Commonwealth Numbered Regulations - Explanatory Statements
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CRIMINAL CODE AMENDMENT REGULATION 2012 (NO. 4) (SLI NO 25 OF 2012)
EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 25
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code Amendment Regulation 2012 (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 Lashkar-e Jhangvi (LeJ) and its aliases, Jhangvi Army, Lashkar e Jhangvi, Lashkar Jangvi, Lashkar Jhangvi, Lashkar-e-Jhangvie, Lashkar-e-Jhangwi, Lashkar-e-Jhanvi, Lashkar-i-Jangvi, Lashkar-i-Jhangvi, Lashkar-i-Jhangwi, Lashkare Jhangvi, Laskar e Jahangvi and Laskar-e-Jhangvi, for the purpose of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code.
The Regulations enable the offence provisions in Division 102 of the Code to continue to apply to persons with links to Lashkar-e Jhangvi (LeJ). 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 she 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 Lashkar-e Jhangvi (LeJ) 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 briefing to the Leader of the Opposition.
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 third anniversary of the day on which they take effect.
Statement of Compatibility with Human Rights
Objective
The object of the Criminal Code Amendment Regulation 2012 (No. 4) is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia. This is consistent with the inherent right to life expressed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR).
The objects of the Criminal Code Amendment Regulation 2012 (No. 4) are also consistent with Article 19 and Article 22 of the ICCPR. Lashkar-e Jhangvi targets members of the Shia community and has expanded its focus to target Western interests in Pakistan.
Whilst Article 19 protects the right to freedom of expression, this right may be subject to restrictions which include protecting national security. The right to freedom of association in Article 22 of the ICCPR protects the right to form and join associations to pursue common goals, such as political parties. Article 22(2) provides that freedom of association may be subject to restrictions imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.
The Criminal Code Amendment Regulation 2012 (No. 4) would make it an offence under Division 102 of the Criminal Code, to direct the activities, become a member of, recruit, train or receiving training, get funds to, from or for Lashkar-e Jhangvi, and provide support or associate with Lashkar-e Jhangvi.
The offence in subsection102.8 of the Criminal Code of associating with a terrorist organisation is limited in its application only to an organisation that is a listed organisation under Criminal Code Amendment Regulations. The offence does not apply if the association is with a close family member, or takes place in the course of practising a religion in a place used for public religious worship, or the association is for the purpose of providing humanitarian aid or for the purpose of providing legal advice or representation.
Whilst the Criminal Code Amendment Regulation 2012 (No. 4) may limit the right to freedom of association with Lashkar-e Jhangvi, the association offence is subject to the safeguards outlined above. The general limits of the right to freedom of association with Lashkar-e Jhangvi are reasonable, necessary and proportionate, and are in the interests of public safety and national security, after taking into consideration the direct and indirect terrorist activities and the advocacy of terrorism, by Lashkar-e Jhangvi, which threaten human life, as detailed in the Statement of Reasons (at Attachment B).
The Criminal Code offences in Division 102 applying to terrorist organisations do not target any specific religious or ethnic group and are designed to promote security and protect all members of the community from the threat of terrorism, regardless of national or ethnic origins or religious beliefs.
The information in the Statement of Reasons (Attachment B) supports the Attorney-General's decision made on reasonable grounds, that Lashkar-e Jhangvi satisfies the criteria for listing as a terrorist organisation under subsection 102.1(2) of the Criminal Code.
There are safeguards and accountability mechanisms in the Criminal Code Act 1995 providing for consultation and enabling review of Criminal Code Amendment Regulation 2012 (No. 4) specifying an organisation as a terrorist organisation. These measures include the following:
* the Commonwealth must consult with the States and Territories in accordance with the Inter-Governmental Agreement on Counter-Terrorism Laws. The Criminal Code Amendment Regulation 2012 (No. 4) may only be made if a majority of the States and Territories do not object to the regulations within a reasonable time
* under subsection 102.1(2A) the Minister must arrange for the Leader of the Opposition to be briefed in relation to the proposed regulation
* under subsection 102.1(3) the Criminal Code Amendment Regulation 2012 (No. 4) will cease to have effect on the third anniversary of the day on which they take effect
* subsection 102.1(4) provides that if the Minister ceases to be satisfied of the criteria necessary for listing an organisation under subsection 102.1(2) of the Criminal Code, the Minister must make a declaration to that effect. The effect of the Minister's declaration is that the organisation is de-listed as a terrorist organisation under Division 102 of the Criminal Code
* subsection 102.1(17) provides that an individual or an organisation may make a de-listing application to the Minister
* the Criminal Code Amendment Regulation 2012 (No. 4) may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Criminal Code Act 1995, and
* both Houses of Parliament may disallow the Criminal Code Amendment Regulations within the applicable disallowance period which is 15 sitting days after the regulation was laid before that House, as provided in subsection 102.1A(4).
Conclusion
The Regulations are compatible with human rights because they advance the protection of human rights and to the extent that they may also limit human rights, those limitations are reasonable and proportionate.
Attachment A
Details of the Criminal Code Amendment Regulation 2012 (No. 4)
Regulation 1- Name of Regulations
This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulation 2012 (No. 4).
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 provides that Schedule 1 amends the Criminal Code Regulations 2002.
Schedule 1 - Amendments
Item [1] - Regulation 4L
This item substitutes the existing regulation with a new regulation 4L 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 Lashkar-e Jhangvi (LeJ) is specified.
Subregulation 4L(1) provides that Lashkar-e Jhangvi (LeJ) is specified as a terrorist organisation under subsection 102.1(1) of the Code.
Subregulation 4L(2) provides that for the purposes of subregulation (1), Lashkar-e Jhangvi (LeJ)is also known by the following names:
(a) Jhangvi Army;
(b) Lashkar e Jhangvi;
(c) Lashkar Jangvi;
(d) Lashkar Jhangvi;
(e) Lashkar-e-Jhangvie;
(f) Lashkar-e-Jhangwi;
(g) Lashkar-e-Jhanvi;
(h) Lashkar-i-Jangvi;
(i) Lashkar-i-Jhangvi;
(j) Lashkar-i-Jhangwi;
(k) Lashkare Jhangvi;
(l) Laskar e Jahangvi;
(m) Laskar-e-Jhangvi.
Attachment B
LASHKAR-E JHANGVI (LeJ)
(Also known as: Jhangvi Army, Lashkar-e-Jhangvie, Lashkar-e-Jhangwi, Lashkar-e-Jhanvi, Lashkar-i-Jangvi, Lashkar-i-Jhangvi, Lashkar-i-Jhangwi, Lashkar e Jhangvi, Lashkar Jangvi, Lashkar Jhangvi, Lashkare Jhangvi, Laskar e Jahangvi, Laskar-e-Jhangvi).
The following information is based on publicly available details about Lashkar-e Jhangvi. 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
Lashkar-e Jhangvi (LeJ) is a Sunni Deobandi Islamist terrorist group based primarily in Pakistan's Punjab region. LeJ's goals are to establish an Islamist Sunni state in Pakistan based on Sharia law, by violent means if necessary; to have all Shias declared non-believers; and to eliminate followers of other faiths, especially Jews, Christians, and Hindus. Reflecting its hostility to Shias, LeJ also has targeted Iranian interests and Iranian nationals in Pakistan.
The group was formed in 1996 by Akram Lahori, Malik Ishaque, and Riaz Basra of the radical sectarian organisation Sipah-e-Sahaba Pakistan (SSP), who accused the SSP's leadership of deviating from the ideals of its co-founder, Maulana Haq Nawaz Jhangvi.
Pakistan has been plagued by sectarian violence for much of the past four decades and LeJ has established a reputation as the most violent Sunni extremist organisation in Pakistan, killing hundreds of Shias since its formation. LeJ has targeted Shia politicians, professionals, scholars and lobbyists. LeJ attacks have also targeted Christians, including attacks on Christian churches and schools.
Although sectarian attacks remain LeJ's primary focus, it has broadened this focus to target Western interests in Pakistan. In 2002, LeJ operatives participated in the abduction and murder of US journalist Daniel Pearl. LeJ's main areas of operation are the Punjab, Sindh and Baluchistan Provinces. LeJ also has been active in Khyber Pakhtunkhwa (KP), claiming responsibility for a double suicide bombing in the province's Kohat District in April 2010.
Leadership and membership
Reporting indicates two co-founders of LeJ, Akram Lahori and Malik Ishaque, exercised a leadership role and continues despite being imprisoned by Pakistani authorities. Operational command, however, has fallen to other members. The most recent figure known to exercise operational control was Qari Zafar, who reportedly was killed in a US drone strike in February 2010. Qari Zafar had been linked to al-Qa'ida as well as to attacks against former Pakistan President Pervez Musharraf, a Special Investigations Unit office in Lahore, the Marriott Hotel in Islamabad and the US Consulate in Karachi.
Akram Lahori remains in prison, but Malik Ishaque, who was originally tried for the deaths of 12 members of a Shia family and had over 40 cases of murder pending against him, was released from prison on 14 July 2011 after serving 15 years. His current role is unclear.
LeJ is estimated to have around 300 active members and is a collection of loosely coordinated sub-units with semi-autonomous chiefs for each sub-unit. LeJ members traditionally have operated in small cells - usually ranging from five to eight personnel - that disperse after completing their missions in an attempt to avoid detection from Pakistani authorities.
Extremists often belong to multiple networks within Pakistan, with varying degrees of intermingling, especially at the lower levels. Therefore, there is probably overlap in personnel between LeJ and other extremist networks including Jaish-e-Mohammed (JeM) and Jamiat-ul-Ansar (JuA)/Harakat-ul-Mujahideen (HuM).
LeJ activities have come under increased scrutiny by Pakistani authorities, resulting in the arrest of key leaders and hundreds of activists. However, the group remains a significant threat to Shia, Western, Pakistani Christian and Pakistani government targets.
Funding
A large percentage of LeJ's funding is likely to come from wealthy supporters in Karachi. Additional funding is derived from sources in Saudi Arabia, as well as from criminal activities, such as protection rackets and extortion from both Shia and Sunni banks and businesses. In June 2010, one LeJ militant was shot dead and three were arrested during a bid to escape after robbing a private bank in Karachi.
Terrorist activity of the organisation
Directly or indirectly engaged in the doing of terrorist acts
LeJ operatives continue to be involved in sectarian attacks across Pakistan, including in the Punjab region, targeting members of the Shia community and other groups considered to be heretics. LeJ has also expanded its focus to target Western interests in Pakistan and has claimed responsibility for several assassinations in Baluchistan.
Although LeJ generally uses suicide bombings to kill large numbers of Shias, it has also used various weapons such as assault rifles, rockets, landmines and other small arms. Attacks claimed by, or attributed to, LeJ include:
* July 2011: LeJ claimed responsibility for shooting passengers waiting at a bus terminal in Quetta, killing eleven people and wounding three others. All of the victims were Hazaras. The attack was claimed as revenge for the death of a Sunni cleric;
* July 2011: LeJ claimed responsibility for an attack on police in Quetta in which two police officers and a civilian were killed. Both police officers were Hazaras;
* June 2011: Suspected LeJ militants shot dead the deputy director general of the Pakistani Sports Board in Quetta. The victim was a Hazara;
* May 2011: Suspected LeJ militants shot dead seven Hazara civilians and wounded six others in Quetta;
* May 2011: Suspected LeJ militants killed eight Hazaras and wounded 15 others in a small arms and grenade attack in Quetta;
* August 2010: Four LeJ operatives were arrested for involvement in May 2010 attacks on Ahmedi mosques;
* June 2010: LeJ operatives were linked in media reports to suicide attacks on Ahmedi places of worship in Lahore;
* April 2010: LeJ operatives conducted a double suicide attack targeting refugees in Kohat District, KP, killing an estimated 44 people and injuring at least 64 others;
* March 2010: LeJ faction Lashkar-e-Jhangvi Al-Alami was linked to the kidnapping of British journalist Asad Qureshi and former Inter-Services Intelligence (ISI) Colonel Armir Sultan. The kidnappers reportedly killed a third hostage, former Pakistan Air Force officer and former ISI member Khalid Khwaja;
* March 2010: at least 57 people were killed and at least 90 others were injured when twin suicide bombs detonated in Lahore's RA Bazaar. LeJ claimed responsibility;
* January 2010: LeJ claimed responsibility for ambushing Hazara policemen in Quetta;
* November 2009: LeJ claimed responsibility for a bomb blast targeting the Deputy Inspector General of Police Operations and warned that additional attacks against police would be conducted;
* March 2009: LeJ was suspected of involvement in the attack on the Sri Lankan cricket team in Lahore, but charges against LeJ co-founder Malik Ishaque were dropped because the prosecution could not prove its case;
* September 2008: three LeJ-trained operatives were killed in a police raid. The police also found bomb-making material and the body of a Pakistani businessman who had been kidnapped and killed by the operatives.
* September 2008: former LeJ leader Qari Zafar is suspected of involvement in the suicide bombing of the Marriott Hotel in Islamabad;
* July 2008: senior LeJ member Shafiqur Rehman was arrested in Quetta. He confessed to seven assassinations in Quetta and is suspected of involvement in over 100 cases of sectarian terrorism;
* February 2008: LeJ member Fida Hussain, who is believed to have been involved in the suicide bombing of a Pakistan Air Force bus in October 2007, was arrested in Lahore; and
* January 2008: LeJ was suspected of involvement in a bombing near a mosque in Peshawar in which 14 people were killed.
Directly or indirectly preparing and/or planning the doing of terrorist acts
LeJ operatives continue to train and plan terrorist attacks against a variety of targets in Pakistan. LeJ has operated training camps in the past, but the current status of these camps is unclear.
Directly or indirectly assisting in the doing of terrorist acts
LeJ militants have been involved with Tehrik-e-Taliban Pakistan (TTP) operations targeting Pakistani authorities. In addition, LeJ maintains linkages with other Pakistani terrorist groups including Lashkar-e-Tayyiba (LeT), JuA/HuM, Harakat-ul-Jihad Islami (HuJI) and JeM. LeJ also has a long-standing, close relationship with the Afghan Taliban.
Directly or indirectly fostering the doing of terrorist acts
LeJ utilizes varying types of online and print media to propagate its message and foster terrorist acts. LeJ spokesmen also claim responsibility for attacks and kidnappings through fax messages to Pakistani media outlets.
Conclusion
In view of the above information, ASIO assesses LeJ is directly engaged in preparing, planning, assisting in or fostering the doing of terrorist acts. It is submitted that the acts attributable to LeJ are terrorist acts as they:
* are done with the intention of advancing a political cause, namely, creating a radical Islamist state in Pakistan and uniting Indian-controlled Kashmir with Pakistan;
* are intended to coerce, or influence by intimidation, the governments of foreign countries, including Afghanistan, Pakistan and India, as well as member countries of the Coalition forces in Afghanistan, and/or intimidate sections of the public; and
* constitute acts which cause serious physical harm to persons, including death, as well as serious damage to property.
Other relevant information
Links to other terrorist groups or networks
As part of the Sunni militant community, LeJ has linkages with other Pakistani terrorist groups including LeT, JuA/HuM, HuJI and JeM.
LeJ also has strong linkages to TTP, which includes LeJ operatives participating in TTP attacks. In addition, LeJ has a close relationship with the Afghan Taliban, having fought with them against the Northern Alliance and participated in killings of Shias during the rule of the Taliban in Afghanistan.
Proscription by the UN and other countries
The LeJ is listed in the UN 1267 Committee's consolidated list and as a proscribed terrorist organisation by the governments of the United Kingdom, the United States, Canada, New Zealand and Pakistan.
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