Commonwealth Numbered Regulations - Explanatory Statements

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CRIMINAL CODE AMENDMENT REGULATION 2012 (NO. 9) (SLI NO 193 OF 2012)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2012 No. 193

 

 

Issued by the authority of the Attorney-General

 

 Criminal Code Act 1995

 

Criminal Code Amendment Regulation 2012 (No. 9)

 

 

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.

 

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.

 

A terrorist organisation' is defined in subsection 102.1(1) of the Code as:

 

The purpose of the regulation is to amend the Criminal Code Regulations 2002
(Criminal Code Regulations) to specify Al-Shabaab, also known as Al-Shabaab Al-Islaam,

Al-Shabaab al-Islamiya, Al-Shabaab Al-Jihaad, Al-Shabab, Ash-shabaab, Harakat al-Shabaab al-Mujahideen, Harakat Shabab Al-Mujahidin, Harakatul Shabaab al-Mujaahidiin, Hisb'ul Shabaab, Hizbul Shabaab, HSM, Mujaahidiin Youth Movement, Mujahideen Youth Movement, Mujahidin Al-Shabaab Movement, Mujahidin Youth Movement, MYM, Shabaab, The Popular Resistance Movement in the Land of the Two Migrations, The Unity of Islamic Youth, The Youth, Young Mujahideen Movement and Young Mujahideen Movement in Somalia, Youth Wing, for the purpose of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code. 

 

The regulation enables the offence provisions in Division 102 of the Code to continue to apply to persons with links to Al-Shabaab.  Details of the regulation 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).

 

The Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the regulation pursuant to subsection 102.1(2A) of the Code.

 

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 an unclassified Statement 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 Al-Shabaab is at Attachment B.

 

Prior to making the regulation, consultations were held with the Department of Foreign Affairs and Trade, ASIO and the Australian Government Solicitor.  In addition, the Attorney-General wrote to the Premiers and Chief Ministers of the States and Territories on behalf of the Prime Minister, and the Attorney-General offered the Leader of the Opposition a briefing.

 

The regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The regulation commences on the day after it is 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

 

This regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Objective

 

The object of the Criminal Code Amendment Regulation 2012 (No. 9) is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia.  This will engage the inherent right to life expressed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR). 

 

The object of the regulation also engages Article 19 and Article 22 of the ICCPR.  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. 9) makes 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 Al-Shabaab, and provide support or associate with Al-Shabaab. 

 

The offence in subsection 102.8 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 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. 9) may limit the right to freedom of association with Al-Shabaab, the association offence is subject to the safeguards outlined above.  The general limits of the right to freedom of association with Al-Shabaab 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 of the organisation, 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 Al-Shabaab 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 Act providing for consultation and enabling review of Criminal Code Amendment Regulation 2012 (No. 9) 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. 9) may only be made if a majority of the States and Territories do not object to the regulation 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 regulation

 

*         under subsection 102.1(3) the Criminal Code Amendment Regulation 2012 (No. 9) will cease to have effect on the third anniversary of the day on which it takes 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. 9) may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Act, and

 

*         both Houses of Parliament may disallow the Criminal Code Amendment Regulation 2012 (No. 9) within the applicable disallowance period, as provided in subsection 102.1A(4).

 

Conclusion

 

The regulation is compatible with human rights because it advances the protection of human rights, and to the extent that it may also limit human rights, those limitations are reasonable and proportionate.

 

 

 

 

 

 

 

Attachment A

 

Details of the Criminal Code Amendment Regulation 2012 (No. 9)

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Criminal Code Amendment Regulation 2012 (No. 9).

 

Section 2 - Commencement

 

This section provides that the Regulation commences on the day after it is registered. 

 

Section 3 - Amendment of Criminal Code Regulations 2002

 

This section provides that Schedule 1 amends the Criminal Code Regulations 2002.

 

Schedule 1 - Amendments

 

Item [1] - Regulation 4X

 

This item substitutes the existing regulation with a new regulation 4X 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 is specified.  

 

Subsection 4X(2) provides that for the purposes of subsection (1), Al-Shabaab is also known by the following names: 

 

(a)    Al-Shabaab Al-Islaam;

(b)   Al-Shabaab al-Islamiya;

(c)    Al-Shabaab Al-Jihaad;

(d)   Al-Shabab;

(e)    Ash-shabaab;

(f)    Harakat al-Shabaab al-Mujahideen;

(g)   Harakat Shabab Al-Mujahidin;

(h)   Harakatul Shabaab al-Mujaahidiin;

(i)     Hisb'ul Shabaab;

(j)     Hizbul Shabaab;

(k)   HSM;

(l)     Mujaahidiin Youth Movement;

(m) Mujahideen Youth Movement;

(n)   Mujahidin Al-Shabaab Movement;

(o)   Mujahidin Youth Movement;

(p)   MYM;

(q)   Shabaab;

(r)     The Popular Resistance Movement in the Land of the Two Migrations;

(s)    The Unity of Islamic Youth;

(t)     The Youth;

(u)   Young Mujahideen Movement;

(v)   Young Mujahideen Movement in Somalia, Youth Wing.


Attachment B

 

 

Al-Shabaab

(Also known as: Al-Shabaab Al-Islaam; Al-Shabaab al-Islamiya; Al-Shabaab Al-Jihaad; Al-Shabab; Ash-shabaab; Harakat al-Shabaab al-Mujahideen; Harakatul Shabaab al-Mujaahidiin; Harakat Shabab Al-Mujahidin; Harakatul Shabaab al-Mujaahidiin; Hizbul Shabaab; Hisb'ul Shabaab; HSM; Mujahideen Youth Movement; Mujahidin Al-Shabaab Movement; Mujaahidiin Youth Movement; Mujahidin Youth Movement; Shabaab; MYM; The Popular Resistance Movement in the Land of the Two Migrations; The Unity of Islamic Youth; The Youth; Young Mujahideen Movement; Young Mujahideen Movement in Somalia, Youth Wing)

The following information is based on publicly available details about al-Shabaab. 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, or 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

Al-Shabaab, or 'the youth', is the name generally applied to the Somali militant group which was formerly the most prominent of the militia groups comprising the militant wing of the Council of Islamic Courts (CIC). The Somali Transitional Federal Government (TFG) and Ethiopian forces ousted the CIC in December 2006. The TFG has governed Somalia since the withdrawal of Ethiopian forces in January 2009 and in June 2011 unilaterally extended its mandate to govern until August 2012 when elections are scheduled.

Objectives

Al-Shabaab's objective is the establishment of an Islamic state in Somalia, based on Islamic law and the elimination of foreign 'infidel' influence. In pursuance of this objective, al-Shabaab has conducted a violent insurgency against the TFG, and foreign forces supporting the TFG. Al-Shabaab seeks the creation of an 'Islamic Emirate of Somalia', to include Somalia, Somaliland, Puntland, north-eastern Kenya, the Ogaden region of Ethiopia and Djibouti.

Leadership and membership

Al-Shabaab has an increasingly loose leadership structure with a number of regional factions and commanders. Factional disputes have been reported between al-Shabaab's senior commanders over strategy and ideology.

*         Omar Hammami, a senior foreign fighter, released a video on the weekend of 17 March 2012 stating he felt his "life may be endangered by Harakat Al-Shabaab Al Mujahadeen due to some differences that occurred between us regarding matters of Shariah and matters of strategy".

*         Spokesman Sheikh Mukhtar Robow, aka Abu Mansur, was replaced by Sheikh Ali Muhammad Rage in May 2009.

Al-Shabaab encompasses a number of elements, ranging from those focused solely on the domestic insurgency in Somalia to elements that support al-Qa'ida's global jihadist ideology.  Estimates of al-Shabaab fighters vary from 3 000 to as high as        7 000, with most members being ethnic Somalis. Al-Shabaab has long recruited members from Kenya. However, a small number of al-Shabaab fighters are from other countries including the US and Canada.

Since the January 2009 Ethiopian withdrawal, al-Shabaab has established itself as the pre-eminent terrorist actor in Somalia and demonstrated its intent and capability to conduct terrorist attacks within and outside Somalia.

Al-Shabaab has continued its violent insurgency against TFG, Ethiopian and more recently, Kenyan forces inside Somalia and the border regions of Kenya. It has also carried out attacks against peacekeeping forces from Uganda and Burundi, who are in Somalia under the aegis of the AMISOM. The group's senior leadership has said al-Shabaab will continue to fight foreign forces in Somalia, and the TFG. Although al-Shabaab suffered personnel and territorial losses to African Union (AU) mission in Somalia (AMISOM) forces in the first six months of 2011, the group continues to present an enduring threat to East Africa--and to AMISOM and the TFG in particular.

Al -Shabaab's propaganda has also continued to develop, with the group's media campaign increasing in sophistication, including starting a Twitter account and continuing to spread its message through Radio al-Analus.


Terrorist activity of the organisation

Directly or indirectly engaged in the doing of terrorist acts; and directly or indirectly preparing and/or planning terrorist acts

Al-Shabaab has prepared, planned and conducted frequent attacks since the beginning of 2007 against Ethiopian and TFG forces using mortar attacks, rocket-propelled grenades and firearms in these attacks. During 2007, elements of al-Shabaab adopted tactics used by Islamist militants in Afghanistan and Iraq including the employment of vehicle-borne improvised explosive devices (VBIEDs), roadside bombs, suicide attacks and beheadings. Suicide-vehicle bombings in October 2008 in Hargeysa and Boosaaso, northern Somalia, were also widely attributed to al-Shabaab.

Al-Shabaab claims of attacks sometimes appear in internet statements in the name of the Young Mujahideen Movement in Somalia (YMMS), an al-Shabaab alias. There have been numerous statements claiming attacks including attempted assassinations of TFG officials, and against TFG security forces and Ethiopian forces in Mogadishu and surrounding areas.

Significant attacks for which responsibility has been claimed by or reliably attributed to al-Shabaab, include:

 

 

Advocating the doing of terrorist acts

Al-Shabaab members have publicly advocated terrorist attacks in order to further the group's objectives:

*         On 29 December 2011 an al-Shabaab spokesperson vowed that the terror group would launch retaliatory attacks in Kenya if authorities did not withdraw troops from Somalia. "Kenya has peace, its cities have tall buildings and business is flourishing there. If your government ignores our calls to stop its aggression on Somali soil, we will strike at the heart of your interests". 

*         On 16 November 2011 Sheikh Ali Mohamud Rage warned "We are telling Kenya that they still have the opportunity to back away from the hellfire it was dragged into and leave our soil, otherwise they will continue suffering".

*         Abdisalam Ali--an al-Shabaab suicide bomber--published a martyrdom video prior to killing himself on 29 October 2011 in Mogadishu stating "my brothers and sisters, do Jihad in America, do Jihad in Canada, do Jihad in England [and] anywhere in Europe, in Asia, in Africa, in China, in Australia -- anywhere you find kuffar [infidels]. Fight them and be firm against them".

Conclusion

On the basis of the above information, ASIO assesses al-Shabaab continues to directly and/or indirectly engage in, preparing, planning, assisting, advocating or fostering the doing of terrorist acts, involving threats to life and serious property damage. This assessment is corroborated by information provided by reliable and credible intelligence sources.

In the course of pursuing its objectives, al-Shabaab is known to have committed or threatened action:

 

Other relevant information

Links with other groups -

Al-Shabaab primarily is linked to al-Qa'ida through leadership contacts and training. While al-Shabaab likely still largely operates independently, al-Qa'ida senior leadership previously has endorsed some al-Shabaab activities. On 9 February 2012 a public statement by al-Shabaab leader Mukhtar Abu al-Zubair included a pledge of allegiance to al-Qa'ida and in a reciprocal message al-Qa'ida leader Ayman al-Zawahiri announced that al-Shabaab had joined al-Qa'ida.

Links to Australia -

In late 2011 al-Shabaab-linked Australian citizens Saney Edow Aweys and Nayef El Sayed were convicted of conspiring to plan a terrorist attack in Australia. Aweys was also convicted of aiding and abetting another person to engage in hostile activities in Somalia under s6 of the Commonwealth Crimes (Foreign Incursions and Recruitment) Act 1978 in December 2010. Australian citizen Hussein Hashi Farah was also implicated in terrorist activity associated with al-Shabaab.

Level of participation in peace negotiations/political dialogue -

Al-Shabaab does not participate in the Somali political system, despite AMISOM appeals to the group to lay down their arms and join the Somali peace process.

Other designations -

The group was listed as a proscribed terrorist organisation by the governments of the United States in March 2008, New Zealand in February 2010, Canada in March 2010, the United Kingdom in May 2010, and by the European Union in April 2010.

Al-Shabaab is also included in the DFAT Consolidated List that refers to United Nations Security Council Resolution 1373 and in the Consolidated List UN751 (Somalia and Eritria).

 

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