EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 36

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2009 (No. 3).

 

 

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 Jaish-e-Mohammad (JeM), also known as Jaish-e-Mohammed, Jaish-e-Muhammed, Jaish-i-Mohammed, Jaish-i-Mohammad, Jaish-i-Muhammad, Jaish-i-Muhammed, Jesh-e-Mohammadi, Jeish-e-Mahammed, Jaish-e-Mohammad Mujahideen E-Tanzeem, Tehrik Ul-Furqaan, Khuddam ul-Islam (KuI), Khudamul Islam, Kuddam e Islami, Jamaat ul-Furqan (JuF), Army of Mohammed, Mohammed’s Army, Army of the Prophet, and National Movement for the Restoration of Pakistani Sovereignty and Army of the Prophet, for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

The Regulations enable all offence provisions in Division 102 of the Code to apply to persons with links to Jaish-e-Mohammad (JeM). 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 and the Australian Government Solicitor. The Statement of Reasons in respect of Jaish-e-Mohammad (JeM) 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 the Attorney-General provided a written brief to the Federal Leader of the Opposition.

 

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

 

The Regulations commence on the day after they are 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 2009 (No. 3)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2009 (No. 3).

 

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 4K

 

This item substitutes the existing regulation with a new regulation 4K to provide 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 Jaish-e-Mohammad (JeM) is specified.

 

Subregulation 4K(1) provides that Jaish-e-Mohammad (JeM) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4K(2) provides that for the purposes of subregulation (1), Jaish-e-Mohammad (JeM) is also known by the following names:

 

(a)        Army of Mohammed;

(b)       Army of the Prophet;

(c)        Jaish-e-Mohammad Mujahideen E-Tanzeem;

(d)       Jaish-e-Mohammed;

(e)        Jaish-e-Muhammed;

(f)         Jaish-i-Mohammad;

(g)        Jaish-i-Mohammed;

(h)        Jaish-i-Muhammad;

(i)          Jaish-i-Muhammed;

(j)         Jamaat ul-Furqan (JuF);

(k)       Jeish-e-Mahammed;

(l)          Jesh-e-Mohammadi;

(m)      Khudamul Islam;

(n)        Khuddam ul-Islam (KuI);

(o)       Kuddam e Islami;

(p)       Mohammed’s Army;

(q)       National Movement for the Restoration of Pakistani Sovereignty and Army of the Prophet; and

(r)         Tehrik Ul-Furqaan.

 

Attachment B

 

Jaish-e-Mohammad (JeM)

 

(Also known as Jaish-e-Mohammed; Jaish-e-Muhammed; Jaish-i-Mohammed; Jaish-i-Mohammad; Jaish-i-Muhammad; Jaish-i-Muhammed; Jeish-e-Mahammed; Jaish-e-Mohammad Mujahideen E-Tanzeem; Tehrik Ul-Furqaan; Army of Mohammed; Mohammed’s Army; Army of the Prophet; National Movement for the Restoration of Pakistani Sovereignty and Army of the Prophet; Khuddam ul-Islam (KuI); Khudamul Islam; Kuddam e Islami; Jamaat ul-Furqan (JuF); Jesh-e-Mohammadi.)

 

The following information is based on publicly available details about Jaish-e-Mohammad (JeM). JeM is listed in the United Nations 1267 Committee’s consolidated list and by the governments of the US, the UK, Canada, New Zealand, the European Union, India and Pakistan.

 

Current status of JeM

 

JeM is a Sunni Islamic extremist organisation based in Pakistan which operates primarily in Indian Administered Kashmir (IAK). Recently, however, there are indications that JeM’s operational focus has turned towards attacks in Pakistan proper, Afghanistan and wider India.

 

Established in 2000, JeM was founded by the radical Islamic scholar and jihadist leader, Maulana Masood Azhar, following his release from an Indian jail in exchange for 155 hostages hijacked aboard an Indian Airlines aircraft on New Years Eve 1999. With support from Usama bin Laden, the Taliban, and several other Sunni extremist organisations in Pakistan, Azhar did not return to his former group, the Islamic militant group Harakat ul-Mujahideen (HuM), but formed JeM as a new group. JeM is aligned politically with prominent Islamic Pakistani party, Jamiat-i-Ulema-i-Islam, Fazlur Rehman faction (JUI-F).

 

Funding for JeM is derived from both legitimate business interests, including commodity trading and property, and through Islamic charitable foundations including the al-Rashid Trust (also known as the al Amin Trust) whose accounts were ordered to be frozen by the UN Security Council for suspected links to al-Qa’ida.

 

JeM operates with other Islamic militant groups in IAK, such as Lashkar-e-Tayyiba (LeT), as well as conducting joint operations in Afghanistan and Pakistan with groups such as Hizb-ul-Mujahideen (HM), Harakat-ul-Jihad-i-Islami (HuJI), Lashkar e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP). Furthermore, JeM remains closely associated with al-Qa’ida and the Taliban.

 

JeM was banned by the Pakistan government in January 2002. Following the ban, JeM split into two factions, Khuddam ul-Islam (KuI) headed by Azhar and Jamaat ul-Furqan (JuF) headed by Maulana Abdul Jabbar. Jabbar was detained for two years, until 2004, on charges relating to the assassination attempt on the President of Pakistan, Pervez Musharraf.

 

Both KuI and JuF were also subsequently banned by Pakistan in November 2003. Despite these factions, the group is commonly regarded as a single entity and referred to as JeM.

 

The organisation continues to concentrate its efforts against Indian security forces (military and police), government installations, and civilians in the disputed territories of IAK. While the India-Pakistan peace initiatives to resolve the Kashmir issue have led to an overall reduction in the level of infiltration and insurgent activity in IAK, JeM maintains an active presence in the region.

 

There has been a recent shift in JeM’s operational focus, in particular, to join the Taliban movement in attacks against government and Coalition forces in Afghanistan. A large meeting of various extremist groups in Pakistan, in early June 2008, included members of JeM. The gathering reportedly resolved to co-operate and combine forces to concentrate on the Afghan conflict, while continuing the Kashmir struggle as a lesser imperative. The threat to Coalition forces in Afghanistan is said to have increased in 2008, resulting in increased levels of casualties, due mainly to this added onslaught from Pakistani jihadist groups such as JeM. Their complicity in the Afghan Taliban movement was evidenced by the late June 2008 public beheading by JeM members of two Afghans in Pakistan, accused of passing information to international forces in Afghanistan.

 

JeM operates a number of camps in Pakistan which provide both religious instruction and military style guerrilla training and support. Training and support is provided, not only to JeM members from Kashmir and Pakistan, but also to individual jihadists from other parts of the world. Reporting also indicates JeM may be helping to facilitate the activities of international jihadists intending to conduct terrorist operations outside Kashmir or India, including the UK and US. The British national, Rashid Rauf, arrested in Pakistan as one of the main coordinating figures allegedly responsible for the disrupted British trans-Atlantic plane bombing plot in August 2006, is strongly suspected of having links with JeM. Investigators have also uncovered possible connections between JeM and the British-born suicide bombers responsible for the 7 July 2005 London subway attacks.

 

Objectives

 

JeM is a group that uses violence in pursuit of its stated objective of uniting IAK with Pakistan under a radical interpretation of Islamic law, as well as the eradication of Hindu and other non-Muslim presence on the sub-continent. JeM actively promotes jihad against the US and other nations for perceived violations of Muslim rights.

 

Leadership and membership

 

JeM’s founder, Maulana Masood Azhar, remains the group’s Amir, despite maintaining a low profile following JeM’s implication in the 2003 assassination attempts on President Musharraf.

 

JeM is organised into military and missionary bands, administered through six or seven departments. Although exact numbers cannot be accurately determined, it is estimated that JeM has several hundred active fighters and thousands of followers. The majority of JeM’s membership consists of jihadists from Pakistan and Kashmir, but also includes some Arabs and Afghans.

 

JeM engagement in terrorist activities

 

Few attacks have been openly claimed by JeM since it was last re-listed for proscription. However, recent instances where JeM militants have publicly acknowledged acts, or plans to conduct acts, of terrorism are listed:

 

·        Three separate grenade attacks on police targets in Srinagar in May 2006, injuring a total of 34 people; were claimed by JeM.

·        In May 2006 another grenade attack on police vehicle escorting a Human Rights Commission vehicle through the Iqbal Park area of Srinagar killed one policeman and injured ten other people.

·        Three separate firearm attacks on police targets in Srinagar, attributed to a new JeM module, killed two police and injuring one other in July 2006.

·        In August 2006, three separate firearm attacks on police officials resulted in four dead and three injured.

·        In October 2006 two firearm attacks on police officials were claimed by JeM militants.

·        Indian police arrested two reported JeM members in Delhi in November 2006 and recovered 2 kilograms of explosives and a sum of money.

·        Three JeM extremists arrested in November 2007 in Lucknow, India, with a large amount of arms, ammunition and explosives, admitted on camera that they had been planning to kidnap Congress leader Rahul Gandhi to secure the release of 42 Pakistani prisoners.

·        A public beheading by JeM members of two Afghans who were accused of passing information to international forces in Afghanistan occurred late June 2008.

·        According to a report on a Jihadist website in Pakistan, JeM claimed the July 2008 killing of a total of 47 Indian troops in Kashmir.

·        Jailed JeM militant threatens former Pakistani president with assassination.

·        Pakistani interior ministry sources stated on 17 December that the jailed Jaish-e-Mohammad (JeM) militant Ahmed Omar Sheikh had made a telephoned assassination threat to former president Pervez Musharraf in the middle of November 2008.

 

While arrests and disruptions have been moderately successful, and despite their lack of visibility, reporting continues to suggest that JeM remains operational and is continuing to recruit and train new members as well as plan attacks.