Commonwealth Numbered Regulations - Explanatory Statements
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CHARTER OF THE UNITED NATIONS (SANCTIONS--SOUTH SUDAN) REGULATION 2015 (SLI NO 141 OF 2015)
Explanatory Statement
Select Legislative Instrument No. 141, 2015
Charter of the United Nations Act 1945
Charter of the United Nations (Sanctions - South Sudan) Regulation 2015
The purpose of the Charter of the United Nations (Sanctions - South Sudan) Regulation 2015 (the Proposed Regulation) is to implement the decision of the United Nations Security Council (UNSC) to impose sanctions in relation to South Sudan.
Section 6 of the Charter of the United Nations Act 1945 (the Act) provides that the Governor-General may make regulations to give effect to decisions of the UNSC under Chapter VII of the Charter of the United Nations (the Charter) that Article 25 of the Charter requires Australia to carry out, in so far as those decisions require Australia to apply measures not involving the use of armed force.
Resolution 2206 was adopted under Chapter VII of the Charter on 3 March 2015 and the measures are binding on Australia pursuant to Article 25 of the Charter. Resolution 2206 imposes targeted financial sanctions in relation to South Sudan.
The Proposed Regulation implements the decision of the UNSC in paragraph 12 of resolution 2206 to impose targeted financial sanctions in relation to persons or entities designated by the South Sudan Sanctions Committee. It requires Australia to freeze all funds, other financial assets and economic resources on its territory that are owned or controlled by designated persons or entities, or by persons or entities acting on their behalf or at their direction, or by entities owned or controlled by them. Australia must also prevent any funds, financial assets or economic resources are prevented from being made available by Australians, or by any persons or entities within Australia, to or for the benefit of designated persons or entities. Paragraphs 13, 14 and 15 of resolution 2206 outline several exemptions to the measures.
The Proposed Regulation provides in sections 5 and 6 that strict liability applies to the circumstance, respectively, that the: making available of the asset; and the use of or dealing with the asset, is not authorised by a permit under section 7. In effect, this means that strict liability applies to the existence or otherwise of a permit. For an individual, strict liability will continue not to apply to any other element of the offence. The purpose of this provision is to prevent a spurious defence that a statement of the Minister could be taken as de facto authorisation to engage in conduct that is prohibited under the Act. Either the permit exists or it does not exist.
Details of the Proposed Regulation are set out in the Attachment.
No public consultation was undertaken in relation to the Proposed Regulation because it implements Australia's international legal obligations arising from decisions of the UNSC. The Department of Foreign Affairs and Trade conducts regular outreach to the Australian business community to explain Australian sanction laws implementing UNSC sanctions.
Resolution 2206 was adopted under Article 41 of Chapter VII of the Charter and the decisions therein are binding on Australia pursuant to Article 25 of that Charter. The relevant UNSC resolution can be found on the United Nations website (www.un.org).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Charter of the United Nations (Sanctions - South Sudan) Regulation 2015
The Charter of the United Nations (Sanctions - South Sudan) Regulation 2015 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The Proposed Regulation gives effect to decisions that the UNSC has made under Chapter VII of the Charter that Article 25 of the Charter requires Australia to carry out, in so far as those decisions require Australia to apply measures not involving the use of armed force.
The Proposed Regulation gives effect to resolution 2206, which imposes targeted financial sanctions in relation to South Sudan, with several limited exemptions.
The Proposed Regulation engages human rights by imposing targeted financial sanctions in relation to South Sudan. The Proposed Regulation implements targeted financial sanctions against persons or entities designated by the Committee as responsible for or complicit in, or having engaged in, directly or indirectly, actions or policies that threaten the peace, security or stability of South Sudan, including:
a) actions or policies that have the purpose or effect of expanding or extending the conflict in South Sudan or obstructing reconciliation or peace talks or processes, including breaches of the Cessation of Hostilities Agreement;
b) actions or policies that threaten transitional agreements or undermine the political process in South Sudan;
c) planning, directing, or committing acts that violate applicable international human rights law or international humanitarian law, or acts that constitute human rights abuses, in South Sudan;
d) the targeting of civilians, including women and children, through the commission of acts of violence (including killing, maiming, torture, or rape or other sexual violence), abduction, enforced disappearance, forced displacement, or attacks on schools, hospitals, religious sites, or locations where civilians are seeking refuge, or through conduct that would constitute a serious abuse or violation of human rights or a violation of international humanitarian law;
e) the use or recruitment of children by armed groups or armed forces in the context of the armed conflict in South Sudan;
f) the obstruction of the activities of international peacekeeping, diplomatic, or humanitarian missions in South Sudan, including IGAD's Monitoring and Verification Mechanism or of the delivery or distribution of, or access to, humanitarian assistance;
g) attacks against United Nations missions, international security presences, or other peacekeeping operations, or humanitarian personnel; or
h) acting for or on behalf of, directly or indirectly, an individual or entity designated by the Committee.
The Proposed Regulation advances human rights by ensuring that persons and entities who violate the arms embargo, commit violations of international humanitarian or human rights law or other atrocities or violate other measures imposed by UNSC resolutions to address the situation in South Sudan will be subject to the UNSC sanctions measures.
The Proposed Regulation provides that the Minister for Foreign Affairs (the Minister) may grant a person a permit authorising the making available of an asset to a person or entity that would otherwise contravene subsection 5(1), or a use of, or dealing with, a controlled asset that would otherwise contravene subsection 6(1). These exemptions, which implement decisions of the UNSC in paragraphs 13, 14 and 15 of resolution 2206, allow the making available of an asset or the use or dealing with a controlled asset where it is required for the provision of a basic expense, a legally required or contractual payment or extraordinary expense dealing. These permissible dealings are defined in the Charter of the United Nations (Dealing with Assets) Regulations 2008.
The presumption of innocence is a human right that might be affected by the Amendment Regulation. Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. As strict liability offences allow for the imposition of criminal liability without the need to prove fault, all strict liability offences interact with the presumption of innocence in article 14(2) of the ICCPR. A strict liability offence will not necessarily violate the presumption of innocence provided that it is: (i) aimed at achieving a purpose that is legitimate; (ii) based on reasonable and objective criteria, and (iii) proportionate to the aim to be achieved.
The Proposed Regulation provides in subections 5(2) and 6(2) that strict liability applies to the circumstance that the making available of an asset or the use of, or dealing with, a controlled asset is not authorised by a permit under section 7. In effect, this means that strict liability applies to the existence or otherwise of a permit. For an individual, strict liability will not apply to any other element of the offence. The purpose of this provision is to prevent a spurious defence that a statement of the Minister could be taken as de facto authorisation to engage in conduct that is prohibited under the Charter of the United Nations Act. Either the permit exists or it does not exist.
Authority: Section 6 of the Charter
of the United Nations Act
1945
ATTACHMENT
Details of the Charter of the United Nations (Sanctions - South Sudan) Regulation 2015
Section 1 - Name of Regulation
Section 1 provides that the name of the Regulation is the Charter of the United Nations (Sanctions - South Sudan) Regulation 2015.
Section 2 - Commencement
Section 2 provides that the Regulation commences the day after it is registered.
Section 3 - Authority
Section 3 provides that the Regulation is made under the Charter of the United Nations Act 1945.
Section 4 - Definitions
Section 4 provides for the definition of certain terms used in the Regulation, including "Act", "Committee", "controlled asset", "designated person or entity" and "Resolution 2206".
Section 5 - Prohibition relating to dealings with designated persons or entities
Section 5 prohibits a person from directly or indirectly making an asset available to, or for the benefit of, a designated person or entity, unless that is authorised by a permit under section 7. Section 5 provides that strict liability applies to the circumstance that the making available of the asset is not authorised by a permit under section 7. Section 5 provides that section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of section 5, giving extraterritorial operation.
Section 6 - Prohibition relating to controlled assets
Section 6 prohibits a person who holds a controlled asset from using or dealing with the asset, allowing the asset to be used or dealt with, or facilitating the use of, or the dealing with, the asset, unless that is authorised by a permit under section 7. Section 6 provides that strict liability applies to the circumstance that the use of or dealing with the asset is not authorised by a permit under section 7. Section 6 provides that section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of section 6, giving extraterritorial operation.
Section 7 - Permit for assets and controlled assets
Section 7 allows the Minister, on application, to grant a person a permit authorising: (a) the making available of an asset to a person or entity that would otherwise contravene subsection 5(1); or (b) a use of, or dealing with, a controlled asset that would otherwise contravene subsection 6(1). The application must be for a basic expense dealing, contractual dealing, required payment dealing or extraordinary expense dealing as defined in regulation 5 of the Charter of the United Nations (Dealing with Assets) Regulations 2008. Section 7 sets out the requirements for the Minister for granting permits and notifying the Committee for the different applications made under section 7.
Section 8 - Delegations by the Minister
Section 8 allows the Minister to delegate the Minister's powers and functions under the Regulation (other than the power of delegation) to the Secretary of the Department or an SES employee, or acting SES employee, in the Department.
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