EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 221

 

 

Issued by the authority of the Attorney-General

 

Criminal Code Act 1995

 

Criminal Code Amendment Regulations 2006 (No. 3)

 

 

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 the Jemaah Islamiyah and its aliases Jema'ah Islamiyah, Jemaah Islamiya, Jemaah Islamiyyah, Jemaah Islamiah, Jamaah Islamiyah, Jama'ah Islamiyah, Jeemah Islamiyah, Jemaa Islamiya, Jema'a Islamiya, Jemaa Islamiyah, Jema'a Islamiyya, Jemaa Islamiyya, Jemaa Islamiyyah, and Jema'ah Islamiyyah, 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 apply to persons with links to Jemaah Islamiyah.  Details of the proposed 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 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 Jemaah Islamiyah 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, the Australia 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.  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 2006 (No. 3)

 

Regulation 1- Name of Regulations

 

This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2006 (No. 3).

 

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 4B

 

This item provides that the existing Regulation 4B is to be substituted with the new Regulation 4B - 'Terrorist organisations -- Jemaah Islamiyah'. 

 

Subregulation 4B(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 Jemaah Islamiyah is specified. 

 

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

 

Subregulation 4B(2) provides that for the purposes of subregulation (1), Jemaah Islamiyah is also known by the following names: 

 

(a)    Jema'ah Islamiyah

(b)   Jemaah Islamiya

(c)    Jemaah Islamiyyah

(d)   Jemaah Islamiah

(e)    Jamaah Islamiyah

(f)     Jama'ah Islamiyah

(g)    Jeemah Islamiyah

(h)    Jemaa Islamiya

(i)      Jema'a Islamiya

(j)     Jemaa Islamiyah

(k)   Jema'a Islamiyya

(l)      Jemaa Islamiyya

(m)  Jemaa Islamiyyah

(n)    Jema'ah Islamiyyah

 

Attachment B

 

Jemaah Islamiyah

 

(Also known as: Jema'ah Islamiyah, Jemaah Islamiya, Jemaah Islamiyyah, Jemaah Islamiah, Jamaah Islamiyah, Jama'ah Islamiyah, Jeemah Islamiyah, Jemaa Islamiya, Jema'a Islamiya, Jemaa Islamiyah, Jema'a Islamiyya, Jemaa Islamiyya, Jemaa Islamiyyah, Jema'ah Islamiyyah)

The following information is based on publicly available details about Jemaah Islamiyah (JI).  These details have been corroborated by material from intelligence investigations into the activities of JI.  ASIO assesses the details set out below are accurate and reliable.

JI is listed in the United Nation's 1267 Committee's consolidated list and as a proscribed terrorist organisation by the governments of Canada, New Zealand, the United Kingdom and the United States.

Background

JI evolved from the long-established Indonesian 'Darul Islam'(DI) movement which, from the 1950s, engaged in an armed and violent struggle for the establishment of an Islamic state in Indonesia.  The DI movement was subjected to Indonesian Government security clampdowns in the mid-1980s and a number of its leaders -- notably Indonesian Islamic clerics Abdullah Sungkar and Abu Bakar Ba'asyir - fled to Malaysia where they established JI in 1993.  Sungkar died in 1999 and Ba'asyir returned to Solo, Indonesia, in 2000 where he also established the Majelis Mujahidin Indonesia (MMI), which included other individuals and groups intent on establishing an Islamic state.

Traditionally, JI was divided into regional areas called mantiqi (territories).  Mantiqis I, II and III covered Indonesia, Malaysia, Singapore and southern Phillipines while Mantiqi IV covered Australia and Papua.  Mantiqi leaders met as members of the qiyadah markaziyah (central command), where operational decisions were made.  However, operational cells increasingly demonstrate autonomous decision-making, suggesting the hierarchical structure of JI is not binding and some JI members may act independently.

JI has had well-documented links to al-Qa'ida (AQ), including through the likes of Riduan Isamuddin aka Hambali, a senior JI operative, and through Indonesians attending training camps and jihad in Afghanistan.  Despite close links to AQ and other groups, JI remains an independent organisation making its own operational decisions. 

The everyday activities of JI are funded largely by members' dues and other contributions.  JI receives large amounts of money from outside Indonesia for terrorist activities.  AQ has provided funding for some JI operations including the Bali bombings in 2002 but the full extent of AQ funding is unclear.

A common heritage in DI shared by senior JI members has facilitated links to other extremist groups in Indonesia, including MMI, the so called Banten Ring, which was implicated in the Australian Embassy bombing on 9 September 2004, and Laskar Jundullah, which was active in the sectarian violence in Ambon and Sulawesi.

JI is known to have links to the Moro Islamic Liberation Front (MILF) and the Abu Sayyaf Group (ASG) in the Southern Philippines.  In return for shelter and facilitation of its training activities, JI provided expert training in bomb-making to MILF and ASG members.  The current status of JI's links to MILF is not clear.  The MILF is engaged in peace negotiations with the Philippines government and appears keen to distance itself from allegations of association with terrorist groups.

Following the raid on a JI safe house in November 2005, in which senior JI bomb maker Azahari bin Hussin was killed, Indonesian authorities recovered planning documents and a number of improvised explosive devices.  In subsequent raids on other JI safe houses in Indonesia in April/May 2006, information on bomb making, propaganda material and explosive devices, similar to those used in the 2005 Bali attacks, were found.  In a late 2005 video aired on Indonesian television and posted on the website of the Indonesian SCTV network, an individual reliably identified as senior JI operational planner, Noordin Mohammad Top, made threats against Australia and senior Australian political figures. Taken together, these confirm that JI continues to have the capability (including current access to the necessary resources) and intent to conduct further terrorist attacks.

Individuals associated with JI were added to the United Nation's 1267 Committee's list in 2005 and 2006.

Objectives

JI's founding objective was to create an Islamic state that extends from northern Australia to Malaysia and Thailand, including Indonesia and the southern Philippine islands.

Leadership and membership

After the death of Abdullah Sungkar in 1999, Abu Bakar Ba'asyir became the amir (spiritual leader) of JI up until his arrest in October 2002, when he was reputed to have been replaced by Thoriqudin, aka Abu Rusdan, who was arrested in April 2003.  The current leader of JI is reported to be Abu Dujana aka Abu Dujanah aka Ainul Bahri, who is being sought by the Indonesian authorities.

JI's membership has been numbered from as low as 750 to as high as 5,000.  It has benefited from links with a broad network of radical pesantren (Islamic boarding schools) to propagate JI teaching, provide military training, and shelter fugitive members.  The most prominent pesantren in this network includes Ba'asyir's Al-Mukmin pesantren (also known as Pondok Ngruki) in Solo, Central Java and the Dar us-Syahadah pesantren in Boyolali, Central Java.  The Hidayatullah pesantren in East Kalimantan also forms part of this network.

JI's known membership includes a number of individuals who have been convicted and sentenced in relation to terrorist activities: it includes many of the perpetrators of the Bali bombing in October 2002, the bombing of the Marriott Hotel in Jakarta in August 2003 and the bombing of the Australian Embassy in Jakarta in September 2004.  JI's known membership also includes individuals who are currently facing trial for their roles in the 2005 Bali bombing.

Terrorist activities

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

*        an attempted assassination of the Filipino Ambassador to Indonesia on 1 August 2000, which killed two people and seriously injured the Ambassador;

*        the series of bomb attacks on churches in Jakarta, Sumatra, Lombok, Java and Batam Island on 24 December 2000.  17 people were killed in these attacks and as many as 100 injured;

*        the Bali bombing attacks on 12 October 2002 which killed 202 people, including 88 Australians;

*        the bombings of the Davao International Airport on 4 March 2003, and of the Sasa ferry wharf in the southern Philippine city of Davao on 2 April 2003, involving JI and MILF operatives;

*        the suicide car-bomb attack upon the J.W. Marriott Hotel in Jakarta on 5 August 2003, which killed 12 people including the suicide bomber;

*        the suicide truck-bomb attack on the Australian Embassy in Jakarta on 9 September 2004, which killed 10 people and injured around 180; and

*        the three suicide backpack bombings in Bali on 1 October 2005, which killed 20 people (including four Australians) and injured approximately 90.

Conclusion

ASIO assesses that JI is continuing to prepare, plan and foster the commission of acts involving threats to human life and serious damage to property.  This assessment is corroborated by reliable and credible intelligence sources.

In the course of pursuing its objective of creating an Islamic state in Indonesia and a pan-Islamic caliphate in South East Asia, JI is known to have engaged in actions that:

*        are aimed at advancing JI's political and religious causes; and

*        are intended to, or do, cause serious damage to property, the death of persons or endangerment of life.

*        are intended to cause, or have caused, serious risk to the safety of sections of the public in Indonesia, Malaysia, the Philippines, Singapore, Australia and other persons visiting areas in which it operates.

In view of the above information, JI is assessed to be preparing, planning, and fostering the conduct of terrorist acts.  Such acts include actions which are to be done and threats of actions which are to be made with the intention of advancing a political, religious or ideological cause and with the intention of coercing, or influencing by intimidation the Government and people of Indonesia.  The actions or threatened actions which JI are assessed to be involved in would, if successfully completed, cause serious physical harm and death to persons and serious damage to property.