Commonwealth Numbered Regulations - Explanatory Statements
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CRIMINAL CODE (TERRORIST ORGANISATION--AL-QA'IDA) REGULATIONS 2019 (F2019L00581)
EXPLANATORY STATEMENT
Issued by the authority of the Minister for Home Affairs
Criminal Code Act 1995
Criminal Code (Terrorist Organisation--Al-Qa'ida) Regulations 2019
The purpose of the Criminal Code (Terrorist Organisation--Al-Qa'ida) Regulations 2019 (the Regulations) is to specify Al-Qa'ida for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code.[1] Al-Qa'ida is currently specified for this purpose by the Criminal Code (Terrorist Organisation-- Al-Qa'ida) Regulation 2016, which is repealed by the Regulations.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 al-Qa'ida 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.
Effect of the instrument
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 al-Qa'ida. Regulations specifying al-Qa'ida as a terrorist organisation have been in effect since 2002.
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.
Consultation
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 al-Qa'ida 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.
Statement of Compatibility with Human Rights
Overview
The Criminal Code (Terrorist Organisation--Al-Qa'ida) Regulations 2019 (the Regulations) specifies al-Qa'ida 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 al-Qa'ida 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 al-Qa'ida.
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 al-Qa'ida.
Terrorist organisations, including al-Qa'ida, 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).
Human rights implications
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.
The inherent right to life in Article 6
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.
The right to freedom of expression in Article 19
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 al-Qa'ida. 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.
The right to freedom of association in Article 22
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 al-Qa'ida.
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.
General safeguards and accountability mechanisms
Whilst the Regulations may limit the right to freedom of expression and the right to freedom of association with al-Qa'ida, 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.
Conclusion
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.
Attachment A
Details of the Criminal Code (Terrorist Organisation--Al-Qa'ida) Regulations 2019
Section 1 - Name
This section would provide that the title of the Regulations is the Criminal Code (Terrorist Organisation--Al-Qa'ida) Regulations 2019
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--Al-Qa'ida) Regulation 2016.
Section 5 - Terrorist organisation--Al-Qa'ida
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 al-Qa'ida is specified.
Subsection (2) would provide that al-Qa'ida is also known by the following names:
a) Al-Jihad al-Qaeda
b) Al Qaeda
c) Al-Qaeda
d) Al-Qaida
e) AQ
f) The Base
g) The Group for the Preservation of the Holy Sites
h) International Front for Fighting Jews and Crusaders
i) Islamic Army
j) The Islamic Army for the Liberation of Holy Places
k) Islamic Army for the Liberation of Holy Sites
l) Islamic Salvation Foundation
m) The Jihad Group
n) New Jihad
o) Usama Bin Laden Network
p) Usama Bin Laden Organisation
q) The World Islamic Front for Jihad against Jews and Crusaders
Schedule 1--Repeals
Schedule 1 would provide that Criminal Code (Terrorist Organisation--Al-Qa'ida) Regulation 2016 is repealed.
The Criminal Code (Terrorist Organisation--Al-Qa'ida) Regulation 2016 specifies al-Qa'ida 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.
Attachment B
| STATEMENT OF REASONS FOR AL-QA'IDA | |
| Also known as: Al-Jihad al-Qaeda; Al Qaeda; Al-Qaeda; Al-Qaida; AQ; The Base; The Group for the Preservation of the Holy Sites; International Front for Fighting Jews and Crusaders; Islamic Army; The Islamic Army for the Liberation of Holy Places; Islamic Army for the Liberation of Holy Sites; Islamic Salvation Foundation; The Jihad Group; New Jihad; Usama Bin Laden Network; Usama Bin Laden Organisation; The World Islamic Front for Jihad against Jews and Crusaders | |
| This statement is based on publicly available information about al-Qa'ida. To the Australian Government's knowledge, this information is accurate, reliable and has been corroborated by classified information. | |
| 1. | 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. |
| 2. | Background to this listing The Australian Government first proscribed al-Qa'ida as a terrorist organisation under the Criminal Code on 21 October 2002. Al-Qa'ida was relisted on 1 September 2004, 26 August 2006, 9 August 2008, 22 July 2010, 12 July 2013 and 28 June 2016. |
| 3. | Terrorist activity of the organisation Objectives Al-Qa'ida is a Sunni Islamist extremist organisation which seeks to establish a trans-national Islamic Caliphate by removing, through violent means if necessary, governments in Muslim countries that it deems are 'un-Islamic'. The United States (US) and its allies, including Australia, are believed by al-Qa'ida to represent the greatest obstacle to this objective, given their perceived support for these governments. Al-Qa'ida has undertaken the following to advance its ideology and achieve its objectives: Directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts Al-Qa'ida operates through a decentralised model, where al-Qa'ida's core leadership is able to distance itself and the group from terrorist acts. It has been almost a decade since al-Qa'ida is known to have conducted a significant terrorist attack itself. However, al-Qa'ida leadership continues to assist in or foster the doing of terrorist attacks by its global affiliates. The leaders and deputies of al-Qa'ida's global affiliates are integrated into al-Qa'ida's global strategy through deliberative and consultative processes. Al-Qa'ida leader Ayman al-Zawahiri and core leadership figures outline strategic priorities and guidelines; and global affiliate leaders and the commanders of al-Qa'ida linked groups are given some flexibility to adapt these priorities to local conditions, including the directive to undertake attacks against Western interests. Al-Qa'ida's leadership is likely to seek to minimise its public links to significant attacks in the West as a deliberate strategy to avoid counter-terrorism pressure. Two recent significant attacks attributed to an al-Qa'ida affiliate or al-Qa'ida-linked group are: * April 2017: the bombing of the St Petersburg metro station, Russia, killing sixteen people. This attack was claimed by the Iman Shamil Battalion group who stated they carried out the attack under the direct order of Ayman al-Zawahiri. * January 2015: the attack on the offices of French satirical magazine Charlie Hedbo, in Paris, France killing ten people. This attack was claimed by al-Qa'ida in the Arabian Peninsula (AQAP) however due to its significance this attack would have required endorsement by al-Qa'ida.
Advocating the doing of terrorist acts Senior al-Qa'ida leaders continue to make public statements promoting al-Qa'ida's ideology, praising attacks undertaken by other groups and encouraging and urging violent jihad against the West. Most recently, al-Qa'ida leader Ayman al-Zawahiri reinforced the prevailing narrative of al-Qa'ida propaganda of unifying the global Muslim community in conflict against the US and the West. * December 2018: video statement released by Ayman al-Zawahiri directs the mujahideen to concentrate on American and Israeli targets. This speech advocated the use of weapons and martyrdom. He also referenced the 11 September 2001 attacks, and stated that using commercial aircraft as weapons of mass destruction hit the US military command and led to one of US' biggest economic disasters. Al-Shabaab has released a statement indicating their attack against the DusitD2 hotel in Nairobi on 15 January 2019 was in direct response to Zawahiri's statement. * September 2018: al-Qa'ida released a video statement where Ayman al-Zawahiri reiterates his anti-American stance and continues to encourage Muslims to unify and to attack the interests abroad of the US and its allies. * May 2017: video statement released by Hamza bin Laden (the oldest surviving son of Usama bin Laden) directs followers to attack targets in the West and Russia instead of travelling to theatres of war within the Muslim world. The video also encouraged using alternatives to guns and bombs, such as 'stabbing with knives and using vehicles and trucks'. * November 2016: al-Qa'ida addressed recent losses of senior leaders by US air strikes in the English language propaganda magazine Inspire. It stated that 'by the killing of our brothers, we become more committed to their principles, and ... we will continue clinging to the same course of jihad and da'wa ... '. In addition it quoted that 'we will never enjoy our life till we clean up our land from all oppressive infidels, till the last American soldier get[s] out from the Islamic countries ... ' * September 2016: al-Qa'ida released a speech in which Ayman al-Zawahiri stated that al-Qa'ida would 'focus on ... America and its allies, and to strive as much as possible to transfer the battle to their lands', and this was 'the first priority in the armed jihad of today'. * July 2016: al-Qa'ida released a video statement in which Ayman al-Zawahiri called on al-Qa'ida branches to kidnap Western civilians and soldiers so that these could be exchanged for jihadists jailed in the West. |
| 4. | Details of the organisation Al-Qa'ida emerged in the late 1980s from Maktab al-Khidamat, a recruitment and fundraising network for the Afghan resistance to the Soviet Union's occupation of Afghanistan. Al-Qa'ida was established to continue the jihad against perceived enemies of Islam following the end of the conflict with the Soviets. During the late 1990s, al-Qa'ida was transformed from providing a unifying function for extremist elements into a global network of cells and affiliated groups. This decentralisation of the al-Qa'ida movement continued, with localised affiliates taking more responsibility for their own tactical and strategic operations, and the central leadership assuming a more distant role. This is part of al-Qa'ida's three-pronged strategy of education and religious outreach, exploitation of local insurgencies against perceived apostate rulers and a terrorist campaign against the far enemy (the West and Western interests). Leadership Al-Qa'ida's surviving core leadership and senior commanders are dispersed across countries including Afghanistan, Pakistan, Syria, Iran, Libya and Yemen, therefore protecting the group from any one strike being able to eliminate the entire senior leadership. Usama bin Laden co-founded al-Qa'ida with Dr Abdullah Azzam and gained full control of the organisation after the assassination of Azzam in 1989. Dr Ayman al-Zawahiri, Usama bin Laden's former deputy, now leads al-Qa'ida after the death of Usama bin Laden in May 2011. Al-Zawahiri is believed to be operating from an unknown location, possibly within the Afghanistan-Pakistan border region. This region has served as a sanctuary for al-Qa'ida's leadership since the loss of the group's facilities in Afghanistan in late 2001. Other core al-Qa'ida leadership figures, including Saif al-Adl, a leader with extensive battlefield experience, have been located in Iran. Hamza bin Laden, the son of Usama bin Laden, is purportedly being groomed for a leadership role within al-Qa'ida by senior figures within the group. Membership and recruitment Excluding global affiliates, the exact size of al-Qa'ida core is unknown. While previous estimates have suggested a strength of several thousand fighters, today it is more likely in the hundreds or potentially less given extensive counter-terrorism pressure. Al-Qa'ida maintains influence over the activities (and members) of other groups and has continuing relationships with official and unofficial affiliate groups around the world, who recruit independently of al-Qa'ida. Al-Qa'ida has maintained a network of affiliates and linked groups through incorporating local grievances and concerns into their global strategy. This locally-oriented strategy is exploited by affiliates and linked-groups to increase membership. While al-Qa'ida does not direct affiliate activity, al-Qa'ida broadly shapes global jihad and is still respected for its views on affiliates' operations. Affiliates generally continue to adhere to the global goals, objectives and strategy outlined by al-Qa'ida senior leadership figures. Funding Al-Qa'ida likely still has access to their traditional methods of funding, such as the exploitation of charities, and the reliance on donors and fundraisers in the Gulf that have long supported al-Qa'ida. It is also increasingly reliant on sources of funding obtained through its affiliates, which have diversified their methods to activities such as kidnap for ransom and extortion. Links to other terrorist organisations Al-Qa'ida has a number of global affiliates that have been separately proscribed as terrorist organisations under the Criminal Code, including:
* Al-Qa'ida in the Islamic Maghreb, * Al-Shabaab, * Al-Qa'ida in the Arabian Peninsula, and ยท Al-Qa'ida in the Indian Subcontinent.
In addition to the groups al-Qa'ida has incorporated 'officially' under its banner, al-Qa'ida also has provided encouragement and inspiration to other Islamic terrorist groups. Among such groups are: Abu Sayyaf Group, Al-Murabitun, Islamic Movement of Uzbekistan, Islamic Army of Aden, Asbat al-Ansar, Jemaah Islamiyah, Jamiat ul-Ansar/Harakat ul-Mujahideen, Lashkar-e-Tayyiba, Lashkar-e-Jhangvi, Jaish-e-Mohammad and Ansar al-Islam.
Al-Qa'ida maintains links with Syria-based terrorist group Jabhat Fatah al-Sham. Links to Australia In the past Australians have been affiliated with the group however there are no confirmed Australians currently linked to al-Qa'ida. Threats to Australian interests Al-Qa'ida's global strategy is focused on the end of Western influence in the Muslim world, and as part of this strategy al-Qa'ida advocates for strikes against the US and allies such as Australia. Australia has been specifically referenced or alluded to in official al-Qa'ida statements, most recently in 2016: * In several audio/video statements released by al-Qa'ida in January 2016, Ayman al-Zawahiri encouraged South East Asian extremists to attack American and Western interests in the region. Previous imagery and statements from the Bali bombers were also included in which Australians are threatened with attack should they revisit Bali or other Indonesian tourist destinations.
Listed by the United Nations or like-minded countries Engagement in peace or mediation processes Al-Qa'ida is not engaged in any peace or mediation processes. |
| 5. | Conclusion On the basis of the above information, ASIO assesses al-Qa'ida 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, al-Qa'ida is known to have committed or threatened actions that:
|