EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 267

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2007 (No. 12)

 

 

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.

 

‘Terrorist organisation’ in subsection 102.1(1) of the Code is defined 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 Lashkar-e-Tayyiba (LeT / LT) also known as al Mansooreen, al Mansoorian, Army of Medina, Army of the Pure, Army of the Pure and Righteous, 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, Paasban-e-Ahle-Hadis, Paasban-e-Kashmir, Paasban-i-Ahle- Hadith, Party of the Calling, Pasban-e-Ahle-Hadith, Pasban-e-Kashmir, Soldiers of the Pure, the Army of the Righteous, and the Party of Preachers for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

LeT was initially listed as a terrorist organisation under the Criminal Code Amendment Regulations 2005 (No.10) which took effect on 9 November 2003.

 

LeT was re-listed as a terrorist organisation under the Criminal Code Amendment Regulations 2005 (No. 11) which took effect on 5 June 2005 and was re-listed by Criminal Code Amendment Regulations 2005 (No. 13) which took effect on 7 October 2005.

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to LeT. Details of the Regulations are set out in Attachment A.

 

Paragraph 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).

 

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 LeT 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 Premiers and Chief Ministers 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.

 

 

Attachment A

 

 

Details of the Criminal Code Amendment Regulations 2007 (No. 12)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2007 (No. 12).

 

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 4V

 

This item provides that the existing regulation 4V, ‘Terrorist organisations – Lashkar‑e-Tayyiba (LeT / LT)’, is to be substituted with the new regulation 4V.

 

Subregulation 4V(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 Lashkar-e-Tayyiba (LeT / LT) is specified.

 

The effect of this subregulation is that Lashkar-e-Tayyiba (LeT / LT) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4I(2) provides that for the purposes of subregulation (1),
Lashkar-e-Tayyiba (LeT / LT) 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)     Idara Khidmat-e-Khalq;

(g)    Jama'at al-Dawa;

(h)    Jama'at-i-Dawat;

(i)      Jamaati-ud-Dawa;

(j)     Jamaat ud-Daawa;

(k)   Jama'at-ud-Da'awa;

(l)      Jama'at-ud-Da'awah;

(m)  Jamaat-ud-Dawa;

(n)    Jama’at ul-Da’awa;

(o)   Jamaat-ul-Dawa;

(p)   Jamaat ul-Dawah;

(q)   Jamaiat-ud-Dawa;

(r)     JuD;

(s)    JUD;

(t)     Lashkar-e-Taiba;

(u)    Lashkar-e-Tayyaba;

(v)    Lashkar-e-Toiba;

(w)  Lashkar-i-Tayyaba;

(x)    Lashkar-i-Toiba;

(y)    Lashkar-Tayyiba;

(z)    Paasban-e-Ahle-Hadis;

(za) Paasban-e-Kashmir;

(zb) Paasban-i-Ahle-Hadith;

(zc) Party of the Calling;

(zd) Pasban-e-Ahle-Hadith;

(ze) Pasban-e-Kashmir;

(zf) Soldiers of the Pure;

(zg) the Army of the Righteous;

(zh) the Party of Preachers.

 

 

 

ATTACHMENT B

Lashkar-e-Tayyiba (LeT/LT)

 

Also known as: Lashkar-e-Taiba, Lashkar-e-Toiba, Lashkar-i-Toiba, Lashkar-Tayyiba, Lashkar-i-Tayyaba, Lashkar-e-Tayyaba, the Army of the Righteous, Army of the Pure, Army of the Pure and Righteous, Soldiers of the Pure, Army of Medina, Jama’at ul-Da’awa, JuD, Jamaat-ud-Dawa, JUD, Jama'at al-Dawa, Jamaat ud-Daawa, Jamaat ul-Dawah, Jamaat-ul-Dawa, Jama'at-i-Dawat, Jamaiat-ud- Dawa, Jama'at-ud- Da'awah, Jama'at-ud-Da'awa, Jamaati-ud-Dawa, and Idara Khidmat-e-Khalq, the Party of Preachers, Party of the Calling, al Mansoorian, al Mansooreen, Paasban-e-Kashmir, Paasban-i-Ahle- Hadith, Pasban-e-Kashmir, Pasban-e-Ahle-Hadith, Paasban-e-Ahle-Hadis.

The following information is based on publicly available details about Lashkar-e-Tayyiba (LeT). These details have been corroborated by material from intelligence investigations into the activities of the LeT. ASIO assesses that the details set out below are accurate and reliable.

LeT is listed in the United Nations 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the governments of Canada, the United Kingdom, the United States, Pakistan and India.

Current status of Lashkar-e-Tayyiba

LeT is a Sunni Islamic extremist organisation based in Pakistan. LeT was formed circa 1989 as the military wing of the Pakistan-based Islamic fundamentalist movement Markaz al-Dawa wal Irshad (MDI – Centre for Religious Learning and Propagation; also known as the Jamaat al-Daawa). Originally formed to wage militant jihad against the Soviet occupation of Afghanistan, LeT shifted its focus to the insurgency in Indian administered Kashmir (IAK) when Soviet troops withdrew from Afghanistan in the early 1990s. LeT is one of the largest and most brutal of the Pakistan-based militant groups active in Kashmir. LeT has conducted numerous attacks, including bombings, assassinations and kidnappings against Indian security forces (military and police), government, transport and civilians in IAK, as well as in India. The group is also credited with introducing the use of suicide squads to the conflict in IAK. In 2002, LeT was banned by the Pakistan 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 is an LeT front organisation, masking its activities and soliciting its funds.

LeT subscribes to a Salafist interpretation of Islam which has similarities to the Wahhabi form of Islam associated with al-Qa'ida and the Taliban. LeT receives funding from donors in the Middle-East (mainly Saudi Arabia), and through charitable donations collected from sympathisers in Pakistan, Kashmir, the United Kingdom and Persian Gulf states. LeT maintains links to the Taliban and al-Qa'ida, and to several domestic Islamic extremist groups, including the Kashmir focused terrorist group, Jaish-e-Mohammed (JeM), and the sectarian group Lashkar-e Jhangvi (LeJ). LeT is reported to have been involved with mujahideen in other places where Islamist conflicts have arisen including Bosnia, Chechnya and Kosovo. LeT has also participated in the post-Taliban insurgency in Afghanistan. In 2004, several LeT operatives were captured by British forces in Iraq.

Indian and Pakistani initiatives to resolve the conflict in Kashmir have led to an overall reduction in the level of LeT infiltration and insurgent activity since 2002. However, LeT continues its attacks against Indian civilians and security forces. While LeT does not claim responsibility for its attacks on civilians, several recent attacks in IAK have been attributed to the group by Indian authorities, including the massacre of over thirty Hindus in two separate attacks in the Doda and Udhampur districts on 1 May 2006. The attacks occurred two days prior to peace talks between the Indian government and Kashmiri separatist groups, and were condemned by India as an attempt by LeT to sabotage the Kashmir peace process. LeT is also widely held to have been responsible for a number of significant attacks in India in recent years, including the 29 October 2005 serial explosions at marketplaces in New Delhi, and the 11 July 2006 serial bombings on trains in Mumbai, which killed more than 240 people in total. While two little known groups claimed responsibility for each of the Mumbai and New Delhi attacks, subsequent investigations have led Indian authorities to conclude that LeT was behind both attacks.

While IAK and Indian interests remain LeT’s primary focus, some elements within LeT want to re-focus their activities and bring them more into line with Usama bin Laden’s ‘global jihad’ against the US and Israel, and their allies. As members of a previously unknown group “Jundallah,” LeT trained members were among a number of militants drawn from several Pakistani extremist groups responsible for the twin car-bomb attack near the US Consulate in Karachi on 26 May 2004. On 9 June 2004, the same terrorist cell was involved in a terrorist attack against a heavily-armed military convoy carrying Karachi’s military commander resulting in seven deaths. In October 2006, LeT issued its own fatwa asking the Muslim community to kill Pope Benedict XVI, in response to a speech delivered by the Pope on 12 September 2006.

LeT operates a number of camps in Pakistan which provide both religious instruction and military style guerrilla training and support. Since being proscribed as a terrorist organisation by the Pakistan government in 2002, some LeT training facilities are now smaller in scale, some of which are mobile, and focused on preparing jihadists for either low intensity, hit and run type operations or suicide attacks.

Reporting indicates LeT may also be helping to facilitate training of foreigners who are possibly intending to conduct terrorism related activities in their countries of origin. 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. Several individuals with links to LeT have been arrested in Australia, the US, and Canada since 2003 for allegedly planning terrorist activities. In March 2007, a French court convicted French national, Willie Brigitte, of planning terrorist attacks in Australia in 2003 in conjunction with suspected LeT Chief for overseas operations, Sajid Mir. In June 2006, Brigitte’s associate in Sydney, Faheem Khalid Lodhi, was convicted by a New South Wales Supreme Court jury of planning acts of terrorism (Mr Lodhi has appealed against his conviction). Aside from facilitating training, it is not clear whether the terrorist activities of any of these foreign born individuals have been sanctioned by LeT or are self-directed.

Objectives

LeT is a group that uses violence in pursuit of its stated objective to unite IAK with Pakistan under a radical interpretation of Islamic law. LeT’s broader objectives include the establishment of an Islamic Caliphate across the Indian subcontinent. To this end, LeT intends to pursue the ‘liberation,’ not only of the Muslim-majority in Kashmir, but of all of India’s Muslim population, even in areas where they do not form a majority. LeT has declared democracy to be antithetical to Islamic law and that LeT’s jihad requires it to work toward turning Pakistan into a purely Islamic state.

Leadership and membership

The leader of LeT is Hafiz Muhammad Saeed (sometimes rendered Hafiz Mohd Saeed). Saeed has been detained and subsequently released, by Pakistani authorities on several occasions. He was arrested in February 2006, for leading violent protests in response to the Danish cartoon controversy and again in August 2006, in the wake of the disrupted British airliner bombing plot.

LeT’s estimated strength is reported to include several hundred trained militants. The majority of LeT’s membership consists of jihadists from Pakistan and Afghanistan.

Lashkar-e-Tayyiba engagement in terrorist activities

LeT conducts attacks in IAK on a monthly basis, primarily targeting Indian security forces but also non-Muslim civilians. Other significant attacks for which responsibility has been claimed by, or reliably attributed to, the LeT include:

·        November 2005: Car bomb attack near the main entrance of the J&K Bank Corporate Headquarters in Srinigar which killed four civilians and injured 72;

·        October 2005: Coordinated bomb attacks at marketplaces and on a bus in New Delhi, killing over 60 persons;

·        May 2006: Massacre of Hindu civilians in Doda and Udhampur districts, Jammu & Kashmir, killing 34 civilians;

·        May 2006: Attack on a Youth Congress rally at Sher-e-Kashmir Park in Srinigar, killing three political activists and two police officers;

·        June 2006: Joint responsibility with Hizb-ul-Mujahideen (HM) for the kidnap and killing of seven Nepalese civilians and one Indian civilian in Kulgam, Jammu & Kashmir;

·        July 2006: Serial bombings on trains in Mumbai, killing more than 200 persons; and

·        February 2007: Attack on a Central Reserve Police Forces (CRPF) patrol party, killing two CRPF officers.

Conclusion

The Criminal Code provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied that:

(i)                  the organisation is directly or indirectly 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

(ii)                the organisation advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

On the basis of the above information, ASIO assesses that LeT is directly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to LeT are terrorist acts as they:

 

(i)                  are done with the intention of advancing a political cause, namely, ‘liberating’ Muslims in Indian-administered Kashmir and the establishment of an Islamic Caliphate across the Indian subcontinent.

(ii)                are intended to coerce or influence by intimidation the government of a foreign country, namely India, and/or intimidate a section of the Indian public; and

(iii)               constitute acts which cause serious physical harm to persons, including death, as well as serious damage to property.

This assessment is corroborated by information provided by reliable and credible intelligence sources.