EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 52

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2007 (No. 8).

 

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’ is defined in subsection 102.1(1) of the Code 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 Jaish-e-Mohammad (JeM) also known as Army of Mohammed, Army of the Prophet, Jaish-e-Mohammad Mujahideen E-Tanzeem, Jaish-e-Mohammed, Jaish‑e-Muhammad, Jaish-e-Muhammed, Jaish-i-Mohammad, Jaish‑i‑Mohammed, Jaish-i-Muhammad, Jaish-i-Muhammed, Jamaat ul-Furqan (JuF), Jesh-e-Mohammadi, Khudamul Islam, Khuddam ul-Islam (KuI), Kuddam e Islami, Mohammed’s Army, National Movement for the Restoration of Pakistani Sovereignty and Army of the Prophet, Tehrik al-Furgan and Tehrik Ul‑Furqaan; for the purpose of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Code.

 

Jaish-e-Mohammad (JeM) was first listed as a terrorist organisations by Criminal Code Amendment Regulations 2003 (No. 7) which took effect from 11 April 2003. It was re-listed as a terrorist organisation by Criminal Code Amendment Regulations 2005 (No. 3) which took effect from 11 April 2005.

The Regulations enable the offence provisions in Division 102 of the Code to apply to persons with links to Jaish-e-Mohammad. Details of the proposed Regulations are set out in Attachment A.

 

Paragraph 102.1(2)(a) 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 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 JeM 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 making of the Regulations, consultations were held with the Department of Foreign Affairs and Trade, the Australian Security Intelligence Organisation 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. 8)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2007 (No. 8).

 

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 4K

 

This item provides that the existing regulation 4K, ‘Terrorist organisations – Jaish-e-Mohammad (JeM)’, is to be substituted with the new regulation 4K.

 

Subregulation 4K(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 Jaish-e-Mohammad is specified.

 

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

 

Subregulation 4K(2) provides that for the purposes of subregulation (1),
Jaish-e-Mohammad is also known by the following names:

 

(a)        Army of Mohammed;

(b)       Army of the Prophet;

(c)        Jaish-e-Mohammad Mujahideen E-Tanzeem;

(d)       Jaish-e-Mohammed;

(e)        Jaish-e-Muhammad;

(f)         Jaish-e-Muhammed;

(g)        Jaish-i-Mohammad;

(h)        Jaish-i-Mohammed;

(i)          Jaish-i-Muhammad;

(j)         Jaish-i-Muhammed;

(k)       Jamaat ul-Furqan (JuF);

(l)          Jesh-e-Mohammadi;

(m)      Khudamul Islam;

(n)        Khuddam ul-Islam (KuI);

(o)       Kuddam e Islami;

(p)       Mohammed’s Army;

(q)       National Movement for the Restoration of Pakistani Sovereignty and Army of the Prophet;

(r)         Tehrik al-Furgan; and

(s)        Tehrik Ul-Furqaan.

Attachment B

 

Jaish-e-Mohammad (JeM)

 

(Also known as Army of Mohammed, Army of the Prophet, Jaish-e-Mohammad Mujahideen E-Tanzeem, Jaish-e-Mohammed, Jaish-e-Muhammad, Jaish-e-Muhammed, Jaish-i-Mohammad, Jaish-i-Mohammed, Jaish-i-Muhammad, Jaish-i-Muhammed, Jamaat ul-Furqan (JuF), Jesh-e-Mohammadi, Khudamul Islam, Khuddam ul-Islam (KuI), Kuddam e Islami, Mohammed’s Army, National Movement for the Restoration of Pakistani Sovereignty and Army of the Prophet, Tehrik al-Furgan and Tehrik Ul-Furqaan).

 

The following information is based on publicly available details about Jaish-e-Mohammad (JeM). These details have been corroborated by material from intelligence investigations into the activities of JeM and from official reporting. ASIO assesses that the details set out below are accurate and reliable.

JeM is listed in the United Nations 1267 Committee’s consolidated list and by the governments of Canada, the United Kingdom, the United States, Pakistan and India.

Current status of JeM

JeM is a Sunni Islamic extremist organisation based in Pakistan that operates primarily in Indian Administered Kashmir (IAK). Established in 2000, JeM was founded by the radical Islamic scholar and jihadist leader, Maulana Masood Azhar, following his release from an Indian jail in exchange for 155 hostages hijacked aboard an Indian Airlines aircraft on New Years Eve 1999. With support from Usama bin Laden, the Taliban, and several other Sunni extremist organisations in Pakistan, Azhar did not return to his former group, the proscribed Islamic militant group Harakat ul-Mujahideen (HuM), but formed JeM as a new group with almost identical aims to HuM.

JeM 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 JeM is derived from both legitimate business interests, including commodity trading and property, and through Islamic charitable foundations including the al-Rashid Trust (whose accounts were ordered to be frozen by the UN Security Council for suspected links to al-Qai’da). JeM has conducted joint operations with Lashkar e-Tayyiba (LeT), and cooperates closely with other Islamic militant groups operating in Afghanistan, Kashmir and Pakistan such as HuM, the Hizb-ul-Mujahideen (HM), and the Lashkar e-Jhangvi (LeJ). JeM is also closely associated with al-Qa’ida (AQ), and reports suggest Azhar may have assisted AQ fight US forces in Somalia and helped to establish AQ training camps in Yemen.

JeM was banned by the Pakistan government in January 2002. Following the ban, JeM appears to have split into two factions, Khuddam ul-Islam (KuI) headed by Azhar and Jamaat ul-Furqan (JuF) headed by Maulana Abdul Jabbar (alias Umar Farooq). Both KuI and JuF were also subsequently banned by Pakistan in November 2003. Despite these factions, the group is commonly regarded as a single entity and referred to as JeM.

JeM has concentrated its efforts on the disputed territories of IAK, where it has conducted numerous attacks against Indian security forces (military and police), government installations and civilians. While Indian and Pakistani initiatives to resolve the Kashmir situation have led to an overall reduction in the level of infiltration and insurgent activity since 2002, JeM continues to be one of the most active terrorist groups in IAK. For example, JeM claimed responsibility for the
2 November 2005 suicide car bomb attack in Srinagar that killed seven civilians, including a 10 year-old boy and three police officers. JeM operatives were among those responsible for a string of attacks in Srinagar on 14 April 2006, including a grenade attack on a crowd of civilians which killed three and injured eleven others. JeM members were responsible for a grenade attack on a police vehicle escorting a Human Rights Commission vehicle on 30 May 2006, and for a series of firearm attacks on police targets on 17 August 2006.

While IAK remains JeM’s primary focus, elements within JeM have broadened the group’s focus to include the targeting of members of the Pakistani state and the Western presence in Pakistan. As members of a previously unknown group “Jundallah,” JeM 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. In August 2006, the Pakistan government ordered a crackdown on the JeM faction JuF following intelligence its members were planning to target Western interests in Pakistan. Members of JeM are also reported to have been involved in two assassination attempts against Pakistan’s President Pervez Musharraf in December 2003.

JeM operates a number of camps in Pakistan which provide both religious instruction and military style guerrilla training and support. Since being proscribed by the Pakistan government in 2002, some JeM training facilities are now smaller in scale and focused on preparing jihadists for either low intensity, hit and run type operations or suicide attacks. Training and support is provided, not only to JeM members from Kashmir and Pakistan, but also to individual jihadists from other parts of the world. Suicide bomber Mohammad Bilal, a British national, travelled to Pakistan to volunteer for the JeM-directed suicide attack in IAK on 25 December 2000 which killed six Indian soldiers and three Kashmiri students. Reporting also indicates JeM may be helping to facilitate the activities of international jihadists intending to conduct terrorist operations outside Kashmir or India, including the United Kingdom. The British national, Rashid Rauf, arrested in Pakistan as one of the main coordinating figures allegedly responsible for the disrupted British trans-Atlantic plane bombing plot in August 2006, is strongly suspected of having links with JeM. Investigators have also uncovered possible connections between JeM and the British-born suicide bombers responsible for the 7 July 2005 London subway attacks.

Objectives

JeM is a group that uses violence in pursuit of its stated objective of uniting IAK with Pakistan under a radical interpretation of Islamic law, as well as the “destruction” of America and India.

Leadership and membership

JeM’s founder, Maulana Masood Azhar, remains the group’s Amir. Reporting indicates that JeM has a strength of several hundred armed volunteers, but exact membership numbers cannot be accurately determined. The majority of JeM’s membership consists of jihadists from Pakistan and Kashmir, but also includes some Arabs and Afghans. JeM has also attracted several recruits from South Asian communities in the United Kingdom.

JeM engagement in terrorist activities

JeM 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 JeM over the past three years, include:

·         December 2003: Attempted assassination of Pakistani President Musharraf by car bomb

·         25 October 2004: Joint responsibility with HuM for a firearm attack on the motorcade of the Divisional Commissioner for the Muslim-Majority Kashmir Valley that injured one security guard

·         2 November 2005: Suicide car bomb attack outside the home of outgoing Chief Minister Mufti Mohammad Sayeed on the outskirts of Srinagar that killed seven civilians, including a 10 year-old boy, and three police officers

·         14 April 2006: Series of grenade attacks on police targets in Srinagar that killed five civilians and injured 41

·         22 May 2006: Three separate grenade attacks on police targets in Srinagar injuring a total of 34 people

·         30 May 2006: Grenade attack on police vehicle escorting a Human Rights Commission vehicle through the Iqbal Park area of Srinagar killing one policeman and injuring six other people

·         19 July 2006: Three separate firearm attacks on police targets in Srinagar killing two police and injuring one other

·         17 August 2006: Three separate firearm attacks on police officials resulting in four dead and three injuries; and

·         November 2006: Indian police arrested two reported JeM members in Delhi and recovered 2 kgs of explosives and a sum of money.

 

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 JeM is directly preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to JeM are terrorist acts as they:

(i)             are done with the intention of advancing a political cause, namely, (creating a radical Islamic state in Pakistan and an Indian-controlled Kashmir with Pakistan)

(ii)           are intended to coerce or influence by intimidation the governments of foreign countries, including Pakistan, 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.