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CRIMINAL CODE AMENDMENT REGULATIONS 2008 (NO. 2) (SLI NO 161 OF 2008)
Select Legislative Instrument 2008 No. 161
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code Amendment Regulations 2008 (No. 2).
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 Jemaah Islamiyah and its aliases as Al-Jama’ah Al-Islamiyah, Jamaah Islamiyah, Jama’ah Islamiyah, Jemaa Islamiya, Jema’a Islamiya, Jemaa Islamiyah, Jemaa Islamiyya, Jema’a Islamiyya, Jemaa Islamiyyah, Jemaah Islamiah, Jemaah Islamiya, Jeemah Islamiyah, Jema’ah Islamiyah, Jemaah Islamiyyah, Jema’ah Islamiyyah, 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 Jemaah Islamiyah. 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 Jemaah Islamiyah 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.
Details of the Criminal Code Amendment Regulations 2008 (No. 2)
Regulation 1- Name of Regulations
This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2008 (No. 2).
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  – Regulation 4B
This item substitutes the existing regulation with a new regulation 4B 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 Jemaah Islamiyah is specified.
Subregulation 4B(1) provides that Jemaah Islamiyah is specified as a terrorist organisation under subsection 102.1(1) of the Code.
Subregulation 4B(2) provides that for the purposes of subregulation (1), Jemaah Islamiyah is also known by the following names:
(a) Al-Jama’ah Al-Islamiyah
(b) Jamaah Islamiyah;
(c) Jama’ah Islamiyah;
(d) Jemaa Islamiya;
(e) Jema’a Islamiya;
(f) Jemaa Islamiyah;
(g) Jemaa Islamiyya;
(h) Jema’a Islamiyya;
(i) Jemaa Islamiyyah;
(j) Jemaah Islamiah;
(k) Jemaah Islamiya;
(l) Jeemah Islamiyah;
(m) Jema’ah Islamiyah;
(n) Jemaah Islamiyyah;
(o) Jema’ah Islamiyyah.
Jemaah Islamiyah (JI)
(Also known as: Jema’ah Islamiyah, Jemaah Islamiya, Jemaah Islamiyyah, Jemaah Islamiah, Jamaah Islamiyah, Jama’ah Islamiyah, Jeemah Islamiyah, Jemaa Islamiya, Jema’a Islamiya, Jemaa Islamiyah, Jema’a Islamiyya, Jemaa Islamiyya, Jemaa Islamiyyah, Jema’ah Islamiyyah, Al-Jama’ah Al-Islamiyah)
The following information is based on publicly available details about Jemaah Islamiyah (JI). These details have been corroborated by material from intelligence investigations into the activities of JI. ASIO assesses the details set out below are accurate and reliable.
JI 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.
Current Status of Jemaah Islamiyah
JI is a clandestine organisation that subscribes to a salafist jihadist interpretation of Islam, closely associated with terrorist groups such as al-Qa’ida (AQ). Salafi jihadis seek to revive a pure form of Islam, free of modernist influence, by targeting the enemies of Islam through violent local and international jihad.
The clandestine nature of JI is prompted by a need to conceal the illegal activities of its cadres from authorities, such as operational planning and periodic military instruction, as well as contribute to JI’s internal security and long-term survival.
Founded in Malaysia on 1 January 1993 by Indonesian Islamic clerics Abdullah Sungkar and Abu Bakar Ba’asyir, JI evolved from the long established Indonesian Islamic insurgent movement, Darul Islam (DI).
DI, founded in 1948, engaged in an armed rebellion to establish an Islamic state in Indonesia, until an amnesty was achieved in 1962. Past and present incarnations of DI continue to provide pools of recruits and support networks for JI activity.
With terrorist attacks and armed combat an important part of JI ideology the group has been responsible for pursuing local and global jihad. As well as contributing to the violence in conflict zones such as Maluku and Poso, JI has conducted numerous attacks targeting foreign interests. These include attacks against the Philippines’ ambassador in Jakarta in 2000 and against sectarian targets across Indonesia during 2000/2001 Christmas and New Year period.
JI’s first successful anti-Western attack was the Bali bombings in October 2002, which killed 202 people, including 88 Australians. This was followed by the 2003 JW Marriot Hotel bombing and the 2004 bombing of the Australian Embassy in Jakarta. The 2005 Bali bombing, which killed four Australians, was JI’s most recent successful attack aimed specifically against Western interests.
Regional authorities continue to conduct significant disruption operations against JI. These include Malaysia’s arrest of Agus Idru and Abu Husna in January 2008, and Indonesia’s succession of security force operations since August 2006. In particular, the arrests of members of JI military leader Abu Dujana’s network around Central Java, in March 2007, resulted in the discovery of significant amounts of explosive materiel, firearms, ammunition and pipe bombs. These investigations led to the eventual arrest of JI emir Zarkasih and military commander Abu Dujana in June 2007. Nevertheless, JI is likely to have other yet undiscovered caches of explosive materiel for future use.
While remnants of JI regional links likely persist, disruption by regional authorities has resulted in JI having to scale down its previous organisational structure from four Mantiqi territorial areas of responsibility, previously encompassing parts of South-East Asia and Australia, to essentially only Mantiqi II covering Indonesia. JI has also adopted a centralised functional structure that covers religious outreach, education, logistics and military affairs.
However, the organisation is far from defunct and JI remains resilient and committed to a long term strategy to establish an Islamic state. JI continues to recruit covertly from its network of pesantren (Islamic boarding schools), religious study groups and personal contacts. JI funds its activities through donations from its members, criminal activity and affiliated business activity.
Given JI is intent on conducting armed jihad, weapons and training are critical. JI sources weapons and explosive materiel through theft, the black market or corrupt security officials, which are concealed in numerous caches. JI members continue to conduct limited training in Indonesia and the southern Philippines.
JI remains an independent organisation making its own operational decisions. However, active networking by senior JI hierarchy in the past has facilitated links to local and international extremist groups. Within Indonesia these groups include Majelis Mujahidin Indonesia (Indonesian Mujahidin Council - MMI), Mujahidin KOMPAK (Komite Aksi Penanggulangan Akibat Krisis, Crisis Management/Prevention Committee), the Islamic Defenders Front (Front Pembala Islam - FPI), and the Sulawesi based Laskar Jundullah. JI shares a common ideology with AQ and many of these two organisations’ members shared the experience of training or fighting in Pakistan and Afghanistan during the late 1980’s and early 1990’s. Within the South-East Asian region, JI continues to maintain active links with sub groups of the Abu Sayyaf Group (ASG) – particularly through JI operatives Dulmatin and Umar Patek - and elements of the Moro Independence Liberation Force (MILF) who still provide refuge to JI personnel despite ongoing peace negotiations with the Philippines Government.
Whilst JI leaders appear tactically opposed to anti-Western attacks, at the present time, the organisation remains anti-Western in orientation, committed to violent jihad as a means of achieving its objectives and is willing to conduct attacks against local sectarian targets.
The “General Guide for the Struggle of Al-Jama’ah Al-Islamiyah” (PUPJI), JI’s charter and operating manual, outlines the religious principles and administrative aspects underlining JI’s primary objective of establishing, through armed struggle, an Islamic state in Indonesia and a regional Islamic caliphate.
Leadership and membership
JI has no publicly acknowledged leader, but has a well-ordered succession plan, especially in the case of the arrest of the incumbent Emir. Following the June 2007 arrests, investigations revealed that Zarkasih had assumed the role of emergency JI emir in 2004, following the arrest of Abu Rusdan, who had assumed the position following the arrest of Abu Bakar Ba’asyir. Zarkasih was the JI emir until his arrest in 2007, since which time no new Emir has been publicly identified.
JI’s membership is not publicly known and is estimated to be anywhere from less than one thousand to several thousand members, mostly concentrated in Java but also spread throughout Indonesia, and neighbouring countries.
Jemaah Islamiyah’s engagement in terrorist activities
Since re-listing by Australia in August 2006, JI has not succeeded in conducting any anti-Western attacks in South-East Asia. However, within Indonesia, JI has engaged in sectarian terrorist activities such as assassinations and bombings, principally in Poso, Central Sulawesi until disrupted by Indonesian authorities in January 2007.
In March 2007, JI operatives, linked to JI’s military commander Abu Dujana aka Ainul Bahri, were arrested in Central Java attempting to move weapons between secret caches. These arrests subsequently led to the discovery of significant amounts of explosive and chemical precursors concealed in a number of secret caches. Indonesian authorities were forced to move against the cell over concerns they were plotting to assassinate the rector of the Christian Satya Wacana University in Central Java.
While fugitive in the Philippines, JI operatives have taken the opportunity to facilitate attacks with local extremist groups against Philippine interests on the island of Mindanao. Multiple bombings with a JI signature were conducted on 10 October 2006 and 10 January 2007.
Despite the cumulative effects of disruption by regional authorities, the information and materiel seized during the arrests of JI leaders since 2006, demonstrates JI retains the capability and intent to use violence towards establishing an Islamic state in Indonesia.
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 JI is continuing to prepare, plan and foster the commission of acts involving threats to human life and serious damage to property. This assessment is corroborated by reliable and credible intelligence sources.
In the course of pursuing its objective of creating an Islamic state under Sharia (Islamic law) in Indonesia and a pan-Islamic caliphate in South East Asia, JI is known to have engaged in actions that are:
· aimed at advancing JI’s political and religious causes; and
· intended to, or do, cause serious damage to property, the death of persons or endangerment to life.
· intended to cause, or have caused, serious risk to the safety of sections of the public in Indonesia, Malaysia, the Philippines, Singapore, Australia and other persons visiting areas in which it operates.
In view of the above information, JI is assessed to be preparing, planning, and fostering the conduct of 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 the Government and people of Indonesia which they consider apostate. The actions or threatened actions which JI are assessed to be involved in would, if successfully completed, cause serious physical harm and death to persons and serious damage to property.
This assessment is corroborated by information provided by reliable and credible intelligence sources