EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 277
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code Amendment Regulations 2006 (No. 5).
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 the Jamiat ul-Ansar (JuA) and its aliases, Harakat ul‑Mujahideen (HuM), Movement of Holy Warriors, Harakat ul-Mujaheddin, Haraket ul-Mujahedeen, Islamic Freedom Fighters Movement, Islamic Freedom Fighters Group, Harakat ul-Mujahidin, Harakat ul-Mujahedin, Harkat ul-Mujahideen, Harakat Mujahideen (HM), Harakat-ul-Ansar (HuA), Harkat ul-Ansar, Al-Faran, Al-Hadid and Al-Hadith, for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code. JuA was initially listed as a terrorist organisation under the Criminal Code Amendment Regulations 2002 (No. 5), which were made on 14 November 2002. JuA was re-listed as a terrorist organisation under the Criminal Code Amendment Regulations 2004 (No. 5), which took effect from 5 November 2004.
The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to JuA. 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 (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 Jamiat ul-Ansar (JuA) 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, an offer for a briefing was extended to the Federal Leader of the Opposition and the State and Territory Attorneys-General were advised.
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 2006 (No. 5)
Regulation 1- Name of Regulations
This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2006 (No. 5).
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 4D
This item provides that the existing regulation 4D is to be substituted with the new regulation 4D - ‘Terrorist organisations – Jamiat ul-Ansar (JuA)’.
Subregulation 4D(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 Jamiat ul-Ansar (JuA) is specified.
The effect of this subregulation is that Jamiat ul-Ansar (JuA) is specified as a terrorist organisation under subsection 102.1(1) of the Code.
Subregulation 4D(2) provides that for the purposes of subregulation (1), Jamiat ul‑Ansar (JuA) is also known by the following names:
(a) Harakat ul-Mujahideen (HuM);
(b) Movement of Holy Warriors;
(c) Harakat ul-Mujaheddin;
(d) Haraket ul-Mujahedeen;
(e) Islamic Freedom Fighters Movement;
(f) Islamic Freedom Fighters Group;
(g) Harakat ul-Mujahidin;
(h) Harakat ul-Mujahedin;
(i) Harkat ul-Mujahideen;
(j) Harakat Mujahideen (HM);
(k) Harakat-ul-Ansar (HuA);
(l) Harkat ul-Ansar;
(m) Al-Faran;
(n) Al-Hadid; and
(o) Al-Hadith.
Attachment B
Jamiat ul-Ansar (JuA)
(Also known as: Harakat ul-Mujahideen (HuM), Movement of Holy Warriors, Harakat ul-Mujaheddin, Harakat ul-Mujahedeen, Islamic Freedom Fighters Movement, Islamic Freedom Fighters Group, Harakat ul-Mujahidin, Harakat ul-Mujahedin, Harkat ul-Mujahideen, Harakat Mujahideen (HM), Harakat-ul-Ansar (HuA), Harkat ul-Ansar, Al-Faran, Al-Hadid, Al-Hadith
The JuA is listed in the United Nations 1267 Committee’s consolidated list and by the governments of Canada, the United Kingdom, the United States, and Pakistan.
Current status of JuA
JuA is a Sunni Islamic extremist organisation based in Pakistan that operates primarily in Indian Administered Kashmir (IAK). Founded in 1985 as the Harakat ul-Mujahideen (HuM), JuA was initially formed with support from the Pakistan government to participate in the war against the Soviet Union in Afghanistan in the 1980s. Following the Soviet withdrawal from Afghanistan in 1989, JuA concentrated its efforts on the disputed territories of Kashmir and Jammu, where it has conducted numerous attacks against Indian troops, civilians, and tourists. Using the alternative name, al-Faran, in order to mask its activities, JuA has also kidnapped, and in some cases murdered, a number of foreigners.
JuA is aligned politically with Jamiat-e-Ulema-e-Islam Fazul Rehman faction (JUI-F), a prominent radical Islamic party in Pakistan and Kashmir. Funding for JuA is received through charitable donations collected from sympathisers in Pakistan and Kashmir and through Islamic charities in the United Kingdom and the Persian Gulf states. JuA has cooperated with other Islamist militant groups operating in Afghanistan, Kashmir and Pakistan such as the Hizb-ul-Mujahideen (HM), the Lashkar-e-Tayyiba (LeT), Jaish e-Muhammad (JeM), and the Sipah-e-Sahaba Pakistan (SSP).
In 1993 the JuA (then known as HuM) merged with another Kashmir-focused terrorist group, the Harakat-ul-Jehad-al-Islami (HuJI), to form the Harkat-ul-Ansar (HuA). As a consequence of reports linking the group to al-Qa'ida, HuA was proscribed as a terrorist organisation by the United States in 1997. The group immediately re-adopted the name Harakat ul-Mujahideen (HuM) to escape the ramifications of the proscription. In 1998, the group’s leader Fazlur Rehman Khalil signed Usama bin Laden’s fatwa calling for attacks on the US and its allies. In the aftermath of the 11 September 2001 terrorist attacks, HuM was declared a terrorist organisation by the United States for its extensive links with Usama bin Laden. HuM was also banned by the Pakistan government in November 2001. Following the ban, the HuM again renamed and is now operating under its present name of Jamiat ul-Ansar (JuA). JuA was also subsequently banned by Pakistan in November 2003.
Individuals trained at HuM/JuA facilities have engaged in terrorist operations in other places where Islamist resistances have arisen including Tajikistan and Bosnia, and also Afghanistan to participate in the post-Taliban insurgency. On 19 June 2005 several JuA trained individuals were arrested in Afghanistan preparing to carry out acts of terrorism.
Following his release from an Indian prison in 1999, JuA member Maulana Masood Azhar established the Jaish-e Muhammad (JeM) as a splinter group with almost identical aims as the JuA. This led to a large number of JuA operatives defecting to JeM, including a number of experienced field commanders, which has impacted on JuA’s operational capabilities.
While attacks claimed by JuA, or those that can be reliably attributed to the group, have declined since 2002 it remains active in IAK. For example, JuA claimed responsibility for the assassination of a political party worker in Kashmir on 7 October 2004, and joint responsibility with JeM for the 25 October 2004 attack on the motorcade of the Divisional Commissioner for the Muslim-Majority Kashmir Valley. Operating in conjunction with HM, JuA is reported to have been responsible for multiple attacks directed at a range of security and civilian targets in and around Jammu and Kashmir on 13 June 2005 resulting in 15 deaths, including two school children. The 1 January 2006 exchange of gunfire with Indian Security Forces in Indian administered Kashmir is further evidence of their ongoing activity.
JuA operates a number of camps in Pakistan which provide both religious instruction and military style guerrilla training and support, not only to JuA members, but also to other associated terrorist organisations and individual jihadists from all over the world. The group also operated terrorist training camps in eastern Afghanistan prior to their destruction by coalition air strikes in 2001. Some JuA training facilities are less conspicuous and focused on preparing jihadists for more low intensity, hit and run type operations or suicide attacks. In 2004, several members of a JuA-trained splinter group were arrested for their involvement in separate suicide car-bomb attacks outside the US Consulate and the Sheraton Hotel in Karachi in May and June 2002, and a failed attempt to assassinate Pakistani President Pervez Musharraf with a remote-controlled car-bomb in April 2002. As members of a previously unknown group “Jundallah,” JuA trained members were among a number of militants drawn from several Pakistani extremist groups responsible for the twin car-bomb attack near the US Consulate in Karachi on 26 May 2004. On 9 June 2004, the same terrorist cell was involved in a terrorist attack against a heavily-armed military convoy carrying Karachi’s military commander resulting in seven deaths.
Objectives
JuA is a group that uses violence in pursuit of its stated objective of uniting Jammu and Kashmir with Pakistan under a radical interpretation of Islamic law.
Leadership and membership
The leader of JuA is Fazlur Rehman (sometimes Rahman) Khalil, (aka Maulana Farzul Ahmed Khalil, Maulana Ahmed Khalil). Reporting indicates that the JuA has a strength of no more than a few hundred, but exact membership numbers cannot be accurately determined. The majority of JuA’s membership consists of jihadists from Pakistan, Kashmir, and Afghanistan. JuA has also attracted new recruits drawn from around the world, including Bangladesh and Southeast Asia, the United Kingdom, and the United States.
JuA engagement in terrorist activities
JuA has been involved in a number of terrorist activities, including hijacking, bombings abductions, and training.
Terrorist activities for which responsibility has been claimed by, or reliably attributed to, JuA, over the past 7 years include:
● Dec 1999: An Indian airliner was hijacked en route from Nepal to India, one passenger was stabbed to death.
● Nov 2000: Thirty Indian soldiers were fatally shot at two army posts in Kashmir.
● 23 Jan 2002: US journalist Daniel Pearl was abducted and subsequently murdered on this date. Four people, including JuA member Ahmed Omar Sheikh, were convicted of Pearl’s murder;
● 14 June 2002: JuA trained militants were responsible for the suicide car-bomb attack outside the US Consulate in Karachi which killed 11 persons;
● April 2003: 3 Indian troops were fatally shot in Kashmir;
● 7 Oct 2004: A politically party worker was assassinated in Kashmir;
● 19 June 2005: several JuA trained individuals were arrested in Afghanistan preparing to carry out acts of terrorism;
● June 2005: two American citizens were arrested for suspected participation in an al-Qa'ida plot to attack the US. Both claimed to have attended a terrorist training camp run by JuA leader Fazlur Rehman Khalil.