Commonwealth Numbered Regulations - Explanatory Statements

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Select Legislative Instrument 2009 No. 34



Issued by the authority of the Attorney-General


Criminal Code Act 1995


Criminal Code Amendment Regulations 2009 (No. 1).



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 Ansar al-Islam also known as Ansar al-Sunna, Partisans of Islam, Protectors of Islam, Kurdistan Supporters of Islam, Supporters of Islam in Kurdistan, Followers of Islam in Kurdistan, Kurdish Taliban, Devotees of Islam, Jaish Ansar al-Islam, Jaish Ansar al-Sunna, Ansar al-Islam Army, Army of Ansar al-Islam, Jund al-Islam, Soldiers of Islam, Soldiers of God, and Protectors of the Sunna Faith, 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 Ansar al-Islam. 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 Ansar al-Islam 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 when the Regulations will sunset.








Attachment A


Details of the Criminal Code Amendment Regulations 2009 (No. 1)


Regulation 1- Name of Regulations


This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2009 (No. 1).


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 4H


This item substitutes the existing regulation with a new regulation 4H 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 Ansar al-Islam is specified.


Subregulation 4H(1) provides that Ansar al-Islam is specified as a terrorist organisation under subsection 102.1(1) of the Code.


Subregulation 4H(2) provides that for the purposes of subregulation (1), Ansar al-Islam is also known by the following names:


(a)        Ansar al-Islam Army;

(b)       Ansar al-Sunna;

(c)        Army of Ansar al-Islam;

(d)       Devotees of Islam;

(e)        Followers of Islam in Kurdistan;

(f)         Jaish Ansar al-Islam;

(g)        Jaish Ansar al-Sunna;

(h)        Jund al-Islam;

(i)          Kurdish Taliban;

(j)         Kurdistan Supporters of Islam;

(k)       Partisans of Islam;

(l)          Protectors of Islam;

(m)      Protectors of the Sunna Faith;

(n)        Soldiers of God;

(o)       Soldiers of Islam; and

(p)       Supporters of Islam in Kurdistan.

Attachment B


Ansar al-Islam

(Also known as Ansar al-Sunna, Partisans of Islam, Protectors of Islam, Kurdistan Supporters of Islam, Supporters of Islam in Kurdistan, Followers of Islam in Kurdistan, Kurdish Taliban, Devotees of Islam, Jaish Ansar al-Islam, Jaish Ansar al-Sunna, Ansar al-Islam Army, Army of Ansar al-Islam, Jund al-Islam, Soldiers of Islam, Soldiers of God, Protectors of the Sunna Faith)

The following information is based on publicly available details about Ansar al-Islam (formerly listed as Ansar al-Sunna). Ansar al-Islam is listed as Ansar al-Islam in the United Nations 1267 Committee’s consolidated list and by the governments of Canada and the US. Ansar al-Islam and Ansar al-Sunna, though the same entity, are listed separately by the UK government. It is also listed by the European Union (EU) for the purposes of its anti-terrorism measures.

Current status of Ansar al-Islam

Ansar al-Islam has been through several name changes since its formation in December 2001. Originally established under its present name, Ansar al-Islam emerged from a conglomeration of several smaller Kurdish-based Sunni extremist groups within the Kurdish Autonomous Zone (KAZ) in northern Iraq. At this stage, Ansar al-Islam focused on the defeat of the secular Kurdish leadership to establish an independent Islamic state in the KAZ.

In March 2003, successful joint Patriotic Union of Kurdistan (PUK) and US military operations against Ansar al-Islam strongholds forced many in the group to disperse to other locations, including Iran. Ansar al-Islam members regrouped shortly thereafter and returned to Iraq, where they sought, in cooperation with other foreign and Iraqi militants, to create a more broad-based and less overtly-Kurdish organisation for the Sunni jihadist resistance to the Coalition presence in Iraq.

As a result, Ansar al-Islam evolved into Ansar al-Sunna. In late 2003, the new group formally announced its existence in an internet statement calling upon all jihadists in Iraq to unite under the name Ansar al-Sunna. Following the release of this statement, attacks conducted by Ansar al-Islam operatives were claimed under the name Ansar al-Sunna.

Because they were one and the same group, Ansar al-Sunna’s leadership was similar to that of Ansar al-Islam as was its mainly Arab-Kurdish composition. Further, Ansar al-Sunna focused its attacks on the same enemies as its predecessor – in its first major strikes, Ansar al-Sunna, on 14 October 2003, bombed the Turkish Embassy in Baghdad, killing one bystander, and on 1 February 2004, it claimed responsibility for multiple simultaneous suicide car bombings on PUK offices in Arbil that killed at least 105 civilians and injured 130 others.

Like other Salafist terrorist groups, especially al-Qa’ida, Ansar al-Sunna’s ultimate objective was to establish a Sunni-dominated Islamic state in Iraq. For this reason, Ansar al-Sunna, as well as conducting attacks on members of the ‘apostate’ Iraqi government, banned participation in democratic elections and increasingly targeted state-sponsored ‘collaborators’, especially Iraqi police and military forces. A series of Ansar al-Sunna bombings on police stations and police recruitment centres in northern Iraq in early-2004 killed at least 20 people.

Ansar al-Sunna, though mainly preoccupied with Iraqi official interests, also promised to ‘step up and double’ its attacks on the Coalition, a pledge that became reality in December 2004 when Ansar al-Sunna claimed responsibility for a suicide attack at a US military base in Mosul that killed 18 Americans, including 14 soldiers. It also assassinated civilians, including Iraqi and foreign contractors. In August 2004, the group released a video showing 12 Nepalese hostages being executed. As a measure of the group’s fundamentalist interpretation of Islam, Ansar al-Sunna announced that they had been killed not merely for ‘serving the Jews and the Christians’ but also for ‘believing in Buddha as their God’.

Over the next few years, Ansar al-Sunna conducted a steady stream of attacks against Iraqi government and security institutions, Coalition forces, civilian contractors, religious groups, diplomatic facilities and Iraqi infrastructure. Its tactical repertoire was already extensive and traversed the full range of insurgent operations for which the group is currently renowned, including suicide attacks, car bombings, emplaced improvised explosive devices (IEDs), hostage-taking, executions, assassinations and conventional military attacks. By February 2007, Ansar al-Sunna had claimed responsibility for approximately 1,600 attacks in Iraq.

Ansar al-Sunna, as well as openly declaring its fealty to Usama bin Laden, had historical links to al-Qa’ida in Iraq (AQI), a proscribed terrorist organisation formerly known as Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn (TQJBR). AQI’s founder, Abu Musab al-Zarqawi, operated one of the Ansar al-Islam training camps prior to US and PUK operations against the group in 2003.

However, despite sharing an obvious ideological affinity with AQI as well as personnel, equipment and an almost identical target set and attack methodology, Ansar al-Sunna was determined to maintain its independence. It thus refused to join either of AQI’s umbrella organisations, the Mujahideen Shura Council (MSC), established in January 2006, and the Islamic State of Iraq (ISoI), which superseded the MSC in October 2006.

Meanwhile, in April 2007, the Islamic Army in Iraq (IAI), a native nationalist-jihadist group that had always been uncomfortable with AQI’s indiscriminate violence against Iraqi Muslims and which felt increasingly threatened by the ISoI’s ruthless efforts to monopolise the Sunni insurgency, openly criticised ‘the unlawful practices of the brothers from al-Qa’ida’. This was followed, in May 2007, by the IAI’s establishment of its own competing pan-Islamic political organisation, the Reformation and Jihad Front, or RJF (also known as the Jihad and Reformation Front), a body that reportedly incorporated the IAI, the Mujahideen Army and Ansar al-Sunna.

These events led to the first signs of a split within Ansar al-Sunna. The group’s Shariah Council, or Legal Committee, which had already criticised AQI in January 2007 for allegedly killing Ansar al-Sunna members, began promoting the idea of a partnership with an unspecified group – presumably the IAI – that other members, including Ansar al-Sunna’s Emir, Abu Abdullah al-Hassan bin Mahmud, claimed was ‘deviating from the principles of Shariah’. Two Shariah Council members in particular, Abu Sajjad and Shaykh Abu Hind, who subsequently resigned from or were asked to leave Ansar al-Sunna, then helped form the RJF.

Continuing claims by the RJF that pro-AQI Ansar al-Sunna had joined forces with a front group led by AQI’s enemy were denied by the group’s leaders, who criticised the Reformation and Jihad Front for perpetrating ‘false allegations’. There was no split, Ansar al-Sunna announced, despite subsequent claims by the Shariah Council that ‘most of the group’s cadres had joined the breakaway faction’ – an unlikely claim given the consistently higher profile of the original group over its erstwhile Shariah Council.

On 16 May 2007, moreover, Ansar al-Sunna’s leadership issued a statement of support for ‘our brothers’ in the ISoI as well as a number of subsequent statements claiming joint operations with AQI. These included an attack on a US military convoy that reportedly killed six American soldiers and an operation against US forces and ‘their quislings from the [Kurdish] Peshmerga’ in Mosul on 28 January 2008, allegedly resulting in ‘great losses’ for the Coalition.

To distance itself from the high-profile defection of its Shariah Council earlier in the year, Ansar al-Sunna, on 28 November 2007, issued a formal statement to ‘all Muslims’ announcing that its leadership had ‘mutually agreed’ to revert to the group’s original name of Ansar al-Islam. The statement, which implored its members to ‘stand united behind our banner’ and ‘avoid unnecessary internal battles’, stipulated that Ansar al-Islam would be the group’s official name in all future communiqués and statements.

Though continuing to resist overtures to join the ISoI, Ansar al-Islam maintains a continuing close relationship with AQI. These ties are perhaps stronger now than at any other time, due mainly to the numerous ‘Awakening’ movements – variously comprised of Sunni tribal, religious and insurgent elements – pushing AQI into Ansar al-Islam’s geographical areas of operation in northern Iraq. Ansar al-Islam has also shown a continuing loyalty to AQI by not only recognising the ISoI as the base of a legitimate Islamic caliphate but also criticising the Reformation and Jihad Front, which, in July 2008, it accused of colluding with the US to undermine the jihad in Iraq.

Ansar al-Islam, though already sharing the same fundamentalist ideology as AQI, has increasingly adopted that group’s hardline attitude to fellow insurgents and Sunnis who participate in the political process. On 23 July 2008, in the first sign of its willingness to target its own constituency, Ansar al-Islam warned the ‘Sunni brothers’ that ‘joining the dangerous infidels’ was an act of ‘apostasy’. Those thus seeking to extinguish ‘the firebrand of jihad’ would be ‘killed without trial’.


Ansar al-Islam’s immediate objectives are to overthrow the Iraqi Government, expel Coalition forces from the country and establish a Sunni Islamic state administered under Shariah law.

In the long-term, Ansar al-Islam supports the global militant Sunni jihadist ideology espoused by al-Qa’ida and its affiliates, including the re-establishment of the historical Islamic caliphate.

Leadership and membership

The identity of Ansar al-Islam’s current leader is unknown, although Abu Abdullah al Hasan bin Mahmud was the last national-level Emir identified by the group – a position he was still occupying as late as November 2007, when he announced that Ansar al-Sunna had reverted to its original name of Ansar al-Islam.

Ansar al-Islam is comprised of a mix of Sunni Arabs, including former Baathist regime elements, and Kurdish Islamist fighters, a condition that stems partly from its Kurdish origins but also from its base of recruitment in Iraq’s more heterogeneous areas – especially Mosul, Kirkuk and Salah al-Din. In marked contrast to AQI, which is controlled by foreigners, Ansar al-Islam’s leadership is Iraqi.

Ansar al-Islam is believed to be divided into six divisions including a military and information division. The precise size of the group is unknown but estimates indicate numbers to be between 500-1000 members.

Targets, Methodology and Funding

Ansar al-Islam, and before it Ansar al-Sunna, have conducted terrorist attacks against a range of political, religious and foreign targets in Iraq, most notably Iraqi and Coalition security forces, Kurdish government officials, Western individuals and interests based in Iraq, Iraqi civilians believed to be cooperating with Coalition forces and sectarian Shia targets.

Ansar al-Islam has historically employed assassinations and executions against Iraqi security and official personnel in particular but also foreign contractors from almost all countries, including the US, Great Britain, Canada, Japan, Jordan and Sudan. At the same time, Ansar al-Islam is known to execute individuals whom its leaders view as an affront to Islam. On 18 June 2006, for instance, the group decapitated several ‘homosexual transvestites’ for flouting ‘the Prophet Muhammad’s teachings’.

Small arms, IED and mortar attacks are frequent and mainly employed by Ansar al-Islam against high-profile targets, especially Iraq’s political and security institutions, Coalition forces and Shia religious communities. The group has proven especially adept at suicide bombings, having conducted attacks using vehicle-borne improvised explosive devices (VBIEDs) and person-borne improvised explosive devices (PBIEDs). In accordance with the group’s tactical range and weapons sophistication, Ansar al-Islam has also attacked military targets using rocket-propelled grenades (RPGs) and anti-aircraft weapons including man portable air defence systems (MANPADS).

Australians are considered a legitimate target by Ansar al-Islam, which was responsible for a suicide car bombing in March 2003 that killed ABC journalist Paul Moran and five Kurdish soldiers. The group’s founder and original leader, Mular Krekar, reiterated these sentiments recently, claiming in November 2007 that not only was Moran’s death justified but also that it was legitimate for Ansar al-Islam ‘to kill Australian soldiers in Iraq …, to kill his translator, to kill the people which [sic] give him food and water’.

Ansar al-Islam is predominantly based in Iraq. However, it has also been involved in plans to conduct attacks overseas, most notably in Germany in December 2004 when three Ansar al-Islam operatives were arrested for planning to assassinate the then-Iraqi Prime Minister, Ayad Allawi, during a Deutsche Bank reception in Berlin. All three were convicted of terrorism offences by a German court in July 2008.

The group receives funding from a variety of sources, including expatriate remittances from Diaspora communities in Jordan, Turkey and Europe, donations from local Sunni sheikhs and former Baathist officials, and criminal activities. Ansar al-Islam also benefits financially from its association with al Qa’ida, which has provided money as well as training, equipment and combat support to the group.

Ansar al-Islam’s engagement in terrorist attacks

Ansar al-Islam currently claims responsibility for several attacks each week in Iraq against a variety of sectarian, Iraqi government and Coalition targets. Recent significant terrorist attacks for which responsibility has been claimed by, or reliably attributed to, Ansar al-Islam include:


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