EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 220

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2006 (No. 2)

 

 

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.

 

Paragraphs (a) and (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code define a 'terrorist organisation' 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 (a)); or

*        an organisation specified in the regulations (paragraph (b)).

 

The purpose of the Regulations is to amend the Criminal Code Regulations 2002 to specify the Al-Qa'ida and its aliases The Base, Al-Qaida, Al-Qaeda, Qa'idat al-Jihad, Maktab al-Khidamat, International Islamic Front for Jihad Against Jews and Crusaders, Al‑Jabhah al-Islamiyyah al-'Alamiyyah li-Qital al-Yahud wal-Salibiyyin, The Group for the Preservation of Holy Sites, Islamic Army of the Liberation of the Holy Places, Islamic Army for the Liberation of the Holy Shrines, Usama Bin Laden Network, Usama Bin Laden Organisation, Islamic Salvation Foundation, International Front for Fighting Jews and Crusaders, and International Islamic Front Against Jews and Christians, for the purpose of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code. 

 

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to Al-Qa'ida.  Details of the proposed Regulations 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 unclassified Statements of Reasons prepared by the Australian Security Intelligence Organisation (ASIO) in consultation with the Department of Foreign Affairs and Trade, as well advice from the Australian Government Solicitor.  The Statement of Reasons in respect of Al-Qa'ida 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 proposed regulation.

 

Prior to the making of the Regulations, consultations were held with the Department of Foreign Affairs and Trade, the Australia Security Intelligence Organisation and the Australian Government Solicitor.  In addition, an offer for a briefing was extended to the Federal Leader of the Opposition and the State and Territory Attorneys-General were advised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commenced on the day after they were 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 second anniversary of the day on which they take effect.

 

 

 

 

 

 

 

Attachment A

 

Details of the Criminal Code Amendment Regulations 2006 (No. 2)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2006 (No. 2).

 

Regulation 2 -- Commencement

 

This regulation provides that the Regulations commence on the day after they are registered. 

 

Regulation 3 -- Amendment of Criminal Code Regulations 2002

 

This Regulation notes that Schedule 1 amends the Criminal Code Regulations 2002.

 

Schedule 1 -- Amendments

 

Item [1] -- Regulation 4A

 

This item provides that the existing Regulation 4A is to be substituted with the new Regulation 4A - 'Terrorist organisations -- Al-Qa'ida'. 

 

Subregulation 4A(1) provides that for paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code Act 1995 (the Code), the organisation known as Al-Qa'ida is specified. 

 

The effect of this subregulation is that Al-Qa'ida is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4A(2) provides that for the purposes of subregulation (1), Al-Qa'ida is also known by the following names: 

 

(a)    The Base

(b)   Al-Qaida

(c)    Al-Qaeda

(d)   Qa'idat al-Jihad

(e)    Maktab al-Khidamat

(f)     International Islamic Front for Jihad Against Jews and Crusaders

(g)    Al‑Jabhah al-Islamiyyah al-'Alamiyyah li-Qital al-Yahud wal-Salibiyyin

(h)    The Group for the Preservation of Holy Sites

(i)      Islamic Army of the Liberation of the Holy Places

(j)     Islamic Army for the Liberation of the Holy Shrines

(k)   Usama Bin Laden Network

(l)      Usama Bin Laden Organisation

(m)  Islamic Salvation Foundation

(n)    International Front for Fighting Jews and Crusaders

(o)   International Islamic Front Against Jews and Christians

 

Attachment B

 

Al-Qa'ida

 

(Also known as: The Base, Al-Qaida, Al-Qaeda, Qa'idat al-Jihad, Maktab al‑Khidamat, International Islamic Front for Jihad Against Jews and Crusaders, Al‑Jabhah al-Islamiyyah al-'Alamiyyah li-Qital al-Yahud wal-Salibiyyin, The Group for the Preservation of Holy Sites, Islamic Army of the Liberation of the Holy Places, Islamic Army for the Liberation of the Holy Shrines, Usama Bin Laden Network, Usama Bin Laden Organisation, Islamic Salvation Foundation, International Front for Fighting Jews and Crusaders, International Islamic Front Against Jews and Christians)

 

The following information is based on publicly available details about al-Qa'ida and its senior leadership. These details have been corroborated by material from intelligence investigations into the activities of al-Qa'ida.  ASIO assesses that the details set out below are accurate and reliable.

Al-Qa'ida is listed in the United Nation's 1267 Committee's consolidated list and as a proscribed terrorist organisation by the governments of Canada, New Zealand, the United Kingdom and the United States. Al-Qa'ida is listed by the European Union for the purposes of its anti-terrorism measures.

 

Background

From 1988, al-Qa'ida emerged from the Maktab al-Khidamat, a recruitment and fundraising network for the Afghan resistance to the Soviet Union. The impetus for establishing al-Qa'ida was to retain a common purpose for Islamic extremists following the end of the Soviet war. Usama bin Laden co-founded al-Qa'ida with Dr Abdullah Azzam and gained full control after the assassination of Azzam in 1989.

 

During the late 1990s, al-Qa'ida was transformed from providing a unifying purpose for extremist elements into a global network of cells and affiliated groups. In 1998, key figures of five terrorist groups, including bin Laden, issued a declaration under the banner of the 'World Islamic Front' announcing a jihad against the 'Jews' and 'Crusaders', stating the US and its allies need to be expelled from the Middle East. Since the US intervention in Afghanistan following the 11 September 2001 attacks, al-Qa'ida has lost its main base for training, planning and preparing for terrorist operations. Al-Qa'ida has sought alternative venues in which to train and regroup, but members continue to gain combat experience in the ongoing conflicts in Iraq and Afghanistan. Although there are increased sanctions against al-Qa'ida's extensive financial networks, al-Qa'ida continues to find means of raising and transferring money including through donations and criminal activity, and via couriers.

 

Al-Qa'ida maintains support networks and operations in Afghanistan and Pakistan with localised attacks carried out by a core of al-Qa'ida fighters. Additionally, al-Qa'ida leadership relies on its franchise organisations, like Tanzim Qa'idat al-Jihad fi Bilad al-Rafidayn and al-Qa'ida in the Arabian Peninsula, to plan and execute attacks. Al-Qa'ida further provides encouragement and inspiration to like-minded, or affiliate, groups across the world.  Such groups include: Egyptian Islamic Jihad, Armed Islamic Group, Salafist Group for Call and Combat, Abu Sayyaf Group, Jamiat ul-Ansar, Islamic Movement of Uzbekistan, Islamic Army of Aden, Asbat al Ansar (Lebanon), al-Ittihad al-Islami, Jemaah Islamiyah, the Libyan Islamic Fighting Group, the Taliban, Lashkar-e-Tayyiba, Lashkar-e Jhangvi, Jaish-e-Mohammad and Ansar al‑Islam.

 

Al-Qa'ida has also encouraged and inspired like-minded individuals as seen in the 7 July 2005 attacks on the London transport system. While there is no evidence of al‑Qa'ida command and control over the 7 July 2005 attacks, there are indications of al-Qa'ida involvement in training and influencing those involved. Two of the perpetrators of the attacks, Mohammed Siddique Khan and Shehzad Tanweer, had travelled to Pakistan and, according to a statement by al-Zawahiri, had been trained by al-Qa'ida operatives.  Video statements in September 2005 and July 2006 that appear to have been compiled by al-Qa'ida's media wing have included statements by these two London bombers. The videos also included statements by senior al-Qa'ida leader Ayman al-Zawahiri.

 

Al-Qa'ida also provides international inspiration and influence as seen by the adoption of variations of the al-Qa'ida name by a number of groups including the 'Secret Organisation of al-Qa'ida in Europe' and the 'al-Qa'ida organisation for the Malay Archipelago'.

 

Al-Qa'ida's leadership continues to make public statements promoting their ideology, supporting attacks undertaken by other groups and advocating violent jihad against the West. Since 2004, a number of statements have been made by bin Laden and his deputy Ayman al-Zawahiri urging attacks against the US and its allies, including Australia.

 

Objectives

Al-Qa'ida seeks to remove governments in Muslim countries that it deems are 'un‑Islamic' in order to establish an Islamic Caliphate. The United States and its allies are believed to represent the greatest obstacle to this objective given their perceived support for these governments.

 

Leadership and membership

Usama bin Laden and his deputy, Ayman al-Zawahiri, continue to lead al-Qa'ida. The exact size of the organisation is unknown but estimates are that it consists of several thousand fighters. Originally al-Qa'ida recruited veterans of the Afghan conflict of 1979-89 and from campaigns involving these veterans in such places as Bosnia-Herzegovina, Kashmir, Mindanao, Chechnya, Lebanon, Algeria and Egypt.  The next generation of fighters include those who have gained experience in the conflicts in Afghanistan and Iraq.

 

Terrorist activities

The al-Qa'ida organisation has been involved in a number of terrorist attacks which have included suicide attacks, hijackings, improvised explosive devices (IEDs), vehicle-borne IEDs and maritime IEDs.  Al-Qa'ida has also assisted in and financed terrorist acts by associated groups.

Recent terrorist attacks for which responsibility or involvement has been claimed by, or reliably attributed to, al-Qa'ida have included:

*        The August 1998 US Embassy bombings in Nairobi and Dar es Salaam in which over 200 people were killed;

*        The 12 October 2000 USS Cole attack off the coast of Yemen;

*        The coordinated attacks of 11 September 2001 involving hijacked passenger jets crashing into the World Trade Center buildings in New York, the Pentagon in Washington and a fourth in a field in Pennsylvania.  Approximately 3000 were killed in these attacks;

*        The 11 April 2002 bombing attack on a synagogue on the Tunisian island of Djerba killing 14 Germans, 5 Tunisians and a Frenchman;

*        Assisting in funding the 12 October 2002 attacks on night clubs and the US Consulate in Bali, killing 202 people, including 88 Australians;

*        The 28 November 2002 attacks in Mombasa, Kenya, involving the car bombing of a hotel and firing of two surface-air-missiles (which missed) at an Israeli airliner taking off from Mombasa airport;

*        Assisting in, and fostering, the 15 November 2003 car bomb attacks on two synagogues in Istanbul killing 20 people.

*        Assisting in, and fostering, the 20 November 2003 car bomb attacks on the HSBC Bank headquarters and the British Consulate in Istanbul killing 30 people;

*        Assisting in training those involved in the 7 July 2005 IED attacks on the London transport system, which killed 56 people, including one Australian.

The al-Qa'ida organisation has made numerous statements advocating the conduct of terrorist attacks against the US and other Western countries. The February 1998 statement issued under the banner of the 'World Islamic Front' decreed that civilians in the US and allied countries were legitimate targets for terrorist attack.

Recent statements claimed by or reliably attributed to al-Qa'ida reiterating this theme and highlighting and advocating the conduct of terrorism have included:

*         The 19 January 2006 statement by Usama bin-Laden stated, in part, "You have occupied our land, defiled our honour, violated our dignity, shed our blood, ransacked our money, demolished our houses, rendered us homeless, and tampered with our security. We will treat you in the same way" and "The evidence of this is the bombings you have seen in the capitals of the most important European countries of this aggressive coalition. As for the delay in carrying out similar operations in America, this was not due to failure to breach your security measures. Operations are under preparation, and you will see them on your own ground once they are finished, God willing".

*        The 24 April 2006 statement by Usama bin-Laden stated that " ... the Umma has reached a consensus that he who offends or degrades the messenger would be killed. Such offence is regarded as kufr (infidelity). We ask Allah to give his blessings to whoever decried the behaviour of the infidels who have offended the prophet in every part of the world, and blessings to those who have died in the process, while we vow to Allah to avenge for those whose blood have been spilled".

*        The 23 June 2006 videotape message from al-Qa'ida deputy leader, Dr Ayman al-Zawahiri exhorted insurgents in Iraq to not "lay down your weapons until Allah decrees for you victory or martyrdom" and to "fight everyone who stands beside America, lines up under its banner, shades himself with its cross, and seeks its assistance in invading the lands of Islam and fighting the Muslims".

 

Conclusion

ASIO assesses that al-Qa'ida is continuing to prepare, plan and foster the commission of acts involving threats to human life and serious damage to property.  ASIO also assesses that al-Qa'ida advocates the doing of terrorist acts. This assessment is corroborated by information provided by reliable and credible intelligence sources.

In the course of pursuing its objective of creating an Islamic Caliphate, al-Qa'ida is known to have engaged in or advocated actions that:

*        are aimed at advancing al-Qa'ida's political and religious causes.

*        are intended to, or do, cause serious damage to property, the death of persons or endangerment of life.

*        are intended to cause, or have caused, serious risk to the safety of sections of the public globally.

In view of the above information, al-Qa'ida is assessed to be directly or indirectly preparing, planning, and fostering the conduct of, and advocating, terrorist acts.  Such acts include actions which are to be done and threats of actions which are to be made with the intention of advancing a political, religious or ideological cause and with the intention of coercing, or influencing by intimidation of Governments and people globally.  The actions or threatened actions which al-Qa'ida is assessed to be involved in would, if successfully completed, cause serious physical harm and death to persons and serious damage to property.