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CRIMINAL CODE (TERRORIST ORGANISATION--AL-QA'IDA IN IRAQ) REGULATION 2013 (SLI NO 162 OF 2013)
Select Legislative Instrument 2013 No. 162
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code (Terrorist Organisation - Al-Qa'ida in Iraq) 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; 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.
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 Al-Qa'ida in Iraq, also known as Al-Qa'ida in Iraq - Zarqawi, 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, Brigades of Tawhid, ISI, Islamic State of 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 Country of the Two Rivers, 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 Regulation enables the offence provisions in Division 102 of the Code to continue to apply to persons with links to Al-Qa'ida in Iraq. Details of the Regulation 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 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 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 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 also repeals existing Regulation 4G of the Criminal Code Regulations 2002 which had previously specified Al-Qa'ida in Iraq as a terrorist organisation for the purpose of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code. The separate Criminal Code (Terrorist Organisation - Al-Qa'ida in Iraq) Regulation 2013 now specifies Al-Qa'ida in Iraq as a terrorist organisation under subsection 102.1(1) of the Code.
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
The object of the Criminal Code (Terrorist Organisation - Al-Qa'ida in Iraq) 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 - Al-Qa'ida in Iraq) Regulation 2013 makes 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 Al-Qa'ida in Iraq, and provide support or associate with Al-Qa'ida in Iraq.
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 - Al-Qa'ida in Iraq) Regulation 2013 may limit the right to freedom of association with Al-Qa'ida in Iraq, the association offence is subject to the safeguards outlined above. The general limits of the right to freedom of association with Al-Qa'ida in Iraq 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 (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 Al-Qa'ida in Iraq 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 - Al-Qa'ida in Iraq) 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 Criminal Code (Terrorist Organisation - Al-Qa'ida in Iraq) Regulation 2013 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 - Al-Qa'ida in Iraq) 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 - Al-Qa'ida in Iraq) 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 - Al-Qa'ida in Iraq) 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 - Al-Qa'ida in Iraq) Regulation 2013
Section 1- Name of Regulation
This section provides that the title of the Regulation is the Criminal Code (Terrorist Organisation - Al-Qa'ida in Iraq) 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 - Schedule(s)
This section provides that each instrument specified in a Schedule to this Regulation is amended or repealed as set out in the Schedule, and any other item in a Schedule to this Regulation has effect according to its terms.
Section 5 - Definition
This section provides that a reference in this Regulation to the word Code means the Criminal Code.
Section 6 - Terrorist organisation - Al-Qa'ida in Iraq
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 Al-Qa'ida in Iraq is specified.
Subsection (2) provides that Al-Qa'ida in Iraq is also known by the following names:
(a) Al-Qa'ida in Iraq - Zarqawi;
(b) Al-Qa'ida of Jihad in the Land of the Two Rivers;
(c) Al-Qa'ida of Jihad Organization in the Land of the Two Rivers;
(e) Al-Tawhid and al-Jihad;
(g) Brigades of Tawhid;
(i) Islamic State of Iraq;
(j) Jama'at al-Tawhid wa'al-Jihad;
(k) Kateab al-Tawhid;
(l) Mujahidin Shura Council;
(m) Qaida of the Jihad in the Land of the Two Rivers;
(n) Tanzeem Qa'idat al-Jihad Bilad al Raafidaini;
(o) Tanzim Qa'idat al-Jihad fi Bilad al-Rafidayn;
(p) The al-Zarqawi network;
(q) The Monotheism and Jihad Group;
(r) The Organisation Base of Jihad Country of the Two Rivers;
(s) The Organisation Base of Jihad Mesopotamia;
(t) The Organisation of Jihad's Base in the Country of the Two Rivers;
(u) Unity and Holy Struggle;
(v) Unity and Holy War; and
(w) Unity and Jihad Group.
Schedule 1- Amendment
This schedule amends the Criminal Code Regulations 2002.
Clause 1 - Regulation 4G
This clause provides that Regulation 4G of the Criminal Code Regulations 2002 is repealed. Regulation 4G was the previous Regulation listing Al-Qa'ida in Iraq, and this clause ensures there is no duplication if the new Regulation is made before the current Regulation ceases.
Al-Qa'ida in Iraq
(Also known as: Al-Qa'ida in Iraq - Zarqawi;
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; Brigades of Tawhid; ISI; Islamic State of 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/Country of the Two Rivers;
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)
This statement is based on publicly available information about al-Qa'ida in Iraq (AQI), formerly listed as Tanzim Qa'idat al-Jihad fi Bilad al-Rafidayn (TQJBR). 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
AQI is a Sunni Islamist extremist group that operates primarily in Iraq. The group operates mainly in central and northern Iraq, but maintains a presence throughout the entire country. AQI remains an al-Qa'ida affiliate and part of the global jihadist movement. As with al-Qa'ida core, AQI is anti-secular, anti-Western and anti-Shia in ideology, and seeks to re-establish the ummah, or Islamic community of nations, that existed at the time of the Caliphate. With these ends in mind, AQI is committed to the overthrow of the Iraqi Government and the elimination of Iraq's Shia through the use of violence, whom it considers heretics.
AQI is the dominant group in the Sunni umbrella group, the Islamic State of Iraq (ISI), which was announced on 15 October 2006. ISI is a front organisation and the public 'face' of AQI. It is highly structured and maintains cabinet and regional emirs within its leadership. ISI is synonymous with AQI, with all media statements issued in ISI's name.
AQI has deliberately and systematically attempted to stoke sectarian tensions in Iraq with the aim of starting widespread civil conflict between Sunnis and Shia. AQI aims also to hasten the exodus of Iraq's Christians through acts of intimidation, assassination and terrorism. AQI's ultimate objective is to establish Iraq as a base from which to, firstly, establish a Sunni state under Sharia law, and secondly, 'liberate' all Muslim territories from the 'Crusaders' and the 'Zionist enemy'.
AQI directs most of its attacks against Iraqi Government and Shia interests. The group is motivated partly by the perceived persecution and disempowerment of the Sunni population--largely due to Shia dominance of the Iraqi Government--as well as perceived Iranian and Western influence on Iraq's domestic affairs. AQI accuses the Iraqi Government of waging a campaign to spread Shia 'doctrine' in Sunni areas of Iraq, in addition to 'militarising' the Shia. AQI considers the 'war' of the Sunnis with the Shia a 'religious war, a holy war of faith, a war of faith and unbelief, a war of idolatry and monotheism'. The group also accuses the government of being 'despotic, and excluding Sunnis and stripping them of their positions and weapons, making them a weak minority, and humiliating them bit by bit'.
AQI's first leader, Abu Musab al-Zarqawi, pledged allegiance to al-Qa'ida on 17 October 2004 via an internet posting. A statement by Usama bin Laden, broadcast on 27 December 2005, welcomed the union and exhorted mujahideen in Iraq to obey al-Zarqawi. Al-Zarqawi led AQI until June 2006, when he was killed by United States (US) military forces.
Al-Zarqawi's successor, Abu Hamza al-Muhajir (also known as Abu Ayyub al-Masri), was an Egyptian with close connections to current al-Qa'ida leader Ayman al-Zawahiri.
The group's current leader--announced in mid-May 2010--is Abu Bakr al-Baghdadi al-Husseini al-Qurashi. His deputy was named as Abu Abdullah al-Hassani al-Qurashi, and Abu Sulayman was named AQI's 'Minister of War'. These names are likely to be aliases. The appointments were made following the deaths of al-Masri and Abu Abdullah al-Rashid al-Baghdadi in April 2010.
AQI may have as many as 2500 members; however, its precise membership strength is not known. The group's high operational tempo since the US military drawdown in December 2011 demonstrates its greater freedom of movement and improved access to resources. Former prisoners, who have either escaped or been released by the government since 2011, may have bolstered AQI's ranks.
Recruitment and funding
While many of AQI's key personnel in its formative years were foreigners, key personnel are now mostly all Iraqi. AQI continues to attract a small number of foreign fighters, but there are far fewer arrivals now than at the peak of the insurgency in 2007, when as many as 100 per month were arriving. Most foreign fighters are used in suicide operations.
AQI targets members of the Sons of Iraq, or Sahwa, anti-AQI militia for recruitment, many of whom are disgruntled with the lack of support by the government. The success of this campaign is not known.
AQI obtains funding for its terrorist activities in several ways, including via charitable donations from Sunni Arabs in other parts of the Middle East. AQI also raises funds through criminal activities within Iraq, including extortion and bank robberies.
Terrorist activity of the organisation
Directly or indirectly engaged in the doing of terrorist acts
AQI has conducted scores of lethal attacks against Iraqi Government, civilian and international interests since the group was last proscribed on 29 October 2010. The group continues to plan, coordinate and execute attacks using a wide range of attack methods, including car and roadside bombings, assassinations, armed attacks and person-borne suicide bombings. AQI continues to evolve and has shown it can adapt its strategy and tactics in Iraq's fluid security, political and social environment.
Significant attacks either claimed by, or reliably attributed to, AQI since the group was last proscribed include the following:
* 16 April 2013: a series of nearly 20 attacks, mostly car bombings, in Baghdad, Kirkuk, Hilla, Fallujah, Nasiriya and Tikrit killed at least 37 people and wounded more than 140 others;
* 19 March 2013: a series of coordinated bombings in the mainly Shia districts of Baghdad killed at least 50 people and wounded 160 others;
* 27 November 2012: a series of 13 attacks in seven cities across Iraq killed at least 26 people;
* 27 September 2012: an attack on Tasfeerat Prison in Tikrit killed 16 police officers and enabled several prisoners to escape;
* 9 September 2012: a series of more than 30 small arms and IED attacks against mainly security forces across Iraq killed 81 people and wounded nearly 200 others;
* 12-13 June 2012: a series of bomb attacks against security forces and Shia pilgrims across Iraq killed at least 75 people;
* 19 May 2012: a series of coordinated bombings across Iraq killed at least 36 people and wounded more than 150 others;
* 23 February 2012: a series of coordinated attacks against government and Shia interests across Iraq killed at least 63 people;
* 14 January 2012: a suicide attack in Al Zubair, Basra Province killed at least 64 people and wounded more than 100 others;
* 5 January 2012: a suicide attack near Nasiriya, Dhi Qar Province killed at least 46 Shia pilgrims and wounded 72 others. Separate attacks on the same day in Sadr City and Baghdad killed 25 people and wounded 69 others;
* 22 December 2011: a series of attacks across Baghdad killed 72 people;
* 15 August 2011: a series of coordinated attacks across Iraq targeting mainly security forces killed as many as 70 people and wounded more than 200 others;
* 19 May 2011: an attack on security forces in Kirkuk using three IEDs killed 27 and wounded 90 others;
* 29 March 2011: an attack on the Salah-al-Din provincial council building in Tikrit involving a vehicle-borne improvised explosive device (VBIED) and suicide bombers killed at least 50 people and wounded about 100 others;
* 20 January 2011: three VBIEDs targeting Shia pilgrims near Karbala killed 45 people and wounded about 150 others;
* 18 January 2011: a suicide attack on a police recruitment centre in Tikrit killed up to 60 people and wounded about 150 others;
* 10 November 2010: a series of bombings, including at least 14 roadside IEDs, and mortar attacks targeting Christians in multiple areas of Baghdad killed three people and wounded at least 24 others;
* 2 November 2010: a series of bombings in Baghdad killed as many as 76 people and injured approximately 271 others. Most of the attacks targeted Shia neighbourhoods;
* 31 October 2010: the taking of approximately 100 hostages at the Our Lady of Salvation Chaldean (Assyrian) Catholic Church in Baghdad by at least 14 gunmen armed with suicide vests, assault rifles and grenades. Fifty-eight people died in the subsequent clash and rescue operation. The hostage-takers had attacked the nearby Iraq Stock Exchange immediately prior to the attack on the church, killing two security guards;
* 17 August 2010: a suicide bombing against an Iraqi Army recruitment centre in Baghdad killed more than 60 people and wounded more than 100 others;
* 10 May 2010: a series of bombings throughout Iraq killed at least 85 people and wounded hundreds more; and
* 4 April 2010: three suicide bombings in Baghdad targeting the Iranian, German and Egyptian diplomatic missions killed at least 41 people and wounded more than 200 others.
Directly or indirectly fostering and/or advocating the doing of terrorist acts
Several media statements have been issued in the name of AQI/ISI that advocate the doing of terrorist acts, including:
* 21 July 2012: AQI leader Abu Bakr al-Baghdadi announced in an audio speech the commencement of its Destroying the Walls campaign and instructed AQI operatives to prioritise attacks against 'judges, detectives and guards';
* In the same speech, Abu Bakr also called upon Sunni tribes in Iraq to participate in AQI's jihad, in addition to urging Muslims abroad to travel to Iraq and join its ranks;
* In addition, Abu Bakr directed a message to Syrians, lauding them for their revolution against the Bashar al-Assad regime, stating: '... weakness is only erased by giving souls and bloodshed, and spreading body parts and skulls of the martyrs and those wounded on the path';
* 2 December 2011: ISI released a video in which several now-deceased AQI members appear, each inciting jihad and threatening 'the enemy' with suicide attacks;
* 8 February 2011: ISI issued a statement in which its 'War Ministry' urged protesters in Egypt to use violent jihad to drive then-president Hosni Mubarak from office, saying it was the obligation of every 'able-bodied man' to participate; and
* 2 November 2010: ISI issued a statement declaring Christians everywhere were 'legitimate targets' following the attack on the Our Lady of Salvation Chaldean (Assyrian) Catholic Church in Baghdad on 31 October 2010.
On the basis of the above information, ASIO assesses AQI continues to be directly and indirectly engaged in, preparing, planning, assisting in and fostering the doing of terrorist acts, and advocates the doing of terrorist acts, involving threats to human life and serious damage to property.
In the course of pursuing its objectives, AQI is known to have engaged in acts that:
* cause, or could cause, serious damage to property, the death of persons, endanger a person's life or create a serious risk to a person's safety;
* are intended to have those effects;
* are done with the intention of advancing AQI's political, religious or ideological causes; and
* are done with the intention of intimidating sections of the public in Iraq and other persons visiting areas where it operates.
This assessment is corroborated by information provided by reliable intelligence sources.
Other relevant information
Links to other terrorist groups or networks
A number of terrorist organisations have conducted terrorist acts or issued statements in support of AQI, including al-Qa'ida, al-Qa'ida in the Arabian Peninsula, salafists in Gaza and al-Shabaab. Likewise, AQI has called on jihadists to support other terrorist organisations.
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, Jabhat al-Nusra leader Abu -Muhammad al-Jawlani pledged allegiance to al-Qa'ida leader Ayman al-Zawahiri and denied any knowledge of the merger. Some former AQI members are now members of Jabhat al-Nusra, including some in leadership positions. AQI has provided Jabhat al-Nusra with funding, operatives and logistical support.
On 26 March 2010, ISI released a statement urging Muslims to support the family of Usama bin Laden, some of whom were imprisoned at the time in Iran.
Proscription by the UN and other countries
AQI is listed on the United Nations Security Council 1267 (al-Qa'ida) Sanctions Committee's consolidated list and as a proscribed terrorist organisation by Canada, New Zealand and the US.
Peace and mediation processes
AQI is not engaged in any peace or mediation process.