EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 208

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2009 (No. 12).

 

 

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-Shabaab, also known as Al-Shabaab al-Islamiya, Harakat al-Shabaab al-Mujahideen, Mujahidin Youth Movement, Shabaab al-Mujahideen Movement, Young Mujahideen Movement, and Young Mujahideen Movement in Somalia, for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

The Regulations enable all offence provisions in Division 102 of the Code to apply to persons with links to Al-Shabaab. 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 or she 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 and the Australian Government Solicitor. The Statement of Reasons in respect of Al-Shabaab 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 the Attorney-General provided a written brief to the Federal Leader of the Opposition.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after they are 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 2009 (No. 12)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2009 (No. 12).

 

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] –After subregulation 4W

 

This item inserts a new regulation 4X 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-Shabaab is specified.

 

Subregulation 4X(1) provides that Al-Shabaab is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4X(2) provides that for the purposes of subregulation (1), Al-Shabaab is also known by the following names:

 

(a)        Al-Shabaab al-Islamiya;

(b)       Harakat al-Shabaab al-Mujahideen;

(c)        Mujahidin Youth Movement;

(d)       Shabaab al-Mujahideen Movement;

(e)        Young Mujahideen Movement;

(f)         Young Mujahideen Movement in Somalia.

 

Attachment B

 

Al-Shabaab

(Also known as: Al-Shabaab al-Islamiya, Harakat al-Shabaab al-Mujahideen, Mujahidin Youth Movement, Shabaab al-Mujahideen Movement,
Young Mujahideen Movement, Young Mujahideen Movement in Somalia)

 

The following information is based on publicly available details about the al-Shabaab. These details are accurate and reliable and have been corroborated by classified information.

 

Basis for listing a terrorist organisation

 

Division 102 of the Criminal Code provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied on reasonable grounds that the organisation:

 

(a)    is directly or indirectly engaged in, preparing, planning, or 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).

 

Details of the organisation

 

Al-Shabaab, or ‘the youth’, is the name often applied to the Somali militant group which was formerly the most prominent of the militia groups comprising the militant wing of the Council of Islamic Courts (CIC). Al-Shabaab encompasses a range of elements, ranging from those focused solely on the domestic insurgency in Somalia to elements that support al-Qa’ida’s global ideology of violent extremism. Elements of al-Shabaab are linked to al-Qa’ida through leadership contacts and training, both recent and historical, and by al-Qa’ida senior leadership endorsement of its activities.

The CIC held power in much of southern Somalia during the second half of 2006, before being ousted in December 2006 by Somali Transitional Federal Government (TFG) and Ethiopian forces. From that time al-Shabaab has conducted a violent insurgency against TFG and Ethiopian forces. It has also carried out attacks against peacekeeping forces from Uganda and Burundi, who are in Somalia as part of an African Union (AU) peacekeeping mission.

During the last few months of 2008, al-Shabaab militants spread their control over large areas of southern and central Somalia, including the significant cities of Kismaayo and Merca. Ethiopian troops withdrew from Somalia during January 2009, in line with a UN-brokered peace agreement reached in Djibouti in August 2008. Following the Ethiopian withdrawal al-Shabaab took control of areas of Mogadishu.

On 31 January 2009 Sheikh Sharif Sheikh Ahmed, leader of the moderate wing of the Alliance for the Re-Liberation of Somalia (ARS), was elected President of Somalia by an expanded session of the appointed Somali Parliament in Djibouti. He succeeded Abdullahi Yusuf, who resigned the Presidency on 29 December 2008. Al-Shabaab is opposed to the Djibouti peace agreement, and continues its opposition to the Somali government. An al-Shabaab spokesman has said it will continue to fight foreign forces in Somalia, and the TFG.

The security environment in Somalia deteriorated during May 2009. Al-Shabaab and other Islamic militant groups engaged in an intensive violent campaign, centred in Mogadishu, against the Somali government and AU peacekeeping forces.

In a February 2009 video statement senior al-Qa’ida figure Sheikh Abu Yahya al-Libi congratulated al-Shabaab on its victory in causing the withdrawal of Ethiopian troops from Somalia. He also urged them to continue jihad against the Somali government and President, and their supporters.

Also in February, al-Qa’ida second-in-command Ayman al-Zawahiri issued a video statement which included a call to the mujahideen of Somalia to reject the government of President Sheikh Sharif Sheikh Ahmed. In mid-March al-Qa'ida leader Usama bin Laden issued a statement warning the Somali mujahideen about the new President, and calling for Muslims everywhere to help the Somali mujahideen fight until Somalia is an Islamic state.

Al-Shabaab has a loose leadership structure with a number of regional factions and commanders. It is not clear whether there is an individual overall leader, however the individual often named as having that role is Ahmed Abdi aw-Mohamed aka Ahmed Abdi Godane aka Abu Zubayr. The most publicly visible leader is spokesman Sheikh Mukhtar Robow aka Abu Mansur.

In August 2008, al-Shabaab released a video statement by al-Qa’ida in East Africa network operative Saleh Nabhan, in which al-Shabaab spokesman Sheikh Mukhtar Robow and Nabhan appeared together. In the video Nabhan pledged allegiance to Usama bin Laden, encouraged Muslim youth everywhere to go to Somalia to wage jihad, and was shown instructing recruits at an al-Shabaab training camp in Somalia

A September 2008 statement issued at the end of Ramadan by the al-Qa’ida-linked Dawn Media Centre, issuing seasonal greetings to jihadist leaders, grouped Mukhtar Robow with other jihadist leaders including Usama bin Laden and Ayman al-Zawahiri as one of “our leaders, sheikhs and emirs”.

A former prominent al-Shabaab leader, Aden Hashi Ayrow, was killed in a missile strike in the town of Dusamareb on 1 May 2008. Al-Shabaab spokesmen including Mukhtar Robow vowed revenge for his death - including against Western interests.

Estimates of the numbers of al-Shabaab fighters vary from 3000 to as high as 7000.

 

Terrorist activity of the organisation

 

Al-Shabaab’s objective is the establishment of an Islamic state in Somalia, based on Islamic law and the elimination of foreign ‘infidel’ influence. In pursuit of this objective it has been carrying on a violent insurgency against the TFG, Ethiopian forces in Somalia in support of the TFG, and AU peacekeeping forces in Somalia supplied by Uganda and Burundi.

Al-Shabaab seeks the creation of an ‘Islamic Emirate of Somalia’, to include Somalia, Somaliland, Puntland, north-eastern Kenya, the Ogaden region of Ethiopia, and Djibouti. In December 2008 Mukhtar Robow told al-Jazeera television that after defeating the enemy [Ethiopia] in Somalia, al-Shabaab would “continue fighting and secure the freedom of many other places in the world from the colonialists”.

Al-Shabaab has prepared, planned and carried out frequent attacks as part of its violent insurgency since the beginning of 2007. Its tactics have included mortar attacks, and use of rocket-propelled grenades and firearms. During 2007, elements of al-Shabaab appear to have drawn inspiration from violent extremists in Afghanistan and Iraq, and adopted their tactics of Vehicle Borne Improvised Explosive Devices (VBIEDs), roadside bombs and suicide attacks. Suicide-vehicle bombings in Hargeysa and Boosaaso, northern Somalia, in October 2008 have been widely attributed to al-Shabaab.

Al-Shabaab attack claims sometimes appear in internet statements in the name of the Young Mujahideen Movement in Somalia (YMMS), an al-Shabaab alias. There have been numerous statements claiming attacks including attempted assassinations of TFG officials, and against TFG security forces and Ethiopian forces in Mogadishu and surrounding areas. Some more significant terrorist attacks for which responsibility has been claimed by, or reliably attributed to, al-Shabaab include:

·        18 June 2009: A suicide-vehicle bombing attack against the Hotel Medina in Beledweyne killed approximately 20 people including the Somali security minister and Somalia’s former ambassador to Ethiopia. The Mujahidin Youth Movement claimed responsibility and promised more bombings to target those it believes are traitors and invading forces.

·        13 April 2009: Al-Shabaab claimed responsibility for an attack in which an aircraft carrying US Congressman Donald Payne came under mortar fire when departing Mogadishu airport; the aircraft departed safely and there were no casualties. Congressman Payne had been visiting Mogadishu for talks on piracy with the Somali president.

·        22 February 2009: A suicide-vehicle bombing attack against an African Union military base in Mogadishu killed 11 Burundian peacekeeping troops and seriously injured 15 others.

·        29 October 2008: Three suicide-vehicle bombs exploded in Hargeysa, the capital of Somaliland, at the United Nations Development Program (UNDP) Office, the Ethiopian Consulate Office and the President’s palace. Two similar attacks in Boosaaso, the Puntland capital, targeted the premises of the Puntland Intelligence Service. Approximately 30 people were killed, the majority in Hargeysa.

·        9 September 2008: Al-Shabaab claims responsibility for murdering Somali MP, Usman Maye, and mounting a large scale offensive against Ethiopian and Somali forces.

·        20-25 August 2008: In late August 2008, YMMS posted seven messages on extremist forums claiming responsibility for a range of attacks between 20-25 August:- the killing of at least 35 militia of a local warlord in Kismaayo; the killing of seven Ugandan peacekeeping soldiers in Mogadishu; the killing of five Ethiopian soldiers in the town of Beledweyne near the Ethiopian border; the killing of three Somali police; an attack on Somali soldiers in two separate incidents in Mogadishu; and an artillery and mortar attack on the Presidential Palace in Mogadishu.

·        21 and 22 May 2008: Al-Shabaab claims Mogadishu attacks, killing or injuring 57 Ethiopian soldiers.

·        13 April 2008: Insurgents loyal to al-Shabaab shot dead two Somali-born Britons and two Kenyans at a school in the central Somali town of Beledweyne. Sheikh Mukhtar Robow confirmed the killings but denied any responsibility.

·        13 March 2008: Three Somali soldiers were killed by al-Shabaab militants on a major road leading from Mogadishu to Baidoa, seat of the TFG.

·        5 February 2008: Bombings killed at least 20 Ethiopian immigrants in the Puntland (northern Somalia) port of Boosaaso. Close to 100 people were wounded. Al-Shabaab said the attack had targeted Ethiopian soldiers and some of their wives and children had been killed.

·        23 March 2007: A missile attack brought down a Belarusian-owned Il-76 cargo aircraft supporting the AU peacekeeping force. The attack took place shortly after takeoff from Mogadishu Airport, killing the eleven person crew.

 

Al-Shabaab spokesmen publicly advocated, on a number of occasions, terrorist attacks in revenge for the death of Aden Hashi Ayrow in a US missile strike on 1 May 2008:

·        Sheikh Mukhtar Robow called on governments that support Ethiopia and America to keep their citizens out of Somalia. Robow also vowed that al-Shabaab would avenge Ayrow’s death and would “redouble the holy war against the infidels.”

·        Another al-Shabaab leader, Ma’allim Hashi Muhammad Farah, said the mujahideen were ready to take revenge against US troops, and Muslims everywhere would “hunt the US Government.”

·        Shaykh Muqtar Robow also said al-Shabaab would kill American citizens in Somalia even if they are journalists and aid workers

Statements by al-Shabaab commanders in late 2007 confirmed the militants’ intention to continue the insurgency against the TFG and foreign forces in Somalia. According to a December 2007 media report, senior al-Shabaab commander Sheikh Mukhtar Robow announced al-Shabaab planned to intensify its offensive against government troops and their Ethiopian allies. Robow said al-Shabaab had killed nearly 500 Ethiopian soldiers and would fight until foreign troops left Somalia.

As demonstrated, al-Shabaab is directly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted the acts attributable to al-Shabaab are terrorist acts as they:

(a)     are done with the intention of advancing a political cause, namely, removing the Somali Government and the elimination of foreign influences from Somalia;

(b)    are intended to coerce or influence by intimidation the governments of foreign countries, namely the US, Uganda, Ethiopia and Burundi, and/or intimidate a section of the US, Ugandan, Ethiopian, Burundi public; and

(c)     constitute acts which cause serious physical harm to persons, including death, as well as serious damage to property.

 

Other relevant information

 

The United States listed al-Shabaab as a terrorist organisation in March 2008.

 

Al-Shabaab has not been involved in any peace or mediation process in Somalia.