EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 218

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2008 (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 Abu Sayyaf Group (ASG) also known as Al-Harakat Al-Islamiyya, Al‑Harakat-ul Al-Islamiyaa, Al-Harakatul-Islamia, Al‑Harakat Al-Aslamiya, Abou Sayaf Armed Band, Abu Sayaff Group, Abou Sayyef Group, Mujahideen Commando Freedom Fighters, 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 Abu Sayyaf Group. Details of the 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 Abu Sayyaf Group (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, the Prime Minister wrote to the Premiers and Chief Ministers of the States and Territories and an offer for a briefing was extended to the Federal Leader of the Opposition.

 

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 2008 (No. 4)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2008 (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 substitutes the existing regulation with a new regulation 4C to provide that for paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code (the Code), the organisation known as Abu Sayyaf Group is specified.

 

Subregulation 4C(1) provides that Abu Sayyaf Group 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 is also known by the following names:

 

(a) Al-Harakat Al-Aslamiya;

(b) Al-Harakat Al-Islamiyya;

(c) Al-Harakat-ul Al-Islamiyaa;

(d) Al-Harakatul-Islamia;

(e) Abou Sayaf Armed Band;

(f) Abou Sayyef Group;

(g) Abu Sayaff Group;

(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

 

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

 

ASG is listed in the United Nation’s 1267 Committee’s Consolidated List as an entity associated with al-Qa’ida 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 Abu Sayyaf Group (ASG) was founded in 1991 as a militant Islamic movement by Abdurajak Janjalani (a.k.a. Abdulrajik Janjalani), who deployed to Afghanistan in the late 1980’s as a mujahid, where he was influenced by radical Wahhabi thought. His original intent was to fuse Salafi Wahhabist thought with a southern Philippines separatist agenda. Following the death of Abdurajak Janjalani in a shootout with police in Basilan, December 1998, his brother Khadaffy Janjalani became titular head or ‘emir’ until the latter’s death in 2006.

 

It is currently unclear whether a single leader has emerged to lead the ASG since Khaddaffy Janjalani’s death. In mid-2007 the Philippines military announced that Middle Eastern trained religious scholar, Yasir Igasan, had taken command of the group, although there is information that ASG elder statesman, Commander Radullan Sahiron, may be the group’s nominal leader.

 

The current primary linkage of the ASG to anti-Western terrorism is its provision of assistance to Jemaah Islamiyah (JI) fugitives. JI was last proscribed in Australia on 26 August 2006. These JI members, under the protection of the ASG, continue to plan terrorist operations in the Philippines and are also believed to provide training in the construction of bombs to those ASG elements harbouring them. Most notably, ASG clansmen on Jolo have aided Indonesian JI members Umar Patek and Dulmatin, who fled to the southern Philippines in 2003 to avoid arrest after their involvement in the October 2002 Bali bombings was exposed. According to Philippines authorities, Jolo-based ASG groups may also harbour JI fugitive Marwan, a US-trained engineer and explosives trainer whose brother was arrested in the United States in August 2007 for providing Marwan with material support. Patek, Dulmatin and Marwan have a combined total of US$16 million in reward money posted for their capture by the United States.

 

The ASG has been involved in a number of terrorist attacks, most notably the bombing of Superferry 14 on 27 February 2004, the worst act of maritime terrorism in recent history that killed over 100 people, and a coordinated series of bombings on 14 February 2005 in the Southern Philippine cities of Makati, Davao and General Santos, killing at least seven and leaving approximately 150 injured. However, ASG attacks in the past two years appear to have been motivated more by financial gain than specifically political, religious or ideological purposes. ASG’s most prominent confirmed attacks of the past two years occurred on 27 March 2006 when a convenience store in Jolo was bombed, killing 9 and wounding 24 after extortion demands were not met and in April 2007 when ASG clansmen led by Albader Parad, kidnapped seven local workers on Jolo; when ransom money was not paid by the local employer all of the hostages were beheaded.

 

While financial gain appears to be the primary motivating factor in ASG attacks over the past two years, there are indications that the ASG’s activities are still influenced by religious, political and ideological considerations. In July 2008 letters were sent by ASG elements to Catholic residents on Basilan ordering them to convert to Islam or pay Islamic taxes if they did not want to be attacked by the group. During August 2007, a video was posted on Youtube, which featured an earlier video made by deceased ASG leaders Abdurajak and Khadaffy Janjalani which encouraged militant jihad and appealed for assistance to be provided to the ASG in its Islamic separatist struggle. The video was removed from Youtube after requests by Philippine authorities; however the same video was subsequently re-released on Youtube in June 2008.

 

Elements of the ASG have also been implicated in the high profile bombing assassination of Basilan Congressman Wahab Akbar on 13 November 2007 in Manila. However, it is uncertain what level of involvement in the planning and execution of this incident, members of the ASG actually had.

 

Since its inception, the ASG has been a loosely affiliated band of groups, mostly organised along traditional clan lines. They are based in the Sulu archipelago in the southern Philippines - primarily on the Islands of Jolo and Basilan - and possibly southern Mindanao. The ‘commanders’, who head up each group, are largely autonomous clan leaders.

 

During the last three years the ASG has continued to fragment as Khadaffy Janjalani’s personal group was expelled from Mindanao in 2005 by the Moro Islamic Liberation Front, leaving the ASG clan groups largely confined to their home islands in the Sulu archipelago by Philippines and US military operations. In late-2006 and early 2007, Khadaffy Janjalani and close associate and facilitator, Abu Solaiman, were both killed. Both had pursued a vision of a unified ASG that was genuinely committed to a separatist agenda. Since then, the Philippine military, with US military logistical support, has continued to launch attacks against ASG groups in the Sulu archipelago and still consider the group to be a significant threat.

 

The main funding mechanism for the ASG is its criminal activities, including kidnapping for ransom and extortion, with no evidence that they are presently receiving significant sums of money from sources such as al-Qa’ida.

 

Objectives

 

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

 

 

Leadership and membership

 

As noted, ASG’s Emir, Khadaffy Janjalani, and facilitator Abu Solaiman, were killed in Philippines military operations in September 2006 and January 2007 respectively. In mid-2007, the Philippines military announced that Middle Eastern-trained religious scholar, Yasir Igasan, had taken command of the group, although there is information Radullan Sahiron may be the group’s nominal leader. It is unclear what level of authority or control either Igasan or Sahiron exert over other ASG sub-groups.

 

The ASG membership consists primarily of young Tausug Filipino Muslims from the Sulu archipelago, south of Mindanao. The ASG attracts poverty-stricken unemployed young Muslims in the southern Philippines.

 

ASG numbers are believed to have 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.

 

As followers are generally clan and familial associates of the individual leaders, the number of active, armed individuals fluctuates with levels of criminal activity or clan feuding. According to one report, there may be as many as 26 clan groupings of security interest to the Philippines authorities. Estimates of the number of armed clansmen currently in the field vary significantly with the most plausible estimates at between 200-400 personnel. The most active clan groupings are located on the island of Jolo and are currently led by Radullan Sahiron, Albader Parad and Isnilon Hapilon.

 

ASG’s engagement in terrorist attacks

 

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

 

-     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;

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

-     2 October 2002: bombing of a karaoke bar in Zamboanga City killing four people, including a US soldier and injuring 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 killed at least seven people and left approximately 150 injured;

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

-     27 March 2006: bombing of a convenience store in Jolo killing nine and wounding 24 when extortion demands were not met; and

-     April 27: kidnapping of seven workers who were subsequently beheaded when a ransom wasn’t paid.

 

Conclusion

 

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

 

(a)     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

(b)    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 the ASG is indirectly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the ASG is providing assistance to wanted JI terrorist fugitives, who retain the intent to conduct, and continue to plan, terrorist actions in the Philippines.

 

ASIO further assesses that elements of the ASG remain active, retain a capability to conduct attacks, and may still possess intent to directly prepare, plan, assist in, or foster the doing of terrorist acts. It is submitted that the acts attributable to the ASG are terrorist acts as they:

 

(i) Are done with the intention of advancing a political cause, namely, the establishment of an Islamic state encompassing the southern Philippines;

 

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

 

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

 

 

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