EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 220

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2010 (No. 2)

 

 

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 Jemaah Islamiyah and its aliases, Al-Jama’ah Al-Islamiyah, Jamaah Islamiyah, Jama’ah Islamiyah, Jemaa Islamiya, Jema’a Islamiya, Jemaa Islamiyah, Jema’a Islamiyya, Jemaa Islamiyya, Jemaa Islamiyyah, Jemaah Islamiah, Jemaah Islamiya, Jeemah Islamiyah, Jema’ah Islamiyah, Jemaah Islamiyyah and Jema’ah Islamiyyah, 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 Jemaah Islamiyah. 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 advice from the Australian Government Solicitor. The Statement of Reasons in respect of Jemaah Islamiyah 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 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 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 2010 (No. 2)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2010 (No. 2).

 

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 provides that Schedule 1 amends the Criminal Code Regulations 2002.

 

Schedule 1 – Amendments

 

Item [1] – Regulation 4B

 

This item substitutes the existing regulation with a new regulation 4B 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 Jemaah Islamiyah is specified.

 

Subregulation 4B(1) provides that Jemaah Islamiyah is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4B(2) provides that for the purposes of subregulation (1), Jemaah Islamiyah is also known by the following names:

 

(a)    Al-Jama’ah Al-Islamiyah;

(b)   Jamaah Islamiyah;

(c)    Jama’ah Islamiyah;

(d)   Jemaa Islamiya;

(e)    Jema’a Islamiya;

(f)     Jemaa Islamiyah;

(g)    Jema’a Islamiyya;

(h)    Jemaa Islamiyya;

(i)      Jemaa Islamiyyah;

(j)     Jemaah Islamiah;

(k)   Jemaah Islamiya;

(l)      Jeemah Islamiyah;

(m)  Jema’ah Islamiyah;

(n)    Jemaah Islamiyyah;

(o)   Jema’ah Islamiyyah.

Attachment B

 

Jemaah Islamiyah (JI)

 

(Also known as: Al-Jama’ah Al-Islamiyah, Jamaah Islamiyah, Jama’ah Islamiyah, Jemaa Islamiya, Jema’a Islamiya, Jemaa Islamiyah, Jema’a Islamiyya, Jemaa Islamiyya, Jemaa Islamiyyah, Jemaah Islamiah, Jemaah Islamiya, Jeemah Islamiyah, Jema’ah Islamiyah, Jemaah Islamiyyah, Jema’ah Islamiyyah)

 

The following information is based on publicly available details about Jemaah Islamiyah (JI). To the Australian Government’s knowledge, these details are accurate and reliable and have been corroborated by reliable and credible 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, 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

Objectives

 

Jemaah Islamiyah is a Salafi jihadist group, inspired by the same ideology as al‑Qa’ida (AQ), which regards the Indonesian government, along with other nations in the region, to be illegitimate. JI seeks to revive a pure form of Islam and establish a pan-Islamic state in Southeast Asia, governed by the tenets of Sharia (Islamic law).

 

Founded in Malaysia on 1 January 1993 by Indonesian Islamic clerics Abdullah Sungkar and Abu Bakar Ba’asyir, JI represents an evolutionary development of the Indonesian Islamic movement, Darul Islam (DI), which fought a violent insurgency to establish an Islamic state in Indonesia in the 1950s and 1960s. JI’s goals are essentially those of DI, but with a regional perspective.

 

JI’s charter and operating manual, the “General Guide for the Struggle of Al-Jama’ah Al-Islamiyah” (PUPJI), outlines the religious principles and administrative aspects underlining JI’s primary objectives. These entail establishing a solid support base of followers and then through armed struggle – first creating an Islamic state in Indonesia followed by a pan-Islamic Caliphate incorporating Malaysia, Singapore, Brunei and southern Philippines and ultimately creating a global theocratic Islamic state.

 

Leadership

 

The current JI leadership remains anti-Western in orientation, refusing to denounce violent jihad as a means of achieving its desired objectives and willing to conduct attacks against local sectarian targets. JI has no publicly acknowledged leader, but has a well-ordered succession plan, in the event of the arrest of the incumbent Emir. Since the arrest of JI Emir Zarkasih in June 2007, no new Emir has been identified publicly. However, two possible candidates have emerged: Para Wijayanto and Hadi Surya.

 

JI remains operationally and organisationally distinct from other regional extremist groups. Despite counter terrorism efforts by regional authorities, JI remains a functional paramilitary organisation, supportive of the use of violence whenever strategically opportune.

 

JI currently embodies two opposing factions – a group which advocates fast tracking the Islamic Caliphate through sustained violence and a ‘traditionalist’ faction that temporarily eschews attacks, preferring to focus on the long term grass roots consolidation and rebuilding of its support networks.

 

Membership

 

JI’s membership is not known publicly and is estimated to range between 900 and several thousand members, mostly concentrated in Java but spread throughout Indonesia and neighbouring Southeast Asian countries, including Malaysia, Philippines, Thailand, Cambodia and Myanmar.

 

Recruitment and funding

 

Recent JI activity has an emphasis on Dakwah (Islamic outreach) and publishing – in order to prepare a mujahidin support base for future extremist activity. JI’s 35 or so schools continue to produce a new generation of potential mujahideen who will intermarry, set up businesses together and be indoctrinated in ideology sympathetic to JI’s long-term Islamist goals.

 

Most of JI’s funding is derived from member contributions, Islamic publishing, affiliated charity and legitimate business activities, robbery and direct transfers from Middle-East based terrorist financiers in Saudi Arabia and Yemen.

 

Terrorist activity of the organisation

 

Directly or indirectly engaged in the doing of terrorist acts

 

Elements of JI have conducted numerous attacks targeting sectarian and foreign interests in Indonesia, particularly anti-Christian violence in Sulawesi, Maluku and Sumatra. JI targeted the Philippines Ambassador in Jakarta in 2000 and also conducted sectarian attacks across Indonesia over the 2000/2001 Christmas and New Year period. JI’s first successful anti-Western attack was the Bali bombings of October 2002 which killed 202 people, including 88 Australians. This was followed by the 2003 JW Marriot Hotel bombing and the 2004 bombing of the Australian Embassy in Jakarta. The second Bali bombing, which took place in 2005, killed four Australians.

 

Directly or indirectly preparing, planning or assisting in the doing of terrorist acts

 

JI has been responsible for preparing, planning or assisting in the doing of terrorist attacks against a range of targets, but particularly Christian, Western and Indonesian government interests. Those previously subjected to JI attacks include hotels, bars, diplomatic premises, transport and military facilities and churches.

 

Since its re-listing by the Australia Government as a terrorist organisation on 9 August 2008, networks with familial and social links to JI have conducted attacks specifically targeting Western interests. Information and materiel seized in operations against JI linked individuals since 2008 demonstrate JI retains the capability and intent to use violence to achieve its goals - and networks linked to JI continue to plan to conduct terrorist attacks in Southeast Asia.

 

·        17 July 2009: The Noordin Top network – involved in previous anti-Western attacks attributed to JI – conducted bombings against two hotels in Jakarta, the Marriott and the Ritz-Carlton. Seven civilians were killed including three Australians. Funding for the hotel bombings likely came from overseas, via links between JI associates and foreign extremists.

·        1 April 2009: JI fugitive, Mas Selamat Kastari, former head of the Singapore branch of JI, was arrested by Malaysian authorities in Johor while plotting further attacks against Singapore.

·        28 June 2008 – 1 July 2008: a JI-linked cell in Palembang, Sumatra, was arrested for plotting to bomb a tourist café. Al-Furqon, a JI-linked pesantren, provided the venue for the radicalisation of the cell members; Fajar Taslim, a member of JI’s ‘Afghan Alumni’ provided the group leadership and ideology to undertake acts of violence; and another member of the Afghan alumni, Saifuddin Zuhri, provided weapons and bomb making materiel and expertise to the Palembang cell.

·        JI operatives continue to provide terrorist training to local extremist groups in the Philippines, such as the MILF and the ASG – these JI elements were co‑located with the groups in southern Philippines, and contributed to the surge of violence against domestic Philippines and foreign interests in the Sulu Archipelago since 2008.

·        Intelligence from the arrest of senior JI operatives, Abu Husna and Agus Purwantoro in Malaysia in 2008 detailed JI’s links and desire to renew its international terrorist links.

 

Directly or indirectly fostering the doing of terrorist acts or advocating the doing of terrorist acts

JI remains focussed on Dakwah (Islamic outreach) and its publishing operations to promote an extreme interpretation of Islam. JI’s network of 35 or so religious schools continually works to inculcate future generations of Indonesian youths in this extreme form of Islam designed to develop a support base in Indonesia for an Islamic State under Islamic Law, and legitimatise the use of violence to achieve their objectives. 

Conclusion

 

On the basis of the above information, ASIO assesses that JI is continuing to directly and indirectly engage in, preparing, planning, assisting in, fostering and advocating the doing of terrorist acts involving threats to human life and serious damage to property.

 

In the course of pursuing its objective of creating an Islamic state under Sharia (Islamic law) in Indonesia and a pan-Islamic Caliphate in South East Asia, JI is known to have engaged in acts that:

 

·        are done with the intention of advancing JI’s political, and religious and ideological causes;

·        cause serious damage to property, the death of persons or endanger a person’s life; and

·        create a serious risk to the safety of sections of the public of Indonesia, Malaysia, the Philippines, Singapore, Australia and other persons visiting areas in which it operates.

 

The above acts include actions which have been done or threatened with the intention of advancing a political, religious or ideological cause and with the intention of coercing or influencing by intimidation, the Government and people of Indonesia which they consider apostate. The actions or threatened actions which JI are assessed to be involved in would, if successfully completed, cause serious physical harm and death to persons and serious damage to property.

 

Other relevant information

 

Links to other terrorist groups or networks

 

Having a common heritage in DI has facilitated close links between JI and other violent extremist groups in Indonesia. These groups, including DI remnants, Front Pembela Islam (FPI), Majelis Mujahidin Indonesia (MMI), KOMPAK (Crisis Action Committee), and Laskar Jundullah, provide recruits and support networks for JI activity. JI continues to recruit covertly from its network of pesantren (Islamic boarding schools), religious study groups and through personal contacts.

 

JI’s domestic and regional extremist links were reinforced by the simultaneous presence of JI and non-JI Southeast Asian militants in al-Qa’ida training camps in the late 1980s and early 1990s JI’s ‘Afghan Alumni’ cultivated organisational and personal relationships with foreign extremist groups, such as al-Qaida, while training and fighting in Afghanistan. Links were also forged with Southeast Asian extremist groups, laying the foundation for the current JI collaboration with militant groups in the Philippines. JI has linkages to the Abu Sayyaf Group – particularly through fugitive JI operative Umar Patek and Dulmatin, who was recently killed by Indonesian Security forces – and the Moro Islamic Liberation Front (MILF), who still provide refuge to JI personnel despite ongoing MILF/Philippines Government peace negotiations.

 

Proscription by the UN and other countries

 

JI is listed in the United Nation’s 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the governments of Canada, New Zealand, the UK and the US.