[Index] [Search] [Download] [Related Items] [Help]
CRIMINAL CODE AMENDMENT REGULATIONS 2008 (NO. 6) (SLI NO 220 OF 2008)
Select Legislative Instrument 2008 No. 220
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code Amendment Regulations 2008 (No. 6).
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 Jamiat ul-Ansar (JuA) also known as Al-Faran, Al-Hadid, Al-Hadith, Harakat Mujahideen (HM), Harakat-ul-Ansar (HuA), Harakat ul-Mujaheddin, Harakat ul‑Mujahedeen, Harakat ul-Mujahedin, Harakat ul-Mujahideen (HuM), Harakat ul‑Mujahidin, Harkat ul-Ansar, Harkat ul-Mujahideen, Islamic Freedom Fighters Group, Islamic Freedom Fighters Movement, Movement of Holy Warriors, 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 Jamiat ul-Ansar. 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 Jamiat ul-Ansar 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. 6)
Regulation 1- Name of Regulations
This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2008 (No. 6).
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 4D
This item substitutes the existing regulation with a new regulation 4D to provide that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code, the organisation known as Jamiat ul-Ansar is specified.
Subregulation 4D(1) provides that Jamiat ul-Ansar 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), Jamiat ul-Ansar is also known by the following names:
(d) Harakat Mujahideen (HM);
(e) Harakat-ul-Ansar (HuA);
(f) Harakat ul-Mujaheddin;
(g) Harakat ul‑Mujahedeen;
(h) Harakat ul-Mujahedin;
(i) Harakat ul-Mujahideen (HuM);
(j) Harakat ul‑Mujahidin;
(k) Harkat ul-Ansar;
(l) Harkat ul-Mujahideen;
(m) Islamic Freedom Fighters Group;
(n) Islamic Freedom Fighters Movement
(o) Movement of Holy Warriors.
Jamiat ul-Ansar (JuA)
(Also known as: Harakat ul-Mujahideen (HuM), Movement of Holy Warriors, Harakat ul-Mujaheddin, Harakat ul-Mujahedeen, Islamic Freedom Fighters Movement, Islamic Freedom Fighters Group, Harakat ul-Mujahidin, Harakat ul-Mujahedin, Harkat ul-Mujahideen, Harakat Mujahideen (HM), Harakat-ul-Ansar (HuA), Harkat ul-Ansar, Al-Faran, Al-Hadid, Al-Hadith)
The following information is based on publicly available details about Jamiat ul-Ansar (JuA). These details have been corroborated by material from intelligence investigations into the activities of JuA and from official reporting. ASIO assesses that the details set out below are accurate and reliable.
The JuA is listed under the name Harakat ul-Mujahideen (HuM) in the United Nations 1267 Committee’s consolidated list and is a proscribed terrorist organisation by the governments of Canada, the UK, the US and Pakistan.
Current status of JuA
JuA is a Sunni Islamic extremist organisation based in Pakistan that operates primarily in Indian administered Kashmir (IAK). Founded in 1985 as the Harakat ul-Mujahideen (HuM), JuA was initially formed, with support from the Pakistan government, to participate in the Soviet-Afghan conflict in the 1980s. Following Soviet withdrawal from Afghanistan in 1989, JuA concentrated its efforts on the disputed territories of Kashmir and Jammu, where it conducted numerous attacks against Indian troops and civilians. Using the alternative name, al-Faran, in order to mask its activities, JuA also kidnapped, and in some cases murdered, a number of foreigners.
JuA is aligned politically with Jamiat-e-Ulema-e-Islam Fazul Rehman faction (JUI-F), a prominent radical Islamic party in Pakistan. Funding for JuA is received through donations to Islamic charities and is collected from sympathisers in Pakistan, the United Kingdom and the Gulf states. JuA has cooperated with other Islamic militant groups operating in Afghanistan, Kashmir and Pakistan such as the Hizb-ul-Mujahideen (HM), the Lashkar-e-Tayyiba (LeT), Jaish e-Muhammad (JeM), and the Sipah-e-Sahaba Pakistan (SSP). JuA is a member of the United Jihad, an umbrella organisation formed to bring all insurgent groups in Kashmir together in order to coordinate strategies and improve communication between groups.
In 1993 the JuA (then known as HuM) merged with another Kashmir-focused terrorist group, the Harakat-ul-Jehad-al-Islami (HuJI), to form the Harkat-ul-Ansar (HuA). As a consequence of reports linking the group to al-Qa'ida, HuA was proscribed as a terrorist organisation by the US in 1997. The group immediately re-adopted the name Harakat ul-Mujahideen to escape the ramifications of proscription. In 1998, the group’s leader, Fazlur Rehman Khalil, signed Usama bin Laden’s fatwa calling for attacks on the US and its allies. In the aftermath of the 11 September 2001 terrorist attacks, HuM was declared a terrorist organisation by the US for its extensive links with Usama bin Laden. HuM was also banned by the Pakistan government in November 2001. Following the ban, HuM again renamed and is now operating under its present name of Jamiat ul-Ansar. JuA was subsequently banned by Pakistan in November 2003.
Following his release from an Indian prison in 2000, JuA member Maulana Masood Azhar established the JeM as a splinter group with almost identical aims as the JuA. This led to a large number of JuA operatives defecting to JeM, including a number of experienced field commanders, which has impacted on JuA’s operational capabilities. The JeM was initially proscribed in Australia on 11 April 2003 and was last listed on 31 March 2007.
Indian and Pakistani initiatives to resolve the conflict in Kashmir have led to an overall reduction in the level of JuA infiltration and insurgent activity since 2006. JuA remains active in IAK, for example, the 2 November 2006 shooting of a former Special Police Officer in Kashmir accused by JuA of collaborating with a police operations group. JuA has also been linked to the kidnapping and subsequent beheading of a Hindu businessman in Pakistan’s Sindh Province in February 2007. An exchange of gunfire with Indian Security Forces in Jammu, on 4 January 2007, is further evidence of their ongoing activity.
Individuals trained at HuM/JuA facilities have, in the past, engaged in terrorist operations in other places where Islamic extremists have arisen including, Tajikistan and Bosnia and Herzegovina. While IAK and Indian interests remain JuA’s primary focus, reporting indicates JuA is active in Pakistan’s western provinces and is directly engaged in advocating and fostering terrorist attacks against Afghan and coalition forces in Afghanistan. On 19 June 2005, several JuA trained individuals were arrested in Afghanistan preparing to carry out acts of terrorism. Since his release in 2006 from Pakistan detention, JuA leader, Fazlur Rehman Khalil, has reportedly visited JuA linked mosques and madrassas in Pakistan urging local Muslims to engage in jihad against NATO forces in Afghanistan under the leadership of Mulla Mohammad Omar, the Amir of the Taliban. On 16 December 2006, leaders of JuA and Lashkar-e-Jhangvi (LeJ) called for a joint strategy and pledged to cooperate with Afghan insurgents to target US and NATO forces in Afghanistan.
JuA camps in Pakistan provide both religious instruction and military style guerrilla training and support, not only to JuA members, but also to other associated terrorist organisations and individual jihadists from all over the world. Reporting indicates JuA may be helping to facilitate training, in Pakistan, of members of the Pakistani diaspora in the UK, some of whom are possibly intending to return to the UK to conduct terrorism related activities. The group also operated terrorist training camps in eastern Afghanistan prior to their destruction by coalition air strikes in 2001. Other JuA training facilities are less conspicuous and focused on preparing jihadists for more low intensity, hit and run type operations or suicide attacks.
Some elements within JuA want to re-focus their activities and bring them more into line with Usama bin Laden’s ‘global jihad’ against the US and Israel, and their allies. In 2004, several members of a JuA-trained splinter group were arrested for their involvement in separate suicide car-bomb attacks outside the US Consulate and the Sheraton Hotel in Karachi in May and June 2002, and a failed attempt to assassinate Pakistani President Pervez Musharraf with a remote-controlled car-bomb in April 2002. As members of a previously unknown group “Jundallah,” JuA trained members were among a number of militants drawn from several Pakistani extremist groups responsible for the twin car-bomb attack near the US Consulate in Karachi on 26 May 2004. On 9 June 2004, the same terrorist cell was involved in a terrorist attack against a heavily-armed military convoy carrying Karachi’s military commander, resulting in seven deaths.
More recently, individuals who attended JuA training camps were involved in the preparation of terrorist attacks in 2005. Additionally, the JuA continues to undertake terrorist activity such as shooting of a former Special Police Officer in Kashmir in 2006 and the kidnapping and beheading of a Hindu businessman in 2007.
JuA is a group that uses violence in pursuit of its stated objective of uniting Jammu and Kashmir with Pakistan under a radical interpretation of Islamic law.
Leadership and membership
The leader of JuA is Fazlur Rehman (sometimes Rahman) Khalil, (aka Maulana Farzul Ahmed Khalil, Maulana Ahmed Khalil). Reporting indicates that the JuA has a strength of no more than a few hundred, but exact membership numbers cannot be accurately determined. The majority of JuA’s membership consists of jihadists from Pakistan, Kashmir, and Afghanistan. JuA has also attracted new recruits and provided training to transnational Islamic militants drawn from around the world, including Bangladesh and South-East Asia, the UK and the US.
JuA engagement in terrorist activities
JuA has been involved in a number of terrorist activities, including hijacking, bombings abductions, and training. Terrorist activities for which responsibility has been claimed by, or reliably attributed to, JuA over the past nine years include:
● December 1999: An Indian airliner was hijacked en route from Nepal to India, one passenger was stabbed to death.
● November 2000: 30 Indian soldiers were killed at two army posts in Kashmir.
● January 2002: The abduction and subsequent murder of US journalist, Daniel Pearl. Four people, including JuA member Ahmed Omar Sheikh, were convicted of Pearl’s murder;
● June 2002: A suicide car-bomb attack outside the US Consulate in Karachi, which killed 11 persons;
● June 2005: The arrest, in Afghanistan, of several JuA trained individuals preparing to carry out acts of terrorism;
● June 2005: The arrest of two American citizens for suspected participation in an al-Qa'ida plot to attack the US. Both claimed to have attended a terrorist training camp run by JuA leader Fazlur Rehman Khalil;
● November 2006: The shooting of a former Special Police Officer in Kashmir accused by JuA of collaborating with a police operations group;
● February 2007: The kidnapping and subsequent beheading of a Hindu businessman in Pakistan’s Sindh Province.
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 that JuA involvement in terrorist activity has declined since 2002. However, ASIO assess JuA remain active and is directly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to the JuA are terrorist acts as they:
(i) are done with the intention of advancing a political cause, namely, the uniting of Jammu and Kashmir with Pakistan under Islamic law;
(ii) are intended to coerce or influence by intimidation the government of a foreign country, namely India, and/or intimidate a section of the Indian 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.