EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 37
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code Amendment Regulations 2009 (No. 4).
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 Islamic Army of Aden (IAA), also known as Aden Abyan Islamic Army (AAIA), Jaish Adan al Islami, Islamic Army of Aden Abyan, Aden Islamic Army, Muhammed's Army, and Army of Mohammed, for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.
The Regulations enable all offence provisions in Division 102 of the Code to apply to persons with links to Islamic Army of Aden (IAA). 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 and the Australian Government Solicitor. The Statement of Reasons in respect of Islamic Army of Aden (IAA) 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 has 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 commence on the day after they are registered on the Federal Register of Legislative Instruments. Subsection 102.1(3) of the Code provides when the regulations will sunset.
Attachment A
Details of the Criminal Code Amendment Regulations 2009 (No. 4)
Regulation 1- Name of Regulations
This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2009 (No. 4).
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 4N
This item substitutes the existing regulation with a new regulation 4N 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 Islamic Army of Aden (IAA) is specified.
Subregulation 4N(1) provides that Islamic Army of Aden (IAA) is specified as a terrorist organisation under subsection 102.1(1) of the Code.
Subregulation 4N(2) provides that for the purposes of subregulation (1), Islamic Army of Aden (IAA) is also known by the following names:
(a) Aden Abyan Islamic Army (AAIA);
(b) Aden Islamic Army;
(c) Army of Mohammed;
(d) Islamic Army of Aden Abyan;
(e) Jaish Adan al Islami; and
(f) Muhammed's Army.
Attachment B
Islamic Army of Aden (IAA)
(Also known as: Aden Abyan Islamic Army (AAIA); Islamic Army of Aden Abyan; Aden Islamic Army; Muhammed’s Army/Army of Mohammed; Jaish Adan al Islami)
The following information is based on publicly available details about the Islamic Army of Aden (IAA). The Islamic Army of Aden (IAA) is listed in the United Nations 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the European Union and the governments of the UK, New Zealand and Canada. The US has designated the IAA as a terrorist organisation on the Terrorist Exclusion List.
Current status of the IAA
The IAA is a Sunni Islamic extremist group and was formed in 1996 as a splinter group of the Yemeni Islamic Jihad. The IAA first came to public prominence in 1998 when it issued statements detailing its intention to overthrow the Yemeni government and implement Sharia law; and called for operations against Western interests in Yemen.
The IAA predominantly operates in the southern governorates of Yemen – particularly Aden and Abyan. The IAA has been involved in a number of terrorist attacks against Yemeni and Western interests. It has used bombings and hostage-taking as a means of furthering its goals. In 1998, the IAA abducted 16 Western tourists. Four of the tourists, including an Australian, were killed in a rescue attempt. The IAA also claimed responsibility for the suicide bomb attack against the USS Cole on 12 October 2000 and the MV Limburg on 7 October 2002. However, these operations are generally believed to have been al-Qa’ida operations.
The IAA is associated with al-Qa’ida and shares similar goals of driving Westerners from the region and removing the Yemeni government in order to establish an Islamic state.
Although current specific funding arrangements for the group are unknown, the IAA has traditionally conducted criminal activities as a means of raising money.
Between 2003 and 2006, counter-terrorism operations by Yemeni authorities reduced the size of the group and limited its operational effectiveness. However, the IAA has not been completely eradicated and there is no indication the intent of the IAA has changed. IAA members were last arrested in 2006, including the reported arrest of individuals suspected of involvement in terrorist activities in Iraq. In June 2008, IAA’s leader, Khalid Abd al-Nabi, gave an interview which suggested he retained similar goals and ideology. He also stated the Abyan Governorate is ready for the emergence of IAA. While the interview does not explicitly call for a return to violence, it contains nothing to suggest that IAA has departed from its previous intentions to engage in terrorist acts.
Objectives
The IAA aims to remove Western interests from Yemen and wider Arabian Peninsula, overthrow the current Yemeni government and establish an Islamic state.
Leadership and membership
The IAA’s founder and former leader Zain al-Abidin al-Mihdar (aka Abu Hassan) was executed in 1999 for his role in the 1998 hostage-taking of 16 Western tourists in Yemen. Founding members were veterans of the struggle in Afghanistan against the Soviets. Khalid Abd al-Nabi assumed leadership of the IAA before surrendering to authorities in October 2003. In return for his cooperation Abd al-Nabi received a Presidential pardon that same year. Abd al-Nabi continues to appear in, and make statements to, the media, usually in relation to IAA.
Although the current strength of the IAA is unknown, previous estimates of the group’s size were between 30 to 100 core members divided into a number of small groups or cells. The group is likely to now have no more than 30 core members.
IAA engagement in terrorist activities
Security operations by the Yemeni authorities have restricted the IAA’s capabilities within Yemen. However, IAA operatives still exist in Yemen and could undertake terrorist activities if and when the opportunity arises.
Terrorist attacks and plans for terrorist attacks for which responsibility has been claimed by, or reliably attributed to, the IAA, have included:
- August 2002: three Yemenis belonging to the IAA were convicted of carrying out bombing attacks in the southern port of Aden on 1 January 2001;
- 21 June 2003: attack on a military medical convoy, injuring 7 soldiers;
- June 2003: arrest of four alleged IAA members and seizure of a car packed with hand grenades, explosives and rocket-propelled grenades that had been used in the attack on a military medical convoy on 21 June 2003;
- 25 June 2003: clash between IAA members and government troops at the group’s hideout in Harat – captured IAA members revealed they were waiting for orders to carry out terrorist operations;
- October 2003: a planned car bomb attack against the US, UK and German embassies in Sana’a allegedly involving the IAA was disrupted;
- March/April 2006: arrest of IAA members suspected of planning to travel to Iraq to fight foreign forces.