EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 290

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2007 (No. 13)

 

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.

 

‘Terrorist organisation’ in subsection 102.1(1) of the Code is defined 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 Kurdistan Workers Party (PKK) also known as Freedom and Democratic Congress of Kurdistan, KADEK, Kongra Gel, Kongra Gele Kurdistan, Kurdish Liberation Hawks, Kurdistan Freedom and Democracy Congress, Kurdistan Freedom Brigade, Kurdistan Freedom Falcons, Kurdistan Halk Kongresi (KHK), Kurdistan Labor Party, Kurdistan Ozgurluk Sahinleri, Kurdistan Peoples Congress, New PKK, Partiya Karkeren Kurdistan, Peoples Congress of Kurdistan, People’s Defence Force (HPG) and Teyrbazên Azadiya Kurdistan (TAK), for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

The PKK was initially listed as a terrorist organisation under the Criminal Code Amendment Regulations 2005 (No.14) which took effect on 17 December 2005.

 

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to the PKK. Details of the Regulations are set out in Attachment A.

 

Paragraph 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).

 

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 as advice from the Australian Government Solicitor. The Statement of Reasons in respect of the PKK 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 Regulations.

 

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 Premiers and Chief Ministers 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.

 

 

 

 

 

 

 

Attachment A

 

 

Details of the Criminal Code Amendment Regulations 2007 (No. 13)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2007 (No. 13).

 

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 4W

 

This item provides that the existing regulation 4W, ‘Terrorist organisations – Kurdistan Workers Party (PKK)’, is to be substituted with the new regulation 4W.

 

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:

 

(a)    Freedom and Democratic Congress of Kurdistan;

(b)   KADEK;

(c)    Kongra Gel

(d)   Kongra Gele Kurdistan;

(e)    Kurdish Liberation Hawks;

(f)     Kurdistan Freedom and Democracy Congress;

(g)    Kurdistan Freedom Brigade;

(h)    Kurdistan Freedom Falcons;

(i)      Kurdistan Halk Kongresi (KHK);

(j)     Kurdistan Labor Party;

(k)   Kurdistan Ozgurluk Sahinleri;

(l)      Kurdistan Peoples Congress;

(m)  New PKK;

(n)    Partiya Karkeren Kurdistan;

(o)   Peoples Congress of Kurdistan;

(p)   People’s Defence Force (HPG);

(q)   Teyrbazên Azadiya Kurdistan (TAK).

 

 

 

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, Kurdistan Freedom Falcons, Kurdish Liberation Hawks, Kurdistan Ozgurluk Sahinleri, Teyrbazên Azadiya Kurdistan (TAK), Kurdistan Freedom Brigade, People’s Defence Force (HPG).

 

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.

Current Status of the PKK

The PKK is a Kurdish separatist organisation founded in Turkey by Abdullah Ocalan in 1974. The organisation initially presented itself as part of the communist revolution. To increase popular support from the Kurdish community, the PKK began to adopt Islamic beliefs in the late 1980s. However, the organisation remains predominantly secular. During the 1980s and 1990s, the PKK was responsible for numerous attacks on Turkish security forces and civilians, including foreign tourists. Following Ocalan’s arrest by Turkish authorities in February 1999 the group announced a unilateral ceasefire in September 1999. Despite this, PKK attacks continued.

The PKK changed its name to the Congress for Freedom and Democracy in Kurdistan (KADEK) in April 2002, claiming the PKK had accomplished its mission. KADEK announced its dissolution in October 2003 and re-formed as Kongra Gel. 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. In April 2005, Kongra Gel reverted to the name Kurdistan Workers Party (PKK) or the ‘New’ PKK. However, not all elements of the organisation have reverted to the name PKK.

PKK front groups, including the Kurdistan Freedom Falcons (TAK), claim responsibility for attacks against civilians. In reality, the PKK directs these operations. The groups are created to give plausible deniability for attacks against civilians. The military wing of the PKK, the HPG is also controlled by the PKK leadership and is not distinguishable from the PKK.

The PKK periodically announces ceasefires. During these periods, attacks by the PKK decline in number but do not cease. Continued clashes with the Turkish security forces and attacks during ceasefire periods indicate ceasefires are not recognised or adhered to by either side. Ceasefires were announced by the group in October 2006 and again in June 2007. However, PKK attacks have continued, including the 22 May 2007 suicide bombing in Ankara, the 15 June 2007 bombing in Diyarbakir and the 23 June 2007 suicide attack against a police station.

The PKK retains its capability despite disruption activity by the Turkish authorities. In December 2006, Turkish police seized over 100kg of explosives, rockets, grenades and a range of firearms in a raid against PKK militants. In March 2007, police operations against the PKK recovered explosives and detonators. The PKK has continued to conduct terrorist attacks, including attacks targeting local civilians, foreigners and tourist areas. Examples of this include the three near-simultaneous bombings in the tourist resort area of Marmaris in August 2006 and a suicide bombing in a shopping area of Ankara in May 2007. Taken together, this confirms the PKK continues to have the capability (including current access to the necessary resources) and intent to conduct further terrorist attacks.

Objectives

The PKK’s aims and objectives have evolved over time. Initially the group aimed to establish a Kurdish nation separate from Turkey, Syria, Iraq and Iran. The organisation now calls for autonomy for Kurds within Turkey and seeks to promote and advance the rights of Kurds living in Turkey, specifically the right to maintain ethnic identity. The PKK exhibits a willingness to use violence in order to achieve these objectives.

Leadership and membership

Abdullah Ocalan, currently serving life imprisonment in Turkey, is still considered the leader and figure-head of the PKK. In practice, the PKK is run by Murat Karayilan. Although the organisation has undergone numerous name changes, there is a continuity of key leaders, including Abdullah Ocalan, Cemil Bayik and Murat Karayilan.

PKK membership is estimated at approximately 5000, predominantly based in northern Iraq and south-eastern Turkey. The PKK maintains camps in northern Iraq where military and weapons training is provided. PKK funding is generated largely through criminal activity, including extortion and smuggling, and from the fundraising activities within Kurdish communities worldwide (collected by both voluntary donation and through intimidation). Some money is also raised through the sale of publications.

PKK engagement in terrorist activities

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

·        February 2006: A bomb exploded at a supermarket in Istanbul, injuring at least 11;

·        March 2006: A bomb exploded near the police station and supply office in Kadifekale district of Izmir, injuring one;

·        May 2006: A bomb exploded in Hakkari targeting a bus carrying children of military officers, injuring 15;

·        June 2006: A mobile-phone triggered grenade was detonated in Mersin, injuring 15;

·        August 2006: A bomb exploded in Sultanahmet Square, Istanbul, injuring three;

·        August 2006: Three percussion bombs exploded in Marmaris within 15 minutes of each other. One aboard a minibus injuring 16, including 10 British tourists. The other two bombs were in rubbish bins, injuring five;

·        August 2006: A bomb exploded in a shopping area of Antalya, killing three and injuring more than 20;

·        September 2006: A mobile-phone triggered bomb exploded at a bus stop in Diyarbakir, killing 11 and injuring 16;

·        May 2007: A suicide bombing in a shopping area of Ankara, killing 10;

·        June 2007: A bomb exploded near a bus station in Diyarbakir, injuring six;

·        June 2007: A suicide truck bomb attack on a police station in Tunceli, killing the two occupants of the truck; and

·        June 2007: A bomb exploded on the railway line near Islahiye, damaging a freight train.

Conclusion

The Criminal Code provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied that:

(i)                 the organisation is directly or indirectly 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

(ii)              the organisation advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

On the basis of the above information, ASIO assesses that the PKK is directly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to the PKK are terrorist acts, as they:

(i)                 are done with the intention of advancing a political cause, namely, promoting and advancing the rights of Kurds living in Turkey;

(ii)              are intended to coerce or influence by intimidation the government of a foreign country, namely Turkey, and/or intimidate sections of the public; and

(iii)            constitute acts which cause serious physical harm to persons, including death, as well as serious damage to property.

 

This assessment is corroborated by information provided by reliable and credible intelligence sources.