CRIMINAL CODE (TERRORIST ORGANISATION--LASHKAR-E-TAYYIBA) REGULATIONS 2018 (F2018L01085)
Issued by the authority of the Minister for Home Affairs
Criminal Code Act 1995
Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulations 2018
The purpose of the Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulations 2018 (the Regulations) is to specify Lashkar-e-Tayyiba for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code. Lashkar-e-Tayyiba is currently specified for this purpose by the Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulation 2015, which is repealed by the Regulations. Details of the Regulations are set out in Attachment A.
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.
Paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code provides that regulations can specify organisations for the purposes of the definition of 'terrorist organisation'.
Subsection 102.1(2) of the Criminal 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), 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.
The Minister for Home Affairs is satisfied on reasonable grounds that Lashkar-e-Tayyiba is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or advocates the doing of a terrorist act. In coming to this position, the Minister for Home Affairs has taken into consideration an unclassified Statement of Reasons provided by the Director-General of Security, as well as advice from the Australian Government Solicitor (AGS). The Statement of Reasons is at Attachment B.
Division 102 of the Criminal Code sets out the following offences relating to terrorist organisations
* directing the activities of a terrorist organisation
* being a member of a terrorist organisation
* recruiting persons to a terrorist organisation
* receiving training from, providing training to or participating in training with a terrorist organisation
* getting funds to, from or for a terrorist organisation
* providing support to a terrorist organisation, and
* associating with a terrorist organisation.
The Regulations ensure that the offences in Division 102 of the Criminal Code continue to apply to conduct relating to Lashkar-e-Tayyiba. Regulations specifying Lashkar-e-Tayyiba as a terrorist organisation have been in effect since 2003.
The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
The Regulations commence on the day after it is registered. 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.
The unclassified Statement of Reasons was prepared by the National Threat Assessment Centre in the Australian Security Intelligence Organisation, in consultation with the Department of Foreign Affairs and Trade and the Department of Home Affairs (Home Affairs). Home Affairs also sought the advice of the AGS to inform the decision of the Minister for Home Affairs.
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. The Minister for Home Affairs wrote to the Leader of the Opposition enclosing the information upon which he was satisfied that Lashkar-e-Tayyiba met the legislative criteria for listing.
The Intergovernmental Agreement on Counter-Terrorism Laws (June 2004) (the IGA) requires that the Commonwealth Government consult with the governments of the states and territories prior to making regulations specifying an organisation for the purposes of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code. The IGA provides that if a majority of the states and territories object to the making of such a regulation within a time frame nominated by the Commonwealth, and provide reasons for their objections, the Commonwealth will not make the regulation at that time.
The Minister for Home Affairs wrote, on behalf of the Prime Minister, to the Premiers and Chief Ministers of the states and territories. A majority of the states and territories did not object to the making of the Regulations within the time frame nominated by the Minister.
The Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulations 2018 (the Regulations) 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 object of the Regulations is to identify Lashkar-e-Tayyiba as a terrorist organisation under Australian law, and put the organisation and members of the public on notice of that fact. Notification is important to help people avoid engaging in activities which might constitute an offence under Division 102 of the Criminal Code in relation to Lashkar-e-Tayyiba.
The Regulations, which are part of Australia's terrorist organisation listing regime, support the application of the offences in Division 102 of the Criminal Code, the object of which is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia. In particular, the Regulations provide that the offence of associating with a terrorist organisation in section 102.8 of the Criminal Code applies in relation to associating with Lashkar-e-Tayyiba.
Terrorist organisations, including Lashkar-e-Tayyiba, present a threat to the security of Australia and often seek to harm Australians and our democratic institutions. The statutory definition of a 'terrorist organisation' requires that these bodies directly or indirectly engage in, prepare, plan, assist in or foster the doing of a terrorist act which includes the causing of serious harm to persons or death and serious damage to property (refer to Attachment B for details).
The Regulations promote the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR):
* the inherent right to life in Article 6.
The Regulations limit the following human rights contained in the ICCPR:
* the right to freedom of expression in Article 19, and
* the right to freedom of association in Article 22.
Article 6 of the ICCPR provides that countries have a duty to take appropriate steps to protect the right to life and to investigate arbitrary or unlawful killings and punish offenders. The Regulations, and the terrorist organisation listing regime more broadly, ensure that the offence provisions in Division 102 of the Criminal Code apply to certain conduct in relation to listed terrorist organisations. These offence provisions operate to penalise conduct that presents a significant risk to life, both in Australia and overseas, and, in conjunction with the terrorist organisation listing regime, also act as a deterrent to that conduct. Deterring the conduct, and thereby preventing the risk to life, promotes the inherent right to life expressed in Article 6 of the ICCPR.
Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression. However, Article 19(3) provides that freedom of expression may be limited if it is necessary to achieve a legitimate purpose, including for the protection of national security. The Regulations, and the terrorist organisation listing regime more broadly, limit the right to freedom of expression to the extent that persons are prohibited from directing the activities of, recruiting for, providing support to or associating with terrorist organisations, including Lashkar-e-Tayyiba. The restrictions on freedom of expression are justified on the basis that such conduct could jeopardise the security of Australia, the personal safety of its population and its national interests and the restrictions are reasonable, necessary and proportionate to the objective of protecting Australia's national security.
Article 22 of the ICCPR protects the right of all persons to group together voluntarily for a common goal and to form and join an organisation. Article 22(2) provides that this right may be limited for the purpose of national security. The Regulations, and the terrorist organisation listing regime more broadly, limit the right of freedom of association to prevent people engaging with and participating in terrorist organisations, in this instance Lashkar-e-Tayyiba.
The offence of associating with a terrorist organisation in section 102.8 of the Criminal Code is limited in its application to an organisation that is a listed terrorist organisation under the definition of 'terrorist organisation' in paragraph 102.1(1)(b) of the Criminal Code. The offence does not apply if the association is with a close family member and relates to a matter of family or domestic concern, or takes place in the course of practicing a religion in a place used for public religious worship, or the association is only for the purpose of providing humanitarian aid or only for the purpose of providing legal advice or legal representation.
Due to the severity of the danger posed by terrorist organisations, it is reasonable, necessary and proportionate to limit the right of individuals who, by their association with a terrorist organisation, pose a threat to Australians.
Whilst the Regulations may limit the right to freedom of expression and the right to freedom of association with Lashkar-e-Tayyiba, the Regulations are subject to the safeguards outlined below. The limits on these rights 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.
The Criminal Code provides safeguards and accountability mechanisms requiring prior consultation and enabling review of the Regulations, including the following:
* the Commonwealth must consult with the states and territories in accordance with the Intergovernmental Agreement on Counter-Terrorism Laws of 25 June 2004, and the Regulations may only be made if a majority of the states and territories do not object to the Regulations within a reasonable time specified by the Commonwealth
* 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 Regulations
* under subsection 102.1(3) the Criminal Code, the Regulations 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 Regulations listing the organisation cease 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 Regulations 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 Regulations within the applicable disallowance period, which is 15 sitting days after the Regulations are laid before that House, as provided for in subsection 102.1A(4) of the Criminal Code.
The Regulations are compatible with human rights because they promote the protection of human rights. To the extent that the terrorist organisation listing regime, of which the Regulations are part, may also limit human rights, those limitations achieve a legitimate purpose and are reasonable, necessary and proportionate.
Details of the Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulations 2018
Section 1 - Name
This section would provide that the title of the Regulation is the Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulations 2018.
Section 2 - Commencement
This section would provide for the commencement of each paragraph in the instrument, as set out in the table.
Subsection (1) would provide that each provision in the instrument specified in column 1 of the table commences in accordance with column 2 of the table, and that any other statement in column 2 has effect according to its terms. Columns 1 and 2 would provide that the Regulations commence the day after the instrument is registered.
The note to subsection (1) would clarify that the table only relates to the provisions of this instrument as originally made, and that it will not be amended to deal with any later amendments to the instrument.
Subsection (2) would provide that information in column 3 of the table is not part of the instrument. It is designed to assist readers, and may be updated or changed in any published version of these Regulations. Column 3 is empty at the time of making the instrument.
Section 3 - Authority
This section would provide that the Regulations are made under the Criminal Code Act 1995.
Section 4 - Schedules
This section would provide each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned and that any other item in a Schedule has effect according to its terms. Schedule 1 to the instrument would repeal the whole of the Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulation 2015.
Section 5 - Terrorist organisation -- Lashkar-e-Tayyiba
Subsection (1) would provide 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) would provide that Lashkar-e-Tayyiba is also known by the following names:
(a) Â 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;
Â (r) Jamaat ul-Dawah;
(zd) Milli Muslim League;
(zh) Party of Preachers;
(zi) Party of the Calling;
(zl) Soldiers of the Pure;
(zn) Tehreek-e-Tahafuz Qibla Awal.
Schedule 1 would provide that Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulation 2015 is repealed.
The Criminal Code (Terrorist Organisation--Lashkar-e-Tayyiba) Regulation 2015 specifies 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. The proposed clause would ensure there is no duplication where the new Regulations are made before the current Regulation ceases to have effect.
STATEMENT OF REASONS FOR 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; Milli Muslim League; 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, this information is accurate, 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 Minister for Home Affairs 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; or
b) advocates the doing of a terrorist act.
For the purposes of listing a terrorist organisation under the Criminal Code, the doing of a terrorist act includes the doing of a specific terrorist act, the doing of more than one terrorist act and the doing of a terrorist act, even if a terrorist act does not occur.
Background to this listing
The Australian Government first proscribed LeT as a terrorist organisation under the Criminal Code on 9 November 2003. LeT was re-listed on 5 June 2005, 7 October 2005, 8 September 2007, 8 September 2009, 18 August 2012 and 11 August 2015.
Terrorist activity 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 an 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.
Despite the Pakistani Government banning LeT in 2002, 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. In August 2017 JuD set up a new political party, the Milli Muslim League (MML), headed up by Saifullah Khalid, a long time JuD operative. In December 2017 Hafiz Saeed confirmed that JuD would contest the 2018 general elections under the banner of MML.
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 more closely align 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.
Directly or indirectly engaged in preparing, planning, assisting in or fostering 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. These attacks 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 operatives, detonated a series of bombs on trains in Mumbai killing more than 200 people. LeT militants are also present in Afghanistan and are suspected of supporting the insurgency there.
Recent attacks which can be reliably attributed to LeT include the following:
LeT has the 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:
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
In December 2017 at a rally in Rawalpindi, Pakistan, Hafiz Saeed called for violent Jihad against the United States and Israel in response to President Trump's decision to move the US Embassy from Tel Aviv to Jerusalem. Saeed opined that 'Pakistan's atomic bomb is the asset of Islam which should be used to free Jerusalem'.
During a television interview in April 2015, LeT Emir, Hafiz Saeed publicly confirmed his backing of violent jihad in Kashmir--with assistance from the Pakistan Government and army--asserting that freedom for Muslims in Kashmir could only be attained through violent 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 violent 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.
Details of the organisation
Hafiz Muhammad 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.
LeT's current strength is likely several thousand active members. The majority of LeT's membership comprises jihadists from Pakistan and Afghanistan.
Recruitment and funding
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. In February 2018 Indian authorities arrested seven individuals suspected of channelling LeT funds through Hawala dealerships, and enacted an ordinance amending the Ani-Terrorism Act of 1997 allowing Indian authorities to seal JuD offices and freeze JuD bank accounts. In March 2018 Khyber Pakhtunkhwa (K-P) police and local officials sealed at least ten JuD offices across Peshawar at the behest of the federal government; which instructed the K-P to 'seal all the offices, seminaries as well as charities and dispensaries of ... JuD'.
Links to other terrorist organisations
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.
Threats 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.
Listed by the United Nations or like-minded countries
The United States, Canada and the United Kingdom 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.
Engagement in peace or mediation processes
LeT is not involved in any peace or mediation processes.
On the basis of the above information, ASIO assesses that LeT continues to be directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts or advocates the doing of terrorist acts.
In the course of pursuing its objectives, LeT is known to have committed or threatened actions that:
a) cause, or could cause, death, serious harm to persons, serious damage to property, endanger life (other than the life of the person taking the action), or create a serious risk to the health or safety of the public or a section of the public;
b) are intended to have those effects;
c) are done with the intention of advancing LeT's political, religious or ideological causes;
d) are done with the intention of intimidating the government of one or more foreign countries; and
e) are done with the intention of intimidating the public or sections of the public.
 A 'terrorist organisation' is defined in subsection 102.1(1) of the Criminal Code as:
(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
(b) an organisation that is specified by the regulations for the purposes of this paragraph.