EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 254

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2010 (No. 7).

 

 

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-Qa’ida in Iraq and its aliases, Al-Qa’ida of Jihad in the Land of the Two Rivers, Al-Qa’ida of Jihad Organization in the Land of the Two Rivers, Al-Tawhid, Al-Tawhid and al-Jihad, AQI – Zarqawi, Brigades of Tawhid, Islamic State in Iraq, Jama’at al-Tawhid wa’al-Jihad, Kateab al-Tawhid, Mujahidin Shura Council, Qaida of the Jihad in the Land of the Two Rivers, Tanzeem Qa’idat al-Jihad/Bilad al Raafidaini, Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn, The al-Zarqawi network, The Monotheism and Jihad Group, The Organisation Base of Jihad/Mesopotamia, The Organisation of Jihad’s Base in the Country of the Two Rivers, Unity and Holy Struggle, Unity and Holy War and Unity and Jihad Group, 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 Al-Qa’ida in Iraq. 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 Al-Qa’ida in Iraq 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. 7)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2010 (No. 7).

 

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 4G

 

This item substitutes the existing regulation with a new regulation 4G 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-Qa’ida in Iraq is specified.

 

Subregulation 4G(1) provides that Al-Qa’ida in Iraq is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4G(2) provides that for the purposes of subregulation (1), Al-Qa’ida in Iraq is also known by the following names:

 

(a)    Al-Qa’ida of Jihad in the Land of the Two Rivers;

(b)   Al-Qa’ida of Jihad Organization in the Land of the Two Rivers;

(c)    Al-Tawhid;

(d)   Al-Tawhid and al-Jihad;

(e)    AQI – Zarqawi;

(f)     Brigades of Tawhid;

(g)    Islamic State in Iraq

(h)    Jama’at al-Tawhid wa’al-Jihad;

(i)      Kateab al-Tawhid;

(j)     Mujahidin Shura Council;

(k)   Qaida of the Jihad in the Land of the Two Rivers;

(l)      Tanzeem Qa’idat al-Jihad/Bilad al Raafidaini;

(m)  Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn;

(n)    The al-Zarqawi network;

(o)   The Monotheism and Jihad Group;

(p)   The Organisation Base of Jihad/Mesopotamia;

(q)   The Organisation of Jihad’s Base in the Country of the Two Rivers;

(r)     Unity and Holy Struggle;

(s)    Unity and Holy War;

(t)     Unity and Jihad Group.

Attachment B

Al-Qa’ida in Iraq (AQI)

 

(Also known as: Al-Qa’ida of Jihad in the Land of the Two Rivers;

Al-Qa’ida of Jihad Organization in the Land of the Two Rivers; Al-Tawhid;

Al-Tawhid and al-Jihad; AQI – Zarqawi; Brigades of Tawhid; Islamic State in Iraq; Jama’at al-Tawhid wa’al-Jihad; Kateab al-Tawhid; Mujahidin Shura Council; Qaida of the Jihad in the Land of the Two Rivers; Tanzeem Qa’idat al‑Jihad/Bilad al Raafidaini; Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn; The al-Zarqawi network;

The Monotheism and Jihad Group; The Organisation Base of Jihad/Mesopotamia; The Organisation of Jihad’s Base in the Country of the Two Rivers; Unity and Holy Struggle; Unity and Holy War; Unity and Jihad Group)

 

 

The following information is based on publicly available details about al-Qa’ida in Iraq, formerly listed as Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn (TQJBR). 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

 

Al Qa’ida in Iraq (AQI) is a Sunni extremist group that operates within Iraq. The group operates mainly in central and northern Iraq but maintains a presence throughout the entire country. AQI networks are based primarily in Sunni areas and regions where other groups engaged in sectarian violence are located. Currently, AQI largely is funded and equipped through criminal activities and intimidation tactics within Iraq, as well as from neighbouring countries who buy goods extorted by AQI.

 

Objectives

AQI’s key religious, political and ideological aims are to expel foreign forces from Iraq and to establish an Islamic caliphate under strict Sharia law in Iraq. However, the withdrawal of US troops from urban centres in mid-2009 has reduced the reasons for targeting, and opportunity to target, foreign forces and hence AQI recently has been focused more on targeting the Iraqi government in large-scale attacks with several occurring since August 2009. These attacks are aimed at undermining the government and the remaining foreign forces and Iraqi security forces (ISF) as well as disrupting democratic processes. AQI continues to lead a sectarian battle in Iraq which has targeted the Shia majority, the Kurdish and other minority groups, as well as Sunnis who are supportive of the Iraqi Government.

 

Leadership

AQI was led most recently by Abu Ayuub al-Masri (aka: Abu Hamza al-Mujahir, or ‘the immigrant’); however, al-Masri died in a US air strike on 18 April 2010. Al‑Masri was an Egyptian who formerly was responsible for AQI’s intelligence operations and the solicitation of new recruits. Al-Masri led AQI since the death of former AQI leader, Abu Musab al-Zarqawi, in 2006.

 

Al-Zarqawi pledged allegiance to al-Qa’ida (AQ) on 17 October 2004 via an internet posting. A statement by Usama bin Laden, broadcast on 27 December 2005, welcomed the union and exhorted mujahedeen in Iraq to obey al-Zarqawi. Al‑Zarqawi led AQI until June 2006 when he was killed by US forces. While leading AQI, al-Zarqawi maintained a campaign to establish an Islamic caliphate and expel Coalition forces from Iraq. In addition, al-Zarqawi remained focused on inciting Sunni-Shia sectarian violence. These remain AQI’s priorities.

 

The Islamic State of Iraq (ISI) which formed in December 2006 is a Sunni umbrella group, largely comprised of AQI members and is responsible for conducting many of AQI’s large-scale attacks. The leader of the ISI was Abu Abdullah al-Rashid al‑Baghdadi – until his death on 19 April 2010. The ISI announced on 16 May 2010 that Abu Bakr al-Baghdadi al-Huayni al-Qurashi has replaced al-Baghdadi as leader of the ISI and that Abu Abdullah al-Husseini al-Qurashi will be deputy leader and Prime Minister to replace al-Masri. The deceased Al-Masri also was referred to as the ISI’s Minister of War. The ISI announced on 16 May that Al-Nasir Lidin Allah Abu-Sulayman is now the ISI’s Minister of War. Despite al-Baghdadi being named the Leader of the ISI, al-Masri is considered to have held the most power and operational leadership in AQI. It is evident from recent statements produced by the ISI that AQI continued to maintain a cabinet-structure and regional emirs within its leadership. However, in June 2010 the US announced that 42 of the 50 chiefs of AQI had been captured or killed in the preceding three months.

 

The death of al-Masri and al-Baghdadi will impact the effectiveness of AQI, particularly in the short to medium term; however, AQI has recovered previously from the death of a leader (al-Zarqawi) and could do so again.

 

Membership

The exact number of individuals associated directly with AQI is unknown. Iraqis are now the dominant group within AQI whereas previously foreign extremists comprised the majority of members. Local Iraqi Sunni support for AQI was affected adversely by earlier indiscriminate attacks and the resulting backlash from Coalition forces, Iraqi forces and the wider community.

 

 

 

 

Terrorist activity of the organisation

 

Directly or indirectly engaged in the doing of terrorist acts

Since AQI’s proscription on 3 November 2008, it has been involved in the following large-scale terrorist attacks:

·        4 April 2010: the Iranian, German and Egyptian missions were targeted in bombings that killed around 35 people and wounded approximately 200.

·        3 March 2010: three suicide bombings in Baquba targeted two military and police buildings and a hospital, killing around 30 people. The ISI later claimed this attack.

·        26 January 2010: a suicide bomber targeted a forensic laboratory in the Interior Ministry in Baghdad, killing around 20 individuals. This attack and the attacks occurring since 19 August 2009 in Baghdad were all declared to be part of the ‘Invasion of the Captive’ campaign.

·        25 January 2010: 37 people were killed when co-ordinated suicide bombers struck three Baghdad hotels.

·        8 December 2009: five explosions targeting government buildings around Baghdad killed around 130 individuals and wounded 400.

·        25 October 2009: two explosions targeting Iraqi government buildings killed over 150 individuals and injured around 500. This attack was the largest attack in Iraq since 2007.

·        19 August 2009: around 100 civilians were killed and almost 600 injured when two near-simultaneous explosions detonated near government buildings in Baghdad.

 

AQI also continue to be engaged in several campaigns which involve smaller attacks aimed at inciting sectarian violence and more recently disrupted democratic processes during the March 2010 election period.

·        The ISI has claimed a spate of attacks which occurred in the lead up and during the March 2010 elections. Attacks included IEDs, armed clashes and rocket strikes and are claimed to be part of the ‘Axe of al-Khalil Campaign’ which is aimed at disrupting democratic processes.

·        The ISI claimed two October 2009 suicide bombings in Mosul which targeted Iraqi soldiers and a Kurdish Peshmerga convoy.

 

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

AQI has released a number of media statements which advocate terrorist acts and call for violence against numerous targets. Some of these statements are listed below:

·        14 May 2010: the new War Minister of the ISI, Abu Suleiman, announced a new campaign stating that the ISI would continue to wage violent jihad.

·        9 March 2010: al-Furqan, the media arm of the ISI, released a video of three fighters who incite Muslims to participate in violent jihad.

·        7 March 2010: al-Baghdadi said that AQI’s fight against Coalition Forces continues and encouraged Muslims and Somalis to join al-Shabaab.

·        5 March 2010: the ISI declared a curfew on Election Day saying that those who defy the curfew will ‘unfortunately expose himself to the anger of Allah and then to all kinds of weapons of the Mujahideen’. This follows a statement released on 12 February 2010 in which al-Baghdadi threatened a military response to the Iraqi parliamentary elections.

·        22 February 2010: the ISI issued a video which states that there are dozens of young jihadists who await the day when they can shed the blood of American ‘Crusaders’ and those who support them. In the same recording a jihadist names heretics, the Peshmerga, the Americans and the ‘pagan’ Iraqi forces as possible targets for his ‘martyrdom-seeking operation’.

·        11 January 2010: the ISI released a video that documents a suicide bomber in his quest to conduct a bombing against a Peshmerga base.

·        23 October 2008: al-Masri threatened attacks against the US, Australia and Britain when asked in an interview if he has any intention of striking Western interests.

·        22 September 2008: al-Masri and al-Baghdadi encourage the mujahedeen to kill and raid ‘the enemies’.

·        28 July 2008: the ISI declares a new military campaign called ‘Invasion of Revenge for the Martyr Brother, Abu Khalef’, avenging deaths caused by Coalition and Iraqi forces.

·        14 April 2008: al-Baghdadi calls for Sunni unity and encourages all Sunnis (including those working for the Iraqi government to turn their guns towards the ‘Crusader’ enemy. Al-Baghdadi says the ISI will punish anyone who aids the ‘occupying Crusaders’.

·        10 February 2008: the ISI renews their resolve to continue to fight against the ‘aggressor’.

 

Conclusion

 

In view of the above information, ASIO assesses AQI is continuing to directly and indirectly engage in, preparing, planning, assisting in and fostering the doing of 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 AQI in the past.

 

In the course of pursuing its objectives in Iraq, AQI is known to have committed or threatened action:

·        with the intention of advancing AQI’s political, religious or ideological causes;

·        that causes, or could cause, serious damage to property, the death of persons or endangers a person’s life; and

·        with the intention of creating a serious risk to the safety of sections of the public globally.

 

Other relevant information

 

• AQI receives ideological support from, or has promoted ideological support for, several other terrorist organisations, including Al-Qa’ida (AQ), Al-Qa’ida in the Arabian Peninsula (AQAP), Salafists in Gaza and Al-Shabaab.
• On 26 March 2010, the ISI released a statement urging Muslims to support the family of Usama bin Laden, some of whom are currently imprisoned in Iran.
• AQI is listed on the United Nations 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the governments of New Zealand and the United States.
• AQI was listed as a proscribed terrorist organisation on 2 March 2005, and relisted on 17 February 2007 and 3 November 2008.