EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 219

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2010 (No. 1)

 

 

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 Al-Qa’ida and its aliases, Al-Jihad Al-Qaeda, Al-Qaida, The Base, Egyptian al-Jihad, Egyptian Islamic Jihad, The Group for the Preservation of the Holy Sites,

International Front for Fighting Jews and Crusaders, Islamic Army, The

Islamic Army for the Liberation of the Holy Places, Islamic Army for the

Liberation of Holy Sites, Islamic Salvation Foundation, The Jihad Group, New

Jihad, Usama Bin Laden Network, Usama Bin Laden Organisation and The World Islamic Front for Jihad against Jews and Crusaders, 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 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, 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 briefing 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 2010 (No. 1)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2010 (No. 1).

 

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 provides that Schedule 1 amends the Criminal Code Regulations 2002.

 

Schedule 1 – Amendments

 

Item [1] – Regulation 4A

 

This item substitutes the existing regulation with a new regulation 4A 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 Al-Qa’ida is specified.

 

Subregulation 4A(1) provides 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)    Al-Jihad Al-Qaeda;

(b)   Al-Qaida;

(c)    The Base;

(d)   Egyptian al-Jihad;

(e)    Egyptian Islamic Jihad;

(f)     The Group for the Preservation of the Holy Sites;

(g)    International Front for Fighting Jews and Crusaders;

(h)    Islamic Army;

(i)      The Islamic Army for the Liberation of the Holy Places;

(j)     Islamic Army for the Liberation of Holy Sites;

(k)   Islamic Salvation Foundation;

(l)      The Jihad Group;

(m)  New Jihad;

(n)    Usama Bin Laden Network;

(o)   Usama Bin Laden Organisation;

(p)   The World Islamic Front for Jihad against Jews and Crusaders.

Attachment B

Al-Qa’ida

 

(Also known as: Al-Jihad Al-Qaeda, Al-Qaida, The Base, Egyptian al-Jihad, Egyptian Islamic Jihad, The Group for the Preservation of the Holy Sites, International Front for Fighting Jews and Crusaders, Islamic Army, The Islamic Army for the Liberation of the Holy Places, Islamic Army for the Liberation of Holy Sites, Islamic Salvation Foundation, The Jihad Group, New Jihad, Usama Bin Laden Network, Usama Bin Laden Organisation, The World Islamic Front for Jihad against Jews and Crusaders)

 

The following information is based on publicly available details about al-Qa’ida. To the Australian Government’s knowledge, these details are accurate and reliable and have been corroborated by classified information.

 

Basis for listing a terrorist organisation

 

Division 102 of the Criminal Code provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied on reasonable grounds that the organisation:

 

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

 

Details of the organisation

 

Objectives

 

In 1988, al-Qa’ida emerged from the Maktab al-Khidamat, a recruitment and fundraising network for the Afghan resistance to the Soviet Union’s occupation of Afghanistan. The impetus for establishing al-Qa’ida was to retain a common purpose for Islamic extremists following the end of the conflict with the Soviets. During the late 1990s, al-Qa’ida was transformed from providing a unifying function for extremist elements into a global network of cells and affiliated groups.

 

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 by al‑Qa’ida to represent the greatest obstacle to this objective, given their perceived support for these governments.

 

Leadership

 

Al-Qa’ida is a Sunni Islamic extremist organisation whose core leadership is located in the border regions between Afghanistan and Pakistan. Usama bin Laden co‑founded al-Qa’ida with Dr Abdullah Azzam and gained full control after the assassination of Azzam in 1989. Usama bin Laden and his deputy, Ayman al‑Zawahiri continue to lead al-Qa’ida.

 

Al-Qa’ida maintains core support networks and operations in the Afghanistan and Pakistan border region. This region has served as a sanctuary for the leadership since the loss of the group’s facilities in Afghanistan in late 2001, and where it continues to be well protected by local tribes and other sympathisers.

 

However, due to counter-terrorism measures against it, the al-Qa’ida core has become increasingly isolated, short of funds and is having more trouble recruiting and equipping fighters. While bin Laden and al-Zawahiri remain at large, unmanned drone attacks continue to kill other senior al-Qa’ida leaders, making it more difficult to raise funds, recruit and plan operations.

 

Membership

 

The exact size of the organisation is unknown, although some estimates have suggested a strength of approximately several thousand fighters. Originally, al-Qa’ida recruited veterans of the Soviet-Afghan conflict of 1979-89 and from campaigns in places such as Bosnia-Herzegovina, Kashmir, Mindanao, Chechnya, Lebanon, Algeria and Egypt.

 

More recent recruits include fighters who have gained experience in the conflicts in Afghanistan and Iraq. While al-Qa’ida has inspired a new generation of extremists, not all of those who travel to Afghanistan/Pakistan actually join al-Qa’ida. For some it is easier to join a local extremist group.

 

Recruitment and funding

 

Funding is often obtained through donations from Muslim charities and individuals. The US 9/11 Commission report attributed much of al-Qa’ida’s funding to money diverted from charities. In addition, funds are also probably raised through criminal means, such as credit card fraud and the use of assumed identities. It is believed al‑Qa’ida stopped using legitimate banking institutions for moving funds by mid-2002, turning instead to alternative systems such as the hawala system, couriers and precious stones.

 

Arabs dominate al-Qa’ida’s senior leadership. Less is known about the group’s recruitment methods since the loss of its training camp infrastructure in Afghanistan in late 2001. It is likely a similar system has been established in the tribal areas of Pakistan, but on a smaller scale, using covert training camps and safe houses.

 

However, US drone attacks have made it more difficult for al-Qa’ida’s efforts in fundraising and recruiting. Reports suggest al-Qa’ida is struggling to raise funds and is having more trouble recruiting and equipping fighters.

 

 

 

 

 

Terrorist activity of the organisation

 

Directly or indirectly engaged in the doing of terrorist acts

 

Al-Qa’ida has directly or indirectly engaged in a number of terrorist attacks, including assassinations, suicide bombings, aircraft hijackings and attacks using improvised explosive devices (IEDs), including vehicle-borne and vessel-borne. Significant attacks which al‑Qa’ida has claimed responsibility for, or that can be reliably attributed to individuals affiliated with al‑Qa’ida, include:

 

·        7 August 1998: the bombing of the US embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, killing over 200 people;

·        12 October 2000: the bombing of the USS Cole in the port of Aden, Yemen, killing 17 sailors;

·        9 September 2001: the assassination of Northern Alliance leader Ahmad Shah Masood in Afghanistan;

·        11 September 2001: the hijacking of four US passenger planes and crashing them into the World Trade Center buildings in New York, the Pentagon in Washington, and a field in Pennsylvania, killing approximately 3,000 people, including ten Australians;

·        11 April 2002: the bombing of a synagogue on the Tunisian island of Djerba, killing 20 people;

·        14 June 2002: the car bombing outside the US Consulate in Karachi, Pakistan, killing 12 people;

·        6 October 2002: the bombing of the French oil tanker MV Limburg off the coast of Yemen, killing one sailor;

·        28 November 2002: in Mombasa, Kenya, the car bombing of a hotel, killing 15 people, and the firing of two surface-to-air-missiles that missed an Israeli passenger plane after takeoff from Mombasa airport;

·        24 February 2006: the attack on the Abqaiq oil refinery in Saudi Arabia, killing two security guards;

·        2 June 2008: the bombing of the Danish Embassy in Islamabad, Pakistan, killing 6 people; and

·        20 September 2008: the bombing of the Marriott Hotel in Islamabad, Pakistan, killing 60 people.

 

Directly or indirectly preparing and/or planning the doing of terrorist acts

 

Al-Qa’ida lost its primary base for training, planning and preparing for terrorist operations following the US intervention in Afghanistan in late 2001. Since then, al‑Qa’ida has sought alternative locations in which to train and regroup, and members continue to gain combat experience in the ongoing conflicts in Iraq and Afghanistan.

 

Despite sanctions against al-Qa’ida’s extensive financial networks, al-Qa’ida continues to find means of raising and transferring money for terrorist attacks, including through donations, criminal activity and via couriers.

 

Directly or indirectly assisting in the doing of terrorist acts

 

Reporting indicates al-Qa’ida has encouraged, inspired and assisted like-minded individuals, as seen in the 7 July 2005 attacks on the London transport system. While there has been no confirmation of al-Qa’ida command and control over these attacks, there have been indications of al-Qa’ida involvement in training and influencing those involved. Two of the perpetrators of the London 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.

 

Al-Qa’ida has also provided financial and material assistance in support of terrorist acts by other groups. These include:

 

·        12 October 2002: assisting in funding attacks on night clubs and the US Consulate in Bali, Indonesia, killing 202 people, including 88 Australians;

·        15 November 2003: assisting in planning and preparing car bomb attacks on two synagogues in Istanbul, killing 20 people;

·        20 November 2003: assisting in planning and preparing car bomb attacks on the HSBC Bank headquarters and the British Consulate in Istanbul, killing 30 people;

·        7 July 2005: assisting in training those involved in IED attacks on London’s transport system, killing 56 people, including one Australian; and

·        2 March 2006: assisting in bombing a diplomatic vehicle outside the US Consulate in Karachi, Pakistan, killing three people.

 

Directly or indirectly fostering the doing of terrorist acts or advocating the doing of terrorist acts

 

Senior members of al-Qa’ida have made numerous statements advocating the conduct of terrorist attacks against the US and countries perceived to have allied themselves with the US and Israel. The February 1998 statement issued under the banner of the ‘‘World Islamic Front for Jihad against Jews and Crusaders’’ decreed that civilians in these countries were legitimate targets for terrorist attack.

 

Al-Qa’ida continues to provide inspiration, encouragement and influence to other Sunni extremist groups around the world. Moreover, al-Qa’ida leadership relies on its franchise organisations to plan and execute attacks. This relationship is best demonstrated by the decisions of the Salafist Group for Call and Combat in Algeria and the Jamaat Tawhid wa’al-Jihad group in Iraq to merge with al-Qa’ida. Now known as al-Qa’ida in the Lands of the Islamic Maghreb and al-Qa’ida in Iraq respectively, both groups accept strategic direction and at times receive funding from al-Qa’ida.

 

Al-Qa’ida has recently expressed support for Uighur separatists in China. In an October 2009 statement, senior al-Qa’ida member Abu Yahya al-Libi declared ‘‘It is the duty of Muslims today to stand by the side of their wounded and wronged brothers in East Turkestan ... there is no way to lift oppression and injustice but with truthful return to their faith and ... to seriously prepare for jihad.’’

Al-Qa’ida also encouraged extremism in Somalia in 2009. A statement by al-Zawahiri in February and another one by bin Laden in March called on the mujahideen of Somalia to reject the government and fight for an Islamic state.

 

Senior al-Qa’ida leaders continue to make public statements promoting al-Qa’ida’s ideology, supporting attacks undertaken by other groups and advocating violent jihad against the West. According to the UN Monitoring Team on al-Qa’ida and the Taliban, ‘‘the main way the (al-Qa’ida) leadership imposes some control and uniformity of purpose is through its broadcasts and web postings. These have attained increasing sophistication and follow a clear pattern, promoting recruitment, keeping local groups motivated, suggesting targets, and providing overall direction.’’

 

As-Sahab, al-Qa’ida’s media wing, has continued to produce high-quality videos that reinforce al-Qa’ida’s ideology, defend its actions, recruit new members and inspire others to conduct terrorist attacks. From 2002 to 2009, as-Sahab produced 250 videos, peaking at 97 in 2008. The drop in production in 2009 may be attributed to a lack of funding and/or increased counter-terrorism measures against al-Qa’ida. However, there is no indication the decline in the numbers of productions has degraded the effectiveness of al-Qa’ida’s message to like-minded individuals.

 

Al-Qa’ida also exploits the terrorist attacks conducted by individuals and groups not linked with it to further spread its message. Following the suicide bombing on the CIA base at Khost, Afghanistan, on 30 December 2009, the chief of al-Qa’ida in Afghanistan released a statement on 6 January 2010 in which he praised the bomber, stating ‘‘Your brothers will continue the march on your path and they will not rest and their populace will not part with the populace of the Americans till they inflict upon them the greatest and most astonishing deaths and wounds...’’

 

In a 29 January 2010 statement attributed to bin Laden, the people of the world are urged to wage economic terrorism on the US by boycotting American products and disposing of the US dollar. Bin Laden also called on the ‘‘mujahideen’’ to ‘‘continue their fight against the unjust in Iraq and Afghanistan.”

 

Conclusion

 

ASIO assesses al-Qa’ida is continuing to directly and indirectly engage in, preparing, planning, assisting in and fostering the doing 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, as well as by the terrorist acts conducted by al-Qa’ida in the past.

 

In the course of pursuing its objective of creating an Islamic Caliphate, al-Qa’ida is known to have committed or threatened action:

 

·        with the intention of advancing al-Qa’ida’s political, religious or ideological causes;

·        that causes, or could cause, serious damage to property, the death of persons or endangers a person’s life; and

·        with the intention of creating a 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 and indirectly engaged in, preparing, planning, assisting in and fostering the doing of terrorist acts and advocating the doing of terrorist acts. Such acts include actions which have been done or threatened with the intention of advancing a political, religious or ideological cause and with the intention of coercing, or influencing by intimidation, governments and individuals 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.

 

Other relevant information

 

Links to other terrorist groups or networks

 

In 1998, key figures of five terrorist groups, including Usama bin Laden, issued a declaration under the banner of the ”World Islamic Front for Jihad against Jews and Crusaders,” announcing a jihad and stating the US and its allies should be expelled from the Middle East.

 

In addition to the groups al-Qa’ida has incorporated ”officially” under its banner, al‑Qa’ida also has provided encouragement and inspiration to other Islamic terrorist groups. Among such groups are: Al-Shabaab, Abu Sayyaf Group, Islamic Movement of Uzbekistan, Islamic Army of Aden, Asbat al-Ansar, Jemaah Islamiyah, Jamiat ul-Ansar/Harakat ul-Mujahideen, Lashkar-e-Tayyiba, Lashkar-e-Jhangvi, Jaish-e-Mohammad and Ansar al-Islam.

 

Threats to Australian interests

 

Since 2004, a number of statements have been made by bin Laden and al-Zawahiri calling for attacks against the US and its allies, including Australia. The most recent al-Qa’ida reference to Australia was on 2 April 2008, when as-Sahab posted to extremist internet forums an audio file of al-Zawahiri responding to questions from forum participants. Al-Zawahiri referred to Australia when responding to a question criticising al-Qa'ida for killing Muslims in Muslim lands and not conducting attacks in Israel. Al-Zawahiri responded by citing attacks against the US and its allies, including Australia, in various locations and that these countries supported Israel.

 

Proscription by the UN and other countries

 

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 also is listed by the European Union for the purposes of its anti-terrorism measures.