Commonwealth Numbered Regulations - Explanatory Statements

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CRIMINAL CODE AMENDMENT REGULATION 2012 (NO. 2) (SLI NO 23 OF 2012)

EXPLANATORY STATEMENT

Select Legislative Instrument 2012 No. 23

Issued by the authority of the Attorney-General

 Criminal Code Act 1995

Criminal Code Amendment Regulation 2012 (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 Islamic Movement of Uzbekistan and its aliases, IMU, Islamic Movement of Turkestan and Islamic Party of Turkestan, 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 continue to apply to persons with links to Islamic Movement of Uzbekistan.  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 she 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 as advice from the Australian Government Solicitor.  The Statement of Reasons in respect of Islamic Movement of Uzbekistan 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 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 third anniversary of the day on which they take effect.

Statement of Compatibility with Human Rights

Objective

The object of the Criminal Code Amendment Regulation 2012 (No. 2) is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia.  This is consistent with the inherent right to life expressed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR). 

The objects of the Criminal Code Amendment Regulation 2012 (No. 2) are also consistent with Article 19 and Article 22 of the ICCPR.  The Islamic Movement of Uzbekistan fight alongside the Taliban and al-Qa'ida against Coalition forces in Afghanistan and Pakistani.  For full details, see Attachment B.

Whilst Article 19 protects the right to freedom of expression, this right may be subject to restrictions which include protecting national security.  The right to freedom of association in Article 22 of the ICCPR protects the right to form and join associations to pursue common goals, such as political parties.  Article 22(2) provides that freedom of association may be subject to restrictions imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

The Criminal Code Amendment Regulation 2012 (No. 2) would make it an offence under Division 102 of the Criminal Code, to direct the activities, become a member of, recruit, train or receiving training, get funds to, from or for the Islamic Movement of Uzbekistan, and provide support or associate with the Islamic Movement of Uzbekistan.

The offence in subsection102.8 of the Criminal Code of associating with a terrorist organisation is limited in its application only to an organisation that is a listed organisation under Criminal Code Amendment Regulations.  The offence does not apply if the association is with a close family member, or takes place in the course of practising a religion in a place used for public religious worship, or the association is for the purpose of providing humanitarian aid or for the purpose of providing legal advice or representation. 

Whilst the Criminal Code Amendment Regulation 2012 (No. 2) may limit the right to freedom of association with the Islamic Movement of Uzbekistan, the association offence is subject to the safeguards outlined above.  The general limits of the right to freedom of association with the Islamic Movement of Uzbekistan are reasonable, necessary and proportionate, and are in the interests of public safety and national security, after taking into consideration the direct and indirect terrorist activities and the advocacy of terrorism, by the Islamic Movement of Uzbekistan, which threaten human life, as detailed in the Statement of Reasons (at Attachment B).

The Criminal Code offences in Division 102 applying to terrorist organisations do not target any specific religious or ethnic group and are designed to promote security and protect all members of the community from the threat of terrorism, regardless of national or ethnic origins or religious beliefs.

The information in the Statement of Reasons (Attachment B) supports the Attorney-General's decision made on reasonable grounds, that the Islamic Movement of Uzbekistan satisfies the criteria for listing as a terrorist organisation under subsection 102.1(2) of the Criminal Code. 

There are safeguards and accountability mechanisms in the Criminal Code Act 1995 providing for consultation and enabling review of Criminal Code Amendment Regulation 2012 (No. 2) specifying an organisation as a terrorist organisation.  These measures include the following:

*         the Commonwealth must consult with the States and Territories in accordance with the Inter-Governmental Agreement on Counter-Terrorism Laws.  The Criminal Code Amendment Regulation 2012 (No. 2) may only be made if a majority of the States and Territories do not object to the regulations within a reasonable time

*         under subsection 102.1(2A) the Minister must arrange for the Leader of the Opposition to be briefed in relation to the proposed regulation

*         under subsection 102.1(3) the Criminal Code Amendment Regulation 2012 (No. 2) will cease to have effect on the third anniversary of the day on which they take effect

*         subsection 102.1(4) provides that if the Minister ceases to be satisfied of the criteria necessary for listing an organisation under subsection 102.1(2) of the Criminal Code, the Minister must make a declaration to that effect.  The effect of the Minister's declaration is that the organisation is de-listed as a terrorist organisation under Division 102 of the Criminal Code

*         subsection 102.1(17) provides that an individual or an organisation may make a de-listing application to the Minister

*         the Criminal Code Amendment Regulation 2012 (No. 2) may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Criminal Code Act 1995, and

*         both Houses of Parliament may disallow the Criminal Code Amendment Regulations within the applicable disallowance period which is 15 sitting days after the regulation was laid before that House, as provided in subsection 102.1A(4).

Conclusion

The Regulations are compatible with human rights because they advance the protection of human rights and to the extent that they may also limit human rights, those limitations are reasonable and proportionate.

Attachment A

Details of the Criminal Code Amendment Regulation 2012 (No. 2)

Regulation 1- Name of Regulations

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulation 2012 (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 4J

This item substitutes the existing regulation with a new regulation 4J 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 Islamic Movement of Uzbekistan is specified. 

Subregulation 4J(1) provides that Islamic Movement of Uzbekistan is specified as a terrorist organisation under subsection 102.1(1) of the Code.

Subregulation 4J(2) provides that for the purposes of subregulation (1), Islamic Movement of Uzbekistan is also known by the following names: 

(a)    IMU;

(b)   Islamic Movement of Turkestan;

(c)    Islamic Party of Turkestan.

Attachment B

Islamic Movement of Uzbekistan (IMU)

(Also known as: IMU, Islamic Movement of Turkestan,

Islamic Party of Turkestan)

The following information is based on publicly available details about the Islamic Movement of Uzbekistan.  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

The origins of the Islamic Movement of Uzbekistan (IMU) date from the early 1990s, when Juma Namangani, a former Soviet Army soldier who fought in Afghanistan joined forces with Tahir Yuldashav (variant Yuldosh), an unofficial mullah and head of the Adolat (Justice) Party, with the aim to implement Sharia law in the city of Namangan in Uzbekistan's part of the Ferghana Valley. 

Alarmed by Adolat's demands to transform Uzbekistan into an Islamist state, the government banned the Adolat Party in March 1992.  A period of repression followed, forcing many Islamic militants to flee the Ferghana Valley. Namangani fled to Tajikistan, where he participated in the Tajik Civil War and established a base for his fighters in that country.  Yuldashev travelled to Afghanistan, Pakistan and Saudi Arabia, establishing links to other Islamic militants.  He also made clandestine trips to Uzbekistan, maintaining contact with his supporters and setting up underground cells.  By the late 1990s, the IMU was officially formed.

The IMU's stated goal, as posted on the internet in August 1999, is the 'establishment of an Islamic state with the application of the Shariah' in Uzbekistan.

The IMU expanded its territorial focus to encompass an area stretching from the Caucasus to China's western province of Xinjiang, under the new banners of the Islamic Party of Turkestan in April 2001 and the Islamic Movement of Turkestan in May 2001.  Despite the name changes, the group's name continues to be reported as the IMU, and it is listed under this name by the US Office of the Coordinator for Counterterrorism as a foreign terrorist organisation.

By the end of the 1990s, the IMU had relocated to Afghanistan, due to the lack of support for the movement in Uzbekistan and the measures taken against it by the Uzbek government.

Leadership

The former chief and co-founder of the IMU, Tahir Yuldashev, was killed in a US drone strike in South Waziristan, Pakistan, on 27 August 2009.  Yuldashev's death was confirmed by the IMU in August 2010.  The new IMU leader, Usmon Odil, is a long time associate of Yuldashev and was named as successor before Yuldashev's death.

Membership

The IMU has attracted supporters from a variety of ethnic backgrounds, principally Uzbeks, Kyrgyz, Tajiks, Chechens and Uighurs.  The IMU's recruitment efforts have also been aimed at Germans, with a German member of the group, in a video released in 2010, inviting entire families to leave Germany to join the IMU in Pakistan's tribal areas.

The IMU continues to recruit fighters, and IMU members fight alongside the Taliban and al-Qa'ida against Coalition forces in Afghanistan and Pakistani forces in Pakistan.  The Ferghana Valley, where the Uzbek, Kyrgyz and Tajik borders converge, is a fertile recruiting ground for the IMU, which has successfully exploited the widespread poverty in the region in its recruitment strategy.

The IMU's losses in Afghanistan and Pakistan, as well as the defection of fighters to a splinter group, the Islamic Jihad Union, have not diminished the group's capability and intent to conduct terrorist attacks. 

During the latter part of 2009, the IMU claimed that its fighters had been engaged in four months of severe fighting in four northern provinces of Afghanistan and in northwest Pakistan, and that the ranks of the IMU were being filled on a daily basis by new volunteers.

Funding

Sources of funding for the IMU have included Uzbeks who migrated to Islamic countries in the 1920s, in particular Saudi Arabia's Uzbek diaspora which numbers 300,000 people.  Funds also come from a number of Turkish foundations and Islamist and pan-Turkic organisations, the Taliban, al-Qa'ida and sympathetic foundations and banks throughout the Arab world.

The IMU also generates funds through drug trafficking, racketeering and solicitation of donations abroad.  In May 2008, French, German and Dutch authorities detained ten individuals suspected of running a network to funnel money to the IMU in Uzbekistan.

Terrorist activity of the organisation

Directly or indirectly engaged in the doing of terrorist acts

Terrorist attacks for which the IMU has claimed responsibility, or which have been reliably attributed to the IMU include:

*         19 September 2010: the IMU claimed responsibility for an ambush of Tajik troops in the Rasht Valley, east of Dushanbe, Tajikistan, killing 25 soldiers and wounding 20 others;

*        3 September 2010: the Tajik government blamed the IMU for a suicide car bombing outside the office of the anti-organised crime police unit in Khujand, Tajikistan, killing two police officers and wounding 25 others;

*        22 August 2010: six guards were killed during a prison break in Dushanbe, Tajikistan, during which 25 alleged IMU militants escaped;

*        14 August 2010: IMU fighters attacked Ali Abad District police headquarters in Kunduz Province, Afghanistan, killing one policeman;

*        9 August 2009: according to Uzbek authorities, a cell linked to senior IMU figure Shaukat Makhmudov murdered Hasan Asadov, an Uzbek Interior Ministry anti-terrorism and anti-corruption officer;

*        31 July 2009: according to Uzbek authorities, a cell linked to senior IMU figure Shaukat Makhmudov murdered the chief Imam of the Kukeldash Mosque in Tashkent, Uzbekistan;

*        20 July 2009: five IMU fighters were killed when they attacked a remote military checkpoint in Tajikistan near the Afghan border;

*        16 July 2009: according to Uzbek authorities, a cell linked to senior IMU figure Shaukat Makhmudov murdered an assistant at the Kukeldash Mosque in Tashkent, Uzbekistan;

*        April 2009: the IMU claimed responsibility for a suicide bombing in North Waziristan, Pakistan, that killed a Pakistani soldier and seven civilians;

*        5 September 2008: according to Tajik authorities, an unidentified IMU member shot and wounded a police officer in Isfara, Tajikistan;

*        28 August 2008: according to Tajik authorities, IMU elements fired upon two police officers in Isfara, Tajikistan;

*        May 2008: two IMU members in possession of explosives and hand grenades were arrested in Afghanistan.  The two admitted to planting mines on a road and providing a base for militant activities;

*        Mid-2007: seven IMU militants were arrested while planting a mine on a road used by Coalition patrols in northern Afghanistan.  The group admitted to carrying out rocket attacks, suicide missions and recruitment activities;

*        27 September 2006: according to Tajik authorities, the IMU launched an attack against a vehicle carrying supporters of the Tajik President in Isfara, Tajikistan, wounding two civilians;

*        12 May 2006: the IMU attacked border and customs posts in Kyrgyzstan and Tajikistan;

*        25 January 2006: the IMU attacked a pre-trial detention centre in Kairakum, Tajikistan, killing the centre's chief;

*        31 January and 13 June 2005: the IMU exploded bombs outside the Ministry of Emergency Situations in Dushanbe, Tajikistan, killing one person and wounding at least 12 others;

*        8 May 2003: the IMU bombed a currency exchange office in Osh, Kyrgyzstan, killing one person;

*        27 December 2002: the IMU bombed a market in Bishkek, Kyrgyzstan, killing six people and wounding 40 others;

*        12 August 2000: the IMU kidnapped four US mountain climbers;

*        21 August 1999: the IMU kidnapped four Japanese geologists, their interpreter and the head of the Kyrgyz Ministry of Interior troops; and

*        16 February 1999: the IMU exploded five car bombs in Tashkent, Uzbekistan, killing at least 16 people and wounding over 130 in an apparent attempt to assassinate President Karimov.

Directly or indirectly preparing and/or planning the doing of terrorist acts

On 10 March 2011, an alleged IMU commander was detained along with an unspecified number of suspected militants in Balkh Province, Afghanistan, while in the final stages of planning a suicide attack in Mazar-e Sharif.

On 23 July 2009, three IMU members were detained for planning an attack in eastern Tajikistan.

On 11 September 2006, the IMU leadership renewed its commitment to attack the governments of Central Asia and issued personal threats against the Uzbek, Kyrgyz and Tajik Presidents.  This statement reinforced the IMU leadership's commitment to al-Qaida's ideology of global jihad and anti-Western and anti-Israeli rhetoric.

Directly or indirectly assisting in the doing of terrorist acts

Western European Muslims have been trained by the IMU in camps in North Waziristan, Pakistan.  German nationals of Turkish and Moroccan origin have been trained in IMU camps and have made threats against Germany.

In September 2009, Pakistani investigators discovered a 'village' of German insurgents, including Muslim converts, who were being trained in a camp controlled by the IMU in the Waziristan area of Pakistan.  A number of Swedish converts were also located there.

Directly or indirectly fostering the doing of terrorist acts

The IMU maintains a media wing, known as Jundallah Studio, through which it releases video and audio statements.  The IMU also has distributed video and audio tapes and propaganda documents to sympathetic communities in the Ferghana Valley. 

On 17 March 2011, the IMU released a 21-minute video recording apparently showing a series of attacks on Coalition forces in July-August 2010 in the Chahar Dara District of Afghanistan's Kunduz Province.

By late August 2010, Jundallah Studio had produced a 51-minute video compilation containing footage of operations and attacks conducted by militants, including Germans, from April to June 2010.  These videos contained German introductions and German subtitles.

In December 2009, the IMU released English and German-subtitled videos showing a meeting between its former chief, Tahir Yuldashev, and the leader of Tehrik-e-Taliban Pakistan (TTP), Hakimullah Mahsud.  The video shows Tahir and Mahsud talking with each other, walking together and taking turns firing a gun.  The video also shows Tahir reading a eulogy for slain TTP leader Baitullah Mahsud, stressing that jihad will not cease with the death of its leaders.

Conclusion

In view of the above information, ASIO assesses the IMU is directly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts. It is assessed that the acts attributable to the IMU are terrorist acts as they:

*                     are done with the intention of advancing a political cause, namely, establishing of a radical Islamist caliphate across Central Asia;

*                     are intended to coerce or influence by intimidation the governments of  foreign countries, namely the states of Central Asia, as well as member countries of the Coalition forces in Afghanistan and Pakistan, and/or intimidate a section(s) of the public; and

*                     constitute acts which cause serious physical harm to persons, including death, as well as serious damage to property. 

Other relevant information

Links to other terrorist groups or networks

The IMU has close ties with al-Qa'ida, the Taliban and other militant groups in the Afghanistan/Pakistan theatre.  Senior IMU leaders have held positions in the al-Qa'ida hierarchy.  Current IMU chief Odil appeared in an October 2009 video with TTP leader Hakimullah Mahsud, shortly after both groups lost their leaders in US drone strikes.

Proscription by the UN and other countries

The IMU has been listed in the United Nations 1267 Committee's consolidated list and as a proscribed terrorist organisation by the governments of the United Kingdom, United States and Canada.

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