Commonwealth Numbered Regulations - Explanatory Statements

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Select Legislative Instrument 2008 No. 219



Issued by the authority of the Attorney-General


Criminal Code Act 1995


Criminal Code Amendment Regulations 2008 (No. 5).



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 Iraq (AQI) also known as al-Tawhid, Al-Tawhid and al-Jihad, Al-Qa’ida of Jihad in the Land of the Two Rivers, Al-Qa’ida of Jihad Organization in the Land of the Two Rivers, al-Zarqawi network, AQI - Zarqawi, Brigades of Tawhid, Islamic State in Iraq, Jama’at al-Tawhid wa’al-Jihad, Kateab al-Tawhid, Mujahidin Shura Council, Qaida of the Jihad in the Land of the Two Rivers, Tanzeem Qa’idat al-Jihad/Bilad al Raafidaini, Tanzim Qa’ida al-Jihad fi Bilad al-Rafidayn, The Monotheism and Jihad Group, The Organisation Base of Jihad/Mesopotamia, The Organisation of Jihad’s Base in the Country of the Two Rivers, Unity and Holy Struggle, Unity and Holy War, Unity and Jihad Group, 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 Iraq. Details of the 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 as advice from the Australian Government Solicitor. The Statement of Reasons in respect of Al-Qa’ida in Iraq 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. 5)


Regulation 1- Name of Regulations


This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2008 (No. 5).


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 4G


This item substitutes the existing regulation with a new regulation 4G to provide that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code, the organisation known as Al-Qa’ida in Iraq is specified.


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


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


(a)    al-Tawhid;

(b)   Al-Tawhid and al-Jihad;

(c)    Al-Qa’ida of Jihad in the Land of the Two Rivers;

(d)   Al-Qa’ida of Jihad Organization in the Land of the Two Rivers;

(e)    al-Zarqawi network;

(f)     AQI — Zarqawi;

(g)    Brigades of Tawhid;

(h)    (h) Islamic State in Iraq;

(i)      Jama’at al-Tawhid wa’al-Jihad;

(j)     Kateab al-Tawhid;

(k)   Mujahidin Shura Council;

(l)      Qaida of the Jihad in the Land of the Two Rivers;

(m)  Tanzeem Qa’idat al-Jihad/Bilad al Raafidaini;

(n)    Tanzim Qa’ida al-Jihad fi Bilad al-Rafidayn;

(o)   The Monotheism and Jihad Group;

(p)   The Organisation Base of Jihad/Mesopotamia;

(q)   The Organisation of Jihad’s Base in the Country of the Two Rivers;

(r)     Unity and Holy Struggle;

(s)    Unity and Holy War;

(t)     Unity and Jihad Group.


Attachment B



Al-Qa’ida in Iraq (AQI)


(Also known as: the al-Zarqawi network; al-Tawhid; Jama’at al-Tawhid wa’al-Jihad; Al-Tawhid and al-Jihad; The Monotheism and Jihad Group; Qaida of the Jihad in the Land of the Two rivers; Al-Qa’ida of Jihad in the Land of the Two Rivers; Al-Qa’ida of Jihad Organization in the Land of the Two Rivers; The Organisation of Jihad’s Base in the Country of the Two Rivers; The Organisation Base of Jihad/Mesopotamia; Tanzeem Qa’idat al-Jihad/Bilad al Raafidaini; Kateab al-Tawhid; Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn; Brigades of Tawhid; Unity and Jihad Group; Unity and Holy Struggle; Unity and Holy War; AQI – Zarqawi; Islamic State in Iraq; and Mujahidin Shura Council.)


The following information is based on publicly available details about al-Qa’ida in Iraq (AQI), formerly listed as Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn (TQJBR). These details have been corroborated by material from intelligence investigations into the activities of AQI. ASIO assesses that the details set out below are accurate and reliable.


AQI, under its various aliases, is listed in the United Nations 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the US.


Current status of AQI


AQI is a Sunni Islamic extremist network established and originally led by Abu Mus’ab al-Zarqawi, until his death on 7 June 2006. It has since been led by Abu Hamza al-Muhajir, also known as Abu Ayyub al Masri.


The al-Zarqawi network emerged in 1999 as al-Tawhid wal-Jihad (Monotheism and Holy War), shortly after al-Zarqawi was released from prison, having served five years of a 15-year sentence for weapons possession. The group was mainly composed of Jordanian and Palestinian fighters who shared al-Zarqawi’s commitment to overthrowing the Jordanian monarchy. Over the next few years, al-Zarqawi focused on training Tawhid militants in Afghanistan and then Iran. He also planned and financed attacks in his homeland, including the assassination of US diplomat Laurence Foley in 2002, for which he was sentenced in absentia to death, and the disrupted plot to bomb the Raddison SAS Hotel in Amman along with several American, Israeli and Christian religious sites in Jordan, prior to New Year’s Day 2000. From May 2002, al-Zarqawi worked closely with Ansar al-Islam, until Ansar al-Islam and its members were scattered following intense military action in northern Iraq in 2003.


Al-Zarqawi’s group gained notoriety following attacks in 2003 on the UN headquarters in Baghdad (that killed 23 people, including the Secretary-General's Special Representative for Iraq, Sergio Vieira de Mello), and the kidnapping and televised beheading of US hostages Nicholas Berg, Jack Armstrong and Jack Hensley in 2004.


The name of al-Zarqawi’s network changed to Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn (TQJBR) on 17 October 2004, when al-Zarqawi publicly pledged allegiance to Usama bin Laden via an internet posting. Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn literally translates as ‘The al-Qa’ida Organisation for Jihad in the Land of the Two Rivers’. A statement by Usama bin Laden, broadcast on 27 December 2004, welcomed the union and exhorted mujahideen in Iraq to obey al-Zarqawi. As a result, the group is commonly referred to in Western parlance as al-Qa’ida in Iraq (AQI).


On 15 January 2006, it was announced that al-Zarqawi had brought together five jihadi groups in Iraq under one umbrella organisation, the Mujahideen Shura Council (MSC). Other members of the MSC included the Victorious Sect Army, Monotheism Supporters Brigades, Islamic Jihad Brigades, Foreigners Brigades and Fear Brigades. Though officially subsumed within the MSC, AQI still existed. As the dominant group within the MSC, AQI was responsible for attacks but carried them out in the Council’s name. On 15 October 2006, al-Zarqawi’s successor, Abu Hamza al-Muhajir, declared the establishment of the Islamic State of Iraq (ISoI), another umbrella organisation replete with a Cabinet and various ministries including War, Information and even Agriculture and Fisheries. As with the MSC, AQI is solely responsible for conducting the group’s various terrorist activities, but claims all attacks through the ISoI’s Ministry of Information.


AQI’s attempts to bring the Sunni insurgency under the religious strictures of the ISoI, together with the excessive brutality of its attacks on the civilian population, provided the catalyst for a widespread backlash from Sunni leaders. Many insurgent groups viewed AQI’s establishment of both the MSC and ISoI as thinly-veiled attempts to ‘Iraqify’ its image and thereby legitimise its claims as the sole authority in the Iraqi insurgency. The ISoI, with its stated objective of creating a trans-national caliphate in accordance with al-Qa’ida’s global Islamist ideology, was particularly disconcerting for nationalist elements within the Iraqi insurgency. AQI’s obsession with monopolising the movement was confirmed in late-2006, when Sunni tribal and nationalist leaders began challenging the group’s authority and the latter responded with a series of reprisals that involved the killing of thousands of tribal members and the assassination of high-profile insurgents such as 1920 Revolution Brigades leader, Harith Dhahir Khamis al-Dari.


In September 2006, angered by the killing of his father and two brothers by AQI, Sheikh Abdul Sattar Abu Risha of the Albu Risha tribe, in Anbar, approached the US military with a view to combining forces against AQI. By March 2007, Abu Risha had brought together more than 40 tribes or sub-tribes under the auspices of the Anbar Awakening Council, and with US financial and military assistance AQI was driven out of Anbar province – once its core base of operations. Equally disenchanted with the increasing ruthlessness of AQI, Sunni tribal leaders who had previously fought alongside the insurgency followed Anbar’s example, and by December 2007, Awakening Councils had been established in a number of nearby provinces including Nineveh, Babil, Diyala, Salahuddin and Baghdad. As of April 2008, over 90,000 Iraqis had joined these Councils, variously referred to by the US military as ‘Concerned Local Citizens’ (CLCs) and ‘Sons of Iraq’.


These initiatives, along with continuing violent ructions within the insurgency itself and the US military’s willingness to provide financial backing to the Awakening Councils, have substantially eroded AQI’s capacity to conduct attacks in Iraq.


According to US statistics, the daily average of attacks by the Sunni insurgency has declined from 32 (about 960 a month) in early-2007, to 11 (about 330 a month) in the period between December 2007 and February 2008. Violence in several provinces and districts declined by as much as 90 per cent following the introduction of the Awakening Councils. According to the US military, 2,400 suspected members of AQI were killed and a further 8,800 captured during 2007. The number of foreign fighters entering Iraq from Syria had reportedly plummeted from 110 a month in late summer to about 40 or 50 a month in February 2008. The number of AQI members across the country has plunged from about 12,000 in June 2007 to about 3,500 at the beginning of 2008. Nevertheless, AQI remains a lethal force in Iraq and was still responsible for 4,552 attacks in 2007 that killed 3,870 people and wounded 17,815.


The Awakening Councils have become a particular focus of insurgent activity, with AQI announcing on 14 September 2007 and again on 4 December 2007, its intent to target the growing number of Sons of Iraq cooperating with Coalition forces. Accordingly, attacks on Sons of Iraq leaders increased from 26 a month in October 2007 to 100 in January and February 2008. One of the first victims of this campaign was Abu Risha, the leader of the Anbar Awakening movement which had been largely responsible for driving AQI from Anbar province.


With the effective disruption of its activities in central Iraq, AQI has been pushed to a few key areas in northern Iraq – mainly Mosul, a large city in Nineveh, and the Za’ab triangle to the west of Kirkuk in the neighbouring province of Tammin. In Mosul, which is AQI’s strategic centre of gravity because of its proximity to the Syrian border, the increasing presence of insurgents has been especially conspicuous. From March to September 2007, there were about 7–9 attacks a day in Mosul and the surrounding area, but by the end of the year, as more and more insurgents moved north, this had increased to almost 15 attacks a day. By the middle of February 2008, attacks in Mosul were around 20 a day.


Though the bulk of its terrorist activities are now confined to northern Iraq, AQI is by no means a spent force. It has in recent months carried out some of its most lethal attacks, including a series of truck bombings in August 2007 on two Yazidi villages in northern Iraq that killed more than 500 people and injured a further 1,500. Other reports have stated the number of deaths at up to 700. It remains the single most deadly attack by insurgents since the US led invasion of 2003.


AQI, with its financial strength, long-term ideological appeal to young disaffected Iraqis and continuing strong capability, remains the most potent element in the Iraqi insurgency. Recognising this, the US military has commented that AQI is not a defeated force and is still capable of lethal attacks. AQI has also made statements indicating its intent to continue its activities and in this it has the full support of global al-Qa’ida.





The objectives of AQI within Iraq are to overthrow the current Iraqi Government, expel the Multi-National Forces from the country, combat Shiite centres of power and establish an Islamic state under Sharia law. The continuing priority of these objectives is reflected in the group’s statements, which, as well as promoting the ISoI as the only legitimate Islamic authority in Iraq, almost invariably focus on tabulating AQI’s killing of ‘Crusaders’, Iraqi government and security forces, ‘spies and logistical support personnel’ – presumably referring to foreign contractors and Awakening Council members – and Shiite militia elements.


Beyond these immediate objectives, AQI seeks, through jihad, to liberate all Muslim territories from what it considers to be infidel regimes, an aspiration in which the eventual destruction of the ‘Zionist enemy’ figures prominently. It also promotes the long-term removal of governments of Muslim nations assessed by the network to be apostate.


Leadership and membership


AQI was established and continuously led by al-Zarqawi until his death on 7 June 2006. As of 13 June 2006 Abu Hamza al-Muhajir, an Egyptian formerly responsible for AQI’s intelligence operations and obtaining new recruits, has led the organisation. He adheres to an extreme interpretation of Islam, and, like Zarqawi, harbours a hatred of American ‘Crusaders’, Iraqi ‘impostors’ and ‘blasphemous’ Shiites. Closely aligned with fellow Egyptian al-Zawahiri, al-Muhajir in his first communiqué in June 2006 pledged allegiance to Usama bin Laden.


The strength of the operational network in Iraq is not known. In 2005, AQI claimed to have 15 brigades, reportedly ranging from 100 to 300 operatives each, making a total of between 1,500 and 4,500 operatives. This figure is probably an underestimation, given the US military’s claim to have killed 2,400 suspected AQI operatives and captured a further 8,800 throughout 2007. Overall numbers may be as many as 10,000, while the organisation’s leadership is very small with an estimated 250 individuals comprising senior emirs, regional emirs and their staff.


In terms of AQI’s composition, Iraqis make up about 90 per cent of the organisation. AQI’s leadership, however, is predominantly foreign as are its suicide bombers. According to documents captured in Sinjar, a small town in northern Iraq situated approximately 15 kilometres from the Syrian border, a majority of foreign fighters joining AQI described their ‘work’ as suicide bombers. One recent study analysed 94 suicide bombers in Iraq and found that none were Iraqis – 44 were Saudi, seven Kuwaiti, seven European, six Syrian and the remainder came from across the Middle East and North Africa.


Targets, Methodology and Funding


AQI has been involved in thousands of terrorist attacks in Iraq against Multi-National Forces, Iraqi Security Forces, members of the Iraqi Government, foreigners, Iraqi civilians, especially Shiites but also tribal and fellow insurgent leaders in the Sunni community, and international facilities. Methods of attack are manifold and include small arms ambushes, mortar and artillery rocket attacks, person-borne suicide attacks, roadside bombings, kidnappings and executions. However, AQI is best known for its vehicle-borne suicide bombings. In this the organisation has proven capable, ensuring detonation by using auto-destruct triggers in front bumpers or by using suicide vests on drivers. To overcome suspicion, AQI has also perpetrated attacks using aid vehicles, including ambulances and fire trucks, and vehicles with children on board.


Recently, AQI has also made use of female suicide bombers who can easily conceal explosives beneath their abaya robes and who frequently escape the scrutiny of Iraqi security forces because of the lack of sufficient numbers of policewomen to conduct female searches. As a result, the number of female suicide attacks has risen sharply from eight in 2007 to 21 in the first six months of 2008. AQI used this tactic on 1 February 2008, when two mentally disabled women were used as suicide bombers in an attack on Baghdad pet bazaars that killed almost 100 people.


The network has also undertaken attacks outside of Iraq, especially in Jordan (suicide bomb attacks against hotels in Amman in November 2005 that killed 60 people). Al-Zarqawi also claimed responsibility for a rocket attack on the town of Kiryat Shimona in Israel in 2005. AQI undoubtedly maintains the intent, and possibly the capacity through its foreign fighter network and international links, to strike at Western interests outside Iraq.


Australia is seen as a target by AQI. This is demonstrated by its claim of responsibility for an attack against an Australian Defence Force convoy in Baghdad on 25 October 2004 and an attack near the Australian Embassy in Baghdad on 19 January 2005.


To fund its activities, AQI to some extent relies on regional supporters. These so-called ‘armchair jihadists’ are mainly concentrated in the Sunni Arab Diaspora, especially Saudi Arabia, but Jordan and Syria have also been identified as sources of funding for AQI. Mostly, however, AQI derives its money from criminal activities. As well as intimidating host communities for ‘tribute’, ransoming kidnap victims, car theft and commandeering rations, AQI has tapped into the lucrative fuel market to finance its activities. This generally involves AQI’s oil-stealing gangs hijacking fuel trucks and either diverting shipments to Jordan or Syria where prices are higher, or crossing the border into Iran, changing to Iranian license plates and then returning to Iraq under the guise of legitimacy to sell the fuel at higher prices.


AQI disseminates its ideological message through al-Qa’ida’s media outlet, the Global Islamic Media Group, while its Al-Furqan Institute for Media Production supports the production and distribution of videos showing attacks claimed by AQI. The matter contained in these communiqués is almost invariably violent in nature, praising its ‘martyrs’, calling upon the organisation’s followers to perpetrate attacks against the ‘Unholy Trinity’ of Christians, Jews and Shiites, and regularly providing a ‘harvest’ of enemy kills.


AQI’s engagement in terrorist activities


AQI, though destabilised by recent events, is still capable of conducting high-profile lethal attacks against a variety of sectarian, Sunni, Iraqi Government and Coalition targets. Significant recent attacks for which responsibility has been claimed by, or reliably attributed to AQI have included:





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


(a)               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

(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 AQI is directly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to AQI are terrorist acts as they:


(i)                  are done with the intention of advancing a political cause, namely, creating an Islamic state in Iraq.

(ii)                are intended to coerce or influence by intimidation the governments of foreign countries, including Iraq and Coalition countries, and/or intimidate sections of the public.

(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.



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