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CRIMINAL CODE (TERRORIST ORGANISATION--JABHAT AL-NUSRA) REGULATION 2013 (SLI NO 135 OF 2013)
Select Legislative Instrument 2013 No. 135
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code (Terrorist Organisation--Jabhat al-Nusra) Regulation 2013
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; and being an associate of and receiving funds from or making available funds, support or resources to a terrorist organisation.
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.
A 'terrorist organisation' is defined in subsection 102.1(1) of the Code 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 102.1(1)(a)); or
* an organisation specified in the regulations (paragraph 102.1(1)(b)).
The purpose of the Regulation is to specify Jabhat al-Nusra for the purpose of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code.
Jabhat al-Nusra has other names or aliases by which it may also be known. These other names or aliases are separately listed in the Regulation.
The Regulation ensures the offence provisions in Division 102 of the Code will apply to persons with links to Jabhat al-Nusra. Details of the Regulation are set out in Attachment A.
Paragraph 102.1(2)(a) 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 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).
The Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the Regulation pursuant to subsection 102.1(2A) of the Code.
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 an unclassified Statement 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 Jabhat al-Nusra is at Attachment B.
Prior to making the Regulation, consultations were held with the Department of Foreign Affairs and Trade, ASIO and the Australian Government Solicitor. In addition, the Attorney-General wrote on behalf of the Prime Minister, to the Premiers and Chief Ministers of the States and Territories and the Attorney-General offered the Leader of the Opposition a briefing.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation commences on the day after it is 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
This regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The object of the Criminal Code (Terrorist Organisation--Jabhat al-Nusra) Regulation 2013 is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia. This will engage the inherent right to life expressed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR).
The object of the Regulation also engages Article 19 and Article 22 of the ICCPR. 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 (Terrorist Organisation--Jabhat al-Nusra) Regulation 2013 ensures it is 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 Jabhat al-Nusra, and provide support or associate with Jabhat al-Nusra.
The offence in subsection 102.8 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 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 (Terrorist Organisation--Jabhat al-Nusra) Regulation 2013 may limit the right to freedom of association with Jabhat al-Nusra, the association offence is subject to the safeguards outlined above. The general limits of the right to freedom of association with Jabhat al-Nusra 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 of the organisation, which threaten human life, as detailed in the Statement of Reasons (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 Jabhat al-Nusra 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 Act providing for consultation and enabling review of Criminal Code (Terrorist Organisation - Jabhat al-Nusra) Regulation 2013 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 Regulation may only be made if a majority of the States and Territories do not object to the regulation 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 regulation
* under subsection 102.1(3) the Criminal Code (Terrorist Organisation - Jabhat al-Nusra) Regulation 2013 will cease to have effect on the third anniversary of the day on which it takes 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 (Terrorist Organisation - Jabhat al-Nusra) Regulation 2013 may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Act, and
* both Houses of Parliament may disallow the Criminal Code (Terrorist Organisation - Jabhat al-Nusra) Regulation 2013 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).
The Regulation is compatible with human rights because it advances the protection of human rights, and to the extent that it may also limit human rights, those limitations are reasonable and proportionate.
Details of the Criminal Code (Terrorist Organisation--Jabhat al-Nusra) Regulation 2013
Section 1 - Name of Regulation
This section provides that the title of the Regulation is the Criminal Code (Terrorist Organisation--Jabhat al-Nusra) Regulation 2013.
Section 2 - Commencement
This section provides that the Regulation commences on the day after it is registered.
Section 3 - Authority
This section provides that the Regulation is made under the Criminal Code Act 1995.
Section 4 - Definition
This section provides that a reference in this Regulation to the word Code means the Criminal Code.
Section 5 - Terrorist organisation - Jabhat al-Nusra
This section provides that for paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code, the organisation known as Jabhat al-Nusra is specified.
Subsection 102.1(2) provides that Jabhat al-Nusra is also known by the following names:
(a) Al-Nusra Front;
(b) Al-Nusrah Front;
(c) Al-Nusrah Front for the People of the Levant;
(d) Jabhat al-Nusra li-Ahl al-Sham Min Mujahideen al-Sham fi Sahat al-Jihad;
(e) Jabhat al-Nusrah;
(f) Jabhet al-Nusra;
(g) Support Front for the People of Syria from the Mujahideen of Syria in the Places of Jihad;
(h) The Victory Front.
(Also known as: Al-Nusra Front; Al-Nusrah Front;
Al-Nusrah Front for the People of the Levant;
li-Ahl al-Sham Min Mujahideen al-Sham fi Sahat al-Jihad;
Jabhat al-Nusrah; Jabhet al-Nusra;
Support Front for the People of Syria from the Mujahideen of Syria in the Places of Jihad; The Victory Front)
This statement is based on publicly available information about Jabhat al-Nusra. To the Australian Government's knowledge, this information is accurate and reliable and has 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, or 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
Jabhat al-Nusra is a Syria-based Sunni extremist group that adheres to the global jihadist ideology of al-Qa'ida. In late 2011, al-Qa'ida in Iraq (AQI) sent operatives to Syria for the purpose of establishing Jabhat al-Nusra to fight the regime of President Bashar al-Assad. The group publicly announced its presence in Syria in a January 2012 video statement. In early April 2013, Jabhat al-Nusra pledged allegiance to al-Qa'ida leader Ayman al-Zawahiri and confirmed the group has received funding and operatives from AQI. The group has received direct endorsement from online extremist forums aligned with al-Qa'ida and leading salafist/jihadist figures. Previously, Jabhat al-Nusra had attempted to play down its extremist ideology and conceal its links to AQI to avoid alienating the Syrian population.
Jabhat al-Nusra releases videos of its attacks and operations through its media network al-Manara al-Bayda (the White Minaret). These videos are uploaded to a pro-al-Qa'ida jihadist forum, Shumukh al-Islam.
Jabhat al-Nusra's stated objectives are to remove the regime of President Bashar al-Assad and once this is achieved, create a salafist-oriented Sunni Islamist state in Syria. Jabhat al-Nusra also intends to establish an Islamist caliphate across the Levant. Jabhat al-Nusra believes the fight against the Syrian regime is supported by religious texts, and its fighters hope to fulfill 'God's wish' for an 'Islamic caliphate'.
Through the experiences of its members who have fought in Iraq and the group's close links to AQI's leadership, Jabhat al-Nusra has learned lessons from AQI's experiences in Iraq and has been careful to avoid the latter's mistakes--beheadings, sectarian violence and indiscriminate civilian casualties--that resulted in the loss of support from the Iraqi population.
Jabhat al-Nusra also intends to expel the minority Alawite and Christian communities from Syria. This is substantiated by statements made by the group, including 'The blessed operations will continue until the land of Syria is purified from the filth of the nusayris (Alawites) and the Sunnis are relieved of their oppression'.
To achieve these objectives, Jabhat al-Nusra undertakes improvised explosive device (IED) (including suicide), sniper and small-arms attacks, as well as kidnapping and executions, against regime security and military targets. Jabhat al-Nusra also attacks individuals and groups it perceives are supporting the regime and has targeted urban areas, resulting in indiscriminate civilian deaths.
Anticipating a new phase of fighting after the fall of the regime, Jabhat al-Nusra plans to unite all jihadists, including fighters from Iraq, under one umbrella to fight the secular opposition.
Jabhat al-Nusra is led by Abu-Muhammad al-Jawlani (an alias), who has links to AQI. In early April 2013, AQI leader Abu Bakr al-Baghdadi al-Husseini al-Qurashi announced Jabhat al-Nusra would merge with AQI under the banner of the 'Islamic State of Iraq and Syria'. In early April 2013, Abu-Muhammad al-Jawlani pledged allegiance to al-Qa'ida leader Ayman al-Zawahiri and denied any knowledge of the merger with AQI.
As Jabhat al-Nusra has a presence throughout Syria, regional leaders are responsible for controlling their respective cells.
Jabhat al-Nusra's current membership is difficult to ascertain, with one estimate placing it between 6000 and 10 000 members. The group consists primarily of Syrian nationals, but includes foreign fighters from the Levant, North Africa and Europe. A small number of foreign fighters are from Western countries. Several of Jabhat al-Nusra's leaders and operatives have previous experience as AQI operatives in Iraq.
Recruitment and funding
Jabhat al-Nusra has very strict recruitment procedures and requires new recruits to pledge allegiance to the group. Potential recruits are required to fight on the front-line and must be vouched for by Jabhat al-Nusra commanders before they are accepted. Due to Jabhat al-Nusra's high level of operational security, it only recruits individuals who have undergone a vetting process.
Jabhat al-Nusra is well-funded; benefactors include AQI and Gulf-based salafist supporters.
Terrorist activity of the organisation
Directly or indirectly engaged in the doing of terrorist acts
Jabhat al-Nusra has claimed responsibility for numerous attacks. Whilst in most cases specific targets and types of casualties are not known, attacks are conducted primarily in urban areas with no regard for indiscriminate harm. Significant attacks either claimed by, or reliably attributed to, Jabhat al-Nusra include the following:
* 21 February 2013: multiple vehicle suicide bombings in Damascus, Syria, killed between 50 and 100 people. On the same day, a triple vehicle bombing in northern Damascus killed 22 people;
* 24 January 2013: suicide vehicle bombing targeting the Syrian Military Intelligence headquarters in Damascus, Syria, killed 53 people;
* 5 November 2012: suicide vehicle bombing in Hama, Syria, killed at least 50 people;
* 12 October 2012: an assault on an air defence base near the village of Al-Taana in Ar-raqqah, Syria, killed at least three people;
* 8 October 2012: suicide vehicle bomb and small arms attack on an air force intelligence office in Harasta, Rif Dimashq, Syria, killed an unknown number of people;
* 3 October 2012: four vehicle bombs that detonated outside security and government buildings in Aleppo, Syria, killed 40 people;
* 26 September 2012: two suicide vehicle bombs that detonated close to General Staff Headquarters in Damascus, Syria, killed four people;
* 3 August 2012: Jabhat al-Nusra claimed responsibility for the kidnapping and execution of a Syrian Government TV presenter;
* 27 June 2012: an attack on a pro-Syrian Government news station with small arms and bombs in Drousha, south of Damascus, Syria, killed seven people;
* 29 May 2012: 13 men were found shot dead in a field near Deir ez Zour, Syria. Jabhat al-Nusra claimed responsibility for executing the men, stating they were regime soldiers;
* 19 May 2012: a suicide vehicle bombing targeting an air force intelligence hospital in Deir ez Zour, Syria, killed nine people;
* 10 May 2012: a double suicide vehicle bombing killed 55 people in Damascus, Syria;
* 27 April 2012: a suicide bomb targeting security force personnel in the Maidan district of Damascus, Syria, killed ten people;
* 24 April 2012: an IED attached to a military vehicle was detonated as it passed the Iranian Cultural Centre in Damascus, Syria, wounding three people;
* 17 March 2012: a double vehicle bombing targeting a local police headquarters and an air force intelligence office in Damascus, Syria, killed at least 27 people;
* 10 February 2012: a double vehicle bombing targeting a military intelligence and security force facility in Aleppo, Syria, killed at least 25 people; and
* 6 January 2012: a suicide bombing targeting a busload of security force personnel in Damascus, Syria, killed 26 people.
Directly or indirectly fostering and/or advocating the doing of terrorist acts
Jabhat al-Nusra has its own media outlet, al-Manara al-Bayda (the White Minaret), which it uses to make documentary-style propaganda videos, often featuring car bombs and interviews with suicide bombers. Through the White Minaret, Jabhat al-Nusra's message is disseminated via the jihadist forum Shumukh al-Islam.
Jabhat al-Nusra has issued more than 200 media statements, primarily through the White Minaret. While most of these statements have been in the form of claims of responsibility for attacks, some early media statements address the rationale for the group's actions. These include:
On the basis of the above information, ASIO assesses Jabhat al-Nusra is directly and/or indirectly engaged in, preparing, planning, assisting in, or fostering the doing of terrorist acts involving threats to human life and serious damage to property.
In the course of pursuing its objectives, Jabhat al-Nusra is known to have committed or threatened action that:
This assessment is corroborated by information from reliable and credible intelligence sources.
Other relevant information
Links to other terrorist groups or networks
In early April 2013, Jabhat al-Nusra released a video statement in which leader Abu-Muhammad al-Jawlani, on behalf of Jabhat al-Nusra, pledged allegiance to al-Qa'ida leader Ayman al-Zawahiri. In this same statement, al-Jawlani confirmed that AQI leader Abu Bakr al-Baghdadi al-Husseini al-Qurashi provided Jabhat al-Nusra with funding and operatives to conduct operations in Syria.
Proscription by the UN and other countries
On 11 December 2012, the United States amended the Foreign Terrorist Organisation and Executive Order 13224 designations of AQI to include Jabhat al-Nusra as an alias.
On 15 March 2013, Australia listed Al-Nusrah Front (Jabhat al-Nusrah) as a terrorist entity under the Charter of the United Nations Act 1945.
Peace and mediation processes
Jabhat al-Nusra is not engaged in any peace or mediation process.