EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 39

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2007 (No. 2).

 

 

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 Ansar al-Sunna also known as Ansar al-Islam, Ansar al-Sunna Army, Army of Ansar al-Sunna, Devotees of Islam, Jaish Ansar al-Sunna, Jund al-Islam, Partisans of Islam, Protectors of Islam, Protectors of the Sunna Faith, Soldiers of Islam and Supporters of Islam, for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

Ansar al-Sunna was first listed as a terrorist organisation under the name Ansar al-Islam by the Criminal Code Amendment Regulations 2003 (No 2), which took effect from 27 March 2003. The organisation was re-listed under the name Ansar al-Islam by the Criminal Code Amendment Regulations 2005 (No. 2), which took effect from 27 March 2005.

 

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to Ansar al-Sunna. Details of the proposed 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 Ansar al-Sunna 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.

 

 

 

 

 

 

 

Attachment A

 

Details of the Criminal Code Amendment Regulations 2007 (No. 2)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2007 (No. 2).

 

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 4H

 

This item provides that the existing regulation 4H is to be substituted with the new regulation 4H - ‘Terrorist organisations – Ansar al-Sunna’.

 

Subregulation 4H(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 Ansar al-Sunna is specified.

 

The effect of this subregulation is that Ansar al-Sunna is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4H(2) provides that for the purposes of subregulation (1), Ansar
al-Sunna is also known by the following names:

 

(a)    Ansar al-Islam;

(b)   Ansar al-Sunna Army;

(c)    Army of Ansar al-Sunna;

(d)   Devotees of Islam;

(e)    Jaish Ansar al-Sunna;

(f)     Jund al-Islam;

(g)    Partisans of Islam;

(h)    Protectors of Islam;

(i)      Protectors of the Sunna Faith.

(j)     Soldiers of Islam;

(k)   Supporters of Islam.

 

 

ATTACHMENT B

 

Ansar al-Sunna

 

 

(Also known as Ansar al-Islam, Partisans of Islam, Protectors of Islam, Supporters of Islam, Devotees of Islam, Jaish Ansar al-Sunna, Ansar al-Sunna Army, Army of Ansar al-Sunna, Jund al-Islam, Soldiers of Islam, Protectors of the Sunna Faith)

 

The following information is based on publicly available details about Ansar al-Sunna

(including the alias Ansar al-Islam). These details have been corroborated by material

from intelligence investigations into the activities of Ansar al-Sunna. ASIO assesses that the details set out below are accurate and reliable.

 

Ansar al-Sunna is listed as Ansar al-Islam in the United Nations 1267 Committee’s

consolidated list and by the governments of Canada, the United Kingdom and the United States. Ansar al-Sunna is listed separately by the UK government.

 

 

Current status of Ansar al-Sunna

 

Ansar al-Sunna was initially formed as Ansar al-Islam, a merger of several smaller

Kurdish-based Sunni extremist groups within the Kurdish Autonomous Zone (KAZ) of northern Iraq in late 2001. At this stage, Ansar al-Islam focused on the defeat of the

secular Kurdish leadership to establish an independent Islamic state in the KAZ.

 

In March 2003, successful joint Patriotic Union of Kurdistan (PUK) and United States

military operations against Ansar al-Islam strongholds forced many in the group to

disperse to other locations, including Iran. Ansar al-Islam members regrouped shortly

after and returned to Iraq, where they sought, in cooperation with other foreign and Iraqi militants, to create an umbrella organisation for Sunni jihadi resistance to the Coalition presence in Iraq.

 

As a result, Ansar al-Islam evolved into Ansar al-Sunna with the formation of the group announced in an internet statement on 20 September 2003 calling all jihadists in Iraq to unite under the name Ansar al-Sunna. Following the release of the statement, attacks conducted by Ansar al-Islam operatives have been claimed under the name Ansar al-Sunna. However, many operatives abroad, particularly in the Kurdish immigrant communities in Europe, retain their Ansar al-Islam identity but continue to provide support to Ansar al-Sunna.

 

Ansar al-Sunna has strong links with al-Qa’ida and historical links to Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn (TQJBR), a proscribed terrorist organisation also known as al-Qa’ida in Iraq. Former TQJBR leader Abu Musab al-Zarqawi operated one of the Ansar al-Islam training camps prior to the operations against the group in 2003.

 

Funding is supplied through radicalised Kurdish communities abroad, al-Qa’ida, criminal hostage taking and a degree of self-sufficiency in extracting funding from local sources in northern Iraq.

 

 

Objectives

 

Ansar al-Sunna supports the global militant Sunni jihadist ideology that is espoused by al-Qa’ida, including the re-establishment of the historical Islamic caliphate.

 

Ansar al-Sunna’s objectives within Iraq are to overthrow the Iraqi Government, expel

Coalition forces from the country and establish a Sunni Islamic state administered under Sharia law.

 

 

Leadership and membership

 

Ansar al-Sunna is organised into small, highly mobile cells. The reported leader of Ansar al-Sunna is Abu Abdullah al Hasan bin Mahmud. Members are recruited from Sunni-based foreign and local sources. Ansar al-Sunna is believed to be divided into six divisions including a military and information division. The precise size of the group is unknown but estimates indicate numbers to be between 500-1000 members.

 

 

Ansar al-Sunna’s engagement in terrorist activities

 

Ansar al-Sunna undertakes terrorist attacks each week in Iraq. Ansar al-Sunna’s

operational focus includes targeting Coalition Forces; Western interests; Iraqi security

forces; Iraqi government structures; Iraqis seen as cooperating with Coalition forces;

secular Kurdish officials; and increasingly sectarian Shia targets.

 

Ansar al-Sunna’s terrorist activities include suicide attacks, car bombs, emplaced

improvised explosive devices (IEDs), kidnappings, executions, assassinations and

conventional military attacks. It has also been involved in plans to conduct assassinations in Germany against Iraqi government interests.

 

Recent significant terrorist attacks for which responsibility has been claimed by, or

reliably attributed to, Ansar al-Sunna include:

• 4 May 2005: Suicide bombing at KDP office in Erbil, killing 60 and wounding 150;

• 8 May 2005: Ambush of security contractors, killing 16. Japanese national Akihiko

Saito was kidnapped and later died;

• 11 May 2005: Suicide bombing in Tikrit killing 33 labourers;

• 14 June 2005: Suicide attack in Kirkuk, killing 22 and wounding over 85;

• 16 June 2005: Senior Iraqi judge, Salem Mahmoud al-Haj Ali, assassinated in Mosul;

• 22 August 2005: Three military attacks against Iraqi security forces in Mosul and

Kirkuk killing an unknown number of security personnel;

• 23 July 2006: Assassinating a Shia political figure in Diyali, sniping two US soldiers

in Heet and detonating an IED in al-Miqdadiya damaging a US armoured vehicle;

• 29 September 2006: Suicide bombing assassination of Director of Police in Kirkuk

which also killed a number of other Iraqi officials; and

• 5 December 2006: Rocket launchers and automatic gunfire killed several US service

personnel on foot patrol in the al-Haqlaniyah market west of Baghdad.

 

 

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 Ansar al-Sunna is directly

engaged in preparing, planning, assisting in or fostering the doing of terrorist acts. It is considered that the acts attributable to Ansar al-Sunna are terrorist acts as they:

 

(i) are done with the intention of advancing a political cause, namely,

creating an Islamic caliphate in Iraq;

 

(ii) are intended to coerce or influence by intimidation the governments of

foreign countries, including Iraq and Coalition countries, and/or intimidate a 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.