Criminal Code Amendment Regulations 2005 (No. 14)

EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 298

Issued by the authority of the Attorney-General

Subject -  Criminal Code Act 1995

Criminal Code Amendment Regulations 2005 (No. 14)

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.

Subsection 102.1(1) of the Code define a ‘terrorist organisation’ to be:

(a)                an organisation engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (paragraph (a));

(b)               an organisation specified in the regulations (paragraph (b));

(c)                a Hizballah organisation (paragraph (c));

(d)               a Hamas organisation (paragraph (d)); or

(e)                a Lashkar-e-Tayyiba organisation (paragraph (e)).

The purpose of the Regulations is to amend the Criminal Code Regulations 2002 to specify the Kurdistan Workers Party (PKK) and its aliases - Peoples Congress of Kurdistan, Kongra Gel, Kongra Gele Kurdistan, Partiya Karkeren Kurdistan, New PKK, Freedom and Democratic Congress of Kurdistan, Kurdistan Freedom and Democracy Congress, KADEK, Kurdistan Halk Kongresi, KHK, Kurdistan Labor Party, Kurdistan Peoples Congress, Kurdish Freedom Falcons, Kurdish Liberation Hawks, Kurdistan Ozgurluk Sahinleri, Teyrbazên Azadiya Kurdistan and TAK - 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 the Kurdistan Workers Party (PKK).  Details of the proposed 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.

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 is at Attachment B.

Prior to the making of the Regulations, consultations were held with the Department of Foreign Affairs, ASIO and the Australian Government Solicitor.  Further consultations will be held with the Federal Leader of the Opposition and the Premiers and Chief Ministers of the States and Territories.

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.

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.

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 by 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 2005 (No. 14)

Regulation 1- Name of Regulations

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2005 (No. 14).

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 4, heading

This item provides that the heading of Regulation 4 is to be omitted as a previous amendment to the Regulations removed the relevant text under the heading.

Item [2] – After Regulations 4V

This item provides that a new Regulation 4W is to be inserted after Regulation 4V. 

Regulation 4W is headed ‘Terrorist organisations – Kurdistan Workers Party (PKK)’.  Subregulation 4W(1) provides 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 Kurdistan Workers Party (PKK) is specified. 

The effect of this subregulation is that Kurdistan Workers Party (PKK) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

Subregulation 4W(2) provides that for the purposes of subregulation (1), Kurdistan Workers Party (PKK) is also known by the following names:  Peoples Congress of Kurdistan, Kongra Gel, Kongra Gele Kurdistan, Partiya Karkeren Kurdistan, New PKK, Freedom and Democratic Congress of Kurdistan, Kurdistan Freedom and Democracy Congress, KADEK, Kurdistan Halk Kongresi, KHK, Kurdistan Labor Party, Kurdistan Peoples Congress, Kurdish Freedom Falcons, Kurdish Liberation Hawks, Kurdistan Ozgurluk Sahinleri, Teyrbazên Azadiya Kurdistan, TAK.

Item [3] – Schedule 1A, heading

This item provides that the heading of Schedule 1A is to be omitted as a previous amendment to the Regulations removed the relevant text under the heading.

Attachment B

Kurdistan Workers Party (PKK)

(Also known as: Peoples Congress of Kurdistan, Kongra Gel, Kongra Gele Kurdistan, Partiya Karkeren Kurdistan, New PKK, Freedom and Democratic Congress of Kurdistan, Kurdistan Freedom and Democracy Congress, KADEK, Kurdistan Halk Kongresi, KHK, Kurdistan Labor Party, Kurdistan Peoples Congress, Kurdish Freedom Falcons, Kurdish Liberation Hawks, Kurdistan Ozgurluk Sahinleri, Teyrbazên Azadiya Kurdistan, TAK.)

The following information is based on publicly available details about the Kurdistan Workers Party (PKK). These details have been corroborated by material from intelligence investigations into the activities of the PKK and by official reporting.  ASIO assesses that the details set out below are accurate and reliable.

The Kurdistan Workers Party (PKK) is listed as a proscribed terrorist organisation by the governments of the United Kingdom and Canada.  The organisation is proscribed by the government of the United States under the name of Kongra Gel. The PKK is listed by the European Union for the purposes of its anti-terrorism measures.

Background

The PKK is Kurdish separatist organisation founded in Turkey by Abdullah Ocalan in 1974. The organisation initially presented itself as part of the ‘worldwide Marxist revolution’. During the 1980s and early 1990s, the PKK was responsible for numerous attacks on Turkish security forces and civilians accused by the PKK of collaborating with the state. After a crackdown by Turkish forces in 1989, the PKK shifted its focus to concentrate on military targets and urban terrorism, although civilians were still targeted. In the late 1980s, the PKK had difficulty mobilising support from the Kurdish community, in which religious sentiment is strong, and began to adopt Sunni Islamic beliefs. However, the organisation was founded on a Marxist-Leninist ideology and remains predominantly secular.  Ocalan was arrested by Turkish authorities in February 1999 and announced a unilateral ceasefire in September 1999, directing members to refrain from violence. Despite this, the PKK’s military wing, the Kurdistan Freedom Brigade (Hazen Rizgariya Kurdistan, HRK), was maintained and sporadic attacks continued.

The PKK changed its name to KADEK in April 2002, claiming the PKK had accomplished its mission.  KADEK announced its dissolution in October 2003 and re-formed as Kongra Gel, a ‘new’ political organisation with the stated aim of pursuing Kurdish rights through negotiation with the Turkish Government rather than seeking independence. The armed wing of KADEK, known as the Peoples Defence Forces (HPG), remained active.  In early 2004 Kongra Gel split, with militants taking control of the organisation when others broke away to form a new political party. Kongra Gel ended its unilateral ceasefire with the Turkish Government in June 2004, and warned foreigners against visiting or investing in Turkey.

Kongra Gel, and the front group Kurdish Freedom Falcons (TAK), carried out violent attacks in Turkey in late 2004 and early 2005 and members have vowed to defend the Kurdish liberation movement. In April 2005 Kongra Gel reverted to the name Kurdistan Workers Party (PKK) or the ‘New’ PKK.  However, it is not clear if all elements of the organisation have reverted to the name PKK.

On 19 August 2005 the PKK unilaterally announced it would suspend attacks against Turkish security forces until 20 September, stating that it might permanently extend the ceasefire if the Turkish government met its conditions. While PKK initiated attacks decreased during the ceasefire period, continued clashes between Turkish security forces and the PKK, including attacks by the TAK, indicate the ceasefire was not recognised or adhered to by either side. The ceasefire was subsequently extended to 3 October 2005. However, in a statement faxed to the international media in early October 2005, the PKK announced it would resume its armed campaign against Turkish security forces because the Turkish government had not met their demands.

Objectives

The PKK’s aims and objectives have evolved over time and have ranged from the separation of Kurdistan from Turkey, Syria, Iraq and Iran, and the creation of a Kurdish federation in the Middle East, to the establishment of an independent Kurdish state in south eastern Turkey. The organisation has now ostensibly abandoned the goal of a separate Kurdish state and instead seeks to promote and advance the rights of Kurds living in Turkey, specifically the right to maintain ethnic identity.

Leadership and membership

Abdullah Ocalan, although currently serving life imprisonment in Turkey, is still considered the leader and figure-head of the PKK. Although the organisation has undergone numerous name changes, there is a continuity of key PKK/KADEK/Kongra Gel leaders, including Abdullah Ocalan, Cemil Bayik (a member of the original PKK’s Chairmanship Council and a senior member of the Kongra Gel Presidency Council) and Murat Karayilan (commander of the Peoples Defence Forces (HPG) and recently appointed general spokesman of the re-formed PKK Assembly).

PKK membership is estimated at approximately 5000, predominantly based in northern Iraq and south-eastern Turkey. There is also a large support base in Europe, particularly Germany. The PKK maintains camps in northern Iraq where training is provided in ideology, weaponry and guerrilla warfare. PKK funding is generated largely through criminal activity, including extortion and smuggling, and from the fundraising activities of the Kurdish diaspora worldwide (collected by both voluntary donation and through intimidation). Some money is also raised through the sale of publications. 

Terrorist activities

Recent terrorist activities ascribed to the PKK, or for which it has claimed responsibility, include:

• July 2003 – Eight Iranian soldiers were killed in a raid on an outpost in Shinava, Iran.
• December 2003 – Five Turkish soldiers were killed in Turkey when their vehicle hit a land-mine planted by PKK/KADEK.  
• June 2004 – Three Turkish security personnel were killed during an attack in Hatay Province, Turkey.
• 11 Aug 2004 – Two hotels and a gas depot in Istanbul centre were bombed, resulting in the death of two foreign tourists and injuries to others.
• 27 Aug 2004 – Turkish security forces captured two PKK members who were planning bomb attacks in Istanbul and Ankara.  Explosive materials were also found with the terrorists.
• 24 Oct 2004 – PKK members attacked a Turkish Oil Corporation pipeline in the south-eastern city of Batman, Turkey.
• 27 Oct 2004 – One security officer was killed and three wounded in an attack in the eastern city of Bingol, Turkey.
• 27 Jan 2005 – PKK members opened fire in the city of Mardin, Turkey, killing one soldier and injuring another.
• 2 July 2005 –  A bomb attack against a passenger train in Bingol province was followed by a small arms attack on a second train sent to assist.  Approximately six people were killed and 12 injured.
• 10 July 2005 – A bomb in Cesme injured at least 15 people. Responsibility was claimed by the Kurdish Freedom Falcons (TAK), considered to be a front for PKK.
• 16 July 2005 – An explosion on a bus in Kusadasi killed five people, including one British and one Irish citizen, and injured 13. Some media reported that the TAK had claimed responsibility. Turkish police attributed the attack to the PKK, although they denied responsibility.
• 27 July 2005 – The mayor of Yayladere in Bingol province was kidnapped by Kurdish separatists, and released five days later.
• 10 October 2005 – A policeman was abducted at a roadblock set up by the PKK near Idil in Sirnak Province.
• 15 October 2005 – A bomb detonated in a vehicle at a service station in Istanbul, injuring five people. The TAK claimed responsibility.

Conclusion

ASIO assesses the PKK is continuing to prepare, plan and foster the commission of acts involving threats to human life and serious damage to property.  This assessment is corroborated by information provided by reliable and credible intelligence sources.

In the course of pursuing its objective of promoting and advancing the rights of Kurds living in Turkey, the PKK is known to have engaged in actions that:

• are aimed at advancing the PKK's political causes; 
• are intended to cause, or have caused, serious damage to property, the death of persons or endangerment of life; and
• are intended to cause, or have caused, serious risk to the safety of the public in Turkey and other persons visiting areas in which it operates.

In view of the above information, PKK is assessed to be preparing, planning, and fostering the conduct of terrorist acts.  Such acts include actions which are to be done and threats of actions which are to be made with the intention of advancing a political, religious or ideological cause and with the intention of coercing, or influencing by intimidation the Government and people of Turkey and other countries.  The actions or threatened actions which the PKK are assessed to be involved in would, if successfully completed, cause serious physical harm and death to persons and serious damage to property.