EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 278

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2006 (No. 6).

 

 

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 Armed Islamic Group (GIA) and its aliases, al-Jamm’ah al-Islamiah al-Musallah, Groupement Islamique Armé, and Groupe Islamique Armé, for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code. GIA was initially listed as a terrorist organisation under the Criminal Code Amendment Regulations 2002 (No. 6), which were made on 14 November 2002. GIA was re-listed as a terrorist organisation under the Criminal Code Amendment Regulations 2004 (No. 6), 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 Armed Islamic Group (GIA). 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 GIA 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. 6)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2006 (No. 6).

 

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 4E

 

This item provides that the existing regulation 4E is to be substituted with the new regulation 4E - ‘Terrorist organisations – Armed Islamic Group (GIA)’.

 

Subregulation 4E(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 Armed Islamic Group (GIA) is specified.

 

The effect of this subregulation is that Armed Islamic Group (GIA) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4E(2) provides that for the purposes of subregulation (1), Armed Islamic Group (GIA) is also known by the following names:

 

(a)    al-Jamm’ah al-Islamiah al-Musallah;

(b)   Groupement Islamique Armé; and

(c)    Groupe Islamique Armé.

 

Attachment B

 

Armed Islamic Group (GIA)

(Also known as: al-Jamm’ah al-Islamiah al-Musallah; Groupement Islamique Armé; Groupe Islamique Armé)

The GIA is listed in the United Nations 1267 Committee’s consolidated list and as a proscribed terrorist organisation by the governments of Canada, the United Kingdom and the United States.

Current status of the GIA

The GIA is an Algerian Islamic extremist organisation. Following the Algerian Government’s ban on the Islamic Salvation Front (FIS), imposed after FIS’s victory in the first round of legislative elections in December 1991, the armed wing of the FIS – the Islamic Salvation Army – commenced an armed struggle against the Algerian military. In the course of this struggle a number of factions, including the GIA in 1992, split from the Islamic Salvation Army.

The GIA began a high profile campaign of terrorist attacks in Algeria in 1993. From late 1994 the GIA expanded its operations internationally, hijacking an Air France flight in December 1994 and conducting a series of improved explosive device (IED) attacks in France in 1995. It also conducted attacks on foreign interests in Algeria. From 1996 the GIA entered a new phase, targeting Algerian civilians for large-scale attacks – including decapitations and throat-cutting – which at times wiped out whole villages. This strategy proved counterproductive, contributing to a loss of support both within Algeria and from international terrorist groups, including al-Qa’ida.

In 1998, following internal divisions over the GIA’s strategy of attacking civilians, GIA member Hassan Hattab broke away to found the Salafist Group for Call and Combat (GSPC) which renounced attacks against civilians. Many GIA members defected to the GSPC, which rapidly overtook the GIA as the pre-eminent anti-government force in Algeria. Others split from the GIA to form new and autonomous groups.

The GIA has little or no cooperation with other Islamic extremist groups in Algeria. The GIA had reported links to al-Qa’ida through Sheikh Omar Mammud Muhammed Othman, also known as Abu Qatada, who was designated by Usama bin Laden as spiritual advisor for Algerian groups.

The GIA received some early financial and logistical support from al-Qa’ida, reprtedly including wire transfers of funding from Usama bin Laden to a GIA member who led a series of nine bombings in France in 1995. In March 2004, the US, supported by Italy, designated 10 alleged GIA members living in Italy as suspected al-Qaida members.

In the 1990s the GIA had an extensive support network among the North African expatriate communities in Europe – particularly in France – which raised money through extortion and smuggling, as well as collecting charitable donations through mosques.

The GIA has been involved in a number of terrorist attacks including hijacking, bombing civilian sites, attacking civilians, and ambushing Algerian security forces. Since 1992 the GIA is reported to have killed more than 100 foreigners, mostly Europeans, in Algeria.

The GIA’s strength has been reduced to between 30 and 100 fighters following defections to the GSPC and other groups and successful counter-terrorism operations by Algerian security forces. The group has continued to conduct attacks, including the killing of 14 civilians in an attack in Blida Province on 7 April 2005. Following operations against the GIA in April 2005, caches of weapons and explosives were recovered by Algerian authorities. Based on this information, it is reasonable to conclude that the GIA continues to have the capability and intent to conduct further terrorist attacks.

Objectives

The objective of the GIA is to overthrow the secular Algerian Government and replace it with an Islamic state.

Leadership and Membership

Following the death of leader Antar Zouabri in February 2002, the GIA’s chain of command was weakened by factional conflict. Rashid Oukali (aka Abu Tourab) succeeded Zouabri in April 2002, but was killed in July 2004 and replaced by Noureddine Boudiafi. Boudiafi was in turn arrested by Algerian security forces in November 2004, and two successors, Guechniti Redouane and then Younes Chaabane, were killed by security forces in November-December 2004. The current leader of the GIA is unknown; media reporting identified Boulenouar Oukil, arrested in April 2005, as the leader of the GIA but may have misinterpreted his claim to have led a massacre in Blida Province.

The GIA has lost a significant portion of its membership following defections to the GSPC and other groups and successful counter-terrorism operations by Algerian security forces. Reporting indicates that the current strength of the GIA is between 30 and 100 active members.

GIA engagement in terrorist attacks

Terrorist activities for which responsibility has been claimed by, or reliably attributed to, the GIA, have included:

·        August 1994: An attack on the French Embassy in Algiers, killing five French officials.

·        December 1994: An Air France flight to Algiers was hijacked. One passenger was murdered before French commandos killed the hijackers. The hijackers reportedly originally intended to fly the aircraft into the Eiffel Tower.

·        July 1995: The GIA conducted a series of bombings against subways, markets, a Jewish school, a high-speed train and the Arc de Triomphe in France, killing10 people and injuring more than 200. Several GIA members were convicted for these attacks in 1999.

·        August 1996: A bombing at the home of the French Archbishop of Oran, Algeria, killing the archbishop and his driver.

·        December 1996: A car bombing in Paris,killing four people.

·        1997: A number of car bombings in Algiers and other cities in 1997, killing more than 50 people.

·        September 1997: The killing of 63 civilians in Sidi Youssef, just outside Algiers.

·        August 1999: The killing of 27 civilians in Bechar, near the Moroccan border.

·        2-3 May 2002: The killing of 34 people in a 24-hour period in Chlef Province, probably in an attempt to disrupt elections scheduled for 30 May.

·        5 July 2002: A bombing in a market place in Larbaa, about 20 kilometres from Algiers on Algerian Independence Day, killing 35 people.

·        15 August 2002: The killing of 26 people in Bokaat Laakakcha, Chlef province.

·        2003: Attacks on a number of military targets southwest of Algiers in 2003.

·        22 October 2004: An attack in Medea Province, killing 16 civilians.

·        7 April 2005: An attack in Blida Province, killing 14 civilians.