah Azzam and gained full control after the assassination of Azzam in 1989.

 

During the late 1990s, al-Qa’ida was transformed from providing a unifying function for extremist elements into a global network of cells and affiliated groups. In 1998, key figures of five terrorist groups, including Usama bin Laden, issued a declaration under the banner of the ‘World Islamic Front’ announcing a jihad against ‘Jews’ and ‘Crusaders’, stating the US and its allies should be expelled from the Middle East. Since the US intervention in Afghanistan, following the 11 September 2001 attacks, al-Qa’ida has lost its primary base for training, planning and preparing for terrorist operations. Al-Qa’ida has sought alternative venues in which to train and regroup and members continue to gain combat experience in the ongoing conflicts in Iraq and Afghanistan. Despite sanctions against al-Qa’ida’s extensive financial networks, al-Qa’ida continues to find means of raising and transferring money including through donations and criminal activity, and via couriers.

 

Al-Qa’ida maintains core support networks and operations in Afghanistan and Pakistan and continues to conduct attacks in Afghanistan. Al-Qa’ida also provides international inspiration and influence, demonstrated by the decisions of the Salafist Group for Call and Combat in Algeria and the Jamaat Tawhid wa’al-Jihad group in Iraq to merge with the extremist organisation. Now known as al-Qa’ida in the lands of the Islamic Maghreb (AQIM) and al-Qa’ida in Iraq (AQI) respectively, both groups accept strategic direction and at times receive further funding from al-Qa’ida. Moreover, al-Qa’ida leadership relies on its franchise organisations, like AQIM and AQI, to plan and execute attacks.

 

Al-Qa’ida provides encouragement and inspiration to affiliated and aligned groups around the world. Such groups include but are not limited to: Egyptian Islamic Jihad, Armed Islamic Group, Abu Sayyaf Group, Jamiat ul-Ansar, Islamic Movement of Uzbekistan, Islamic Army of Aden, Asbat al Ansar, Jemaah Islamiyah, Lashkar-e-Tayyiba, Lashkar-e Jhangvi, Jaish-e-Mohammad and Ansar al-Islam.

 

Reporting indicates al-Qa’ida has encouraged, inspired and assisted like-minded individuals as seen in the 7 July 2005 attacks on the London transport system. While there was no evidence of al-Qa’ida command and control over these attacks, there were indications of al-Qa’ida involvement in training and influencing those involved. Two of the perpetrators of the attacks, Mohammed Siddique Khan and Shehzad Tanweer, had travelled to Pakistan and, according to a statement by al-Qa’ida’s deputy leader, Ayman al-Zawahiri, had been trained by al-Qa’ida operatives.

 

Senior al-Qa’ida leaders continue to make public statements promoting al-Qa’ida’s ideology, supporting attacks undertaken by other groups and advocating violent jihad against the West. Since 2004, a number of statements have been made by Usama bin Laden and Ayman al-Zawahiri calling for attacks against the US and its allies, including Australia.

 

Objectives

 

Al-Qa’ida seeks to remove governments in Muslim countries that it deems are ‘un-Islamic’ in order to establish an Islamic Caliphate. The US and its allies are believed to represent the greatest obstacle to this objective, given their perceived support for these governments.

 

Leadership and membership

 

Usama bin Laden and his deputy, Ayman al-Zawahiri continue to lead al-Qa’ida. The exact size of the organisation is unknown, however, estimates suggest that it consists of approximately several thousand fighters. Originally, al-Qa’ida recruited veterans of the Soviet-Afghan conflict of 1979-89 and from campaigns involving these veterans in such places as Bosnia-Herzegovina, Kashmir, Mindanao, Chechnya, Lebanon, Algeria and Egypt. More recent recruits include fighters who have gained experience in the conflicts in Afghanistan and Iraq.

 

Terrorist activities

 

Al-Qa’ida has been involved in a number of terrorist attacks including; suicide attacks; hijackings; attacks using improvised explosive devices (IEDs); vehicle-borne IEDs and; maritime IEDs. Al-Qa’ida has also assisted and financially supported terrorist acts by affiliated groups.

 

Terrorist attacks for which responsibility or involvement has been claimed by, or reliably attributed to, al-Qa’ida have included:

 

·        7 August 1998: Bombed the US Embassies in Nairobi and Dar es Salaam which killed over 200 people;

·        2 October 2000: Used a maritime IED to attack the USS Cole off the coast of Yemen which killed 17 people;

·        11 September 2001: Coordinated attacks involving hijacked passenger jets crashing into the World Trade Center buildings in New York, the Pentagon in Washington and a fourth in a field in Pennsylvania which killed approximately 3000 people;

·        11 April 2002: Bombed a synagogue on the Tunisian island of Djerba which killed 20 people;

·        12 October 2002: Assisted in funding attacks on night clubs and the US Consulate in Bali which killed 202 people, including 88 Australians;

·        28 November 2002: Conducted attacks in Mombasa, Kenya, involving the car bombing of a hotel and firing of two surface-air-missiles at an Israeli airliner taking off from Mombasa airport;

·        15 November 2003: Assisted in planning and preparing car bomb attacks on two synagogues in Istanbul which killed 20 people;

·        20 November 2003: Assisted in planning and preparing car bomb attacks on the HSBC Bank headquarters and the British Consulate in Istanbul which killed 30 people;

·        7 July 2005: Assisted in training those involved in IED attacks on London’s transport system which killed 56 people, including one Australian.

 

Senior members of Al-Qa’ida have made numerous statements advocating the conduct of terrorist attacks against the US and countries perceived to have allied themselves with the US and Israel. The February 1998 statement issued under the banner of the ‘World Islamic Front’ decreed that civilians in these countries were legitimate targets for terrorist attack.

 

Recent statements claimed by or reliably attributed to al-Qa’ida reiterate this theme by highlighting and advocating the conduct of terrorism. The following excerpts of recent speeches by Usama bin-Laden and Ayman al-Zawahiri demonstrate this:

 

·        The 19 January 2006 statement by Usama bin-Laden stated, in part, “You have occupied our land, defiled our honour, violated our dignity, shed our blood, ransacked our money, demolished our houses, rendered us homeless, and tampered with our security. We will treat you in the same way” and “The evidence of this is the bombings you have seen in the capitals of the most important European countries of this aggressive coalition. As for the delay in carrying out similar operations in America, this was not due to failure to breach your security measures. Operations are under preparation, and you will see them on your own ground once they are finished, God willing”.

·        The 24 April 2006 statement by Usama bin-Laden stated “…the Umma has reached a consensus that he who offends or degrades the messenger would be killed. Such offence is regarded as kufr (infidelity). We ask Allah to give his blessings to whoever decried the behaviour of the infidels who have offended the prophet in every part of the world, and blessings to those who have died in the process, while we vow to Allah to avenge for those whose blood have been spilled”.

·        The 10 July 2007 audio message by Zawahiri states, “We must respond to that attack. We must surround America with terror. We would not let the one who made us lose our safety feel safe. Whenever the Americans go to one of the Muslim countries, their central goal was to exercise all different kinds of attack.”

·        The 14 December 2007 audio message from al-Qa’ida deputy leader, Dr Ayman al-Zawahiri stated, “I bear you witness to our promise to Allah that we ourselves will not abandon our weapons and will never stop our Jihad and will never abandon our belief and will not abandon Andalusia, Sebta, Melilla, Bosnia, Kosovo, Cyprus, Jerusalem, Haifa, Um Rashrash, Baghdad, Kabul, and Kashmir and Grozny even if they have many conferences in Oslo or Annapolis, and one thousand conferences in London and Salah Al-Din. Do not let the eyes of the cowardly sleep.”

·        The 19 March 2008 audio message from Usama bin Laden stated “Although our tragedy in your killing of our women and children is a very great one, it paled when you went overboard in your unbelief and freed yourselves of the etiquettes of dispute and fighting and went to the extent of publishing these insulting drawings. This is the greater and more serious tragedy, and reckoning for it will be more severe. … In closing, I tell you: if there is no check on the freedom of your words, then let your hearts be open to the freedom of our actions.”

·        The 20 March 2008 audio statement from Usama bin Laden addressed to the worldwide Islamic community said, “Palestine has been suffering [greatly] for roughly a century at the hands of the Christians and Jews, and both opponents did not take it from us through negotiations and dialogue, but through iron and fire, and it is this way to bring it back; for iron [can meet] iron, and Allah showed us the way to destroy the hardiness of infidels: <Qu’ranic verse>. With incitement and fighting, the hardiness of the infidels is destroyed. … liberation from these evil manacles is a necessity, [as is] surrendering and worshiping only Allah ... Only then, will the person be liberated, and then he can seek the liberation of his Ummah, Palestine, and Al-Aqsa [Jerusalem], and will see the doors opened to the roads of liberty and dignity, to the fields of men and confrontation, the fields of killing and death for the cause of Allah, as in Afghanistan, Waziristan, the Islamic Maghreb, Somalia, Kashmir, Chechnya, and the most important and greatest that hurts the enemy, Baghdad, the House of the Caliphate, and those around it.”

·        On 2 April 2008, al-Qa'ida's media arm, as-Sahab, posted to jihadist internet forums an audio file of Ayman al-Zawahiri responding to questions from forum participants. Al-Zawahiri referred to Australia when responding to a question criticising al-Qa'ida for killing Muslims in Muslim lands and not conducting attacks in Israel. Zawahiri responded citing attacks against the US and its allies, including Australia, in various locations and that these countries supported Israel.

 

Conclusion

 

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

 

(a) 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

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

 

ASIO assesses that al-Qa’ida is continuing to prepare, plan and foster the commission of acts involving threats to human life and serious damage to property. ASIO also assesses that al-Qa’ida advocates the doing of terrorist acts. This assessment is corroborated by information provided by reliable and credible intelligence sources.

 

In the course of pursuing its objective of creating an Islamic Caliphate, al-Qa’ida is known to have engaged in or advocated actions that are:

 

·        aimed at advancing al-Qa’ida’s political and religious causes.

·        intended to, or do, cause serious damage to property, the death of persons or endangerment of life.

·        intended to cause, or have caused, serious risk to the safety of sections of the public globally.

 

In view of the above information, al-Qa’ida is assessed to be directly or indirectly preparing, planning, and fostering the conduct of, and advocating, terrorist acts. Such acts include actions which are to be done and threats of actions which are to be made with the intention of advancing a political, religious or ideological cause and with the intention of coercing, or influencing by intimidation of governments and people globally. The actions or threatened actions which al-Qa’ida is assessed to be involved in would, if successfully completed, cause serious physical harm and death to persons and serious damage to property.