EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 222

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2010 (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 Al-Qa’ida in the Arabian Peninsula (AQAP), also known as Al-Qa’ida in Yemen (AQY) prior to January 2009, 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 Al-Qa’ida in the Arabian Peninsula (AQAP). 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 Al-Qa’ida in the Arabian Peninsula (AQAP) 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 provided a written brief to the Federal Leader of the Opposition.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations will commence on the first day on which they are no longer liable to be disallowed, or to have been taken to have been disallowed, under section 42 of the Legislative Instruments Act 2003. 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 2010 (No. 4)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2010 (No. 4).

 

Regulation 2 – Commencement

 

This regulation provides that the Regulations commence on the first day on which they are no longer liable to be disallowed, or to have been taken to have been disallowed, under section 42 of the Legislative Instruments Act 2003.

 

Regulation 3 – Amendment of Criminal Code Regulations 2002

 

This regulation provides that Schedule 1 amends the Criminal Code Regulations 2002.

 

Schedule 1 – Amendments

 

Item [1] –After Regulation 4X

 

This item inserts a new regulation 4Y 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 Al-Qa’ida in the Arabian Peninsula (AQAP) is specified.

 

Subregulation 4Y(1) provides that Al-Qa’ida in the Arabian Peninsula (AQAP) is specified as a terrorist organisation under subsection 102.1(1) of the Code.

 

Subregulation 4Y(2) provides that for the purposes of subregulation (1), Al‑Qa’ida in the Arabian Peninsula (AQAP) is also known as Al-Qa’ida in Yemen (AQY).

Attachment B

 

Al-Qa’ida in the Arabian Peninsula (AQAP)

 

(Also known as: Al-Qa’ida in Yemen (AQY) prior to January 2009)

 

The following information is based on publicly available details about Al-Qa’ida in the Arabian Peninsula (AQAP). To the Australian Government’s knowledge, these details are accurate and reliable and have been corroborated by classified information.

 

Basis for listing a terrorist organisation

 

Division 102 of the Criminal Code provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied on reasonable grounds that the organisation:

 

(a)    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

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

 

Details of the organisation

 

Objectives

 

Al-Qa’ida in the Arabian Peninsula (AQAP) is the recognised affiliate of al-Qa’ida operating in Saudi Arabia and Yemen. It is led by Nasir al-Wahishi, a Yemeni extremist who was once a close aide and bodyguard to Usama bin Laden (UBL). Al-Wahishi, whose appointment as AQAP leader was confirmed by Ayman Al-Zawahiri, the deputy al-Qa’ida leader, is featured on Saudi Arabia’s most wanted terrorist list.

 

Yemen has become the third-largest haven for al-Qa’ida in the world with the group there experiencing greater stability and freedom of movement than counterparts located in Iraq, North Africa, Afghanistan and Pakistan. AQAP claimed responsibility for the attempted attack on Northwest Flight 253 on 25 December 2009. In a statement issued by the AQAP following the attempted attack, the group’s leaders said: ‘we tell the American people that since you support the leaders who kill our women and children ... we have come to slaughter you [and] will strike you with no previous [warning], our vengeance is near.’ The statement continued: ‘we call on all Muslims ... to throw out all unbelievers from the Arabian Peninsula by killing crusaders who work in embassies or elsewhere ... [in] a total war on all crusaders in the Peninsula of [Prophet] Muhammad.’

 

AQAP was known previously as al-Qa’ida in Yemen (AQY). The group was founded after the escape of 23 extremist detainees from a high-security government correctional facility in Sana’a in February 2006.

 

In a statement in January 2009, al-Qa’ida in Yemen announced a change of name to al-Qa’ida in the Arabian Peninsula AQAP, the name of the previous al-Qa’ida network in Saudi Arabia which was dismantled by Saudi authorities in 2006. In the same statement, AQAP announced two Saudi former Guantanamo Bay detainees had joined the group as senior members. One of those has since surrendered to Saudi authorities.

 

The aim of AQAP is to remove all Western influences and interests from the Arabian Peninsula. On 15 May 2008, AQAP released an online statement threatening attacks in the Arabian Peninsula against non-Muslim foreigners. The group warned that they ‘stand absolved from [the rights] of any infidel who has entered the Arabian Peninsula.’

 

Leadership

 

AQAP’s leader, or emir, is Nasir al-Wahishi (aka Abu Basir) – a Yemeni national who was amongst the group of 23 veteran extremist leaders who escaped from a Yemeni government correctional facility in February 2006. This group went on to form the leadership elements of the current AQAP organisation. Al-Wahishi is reported to have served as an aide and a bodyguard to Usama bin Ladin in Afghanistan.

 

Public statements by Ayman al-Zawahiri in late 2008 and early 2009 praised AQAP’s activities and referred to Nasir al-Wahishi as the emir of the group.

 

AQAP’s deputy leader is Sa’id al-Shihri (aka Abu Sayyaf, aka Abu Sufyan) – a Saudi national and former Guantanamo detainee. Al-Shihri was returned to Saudi Arabia in 2007 and underwent a rehabilitation program but fled to Yemen upon his release. AQAP’s operational commander is Qasim al-Rimi (aka Abu-Hurayrah al-San’ani).

 

Membership

 

AQAP comprises several hundred fighters and has found sanctuary among a number of Yemeni tribes, particularly in the eastern provinces.

 

 

Terrorist activity of the organisation

 

AQAP has been involved in a number of terrorist attacks, continues to plan and conduct attacks in Yemen and has claimed responsibility for terrorist attacks outside Yemen. The group employs suicide attacks, person and vehicle-borne improvised explosive devices, small arms and rocket-propelled grenades, targeting Yemeni and foreign government, as well as foreign officials and tourists.

 

Directly or indirectly engaged in the doing of terrorist acts

 

AQY, as it was then known, first emerged when it claimed responsibility for the 15 September 2006 suicide vehicle bomb attacks against oil facilities in the provinces of Marib and Hadramawt.

 

Directly or indirectly preparing, planning or assisting in the doing of terrorist acts

 

Recent terrorist attacks for which responsibility has been claimed by, or reliably attributed to, AQAP have included:

·        2 July 2007 – AQY again used a suicide vehicle bomb in Marib Province. This attack was at the Queen of Sheba temple and killed eight people, mostly Spanish tourists.

·        6 April 2008 – AQY was responsible for a mortar attack against the Haddah apartment complex in Sana’a which housed a number of US embassy employees.

·        18 January 2008 – AQY members were involved in the attack on a tourist convoy in Hadramawt, which killed two Belgian tourists and two Yemeni drivers.

·        17 September 2008 – AQAP attacked the US Embassy in Sana’a, killing at least 18, including one American. Reporting indicates vehicles, explosives, small arms, and suicide bombers were used in the attack and the suicide bombers were disguised in local Yemeni security force uniforms.

·        15 March 2009 – four South Korean tourists were killed and four wounded by an explosion in the historic city of Shibam in southeast Yemen. On 26 March 2009 AQAP issued a statement claiming responsibility for the 15 March suicide bombing in Shibam.

·        18 March 2009 – a suicide bomber targeted a delegation of South Korean officials en route to the airport in Sana’a to investigate the Shibam terrorist attack. The bomber walked between the two vehicles and detonated his vest but caused no injury to the officials. AQAP claimed responsibility for the attack.

·        27 August 2009 – a suicide bomber attempted to assassinate Saudi Deputy Interior Minister Prince Muhammad bin Nayif in Jeddah, Saudi Arabia. AQAP claimed responsibility for the attack.

·        25 December 2009 – Nigerian Umar Farouk Abdulmutallab attempted to detonate an IED aboard Northwest flight 253 en route from Amsterdam to Detroit. On 28 December AQAP released a statement on a jihadist Internet forum claiming responsibility for the attack.

 

Directly or indirectly fostering the doing of terrorist acts or advocating the doing of terrorist acts

 

AQAP actively fosters and advocates the doing of terrorist acts. In January 2008 the group launched its online magazine Sada al-Malahim (‘Echoes of the Epics’). The 11th issue of Sada al-Malahim, published on 29 October 2009, contained an editorial urging Muslims in the Arabian Peninsula to assassinate the Saudi Arabian ruling family.

 

The 11th issue was 73-pages in length and focused primarily on the assassination attempt on Saudi Deputy Interior Minister Muhammad bin Nayef. Several of the 31 articles in the magazine provided information about the bomber, Abdullah Hassan Taleh al-’Asiri (AKA Abu al-Kheir), and gave justification for the attack. Some articles were reprints of speeches and texts from Usama bin Laden, Abdullah Azzam and Yusuf al-’Ayiri, and the AQAP communiqué on the Marib clash with Yemeni forces that occurred on July 30. Three articles were featured from AQAP leader Nasir al-Wahishi, including a piece that praises Khalid Sheikh Muhammad, a piece describing the deception of Nayef by al- ‘Asiri, and a brief eulogy for slain Shabaab al-Mujahideen Movement commander, Saleh al Nabhani.

 

On 19 February 2009, AQAP leader Nasir al-Wahishi issued an audio statement urging the people of Yemen to rise up against their government. Al-Wahishi portrayed Yemen as being exploited by the Western powers, which he described as “crusaders”.

 

Conclusion

 

On the basis of the above information, ASIO assesses that Al-Qa’ida in the Arabian Peninsula is directly and indirectly engaged in, preparing, planning, assisting in, fostering and advocating the doing of terrorist acts. It is submitted that the acts attributable to Al-Qa’ida in the Arabian Peninsula are terrorist acts as they:

 

(i)                  are done with the intention of advancing a political cause, namely, removing western influences and interests from the Arabian Peninsula;

(ii)                are intended to coerce or influence by intimidation, the governments of foreign countries, namely Yemen and Saudi Arabia; and

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

Other relevant information

Proscription by the UN and other countries

 

In January 2010, the United States designated AQAP as a Foreign Terrorist Organisation under Section 219 of the Immigration and Nationality Act.