EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 162

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2008 (No. 3).

 

 

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 in the Lands of the Islamic Maghreb and its aliases Al‑Qa’ida in the Islamic Maghreb, Al-Qa’ida Organisation in the Lands of the Islamic Maghreb, Le Groupe Salafiste Pour La Predication et le Combat, Salafist Group for Call and Combat, Salafist Group for Preaching and Combat and Tanzim al‑Qa’ida fi bilad al‑Maghreb al-Islamiya, 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 in the Lands of the Islamic Maghreb. 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 in the Lands of the Islamic Maghreb 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. 3)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2008 (No. 3).

 

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 4F

 

This item substitutes the existing regulation with a new regulation 4F 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 in the Lands of the Islamic Maghreb is specified.

 

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

 

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

 

(a) Al-Qa’ida in the Islamic Maghreb;

(b) Al-Qa’ida Organisation in the Lands of the Islamic Maghreb;

(c) Le Groupe Salafist Pour La Predication et le Combat;

(d) Salafist Group for Call and Combat;

(e) Salafist Group for Preaching and Combat;

(f) Tanzim al-Qa’ida fi bilad al-Maghreb al-Islamiya.

 

Attachment B

 

Al-Qa’ida in the Lands of the Islamic Maghreb (AQIM)

 

Also known as: Tanzim al-Qa’ida fi bilad al-Maghreb al-Islamiya;

Al-Qa’ida Organisation in the Lands of the Islamic Maghreb;

Al-Qa’ida in the Islamic Maghreb;

the Salafist Group for Call and Combat (GSPC); Le Groupe Salafiste Pour La Predication et le Combat; Salafist Group for Preaching and Combat)

 

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

 

AQIM is listed on the United Nations 1267 Committee’s consolidated list as an entity associated with al-Qa’ida. AQIM has been listed as a terrorist organisation by the US. Canada and the UK still list the group as the Salafist Group for Call and Combat (GSPC).

 

Current status of al-Qa’ida in the Lands of the Islamic Maghreb (AQIM)

 

Al-Qa’ida in the Lands of the Islamic Maghreb (AQIM) is a Sunni Islamic extremist group formerly known as the Salafist Group for Call and Combat (GSPC).

 

• On 11 September 2006, al-Qa’ida deputy, Ayman al-Zawahiri, announced the merger between the GSPC and al-Qa’ida.
• On 14 September 2006, the GSPC emir, Abu Musab Abdul Wadud, released a statement to its official website and Jihadist forums, announcing the groups joining with al-Qa’ida and pledging alliance with Usama bin Laden.
• On 26 January 2007, the GSPC Emir, Abdelmalik Droukdal, announced the group had changed its name to al-Qa’ida in the Lands of the Islamic Maghreb (AQIM) .

 

AQIM, then the GSPC, formed in 1998 as a splinter group of the Algerian Armed Islamic Group (GIA) to protest against the indiscriminate killing of civilians carried out by the GIA. The GSPC renounced attacks against civilians but was nevertheless implicated in attacks resulting in civilian deaths.

 

The GSPC quickly became Algeria’s largest and most dangerous terrorist group, and by 2000, the external networks of the GIA across Europe and North Africa had been taken over by the GSPC. In June 2004, the GSPC released statements claiming its jihad in Algeria was part of the international jihad led by Usama bin Laden, and declared war on all foreigners and foreign interests in Algeria.

 

The culmination of this increasingly pro-al-Qa’ida stance was the group’s merger with al-Qa’ida, and its subsequent name change. This was articulated in the 2006 statement by the GSPC emir when he noted that the group had joined al-Qa’ida. Although GSPC (now AQIM) has joined al-Qa’ida, it is able to operate separately from the parent organisation. After the merger in 2006, AQIM has released several media statements specifically targeting Western interests, and the group conducted the first of several attacks against Western targets in Algeria in December 2006. AQIM’s most significant attack on Western interests in Algeria was the 11 December 2007 suicide bombing attack on the UN Office in Algiers, which killed 17 people. This constituted the worst attack on the UN since the bombing of the its Headquarters in Iraq in 2003.

 

In addition to Western interests, AQIM also targets Algerian military, police and government interests. Common tactics used by AQIM include kidnapping, ambush, attacks using false roadblocks, raids on military, police, and government convoys, armed assault, roadside bombs, and vehicle borne suicide bombings. As a method of attack, suicide bombings have only been used by AQIM since the merger and subsequent name change in 2007.

 

AQIM has also planned and conducted attacks on foreign interests outside Algeria, most recently including an attack on French tourists in Mauritania, and an attack on the Israeli embassy in Nouackchott, Mauritania. AQIM cells, members of the group, and persons otherwise linked to the group, have been disrupted or arrested in Europe, Canada, the UK, and the US, and have been linked to attacks on the G8 summit in Genoa in 2001, and a plan to produce and use ricin gas in an attack in London 2005.

 

AQIM continues to recruit new members, and undertakes training of individuals from nearby African nations with a view to returning them to their home countries to carry out attacks. AQIM support cells have been discovered and dismantled in Spain, Italy, Morocco, Mauritania, and Mali, and it maintained training camps in northern Mali.

 

AQIM’s primary source of funding comes from its involvement in criminal activity. It engages in kidnapping for ransom; muggings; narcotics trafficking in Southern Algeria/Northern Mali; smuggling; protection rackets; and money laundering. AQIM receives financial support from al-Qa’ida. Individual cells in Europe also provided support through small scale funding.

 

In February 2005, AQIM (then GSPC) leader Abdelmalik Droukdal first stated the group’s absolute rejection of an offer of amnesty under the Algerian Charter for Peace and National Reconciliation - a government initiative designed to end the insurgency. The provisions of the Amnesty expired on 31 August 2007 and AQIM continues to reject any offer of reconciliation. In September 2007, AQIM made statements calling on Algerians to boycott local elections.

 

Objectives

 

AQIM is a Sunni Islamic extremist group whose stated goal is to overthrow the Algerian Government and replace it with an Islamic government, which would rule Algeria under Sharia law. Since its merger with al-Qa’ida, AQIM has also adopted the global jihad ideology and has called for the freeing of the Maghreb from Spanish and French influence, and for the regaining of the lost Islamic regions of southern Spain, known as Al andalus.

 

AQIM has also stated its support for the Palestinians, and called on Muslims across North Africa to target Jewish and Christian interests to pressure the Algerian government to break its ties with Israel.

 

Leadership and membership

 

AQIM is currently led by Abdelmalek Droukdal (aka Abu Musab Abdel Wadoud). Other central figures of the group include Salah Gasmi, the head of the AQIM’s Media Committee; Yahia Djouadi (aka Abou Amar), the commander of AQIM’s Southern Zone; and regional smuggler and arms trafficker, and senior AQIM member, Mokhtar Belmokhtar.

 

Membership of AQIM is difficult to estimate. It has been reported to be as high as 5000 and as low as 500 members. Recent media reporting indicates there are at least 400 AQIM members in the forests and mountain regions of the Boumerdes Province, Algeria. The UN states membership of the group to be approximately 700 across Algeria and northern Mali.

 

AQIM engagement in terrorist activities

 

AQIM issues a regular publication called the “Series of the Swords’ Shadows”. In this publication, the group claims responsibility for attacks it has committed. In June 2007, the group released a statement claiming responsibility for 18 separate attacks. Attacks for which responsibility or involvement has been claimed by or, reliably attributed to AQIM have included:

 

• 10 December 06 – a roadside bomb attack which killed one Algerian and injured four Britons, an American, and a Canadian;
• 03 March 07 – a roadside bomb attack targeting Russian gas workers, south-west of Algiers which killed three Algerians and one Russian;
• 11 April 07 – two suicide car bomb attacks targeted the Algerian Prime Minister’s office, and a police station, which killed 33 people and injured over 200;
• 26 August 07 – a roadside bomb attack targeting an Algerian police patrol on the outskirts of Algiers, which injured two police officers and three civilians;
• 29 August 07 – a bomb placed between two railway tracks, targeting a freight train near Algiers which caused it to derail, and injured three people;
• 06 September 07 - a suicide bomber killed 11 people shortly before a scheduled visit by the Algerian President in the town of Batna, Algeria;
• 08 September 2007 – a suicide truck bomb attack on a naval military barracks in the port of Dellys which killed over 30 people;
• 11 September 07 – an explosive device was fired at an apartment complex in Batna, Algeria, which injured two children;
• 13 September 07 – authorities defused a bomb intended to explode in a crowd celebrating the first day of Ramadan in Chemora;
• 14 September 07 – three people were killed and five wounded when a bomb exploded outside a police building east of Algiers;
• 21 September 2007 – a suicide car bomb attack targeted a bus carrying foreigners east of Algiers, injuring nine;
• 24 September 07 – an ambush near Stah, Algeria which killed three municipal guards in Stah;
• 25 September 07 – a roadside bomb in Les Issers, killed two police officers;
• 27 September 07 – a bomb attack in Sidi Ali Bounab, in Boumedes Province, killed two soldiers;
• 09 October 07 – two roadside bombs targeting an army convoy in Boumerdes, Algeria, killed three military personnel;
• 08 November 07 – an RPG attack on an aircraft, at Djanet airport in southern Algeria;
• 10 December 07 – a bomb attack targeted Russian gas workers near Algiers, no injuries were recorded;
• 11 December 2007 – two suicide attacks targeting Algerian and UN establishments in Algiers which killed at least 60 people;
• 24 December 2007 – an attack on French tourists in Mauritania, which killed four and wounded five;
• 03 January 08 – a suicide truck bomb attack in Naciria, Algeria, killed four people and injured 20;
• 01 February 2008 – a firearm and grenade attack on the Israeli Embassy in Nouakchott, Mauritania, injuring at least three people;
• 22 February 2008 – two Austrian tourists were kidnapped in Tunisia.

 

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)               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 Al-Qa’ida in the Lands of the Islamic Maghreb (AQIM) is directly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to Al-Qa’ida in the Lands of the Islamic Maghreb are terrorist acts as they:

 

(i)                  are done with the intention of advancing a political cause, namely, the removal of the current regime and the installation of an Islamic regime in Algeria.

(ii)                are intended to coerce or influence by intimidation the government of a foreign country, namely Algeria, and/or intimidate a section of the Algerian 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.