Commonwealth Numbered Regulations - Explanatory Statements
[Index] [Search] [Download] [Related Items] [Help]
CRIMINAL CODE AMENDMENT REGULATION 2012 (NO. 3) (SLI NO 24 OF 2012)
EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 24
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code Amendment Regulation 2012 (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) and its aliases, Army of Mohammed, Army of the Prophet, Jaish-e-Mohammed, Jaish-e-Muhammed, Jaish-i-Mohammed, Jaish-i-Mohammad, Jaish-i-Muhammad, Jaish-i-Muhammed, Jaish-e-Mohammad Mujahideen E-Tanzeem, Jamaat ul-Furqan (JuF), Jeish-e-Mahammed, Jesh-e-Mohammadi, Khudamul Islam, Khuddam ul-Islam (KuI), Kuddam e Islami, Mohammed's Army, National Movement for the Restoration of Pakistani Sovereignty and Army of the Prophet, and Tehrik Ul-Furqaan, 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 continue 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 she 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 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 briefing to the 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 third anniversary of the day on which they take effect.
Statement of Compatibility with Human Rights
Objective
The object of the Criminal Code Amendment Regulation 2012 (No. 3) is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia. This is consistent with the inherent right to life expressed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR).
The objects of the Criminal Code Amendment Regulation 2012 (No. 3) are also consistent with Article 19 and Article 22 of the ICCPR. Jaish-e-Mohammad has conducted attacks against Afghan government and Coalition forces in Afghanistan.
Whilst Article 19 protects the right to freedom of expression, this right may be subject to restrictions which include protecting national security. The right to freedom of association in Article 22 of the ICCPR protects the right to form and join associations to pursue common goals, such as political parties. Article 22(2) provides that freedom of association may be subject to restrictions imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.
The Criminal Code Amendment Regulation 2012 (No. 3) would make it an offence under Division 102 of the Criminal Code, to direct the activities, become a member of, recruit, train or receiving training, get funds to, from or for Jaish-e-Mohammad, and provide support or associate with Jaish-e-Mohammad.
The offence in subsection102.8 of the Criminal Code of associating with a terrorist organisation is limited in its application only to an organisation that is a listed organisation under Criminal Code Amendment Regulations. The offence does not apply if the association is with a close family member, or takes place in the course of practising a religion in a place used for public religious worship, or the association is for the purpose of providing humanitarian aid or for the purpose of providing legal advice or representation.
Whilst the Criminal Code Amendment Regulation 2012 (No.3) may limit the right to freedom of association with Jaish-e-Mohammad, the association offence is subject to the safeguards outlined above. The general limits of the right to freedom of association with Jaish-e-Mohammad are reasonable, necessary and proportionate, and are in the interests of public safety and national security, after taking into consideration the direct and indirect terrorist activities and the advocacy of terrorism, by Jaish-e-Mohammad, which threaten human life, as detailed in the Statement of Reasons (at Attachment B).
The Criminal Code offences in Division 102 applying to terrorist organisations do not target any specific religious or ethnic group and are designed to promote security and protect all members of the community from the threat of terrorism, regardless of national or ethnic origins or religious beliefs.
The information in the Statement of Reasons (Attachment B) supports the Attorney-General's decision made on reasonable grounds, that Jaish-e-Mohammad satisfies the criteria for listing as a terrorist organisation under subsection 102.1(2) of the Criminal Code.
There are safeguards and accountability mechanisms in the Criminal Code Act 1995 providing for consultation and enabling review of Criminal Code Amendment Regulation 2012 (No. 3) specifying an organisation as a terrorist organisation. These measures include the following:
* the Commonwealth must consult with the States and Territories in accordance with the Inter-Governmental Agreement on Counter-Terrorism Laws. The Criminal Code Amendment Regulation 2012 (No. 3) may only be made if a majority of the States and Territories do not object to the regulations within a reasonable time
* under subsection 102.1(2A) the Minister must arrange for the Leader of the Opposition to be briefed in relation to the proposed regulation
* under subsection 102.1(3) the Criminal Code Amendment Regulation 2012 (No. 3) will cease to have effect on the third anniversary of the day on which they take effect
* subsection 102.1(4) provides that if the Minister ceases to be satisfied of the criteria necessary for listing an organisation under subsection 102.1(2) of the Criminal Code, the Minister must make a declaration to that effect. The effect of the Minister's declaration is that the organisation is de-listed as a terrorist organisation under Division 102 of the Criminal Code
* subsection 102.1(17) provides that an individual or an organisation may make a de-listing application to the Minister
* the Criminal Code Amendment Regulation 2012 (No. 3) may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Criminal Code Act 1995, and
* both Houses of Parliament may disallow the Criminal Code Amendment Regulations within the applicable disallowance period which is 15 sitting days after the regulation was laid before that House, as provided in subsection 102.1A(4).
Conclusion
The Regulations are compatible with human rights because they advance the protection of human rights and to the extent that they may also limit human rights, those limitations are reasonable and proportionate.
Attachment A
Details of the Criminal Code Amendment Regulation 2012 (No. 3)
Regulation 1- Name of Regulations
This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulation 2012 (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 provides 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-Mohammed;
(d) Jaish-e-Muhammed;
(e) Jaish-i-Mohammed;
(f) Jaish-i-Mohammad;
(g) Jaish-i-Muhammad;
(h) Jaish-i-Muhammed;
(i) Jaish-e-Mohammad Mujahideen E-Tanzeem;
(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;
(r) Tehrik
Ul-Furqaan.
Attachment B
JAISH-E-MOHAMMAD (JeM)
(Also known as: Army of Mohammed; Army of the Prophet; Jaish-e-Mohammed; Jaish-e-Muhammed, Jaish-i-Mohammed;
Jaish-i-Mohammad; Jaish-i-Muhammad; Jaish-i-Muhammed;
Jaish-e-Mohammad Mujahideen E-Tanzeem; Jamaat ul-Furqan (JuF);
Jeish-e-Mahammed; Jesh-e-Mohammadi; Khudamul Islam;
Khuddam ul-Islam (KuI); Kuddam e Islami; Mohammed's Army;
National Movement for the Restoration of Pakistani Sovereignty and Army of the Prophet; Tehrik Ul-Furqaan.
The following information is based on publicly available details about the Jaish-e-Mohammad (JeM). 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 and Formation
Based in Pakistan, JeM is a fundamentalist Deobandi Sunni Islamist organisation which operates primarily in Indian Administered Kashmir (IAK). JeM uses violence in pursuit of its stated objective of forcing the withdrawal of Indian security forces from IAK and uniting IAK with Pakistan under a radical interpretation of Islamic law. Some JeM members endorse the wider aim of establishing an Islamic caliphate across South Asia and expelling Hindus from the Indian subcontinent. JeM is violently opposed to all other religions, including Shia Islam.
JeM was founded in 2000 by Maulana Masood Azhar, a radical Islamic scholar and jihadist leader, following his release from an Indian jail in exchange for 155 hostages hijacked aboard an Indian Airlines aircraft on 31 December 1999. When released from prison, Azhar did not rejoin his former group, Harakat ul-Mujahideen (HuM). Instead, Azhar formed JeM, reportedly with support from Pakistan's Inter-Services Intelligence (ISI), the Afghan Taliban, Usama bin Laden and several other Sunni extremist organisations in Pakistan.
JeM has been splintering into factions since at least 2003 when it initially split into two groups. One faction rejected Azhar's claim to the leadership after he expelled 12 other leaders. The breakaway faction, led by Mualana Abdul Jabbar (alias Umer Farooq) and known as Jamaat ul-Furqan (JuF), claims to be the authentic inheritor of the JeM/Khuddam-ul-Islam (KuI) legacy. Both KuI and JuF were subsequently banned by Pakistan in November 2003. Despite these developments, JeM is still regarded as a single entity in most reporting.
JeM broadened its operational focus soon after its founding to include attacks in Pakistan, Afghanistan and wider India. Notable attacks outside IAK include the assault on India's parliament building in 2001, the murder of US Journalist Daniel Pearl in 2002 and two assassination attempts against Pakistani President Musharraf in 2003. JeM is assessed to be well trained and supported, and poses a terrorist threat to India and Pakistan and to Western targets in both of these countries.
Leadership and membership
JeM's founder, Maulana Masood Azhar, remains the group's emir, but the full command structure of JeM is unknown. JeM is estimated to have several hundred members, including approximately 300 to 400 fighters.
JeM is organised into military and missionary groups administered through six or seven departments. The majority of JeM's membership consists of jihadists from Pakistan and Kashmir, and includes some Arabs and Afghans. JeM's membership probably includes small semi-autonomous cells in an attempt to avoid detection from Pakistan authorities.
Extremists in Pakistan often mix across multiple networks and groups, especially at the lower levels, and there is probably an overlap in personnel linked to JeM and other extremist groups including Lashkar-e-Tayyiba (LeT), Lashkar-e-Jhangvi (LeJ) and Harakat ul-Mujahideen (HuM).
Many JeM operatives have benefited from HuM training programmes, which reportedly were devised by Pakistan's ISI. JeM reportedly trains its members in Bangladesh, Nepal and the Middle East. Many JeM operatives are believed to be veterans of the wars in Afghanistan.
Funding
Funding for JeM is derived from both legitimate business interests and Islamic charitable foundations. JeM-linked charitable foundations include the Al-Rehmat Trust, which collects donations publicly to help families of the mujahedeen and has been seeking land donations to build mosques in Lahore, Peshawar and Karachi. Other JeM-linked charities include the Al-Rashid Trust, which is listed by the US Department of Treasury as a designated terrorist support organisation. The Al-Rashid Trust has been linked to charities providing aid to people affected by the 2010 Pakistan floods.
Terrorist activity of the organisation
JeM operatives have been involved in attacks against civilian and military targets in Afghanistan, India and Pakistan. JeM attacks have included suicide bombings in 2001 and 2003 with most attacks since that time involving grenades and firearms.
JeM continues to concentrate its efforts against Indian security forces (military and police), government installations and civilians in the disputed territory of IAK. In addition, JeM has broadened its operational focus to join the Afghan Taliban in attacks against government and Coalition forces in Afghanistan.
Directly or indirectly engaged in the doing of terrorist acts
Pakistan-based militants, including members of JeM, continue to cross the Line of Control into IAK for the purpose of engaging in acts of terrorism and are often involved in clashes with security forces.
Incidents reliably attributed to JeM include:
* February 2010: A Pakistani militant captured in Dhaka, Bangladesh, admitted to working as a JeM coordinator in that country and as a recruiter for operations in India. Four other JeM militants were also apprehended;
* December 2009: Security authorities arrested six people for their links to JeM and for planning a terrorist attack in Sargodha, Pakistan;
* October 2009: A JeM divisional commander and his bodyguard were killed inside the house in which they had been trapped for several days;
* August 2009: Suspected JeM militants attacked a police facility in Srinagar, IAK, killing one policeman and injuring two others;
* June 2009: Police in Lahore, Pakistan, claimed to have arrested seven terrorists linked to JeM and the Pakistani Taliban and recovered explosives and weapons;
* March 2009: Several JeM militants and a solider were killed during an encounter in Pulwama District, IAK;
* October 2008: Four JeM-linked operatives were arrested for their involvement in grenade attacks;
* January 2008: Police killed two JeM militants during an 18-hour gun battle near Warpora village, IAK. One police officer was killed and 22 security personnel were injured;
* November 2007: Security forces arrested three JeM militants who admitted they had planned to kidnap a member of India's Congress Party. The militants were in possession of various arms and explosives;
* June 2006: JeM claimed responsibility for three grenade attacks in Srinagar, IAK. Two of the attacks targeted the bunker of the Central Reserve Police Force in the Lal Chowk area of the city and the third was aimed at a passing police vehicle;
* December 2003: Members of a JeM splinter group were involved in two suicide bombings in attempts to assassinate Pakistan President Pervez Musharraf in Rawalpindi, Pakistan;
* February 2002: Senior JeM leader Sheikh Omar Saeed was charged with the murder of American journalist Daniel Pearl, the South Asia bureau chief for the Wall Street Journal;
* December 2001: The Indian Government officially blamed JeM and LeT for the attack on the Indian parliament building in New Delhi;
* December 2001: JeM militants launched grenade attacks in India at a bus stop in Kupwara, injuring 24 people, and at a marketplace in Chadoura, injuring 16 people.
* October 2001: JeM claimed responsibly for a suicide bombing at the Jammu & Kashmir legislative assembly building in Srinagar, IAK, that killed 31 people; and
* July 2001: a JeM rocket-propelled grenade attack failed to injure the Chief Minister at his office in Srinagar, IAK, but wounded four others.
Directly or indirectly preparing and/or planning the doing of terrorist acts
JeM continues to engage in acts of terrorism against Indian security forces, government installations and civilians in the disputed territories of IAK.
On several occasions JeM undertook incursions across the Line of Control into India-administered Kashmir for the purposes of engaging in terrorism.
* July 2011: A JeM divisional commander and an associate were killed in a gun battle with security forces in Pulvama District, IAK. Both had been involved in recruiting local youth and attacking security force camps;
* July 2011: A senior JeM commander was among five militants killed by the Indian Army in Kupwara District, IAK;
March 2011: A senior JeM commander and his bodyguard were killed in a gun battle with police at Dal Lake, Srinagar, IAK.
* November 2010: Three JeM militants were killed in a gun battle with police in Srinagar, IAK. The militants had been part of a cell involved in the killing of two police officers several days earlier, for which responsibility was claimed by JeM;
* October 2010: Three JeM militants were killed by security forces in Srinagar, IAK;
* September 2010: One JeM militant was killed and four were arrested in a clash with security personnel in IAK. Weapons and money were also recovered;
* February 2010: Two JeM militants were killed in a gun battle with security forces in northern IAK.
In addition, JeM also has conducted attacks against Afghan government and Coalition forces in Afghanistan.
JeM trains personnel for possible involvement in future attacks. JeM operates several camps in Pakistan which provide both religious instruction and military style guerrilla training and support to JeM members from Kashmir and Pakistan and to individual jihadists from other parts of the world.
Reporting also indicates JeM may be facilitating the activities of international jihadists intending to conduct terrorist operations outside Kashmir or greater India, including the United Kingdom and US. In May 2010 Pakistani authorities detained four suspected JeM members, one of whom was possibly connected to Faisal Shahzad, who attempted to detonate a bomb in New York's Times Square on 1 May 2010.
Investigators have also uncovered possible connections between JeM and the British-born suicide bombers responsible for the 7 July 2005 London subway attacks.
In August 2006, it was discovered that Rashid Rauf, the main conspirator behind a plot to blow up a USbound British aircraft, is a relative of Maulana Masood Azhar and a member of JeM. Rauf was arrested at a JeM madrassa in Bahawalpur in southern Punjab on 9 August 2007, a couple of days before British authorities arrested the other plotter.
Although based in Pakistan, JeM also uses Bangladesh and Nepal as transit routes for its operatives and finances. In February 2010 Bangladeshi authorities arrested several extremists who had reportedly been coordinating JeM's operations in Bangladesh. One of these operatives admitted to planning and executing the Indian Airlines hijacking from Kathmandu to Kandahar in December 1999.
Directly or indirectly assisting in the doing of terrorist acts
JeM is aligned politically with the prominent Pakistani Islamist party, Jamiat-i Ulema-i-Islam (JUI-F). JeM operates with other Islamist militant groups in IAK, such as LeT, and conducts joint operations in Afghanistan and Pakistan with groups such as Hizb-ul-Mujahideen (HM), Harakat-ul-Jihad-i-Islami (HuJI), LeJ and
Sipah-e-Sahaba Pakistan (SSP). Furthermore, JeM remains closely associated with al-Qa'ida and the Afghan Taliban.
Directly or indirectly fostering the doing of terrorist acts
JeM utilises various online and print media to propagate its message and to foster terrorist acts. This includes a Peshawar-based weekly magazine entitled Al Qalam and a children's magazine, Musalman Bachay. JeM also draws financial support from religious supporters in Pakistan through these publications, collecting funds through donation requests in magazines and pamphlets.
In February 2009, several banned militant groups - including JeM ─ met in Muzaffarabad, the capital of Pakistan-occupied Kashmir, and pledged to continue the jihad to 'liberate' Kashmir from India.
Conclusion
On the basis of the above information, ASIO assesses JeM is directly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to JeM are terrorist acts as they:
* are done with the intention of advancing a political cause, namely, creating a radical Islamist state in Pakistan and uniting Indian-controlled Kashmir with Pakistan;
* are intended to coerce or influence by intimidation the governments of foreign countries, including Afghanistan, Pakistan and India, as well as member countries of the Coalition forces in Afghanistan, and/or intimidate sections of the public; and
* constitute acts which cause serious physical harm to persons, including death, as well as serious damage to property.
Other relevant information
Links to other terrorist groups or networks
JeM is a member of the United Jihad Council (UJC), which was formed in 1990 to bring all Kashmir-focused militant groups under a single banner. Other major groups in the UJC are HuM, LeT, HM, and the Al Badr Mujahideen.
JeM conducts joint operations in Afghanistan and Pakistan with groups such as HM, HuJI, LeJ and SSP. In addition, JeM remains closely associated with al-Qa'ida and the Afghan Taliban.
Proscription by the UN and other countries
JeM is listed in the United Nations 1267 Committee's consolidated list and as a proscribed terrorist organisation by the governments of the US, UK, Canada, New Zealand, India and Pakistan.
AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback