EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 214

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2009 (No. 15).

 

 

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 Lashkar-e-Tayyiba also known as al Mansooreen, al Mansoorian, Army of Medina, Army of the Pure, Army of the Pure and Righteous, Army of the Righteous, Idara Khidmat-e-Khalq, Jama'at al-Dawa, Jama'at-i-Dawat, Jamaati-ud-Dawa, Jamaat ud-Daawa, Jama'at-ud-Da'awa, Jama'at-ud-Da'awah, Jamaat-ud-Dawa, Jama'at ul-Da'awa, Jamaat-ul-Dawa, Jamaat ul-Dawah, Jamaiat-ud-Dawa, JuD, JUD, Lashkar-e-Taiba, Lashkar-e-Tayyaba, Lashkar-e-Toiba, Lashkar-i-Tayyaba, Lashkar-i-Toiba, Lashkar-Tayyiba, LeT, LT, Paasban-e-Ahle-Hadis, Paasban-e-Kashmir, Paasban-i-Ahle-Hadith, Party of the Calling, Party of the Preachers, Pasban-e-Ahle-Hadith, Pasban-e-Kashmir, Soldiers of the Pure and Tehreek-e-Tahafuz Qibla Awal, 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 Lashkar-e-Tayyiba. 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 and the Australian Government Solicitor. The Statement of Reasons in respect of Lashkar-e-Tayyiba 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 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 has provided a written briefing 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 when the regulations will sunset.

 

 

 

 

 

 

 

Attachment A

 

Details of the Criminal Code Amendment Regulations 2009 (No. 15)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2009 (No. 15).

 

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 4V

 

This item provides that the existing regulation 4V, ‘Terrorist organisations – Lashkar‑e-Tayyiba (LeT or LT)’, is to be substituted with a new regulation 4V.

 

New subregulation 4V(1) provides that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code (the Code), the organisation known as Lashkar-e-Tayyiba is specified.

 

The effect of this subregulation is that Lashkar-e-Tayyiba will continue to be specified as a terrorist organisation under subsection 102.1(1) of the Code for a further 2 years.

 

Subregulation 4V(2) provides that for the purposes of subregulation (1),
Lashkar-e-Tayyiba is also known by the following names:

 

(a)        al Mansooreen;

(b)       al Mansoorian;

(c)        Army of Medina;

(d)       Army of the Pure;

(e)        Army of the Pure and Righteous;

(f)         Army of the Righteous;

(g)        Idara Khidmat-e-Khalq;

(h)        Jama'at al-Dawa;

(i)          Jama'at-i-Dawat;

(j)         Jamaati-ud-Dawa;

(k)       Jamaat ud-Daawa;

(l)          Jama'at-ud-Da'awa;

(m)      Jama'at-ud-Da'awah;

(n)        Jamaat-ud-Dawa;

(o)       Jama'at ul-Da'awa;

(p)       Jamaat-ul-Dawa;

(q)       Jamaat ul-Dawah;

(r)         Jamaiat-ud-Dawa;

(s)        JuD;

(t)         JUD;

(u)        Lashkar-e-Taiba;

(v)        Lashkar-e-Tayyaba;

(w)      Lashkar-e-Toiba;

(x)        Lashkar-i-Tayyaba;

(y)        Lashkar-i-Toiba;

(z)        Lashkar-Tayyiba;

(za)     LeT;

(zb)    LT;

(zc)     Paasban-e-Ahle-Hadis;

(zd)    Paasban-e-Kashmir;

(ze)     Paasban-i-Ahle-Hadith;

(zf)      Party of the Calling;

(zg)     Party of the Preachers;

(zh)     Pasban-e-Ahle-Hadith;

(zi)       Pasban-e-Kashmir;

(zj)      Soldiers of the Pure;

(zk)    Tehreek-e-Tahafuz Qibla Awal.

 

Attachment B

 

Lashkar-e-Tayyiba

(Also known as: al Mansooreen, al Mansoorian, Army of Medina, Army of the Pure, Army of the Pure and Righteous, Army of the Righteous, Idara Khidmat-e-Khalq, Jama’at al-Dawa, Jama’at-i-Dawat, Jamaati-ud-Dawa, Jamaat ud-Daawa, Jama’at-ud-Da’awa, Jama’at-ud-Da’awah, Jamaat-ud-Dawa, Jama’at ul-Da’awa, Jamaat-ul-Dawa, Jamaat ul-Dawah, Jamaiat-ud-Dawa, JuD, JUD, Lashkar-e-Taiba, Lashkar-e-Tayyaba, Lashkar-e-Toiba, Lashkar-i-Tayyaba, Lashkar-i-Toiba, Lashkar-Tayyiba, LeT, LT, Paasban-e-Ahle-Hadis, Paasban-e-Kashmir, Paasban-i-Ahle-Hadith, Party of the Calling, Party of the Preachers, Pasban-e-Ahle-Hadith, Pasban-e-Kashmir, Soldiers of the Pure, Tehreek-e-Tahafuz Qibla Awal)

 

The following information is based on publicly available details about Lashkar-e-Tayyiba (LeT). 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

 

LeT is a Sunni Islamic extremist organisation based in Pakistan. LeT was formed circa 1989 as the military wing of the Pakistan-based Islamic fundamentalist movement Markaz al-Dawa wal Irshad (MDI – Centre for Religious Learning and Propagation; also known as the Jamaat al-Daawa). Originally formed to wage militant jihad against the Soviet occupation of Afghanistan, LeT shifted its focus to the insurgency in Indian-administered Kashmir (IAK) in the 1990s, after Soviet troops withdrew from Afghanistan.

LeT is one of the most active of the Pakistan-based Kashmiri militant groups. LeT has directly engaged in, prepared and planned numerous terrorist attacks, including bombings, assassinations and kidnappings against Indian security forces (military and police), government, transport and civilians in the disputed territory as well as in India. The group is also credited with introducing the use of suicide squads to the conflict in IAK.

In 2002, LeT was banned by the Pakistan government but the group continues to operate in Pakistan under the alias Jamaat ud-Dawa (JuD). Ostensibly created as a charitable organisation by LeT founder Hafiz Muhammad Saeed immediately prior to LeT being banned, JuD functions as a front organisation for LeT in order to mask its activities and to continue to solicit funds. The UN Security Council listed JuD as an LeT alias on 10 December 2008.

LeT subscribes to an extreme Salafist interpretation of Islam which is closely related to the Wahhabi form of Islam associated with al-Qa'ida and the Taliban. LeT receives funding from donors in the Middle-East, mainly Saudi Arabia, and through charitable donations collected from sympathisers in Pakistan, Kashmir, the United Kingdom and Persian Gulf states.

LeT maintains links to the Taliban and al-Qa'ida, and to several Pakistani Islamic extremist groups, including the Kashmir focused terrorist group Jaish-e-Mohammed (JeM), and the Sunni sectarian group Lashkar-e-Jhangvi (LeJ). LeT is reported to have been involved with militant Islamists in other places where conflict including Muslims have arisen; including Bosnia, Chechnya, Kosovo, and Afghanistan. In 2004, several LeT operatives were also captured by British forces in Iraq.

Indian and Pakistani initiatives to resolve the Kashmir situation have led to an overall reduction in the level of infiltration and insurgent activity since 2002. However, LeT continues to engage militarily with Indian security forces on a regular basis. Several recent attacks in IAK have been attributed to the group by Indian authorities, including the massacre of over thirty Hindus in two separate attacks in the Doda and Udhampur districts on 1 May 2006. The attacks occurred two days prior to peace talks between the Indian government and Kashmiri separatist groups, and were condemned by India as an attempt by LeT to sabotage the Kashmir peace process. At least 19 LeT insurgents and 10 Indian soldiers died during running clashes in Kupwara district in March-April 2009. Smaller scale engagements occur on a regular basis.

LeT is also widely held to have directly engaged in a number of significant attacks in India in recent years. In November 2008, LeT members killed more than 170 people, including two Australians, in an attack on the Indian financial hub, Mumbai. Further attacks include the 11 July 2006 serial bombings on trains in Mumbai, and the 29 October 2005 serial explosions at marketplaces in New Delhi, which killed more than 240 people. While two little known groups claimed responsibility for each of the Mumbai and New Delhi attacks, subsequent investigations have led Indian authorities to conclude LeT was behind both attacks.

While IAK and Indian interests remain LeT’s primary focus, some elements within LeT may 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. However, its primary objective remains the ‘liberation’ of Muslims in IAK. In October 2006, LeT issued a fatwa asking the Muslim community to kill Pope Benedict XVI, in response to a speech delivered by the Pope on 12 September 2006.

LeT operates a number of camps in Pakistan, which provide both religious instruction and military-style guerrilla training and support. Since proscribing LeT as a terrorist organisation in 2002, the Pakistani authorities have acted to close some LeT and JuD camps. Some LeT training facilities are now smaller in scale, some of which are mobile, and focused on preparing jihadists for low-intensity, hit-and-run type operations, or suicide attacks.

Reporting also indicates LeT has trained foreigners possibly intending to conduct terrorist operations in their countries of origin. British citizens trained by LeT include Richard Reid, who tried to blow up a trans-Atlantic flight in 2001, and Dhiren Barot, who was convicted in 2006 of planning a bombing in London. Investigations indicate one of the British-born suicide bombers responsible for the 7 July 2005 attacks in London, Shehzad Tanweer, may have received training at a LeT camp in Pakistan. LeT is also suspected of providing some funding and logistical support to the disrupted British trans-Atlantic plane bombing plot in August 2006 using JuD as a cover.

Several individuals with links to LeT have been arrested in Australia, the US, and Canada since 2003 for allegedly planning terrorist activities. In March 2007, a French court convicted French national, Willie Brigitte, for planning terrorist attacks in Australia in 2003 in conjunction with suspected LeT chief for overseas operations, Sajid Mir. An Australian associate was also convicted of planning acts of terrorism by the New South Wales Supreme Court jury in June 2006; this case has not since been overturned. Australian citizen David Hicks has admitted to attending an LeT training camp in Kashmir in around 2000. Aside from facilitating training, it is not clear whether LeT sanctioned the terrorist activities of any of these foreign-born individuals.

The recognised leader of LeT, Hafiz Muhammad Said (variant of name, spelt Saeed in most reporting), was arrested in February 2006 for leading violent protests in response to the Danish cartoon controversy, and again in August 2006 in the wake of the disrupted British airliner bombing plot. He has been detained and subsequently released by Pakistani authorities on several occasions; he has been put under house arrest again in December 2008. In December 2008, then US Secretary of State, Condoleezza Rice, identified Hafiz Muhammad Said as responsible for the Mumbai attacks during her visit to Pakistan following the incident. Rice sought Pakistan’s support to apprehend Said in relation to his and LeT’s links to the attacks. On 10 December 2008, the United Nations Security Council 1267 Committee approved the addition of Hafiz Muhammad Said to its consolidated list of individuals and entities subject to asset freeze, travel ban and arms embargo measures.

 

LeT’s estimated strength is reported to include several hundred trained militants. The majority of LeT’s membership consists of jihadists from Pakistan and Afghanistan.

 

Terrorist activity of the organisation

 

LeT is a group that uses violence in pursuit of its stated objective of uniting IAK with Pakistan under a radical interpretation of Islamic law. LeT’s broader objectives include the establishment of a Islamic Caliphate across the Indian subcontinent, and reclaiming all ‘occupied Muslim lands’ in southern Spain and the Balkans. To this end, LeT intend to pursue the ‘liberation,’ not only of the Muslim-majority Kashmir, but of all India’s Muslim population, even in areas where they do not form a majority. LeT has declared democracy to be antithetical to Islamic law and that LeT’s jihad requires it to work toward turning Pakistan into a purely Islamic state.

The LeT has directly engaged in a number of terrorist attacks, including suicide attacks, bombings, kidnappings, and assassinations.

LeT conducts attacks in IAK on a regular basis, primarily targeting Indian security forces but also non-Muslim civilians. Other significant attacks, for which responsibility has been claimed by, or reliably attributed to, the LeT, include:

·        October 2005: Coordinated bomb attacks at marketplaces and on a bus in New Delhi, killing over 60 persons;

·        November 2005: Car bomb attack near the main entrance of the J&K Bank Corporate Headquarters in Srinagar which killed four civilians and injured 72;

·        May 2006: Killing of Hindu civilians in Doda and Udhampur districts, Jammu & Kashmir, killing 34 civilians;

·        May 2006: Attack on a Youth Congress rally at Sher-e-Kashmir Park in Srinagar, killing three political activists and two police officers;

·        June 2006: Joint responsibility with Hizb-ul-Mujahideen (HM) for the kidnap and killing of seven Nepalese civilian and one Indian civilian in Kulgam, Jammu & Kashmir;

·        July 2006: Serial bombings on trains in Mumbai, killing more than 200 persons;

·        February 2007: Attack on a Central Reserve Police Forces (CRPF) patrol party, killing two CRPF officers;

·        September 2008: A number of LeT militants crossed into India during an engagement with Indian border forces along the Line of Control in the Poonch district. Several militants and border troopers were killed; and

·        November 2008: LeT members conducted an attack on the Indian financial hub, Mumbai. More than 170 people were killed in this attack, including two Australians. The attack was aimed at important infrastructure and public places. The attackers used sophisticated insertion techniques and conducted their coordinated attack with small arms and explosives.

 

As demonstrated, LeT is directly preparing, planning, assisting in or fostering the doing of terrorist acts. The acts attributable to LeT are terrorist acts as they:

 

(i)                  are done with the intention of advancing a political cause, namely, ‘liberating’ Muslims in Indian-administered Kashmir and the establishment of an Islamic Caliphate across the Indian subcontinent.

(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.

 

Other relevant information

The LeT is listed in the United Nations 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the governments of Canada, the United Kingdom, the United States, Pakistan and India.