EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 276

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2006 (No. 4).

 

 

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 Abu Sayyaf Group (ASG) and its aliases, Al-Harakat Al-Islamiyya, Al-Harakat-ul Al-Islamiyya, Al-Harakatul-Islamia, Al-Harakat Al‑Aslamiya, Abou Sayaf Armed Band, Abu Sayaff Group, Abou Sayyef Group and Mujahideen Commando Freedom Fighters, for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code. ASG was initially listed as a terrorist organisation under the Criminal Code Amendment Regulations 2002 (No. 4), which were made on 14 November 2002. ASG was re-listed as a terrorist organisation under the Criminal Code Amendment Regulations 2004 (No. 4), which took effect from 5 November 2004.

 

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to ASG. 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 as advice from the Australian Government Solicitor. The Statement of Reasons in respect of ASG 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, ASIO 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. 4)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2006 (No. 4).

 

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 4C

 

This item provides that the existing regulation 4C is to be substituted with the new regulation 4C - ‘Terrorist organisations – Abu Sayyaf Group (ASG)’.

 

Subregulation 4C(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 Abu Sayyaf Group (ASG) is specified.

 

The effect of this subregulation is that Abu Sayyaf Group (ASG) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4C(2) provides that for the purposes of subregulation (1), Abu Sayyaf Group (ASG) is also known by the following names:

 

(a)    Al-Harakat Al-Islamiyya;

(b)   Al-Harakat-ul Al-Islamiyya;

(c)    Al-Harakatul-Islamia;

(d)   Al-Harakat Al‑Aslamiya;

(e)    Abou Sayaf Armed Band;

(f)     Abu Sayaff Group;

(g)    Abou Sayyef Group; and

(h)    Mujahideen Commando Freedom Fighters.

 

Attachment B

Abu Sayyaf Group (ASG)

 

Also known as: Al-Harakat Al-Islamiyya; Al-Harakat-ul Al-Islamiyya; Al-Harakatul-Islamia; Al-Harakat Al-Aslamiya; Abou Sayaf Armed Band; Abu Sayaff Group; Abou Sayyef Group and Mujahideen Commando Freedom Fighters

 

ASG is listed in the United Nation’s 1267 Committee’s consolidated list and as a proscribed organisation by the governments of Canada, New Zealand, the United Kingdom and the United States of America.

Current status of the ASG

The ASG is a militant Islamic movement founded by Abdurajak Janjalani in 1991. The group formed in response to the peace process between the government of the Philippines and the Moro National Liberation Front (MNLF) when some of the most militant elements of the MNLF refused to engage in negotiations and accept the end of the established separatist movement in the Southern Philippines.

Abdurajak Janjalani participated in the Afghan-Soviet war in the 1980s and received training in the late 1980s to 1990s at a training camp in Afghanistan. There he met, trained and established transnational networks with key leaders and members of Islamic extremist groups including Usama bin Laden and Ramzi Yousef. Following the death of Abdurajak Janjalani in a shootout with police in Basilan on December 1998, his brother Khadaffy Janjalani became titular head or ‘amir’.

The ASG can be characterised as a loose affiliation of groups, with each group having significant autonomy. The ASG is based in the Sulu archipelago in the Southern Philippines — primarily on the islands of Jolo, Basilan, and Tawi-Tawi — and central Mindanao. Historically, ASG has had a strong hold on Basilan, but continued Philippines military offensive operations against the group has greatly weakened, but not eliminated the ASG on Basilan. Currently, the ASG’s most secure base of operations is on Jolo Island. Khaddafy Janjalani and his faction are thought to be on Jolo, along with other known ASG commanders such as Jainal Antel Sali (a.k.a. Abu Solaiman) and Isnilon Totoni Hapilon. In addition, a small group of Jemaah Islamiyah (JI) members are reported to be co-located with Janjalani’s ASG group on Jolo, including alleged Bali 2002 bombers Dulmatin and Umar Patek. These JI and ASG members and their followers were the target of Philippines military operations on Jolo in August 2006.

The ASG is known to have links to other Islamic extremist organisations such as JI and the Rajah Solaiman Movement (RSM). In return for shelter and facilitation of training activities, JI provides expert training in explosives to ASG members and has participated in terrorist attacks with ASG. ASG members have also received training from al-Qa’ida. The ASG has been involved in a number of terrorist attacks including assassination; bombings of civilian and military establishments and domestic infrastructure including airports and ferries; kidnapping local officials and Western tourists; the beheading of local and Western hostages; and extortion against local and Western businesses.

The ASG has undertaken a number of terrorist attacks including the bombing of Superferry 14 in Manila Bay on 27 February 2004; the three near-simultaneous bomb blasts in Makati City; Davao City; and General Santos City on 14 February 2005 and two bombings in Zamboanga City on 10 August 2005. In August 2006, the Philippines military recovered explosive devices; a large cache of chemicals and 6,000 Indian blasting caps on Jolo, which were attributed to the ASG. In September 2006, Philippines military and police forces seized 600kg of ammonium nitrate in Zamboanga reportedly intended for bombings by the ASG. Taken together, this confirms the ASG continues to have the capability (including current access to the necessary resources) and intent to conduct further terrorist attacks.

ASG funding derives from a range of sources. The ASG engages in opportunistic criminal attacks, including extortion, murder and kidnapping. The ASG also derives funds from Middle Eastern benefactors. On at least one occasion, the ASG sent a member to Saudi Arabia, nominally for language or religious instruction, but primarily to raise funds. This included lobbying wealthy Saudi benefactors and raising funds among expatriate Filipino workers. In addition, there have been allegations that a number of Islamic charities have supported the ASG including the International Islamic Relief Organisation (IIRO) and the International Islamic Studies Call and Guidance Centre (ISCAG).

Objectives

ASG’s founding objective is to create an autonomous Islamic state encompassing the Southern Philippine island of Mindanao, surrounding islands and the Sulu archipelago.

Leadership and membership

Khadaffy Janjalani, younger brother of Abdurajak Janjalani, is the titular head or ‘amir’ of the ASG. The ASG membership consists primarily of young Tausug (the major ethnic group of the Sulu archipelago) Filipino Muslims whom at first were recruits from the island of Basilan, south of Mindanao. The ASG attract poverty-stricken unemployed young Muslims in the southern Philippines .

ASG numbers reached their peak in the mid to late 1990s when, after a spate of kidnappings and murders, many young Muslims flocked to the group. By mid-2001, ASG numbers were estimated to be between 800 and 850, but by 2002 numbers dropped significantly around the time the Philippines military launched a sustained campaign against the ASG. Despite significant losses resulting from military operations targeting the ASG in Basilan and Jolo, there is no evident decline in its capability to undertake terrorist acts.

ASG’s engagement in terrorist attacks

Significant terrorist attacks which have been claimed by, or reliably attributed to ASG, have included:

-      23 April 2000: kidnapping of 21 people, including 10 foreign tourists, from the Malaysian resort island of Sipadan. This kidnapping was resolved in 2001 when the ASG received a $15 million ransom from the Philippine Government;

-      28 August 2000: kidnapping of an American, Jeffrey Schilling, in Zamboanga City, whom the ASG believed was a CIA spy. Schilling escaped in April 2001;

-      27 May 2001: kidnapping of 20 people from the Philippine tourist resort of Dos Palmas on Palawan Island, in which several victims were subsequently murdered – including a US citizen. Another US citizen was killed during a rescue operation on 7 June 2002;

-      2 October 2002: bombing of a karaoke bar in Zamboanga City killing four people, including a US soldier and injured 24 others;

-      27 February 2004: bombing of Superferry 14 in Manila Bay which is estimated to have killed over 100 people;

-      14 February 2005: three near-simultaneous bomb blasts in Makati City, Davao City, and General Santos City killing eleven people and left approximately 150 injured; and

-      10 August 2005: two bombings in Zamboanga City wounding eight people.