EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 252

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2010 (No. 5).

 

 

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 and its aliases, Al-Faran, Al-Hadid, Al-Hadith, Harakat ul-Ansar, Harakat ul-Mujahideen, Harakat ul-Mujahidin, HuA and HuM, 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 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 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. 5)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2010 (No. 5).

 

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 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 Criminal Code Act 1995 (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:

 

(a)    Al-Faran;

(b)   Al-Hadid;

(c)    Al-Hadith;

(d)   Harakat ul-Ansar;

(e)    Harakat ul-Mujahideen;

(f)     Harakat ul-Mujahidin;

(g)    HuA;

(h)    HuM.

Attachment B

Jamiat ul-Ansar (JuA)

 

(Also known as: Al-Faran, Al-Hadid, Al-Hadith, Harakat ul-Ansar, Harakat ul‑Mujahideen, Harakat ul-Mujahidin, HuA, HuM)

 

The following information is based on publicly available details about Jamiat ul‑Ansar (JuA), formerly known as Harakat ul-Mujahideen (HuM), the name that is still commonly used for the group. To the Australian Government’s knowledge, 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, 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

JuA wants to unite all of Kashmir with Pakistan and establish a caliphate based on Sharia law. JuA has advocated the use of Pakistan’s nuclear weapons against India, and opposes efforts to normalise relations between the two countries.

 

JuA also has pledged support for Afghan militants fighting Coalition forces in Afghanistan. Some elements within JuA have wanted 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.

 

Leadership

The leader of JuA is Fazlur Rehman (sometimes Rahman) Khalil (also known as Maulana Farzul Ahmed Khalil and Maulana Ahmed Khalil).

 

In 1991, Khalil and his followers split from Harakat ul-Jihad Islami (HuJI), a group that fought the Soviets in Afghanistan and later turned its attention to Indian‑administered Kashmir to form Harakat ul-Mujahideen (HuM). In 1993, HuM reunited with HuJI under the name Harakat ul-Ansar (HuA).

 

As a consequence of reports that link the group to al-Qa’ida, HuA was proscribed as a terrorist organisation by the United States in 1997. The group re‑adopted the name HuM to escape the ramifications of proscription.

 

HuM was banned by both the US and Pakistan following the 11 September 2001 terrorist attacks and adopted the name Jamiat ul-Ansar (JuA). JuA also was subsequently banned by Pakistan in November 2003.

 

Membership

JuA has been reported to have strength of no more than a few hundred but exact membership numbers cannot be determined with accuracy. The majority of JuA’s membership is drawn from Pakistan, Afghanistan and the Indian State of Jammu and Kashmir.

JuA also has attracted recruits and provided training to Islamist militants from around the world, including Bangladesh, South-East Asia, the United Kingdom and the United States.

 

Terrorist activity of the organisation

 

Directly or indirectly engaged in terrorist acts

·       December 1999: an Indian airliner was hijacked en route from Nepal to India; one passenger was stabbed to death.

·       23 January 2002: US journalist Daniel Pearl was abducted and subsequently murdered on this date. Four people, including JuA member Ahmed Omar Sheikh, were convicted of Pearl’s murder.

·       26 May 2004: 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.

·       9 June 2004: the same terrorist cell was involved in an attack against a convoy carrying Karachi’s military commander and resulted in seven deaths.

·       February 2007: the kidnapping and subsequent beheading of a Hindu businessman in Pakistan’s Sindh Provence.

·       February 2009: members of a terrorist cell with links to JuA and reportedly responsible for six attacks in Kabul, Afghanistan, were arrested.

·       23 February 2010: two JuA members were among five militants killed by Indian security forces in Sopore, Kashmir; the militants blew up two houses in the battle with security forces.

 

Directly or indirectly preparing and/or planning terrorist acts

·       19 June 2005: several JuA trained individuals were arrested in Afghanistan as they were preparing to carry out acts of terrorism.

·       June 2005: two American citizens were arrested 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 Khalil.

·       December 2008: UK national Rangzieb Ahmed, who had confessed to membership in JuA, was convicted on terrorism charges.

 

Directly or indirectly assisting in the doing of terrorist acts

·        JuA operated terrorist training camps in eastern Afghanistan prior to their destruction by Coalition air strikes in 2001.

·        JuA camps in Pakistan have provided both religious instruction and military training and support to terrorist organisations and individuals from around the world.

·        In 2004, individuals trained by JuA 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, respectively.

·        Also in 2004, individuals trained by JuA were arrested for a failed attempt to assassinate Pakistani President Pervez Musharraf with a remote-controlled car bomb in April 2002.

·        Individuals trained at JuA facilities have engaged in terrorist operations in Tajikistan and Bosnia and Herzegovina in the 1990s.

·        JuA reportedly helped facilitate training by members of the Pakistani diaspora in the UK in June 2003, some of whom may have intended to return home to conduct terrorism related activities.

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

·        Following his release from Pakistani detention in 2006, JuA leader Khalil reportedly visited JuA-linked mosques and madrassas in Pakistan where he advocated jihad against Coalition forces in Afghanistan.

·        On 16 December 2006, leaders of JuA and Pakistani sectarian terrorist group Lashkar-e-Jhangvi (LeJ) called for a joint strategy and pledged to cooperate with Afghan insurgents to target Coalition forces in Afghanistan.

·        On 4 February 2009, a death threat reportedly attributed to JuA was posted on the website of India’s leader of the opposition and prime ministerial candidate L K Advani.

 

Conclusion

In view of the above information, ASIO assesses JuA is continuing to directly and indirectly engage in, prepare, plan, assist in and foster the doing of terrorist acts, and advocates the doing of, terrorist acts. This assessment is corroborated by information provided by reliable and credible intelligence sources, as well as by the terrorist acts conducted by JuA in the past.

In the course of pursuing its objective of uniting Jammu and Kashmir with Pakistan under a radical interpretation of Islamic law, JuA is known to have engaged in or advocated actions that:

·        are aimed at advancing JuA’s political and religious causes;

·        are intended to, or do, cause serious damage to property, the death of persons or endangerment of life; and

·        are intended to cause, or have caused, serious risk to the safety of sections of the public globally.

 

Other relevant information

 

Links to other terrorist groups or networks

JuA has cooperated with other militant groups operating in Afghanistan, Kashmir and Pakistan such as Hizb-ul-Mujahideen, Lashkar-e-Tayyiba, Jaish-e‑Muhammad, and Sipah-e-Sahaba Pakistan.

JuA leader Khalil has strong ties to the Taliban and al-Qa’ida and in 1998 signed Usama bin Laden’s fatwa calling for attacks on the US and its allies.

Proscription by the UN and other countries

JuA is listed in the United Nations 1267 Committee’s consolidated list and by the governments of Canada, the United Kingdom, the United States and Pakistan.