[Index] [Search] [Download] [Related Items] [Help]
CRIMINAL CODE (TERRORIST ORGANISATION--LASHKAR-E-TAYYIBA) REGULATION 2015 (SLI NO 127 OF 2015)
Select Legislative Instrument No. 127, 2015
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulation 2015
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 Code (the Criminal Code).
Division 102 of the Criminal 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 for a terrorist organisation; getting funds to, from or for a terrorist organisation; providing support to a terrorist organisation; and associating with a terrorist organisation.
Section 102.9 of the Criminal Code provides that section 15.4 (extended geographical jurisdiction-category D) applies to an offence against Division 102 of the Criminal Code. The effect of section 15.4 is that offences in Division 102 of the Criminal Code apply to conduct (or the results of such conduct) constituting the alleged offence whether or not the conduct (or the results of such conduct) occur in Australia.
A 'terrorist organisation' is defined in subsection 102.1(1) of the Criminal Code as:
* an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (paragraph 102.1(1)(a)); or
* an organisation that is specified by the regulations for the purposes of this paragraph (paragraph 102.1(1)(b)).
Subsection 102.1(20) of the Criminal Code provides that a reference to the doing of a terrorist act includes a reference to the doing of a terrorist act, even if a terrorist act does not occur; a reference to the doing of a specific terrorist act; and a reference to the doing of more than one terrorist act.
The purpose of the Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulation 2015 (the Regulation) is to specify Lashkar-e-Tayyiba, also known as al Mansooreen; al Mansoorian; Army of Medina; Army of the Pure; Army of the Pure and Righteous; Army of the Righteous; Falah-e-Insaniyat Foundation; Idara Khidmat-e-Khalq; Jama'at al-Dawa; Jama'at-i-Dawat; Jamaati-ud-Dawa; Jamaat ud-Daawa; Jama'at-ud-Da'awa; Jama'at-ud-Da'awah; Jamaat-ud-Dawa; Jama'at ul-Da'awa; Jamaat-ul-Dawa; Jamaat ul-Dawah; Jamaiat-ud-Dawa; JuD; JUD; Lashkar-e-Taiba; Lashkar-e-Tayyaba; Lashkar-e-Toiba; Lashkar-i-Tayyaba; Lashkar-i-Toiba; Lashkar-Tayyiba; LeT; LT; Paasban-e-Ahle-Hadis; Paasban-e-Kashmir; Paasban-i-Ahle-Hadith; Party of Preachers; Party of the Calling; Pasban-e-Ahle-Hadith; Pasban-e-Kashmir; Soldiers of the Pure; and Tehreek-e-Tahafuz Qibla Awal, for the purpose of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code.
The Regulation enables the offence provisions in Division 102 of the Criminal Code to apply to persons with links to Lashkar-e-Tayyiba. Details of the Regulation are set out in Attachment A.
Subsection 102.1(2) of the Criminal Code provides that before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of a 'terrorist organisation' in this section, the Minister must be satisfied on reasonable grounds that the organisation is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or advocates the doing of a terrorist act.
In determining whether the Minister is satisfied on reasonable grounds that the organisation is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates 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 (DFAT), and advice from the Australian Government Solicitor (AGS). The Statement of Reasons in respect of Lashkar-e-Tayyiba is at Attachment B.
Subsection 102.1(2A) of the Criminal 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 Criminal 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 making the Regulation, consultations were held with DFAT, ASIO and AGS. In addition, the Attorney-General wrote, on behalf of the Prime Minister, to the Premiers and Chief Ministers of the States and Territories. The Attorney-General also offered the Leader of the Opposition a briefing in relation to the proposed re-listings.
The Regulation repeals existing Regulation 4V of the Criminal Code Regulations 2002 which specifies Lashkar-e-Tayyiba, for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code. The repeal of existing Regulation 4V ensured that there is no duplication, if the new Regulation was made before the existing Regulation ceased to have effect.
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 Criminal 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 Criminal Code (Terrorist
Organisation--Lashkar-e-Tayyiba) Regulation 2015
(the Regulation) makes it an offence under Division 102 of the Criminal Code, to direct the activities, become a member of, recruit for, train, receive or participate in training, get funds to, from or for Lashkar-e-Tayyiba, and provide support to or associate with, Lashkar-e-Tayyiba.
The offence of association with a terrorist organisation in subsection 102.8 of the Criminal Code is limited in its application 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 legal representation.
The object of the Regulation is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia.
Human rights implications
This instrument engages the following rights:
* Article 6
* Article 19 and
* Article 22.
The Regulation 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.
Whilst the Regulation may limit the right to freedom of association with Lashkar-e-Tayyiba, the association offence is subject to the safeguards outlined above. The general limits of the right to freedom of association with Lashkar-e-Tayyiba 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 Lashkar-e-Tayyiba 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 requiring prior consultation and enabling review of the Regulation specifying Lashkar-e-Tayyiba 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 of 25 June 2004, and 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) of the Criminal Code 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, the Regulation will cease to have effect on the third anniversary of the day on which it takes effect;
* subsection 102.1(4) of the Criminal Code 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 by written notice published in the Gazette, with the effect of the Minister's declaration that the regulation listing the organisation ceases to have effect and the organisation is de-listed as a terrorist organisation under Division 102 of the Criminal Code;
* subsection 102.1(17) of the Criminal Code provides that an individual or an organisation may make a de-listing application to the Minister;
* the Regulation may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Criminal Code; and
* both Houses of Parliament may disallow the Regulation within the applicable disallowance period, which is 15 sitting days after the regulation was laid before that House, as provided for in subsection 102.1A(4) of the Criminal Code.
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, necessary and proportionate.
Details of the Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulation 2015
Section 1 - Name
This section provides that the title of the Regulation is the Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulation 2015.
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.
Section 4 - Schedules
This schedule amends the Criminal Code Regulations 2002.
Section 5 - Terrorist organisation--Lashkar-e-Tayyiba
Subsection (1) provides that for paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code, the organisation known as Lashkar-e-Tayyiba is specified.
Subsection (2) provides that Lashkar-e-Tayyiba is also known by the following names:
(a) al Mansooreen;
(b) al Mansoorian;
(c) Army of Medina;
(d) Army of the Pure;
(e) Army of the Pure and Righteous;
(f) Army of the Righteous;
(g) Falah-e-Insaniyat Foundation;
(h) Idara Khidmat-e-Khalq;
(i) Jama'at al-Dawa;
(l) Jamaat ud-Daawa;
(p) Jama'at ul-Da'awa;
(r) Jamaat ul-Dawah;
(zg) Party of Preachers;
(zh) Party of the Calling;
(zk) Soldiers of the Pure;
(zl) Tehreek-e-Tahafuz Qibla Awal
Schedule 1 provides that regulation 4V of the Criminal Code Regulations 2002 is repealed. Regulation 4V is the current regulation listing Lashkar-e-Tayyiba as a terrorist organisation for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code. This clause ensured that there was no duplication if the new Regulation was made before the current Regulation ceased to have effect.
(Also known as: al Mansooreen; al Mansoorian; Army of Medina;
Army of the Pure; Army of the Pure and Righteous; Army of the Righteous;
Falah-e-Insaniyat Foundation; Idara Khidmat-e-Khalq; Jama'at al-Dawa;
Jama'at-i-Dawat; Jamaati-ud-Dawa; Jamaat ud-Daawa; Jama'at-ud-Da'awa;
Jama'at-ud-Da'awah; Jamaat-ud-Dawa; Jama'at ul-Da'awa;
Jamaat-ul-Dawa; Jamaat ul-Dawah; Jamaiat-ud- Dawa; JuD; JUD; Lashkar-e-Taiba; Lashkar-e-Tayyaba; Lashkar-e-Toiba; Lashkar-i-Tayyaba;
Lashkar-i-Toiba; Lashkar-Tayyiba; LeT; LT; Paasban-e-Ahle-Hadis;
Paasban-e-Kashmir; Paasban-i-Ahle- Hadith; Party of the Calling;
Party of Preachers; Pasban-e-Ahle-Hadith; Pasban-e-Kashmir;
Soldiers of the Pure; and Tehreek-e-Tahafuz Qibla Awal)
This statement is based on publicly available information about Lashkar-e-Tayyiba (LeT). 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 Act 1995 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; or
(b) advocates the doing of a terrorist act.
Details of the organisation
LeT is a Pakistan-based Sunni Islamic extremist organisation that uses violence in pursuit of its stated objective of uniting Indian administered Kashmir (IaK) with Pakistan under a radical interpretation of Islamic law. LeT's broader objectives include establishing an Islamic Caliphate across the Indian subcontinent. To this end, LeT intends to pursue the 'liberation', not only of Muslim-majority Kashmir, but of all India's Muslim population, even in areas where they do not form a majority. LeT has declared that democracy is antithetical to Islamic law and that LeT's jihad requires it to work toward turning Pakistan itself into a purely Islamic state.
LeT was formed circa 1989 as the military wing of the Pakistan-based Islamist fundamentalist movement Markaz al-Dawa wal Irshad (MDI--meaning, the Centre for Religious Learning and Propagation and also known as the Jamaat al-Dawa). Originally formed to wage militant jihad against the occupation of Afghanistan by the Soviet Union, LeT shifted its focus to the insurgency in IaK in the 1990s, after Soviet troops withdrew from Afghanistan.
In 2002, LeT was banned by the Pakistani government but the group continues to operate in Pakistan under the alias Jamaat ud-Dawa (JuD). Ostensibly created as a charitable organisation by LeT founder Hafiz Muhammad Saeed immediately prior to LeT being banned, JuD functions as a front organisation for LeT to mask its activities and to continue to solicit funds. The United Nations Security Council listed JuD as a LeT alias on 10 December 2008.
While IaK and broader Indian interests remain LeT's primary focus, there is potential for splinter groups to emerge who want to re-focus their activities and bring them more into line with al-Qa'ida's 'global jihad' against the United States and Israel and their allies. However, LeT's primary objective remains the 'liberation' of Muslims in IaK.
Leadership and membership
Saeed, the current head of JuD, is the founder and Emir of LeT. On
10 December 2008, the United Nations Security Council 1267 Committee approved the addition of Hafiz Muhammad Saeed to its consolidated list of individuals and entities subject to assets freeze, travel bans and arms embargo measures. Also in December 2008, the then United States Secretary of State, Condoleezza Rice, identified Saeed as responsible for the November 2008 attacks in Mumbai which killed more than 170 people.
In April 2012, the United States State Department announced a US$10 million reward for the capture or information leading to the arrest and conviction of Saeed. Saeed has been detained and subsequently released by Pakistani authorities on several occasions and continues to operate freely in Pakistan.
Zaki-ur Rehman Lakhvi is LeT's chief of operations. Lakhvi was arrested, along with several other LeT members, on 7 December 2009 for his role in the 2008 Mumbai attacks. Lakhvi was able to communicate with LeT members and co-ordinate LeT activities while incarcerated in Central Jail Rawalpindi (commonly known as Adiala Jail). Lakhvi's orders from Adiala Jail included directing LeT fighters to increase violence in the Kashmir Valley. On 10 April 2015, Lakhvi was released from Adiala Jail on bail and is yet to stand trial for his role in the Mumbai attacks.
Recruitment and funding
LeT's current strength is unknown; however, it is reported to include several thousand active members. The majority of LeT's membership comprises jihadists from Pakistan and Afghanistan.
LeT receives funding from donors in the Middle East, mainly Saudi Arabia, and through charitable donations collected from sympathisers in Pakistan. Private donations from across South Asia, Gulf nations and Europe also contribute to LeT's finances.
Terrorist activity of the organization
Directly or indirectly engaged in the doing of terrorist acts
LeT has directly engaged in, prepared and planned numerous terrorist attacks against Indian security force personnel, government and transport infrastructure and civilians in IaK as well as in India more broadly. LeT militants are also present in Afghanistan and suspected of supporting the insurgency there.
High profile LeT terrorist attacks in India have resulted in the death and injury of hundreds of people. In November 2008, LeT militants carried out coordinated attacks in Mumbai killing more than 170 people, including two Australians. In July 2006, LeT militants in conjunction with Student Islamic Movement of India (SIMI) operatives detonated a series of bombs on trains in Mumbai killing more than 200 people.
LeT continues to engage in terrorist acts and/or their facilitation--most prominently in IaK and India but also in Afghanistan. Recent attacks which can be reliably attributed to LeT, include but are not limited to:
On 5 December 2014, six militants wearing army
uniforms attacked an
Indian Army base in Uri, Kashmir. This was the first incident in a series of coordinated attacks undertaken that day which resulted in the death of eleven security force personnel, eight militants and two civilians--as well as multiple persons injured. One of the militants killed during the attacks was identified as a LeT district commander. Media reporting indicated LeT claimed responsibility for the attack against the army base.
* On 23 May 2014, heavily armed militants attacked the Indian consulate in Herat, Afghanistan. The attack occurred a few days before Indian Prime Minister, Narendra Modi, took office. Afghan and United States officials attributed responsibility for the attack to LeT.
On 24 June 2013, militants attacked a security
force convoy on the
Jammu-Srinagar- Muzaffarabad Highway in Srinagar, Kashmir, killing eight and injuring several others. The attack occurred just prior to a visit by then Prime Minister, Manmohan Singh. While the attack was claimed by Hizbul Mujahideen, Indian officials indicated the attack was directed by LeT.
* On 13 March 2013, gunmen attacked a police camp in Srinagar, Kashmir killing five paramilitary police officers and wounding a number of civilians and police. Indian officials attributed the attack to LeT militants.
Directly or indirectly preparing and/or planning terrorist acts
LeT has ongoing intent to undertake terrorist attacks--in India and IaK in particular--and seek opportunities for surveillance, attack facilitation and recruitment in the furtherance of future attacks. Recent examples of this include:
* On 14 April 2015, Indian intelligence agencies issued an alert to Mumbai police indicating a possible terrorist attack by LeT targeting hotels and railway stations. The attack would comprise eight to 10 LeT operatives entering Mumbai via a sea route.
* March 2015 Indian intelligence reporting indicated LeT had ten launching camps established in the border area of Jammu and Kashmir ready to infiltrate trained operatives into India.
* As of mid-March 2015, LeT was reported to have numerous camps in Pakistan-occupied Kashmir where operatives were being trained for special operations under the direction of LeT chief of operations, Lakhvi. Indian intelligence agencies further indicated they held evidence of Lakhvi planning for a major terrorist operation in India.
* In late December 2014, Indian security agencies issued a public warning indicating that LeT was planning a terrorist attack in India. Security was subsequently increased at Metro stations and other public areas in New Delhi.
* In October 2014, police arrested eight LeT militants in North Kashmir alleged to have been planning a terrorist attack. Police seized small arms, ammunition and grenades. The militants were alleged to have been in contact with an LeT handler in Pakistan.
* On 19 June 2013, Indian security agencies issued a warning for the coastal areas of Goa, following the receipt of intelligence which indicated intent by LeT to undertake a terrorist attack there.
* In June 2012, police in Srinagar, Kashmir arrested five LeT operatives alleged to have been behind a May 2012disrupted car bomb attack. The operatives had acquired a vehicle, explosives and ignition devices.
Directly or indirectly assisting in or fostering the doing of terrorist acts
LeT provides support to domestic terrorist groups in India including the Indian Mujahideen.
In early 2013, Indian officials stated LeT provided assistance to the Indian Mujahideen to undertake surveillance in preparation for an explosives attack in Hyderabad, India. On 21 February 2013, Indian Mujahideen operatives detonated two improvised explosive devices in Dilsukhnagar, Hyderabad killing 16 and injuring over 100.
LeT training camps in Pakistan provide religious indoctrination and militant instruction to both LeT operatives and non-LeT aligned jihadists.
LeT is known to have trained foreigners to conduct terrorist operations. British citizens trained by LeT include Richard Reid, who tried to blow up a trans-Atlantic flight in 2001, and Dhiren Barot, who was convicted in 2006 of planning a bombing in London. Investigations indicate one of the British-born suicide bombers responsible for the 7 July 2005 attacks in London, Shehzad Tanweer, may have received training at a LeT camp in Pakistan. LeT is also suspected of providing some funding and logistical support to the disrupted British trans-Atlantic plane bombing plot in August 2006 using JuD as a cover. In 2009, LeT suspected chief of external operations Sajid Mir worked with now-detained United States extremist, David Headley, on an aborted plot to attack a newspaper office in Copenhagen, Denmark. Aside from facilitating training, it is unclear if LeT sanctioned the terrorist activities of any of these foreign-born individuals.
Advocating the doing of terrorist acts
During a television interview in April 2015, LeT Emir, Hafiz Saeed publicly confirmed his backing of jihad in Kashmir--with assistance from the Pakistan Government and army--asserting that freedom for Muslims in Kashmir could only be attained through jihad.
During a JuD
convention in Lahore, Pakistan over 4-5 December 2014, LeT Emir,
Hafiz Saeed publicly asserted that Pakistani Mujahideen had a right to enter IaK for the purpose of liberating Kashmiris from Indian oppression. Further, Saeed has called for jihad in support of oppressed Muslims everywhere.
In August 2013, Indian intelligence agencies issued a warning of possible LeT attacks in Delhi. The alert was in response to calls from LeT Emir, Hafiz Saeed of his intent to spread jihad to all corners of India. Saeed allegedly stated that a Red Fort-type attack needed to be carried out again--a probable reference to the LeT attack in 2000 on the Red Fort.
On the basis of the above information, ASIO assess LeT continues to directly and/or indirectly engage in, preparing, planning, assisting in, fostering or advocating the doing of terrorist acts. This assessment is corroborated by information provided by reliable and credible intelligence sources.
In the course of pursuing its objectives, LeT is known to have committed or threatened actions that:
* cause serious damage to property or the death of persons, or endangers a person's life or creates a serious risk to a person's safety;
* are intended to have those effects;
* are done with the intention of advancing LeT's political, religious or ideological causes;
* are done with the intention of coercing or influencing by intimidation the government of a foreign country; and
* are done with the intention of creating a serious risk to the safety of the public globally.
Other relevant information
Links to other terrorist groups or networks
LeT is known to maintain and foster links with a variety of Islamist extremist groups including the Afghan Taliban, al-Qa'ida, Harkat ul-Jihad al-Islami and Jaish-e-Mohammad. LeT receives and provides support to domestic based groups and networks in India most notably the Indian Mujahideen and the Students Islamic Movement of India--as well as militant groups in Kashmir.
Additionally, LeT reportedly has been involved in conflicts involving threats to Muslims outside of South Asia including Bosnia, Chechnya and Kosovo.
Links to Australia
In 2007, a French court convicted French national Willie Brigitte, for planning terrorist attacks in Australia in 2003 in conjunction with LeT suspected chief of external operations, Sajid Mir. Brigitte's Australian associate, Faheem Khalid Lodhi, was also convicted of planning acts of terrorism by a New South Wales Supreme Court jury in June 2006. In June 2008, Lodhi lost an appeal to the High Court of Australia to have his case overturned.
Threat to Australian interests
LeT terrorist attacks in India have impacted Western interests there--including Australian interests--two Australians were killed in the 2008 Mumbai attacks. While LeT may not specifically target Australian interests, Australian interests may be impacted in LeT attacks directed at others--particularly mass casualty attacks against soft targets such as hotels, transport infrastructure and tourist sites.
The United States, Canada, the United Kingdom, New Zealand, Pakistan and India have listed LeT as a terrorist organisation. LeT is listed in the UN Security Council 1267 Committee's consolidated list. This listing has been adopted on the Consolidated List maintained in Australia by the Department of Foreign Affairs and Trade, under the Charter of the United Nations Act 1945.