Charter of the United Nations (Listed Persons and Entities) Amendment (No 2) Instrument 2023 - New and Ongoing Matters [2023] AUPJCHR 114 (15 November 2023)

1.1 The committee comments on the following instruments, and in some instances, seeks a response or further information from the relevant minister.

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Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2023^[1]

1.2 The Charter of the United Nations Act 1945 (Charter of the UN Act), in conjunction with various instruments made under that Act,^[3] gives the Australian government the power to apply sanctions to give effect to decisions of the United Nations (UN) Security Council. Australia is bound by the Charter of the United Nations 1945 (UN Charter) to implement UN Security Council decisions.^[4] Obligations under the UN Charter may override Australia's obligations under international human rights treaties.^[5] However, the European Court of Human Rights has stated there is presumption that UN Security Council Resolutions are to be interpreted on the basis that they are compatible with human rights, and that domestic courts should have the ability to exercise scrutiny of sanctions so that arbitrariness can be avoided.^[6]

1.3 This legislative instrument lists seven individuals for counter-terrorism financing sanctions under Part 4 of the Charter of the UN Act – the effect of which is to freeze existing money and assets of those listed and to make it an offence for a person to use or deal with a freezable asset (unless it is an authorised dealing) and to provide any future assets to listed persons.^[7] The instrument is stated as giving effect to UN Security Council resolution 1373, which requires Australia, as a UN Member State, to freeze the funds, assets and economic resources of persons 'who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts'.^[8] Of those individuals listed, three persons are stated to hold dual Australian citizenship, one of whom is currently stated to be located in Australia.^[9]

1.4 The committee's examination of Australia's sanctions regimes has been, and is, focused solely on measures that impose restrictions on individuals that are within Australia's jurisdiction. As this instrument lists an individual who is located in Australia and therefore within Australia's jurisdiction, Australia's human rights obligations are enlivened.^[10] It is therefore necessary to assess the human rights compatibility of the sanctions regime under Part 4 of the Charter of the UN Act with respect to individuals in Australia.

1.5 The effect of a listing is that it is an offence for a person to use or deal with a freezable asset (unless it is an authorised dealing) and to make an asset directly or indirectly available to, or for the benefit of, a listed person.^[11] A person's assets are therefore effectively 'frozen' as a result of being listed. For example, a financial institution is prohibited from allowing a listed person to access their bank account. This can apply to persons living in Australia or could apply to persons outside Australia and would impact both the persons listed as well as any dependent family or relatives. A listing by the minister is not subject to merits review, and there is no requirement that an affected person be given any reasons for why a decision to list them has been made.

1.6 The scheme provides that the minister may grant a permit authorising the making available of certain assets to a listed person (known as 'authorised dealings').^[12] An application for a permit can only be made for basic expenses; a legally required dealing; where a payment is contractually required; or an extraordinary expense dealing.^[13] A basic expense includes foodstuffs; rent or mortgage; medicines or medical treatment; public utility charges; insurance; taxes; legal fees and reasonable professional fees.^[14]

1.7 The listing of a person under the sanctions regime may therefore engage a range of human rights. As the committee has previously set out,^[15] sanctions may operate variously to both limit and promote human rights. For example, sanctions prohibiting the proliferation of weapons of mass destruction will promote the right to life. Sanctions could also promote human rights globally. With respect to this instrument, the statement of compatibility states that denying an individual access to assets that could be used to carry out or facilitate terrorist acts of violence, which may take lives, promotes the rights to life and freedom from the advocacy of national, racial or religious hatred.^[16]

1.8 However, the sanctions regime also limits a number of human rights, in particular the right to a private life and the right to a fair hearing.^[17] The statement of compatibility acknowledges the right to privacy is engaged, but does not identify the potential limitation on the right to a fair hearing and so provides no assessment of compatibility with this right.^[18]

1.9 The right to privacy prohibits arbitrary or unlawful interference with an individual's privacy, family, correspondence or home.^[19] The freezing of a person's assets and the requirement for a listed person to seek the permission of the minister to access their funds for basic expenses imposes a limit on that person's right to a private life, free from interference by the State. The measures may also limit the right to privacy of close family members of a listed person. As noted above, once a person is listed under the sanctions regime, the effect of the listing is that it is an offence for a person to directly or indirectly make any asset available to, or for the benefit of, a listed person (unless authorised under a permit to do so). This could mean that close family members who share funds with a listed person may not be able to access those shared funds without needing to account for all expenditure, on the basis that the expenditure could indirectly benefit a listed person, for example, if the funds were used to purchase goods that were provided to the listed person.

1.10 In relation to a similar sanctions regime in the United Kingdom, the House of Lords held that the regime 'strike[s] at the very heart of the individual's basic right to live his own life as he chooses'.^[20] Lord Brown concluded:

The draconian nature of the regime imposed under these asset-freezing Orders can hardly be over-stated. Construe and apply them how one will...they are scarcely less restrictive of the day to day life of those designated (and in some cases their families) than are control orders. In certain respects, indeed, they could be thought even more paralysing. Undoubtedly, therefore, these Orders provide for a regime which considerably interferes with the [right to privacy].^[21]

1.11 The need to get permission from the minister to access money for basic expenses could, in practice, impact greatly on a person's private and family life.

1.12 The right to a fair hearing applies both to criminal and civil proceedings, to cases before both courts and tribunals.^[22] The right applies where rights and obligations, such as personal property and other private rights, are to be determined. In order to constitute a fair hearing, the hearing must be conducted by an independent and impartial court or tribunal, before which all parties are equal and have a reasonable opportunity to present their case. Ordinarily, the hearing must be public, but in certain circumstances, a fair hearing may be conducted in private. When a person is listed by the minister there is no requirement that the minister hear from the affected person before a listing is made or continued; no requirement for reasons to be provided to the affected person; no provision for merits review of the minister's decision; and no review of the minister's decision to grant, or not grant, a permit allowing access to funds, or review of any conditions imposed. The European Court of Human Rights has emphasised the importance of protecting the right to a fair hearing in the context of sanctions regimes.^[23] It has stated:

in view of the seriousness of the consequences for the [European] Convention rights of those [listed] persons, where a resolution such as that in the present case, namely [UN Security Council] Resolution 1483 [which required the freezing of the assets and property of senior officials of the former Iraqi regime], does not contain any clear or explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation, it must always be understood as authorising the courts of the respondent State to exercise sufficient scrutiny so that any arbitrariness can be avoided. By limiting that scrutiny to arbitrariness, the Court takes account of the nature and purpose of the measures provided for by the Resolution in question, in order to strike a fair balance between the necessity of ensuring respect for human rights and the imperatives of the protection of international peace and security.^[24]

1.13 The rights to a private life and fair hearing may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. In the case of executive powers which could seriously disrupt the lives of individuals subjected to them, the existence of safeguards is important to prevent arbitrariness and error, and ensure that the powers are exercised only in the appropriate circumstances.

1.14 The statement of compatibility states that the objective of the measure is to give effect to Australia's international obligation to prevent and suppress terrorist financing, and imposing sanctions helps to achieve this objective by denying persons the financial means to undertake terrorist activities.^[25] This is a legitimate objective for the purposes of international human rights law and the measure may be regarded as rationally connected to this objective. The key question is whether the measure is proportionate.

1.15 The committee has consistently raised concerns that the sanctions regime, including sanctions to which this instrument relates, may not be regarded as proportionate, in particular because of a lack of effective safeguards to ensure that the regime, given its potential serious effects on those subject to it, is not applied in error or in a manner which is overly broad in the individual circumstances.^[26]

1.16 For example, the minister is required to list a person as subject to sanctions on the broad grounds that the minister is satisfied that the person has committed, or attempted to commit, terrorist acts or participated in or facilitated the commission of terrorist acts.^[27] The specific criteria as to how the minister determines these matters is not set out in legislation. There is no requirement that there first be a judicial finding that the person has engaged in terrorist acts, and it would appear that the minister could list a person who had been acquitted of engaging in terrorist acts, as long as the minister is satisfied that the person had been involved.^[28] The statement of compatibility states that the criteria on which a person is listed for sanctions is predictable and publicly available, reflecting what is set out in the UN Security Council Resolution.^[29] While Resolution 1373 is indeed publicly available, the obligation imposed on states parties is framed in relatively broad terms, requiring states to freeze funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; or anyone who acts on behalf of, or at the direction of, such persons.^[30] Resolution 1373 does not provide specific guidance on the threshold at which an individual may be declared by the minister and on what particular basis. This lack of clarity raises concerns that the measure may not be sufficiently circumscribed.

1.17 Of particular concern with respect to proportionality is that there is no provision for merits review before a court or tribunal of the minister's decision. While the minister's decision is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), the effectiveness of judicial review as a safeguard within the sanctions regime relies, in significant part, on the clarity and specificity with which legislation specifies powers conferred on the executive. The scope of the power to list someone is based on the minister's satisfaction in relation to certain matters which are stated in broad terms. This formulation limits the scope to challenge such a decision on the basis of there being an error of law (as opposed to an error on the merits) under the ADJR Act. The European Court of Human Rights has observed that for judicial review to be sufficient in the context of a dispute over a decision to list a person for sanctions, the court must be able to obtain:

sufficiently precise information in order to exercise the requisite scrutiny in respect of any substantiated and tenable allegation made by listed persons to the effect that their listing is arbitrary. Any inability to access such information is therefore capable of constituting a strong indication that the impugned measure is arbitrary, especially if the lack of access is prolonged, thus continuing to hinder any judicial scrutiny.^[31]

1.18 Further, the Court has held that failure to afford a listed person 'at least a genuine opportunity to submit appropriate evidence to a court, for examination on the merits, to seek to show that their inclusion on the impugned lists had been arbitrary' impaired 'the very essence of their right of access to a court’.^[32] Thus, the availability of judicial review in this context appears insufficient, in and of itself, to operate as an adequate safeguard for human rights purposes.

1.19 The minister can also make the listing without hearing from the affected person before the decision is made. While the initial listing may be necessary to ensure the effectiveness of the regime, as prior notice would effectively 'tip off' the person and could lead to assets being moved off-shore, there may be less rights-restrictive measures available, such as freezing assets on an interim basis until complete information is available including from the affected person.

1.20 Additionally, once the decision is made to list a person, the listing remains in force for three years and may be continued after that time.^[33] The listing may be continued by the minister declaring in writing that it continues to have effect, but such a declaration is not a legislative instrument.^[34] There also does not appear to be any requirement that if circumstances change or new evidence comes to light the listing will be reviewed before the three-year period ends. While a person may apply to have their listing revoked, the minister is not required to consider an application if the listed person has made an application within the year.^[35] Without an automatic requirement of reconsideration if circumstances change or new evidence comes to light, a person may remain subject to sanctions notwithstanding that the listing may no longer be required.

1.21 There are also concerns relating to the minister's unrestricted power to impose conditions on a permit to allow access to funds to meet basic expenses. Giving the minister an unfettered power to impose conditions on access to money for basic expenses does not appear to be the least rights restrictive way of achieving the legitimate objective, noting that the type of conditions imposed will impact the potential extent of interference with rights.

1.22 The committee acknowledges that sanctions regimes generally operate as mechanisms for applying pressure to regimes and individuals with a view to ending the repression of human rights internationally and suppressing terrorism. The committee notes the importance of Australia acting in concert with the international community to prevent egregious human rights abuses arising from situations of international concern, including the importance of satisfying Australia's obligations under the UN Charter.

1.23 However, for those in Australia who may be subject to sanctions, requiring ministerial permission to access money for basic expenses could, in practice, impact greatly on a person's private life as well as the privacy of their family. The committee also notes that the minister, in making a listing, is not required to hear from the affected person at any time; or provide reasons for the listing; and there is no provision for merits review of any of the minister's decision (including any decision to grant, or not grant, a permit allowing access to funds). As such, the committee considers these listings engage and limit the right to privacy and a fair hearing for those in Australia. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.24 While the committee acknowledges that Australia's obligations under the UN Charter may override Australia's obligations under international human rights treaties, it notes that European Court of Human Rights jurisprudence has held that UN Security Council Resolutions, such as Resolution 1373 to which this instrument relates, are to be interpreted on the basis that they are compatible with human rights.

1.25 On the basis of the significant human rights concerns identified by the committee previously in relation to sanctions regimes that apply to individuals, the committee has previously made a number of recommendations,^[36] several of which have been implemented in relation to a comparable regime in the United Kingdom, to ensure the compatibility of the sanctions regimes with human rights. It does not appear that the committee's previous recommendations have been implemented. As such, the committee seeks the minister's advice as to why the sanctions regime does not include each of the following recommendations:

1.26 Additionally, regarding the compatibility of this specific instrument with the right to a private life, the committee seeks the minister's advice in relation to:

^[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2023, Report 12 of 2023; [2023] AUPJCHR 114.

^[2] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

^[3] See, in particular, the Charter of the United Nations (Dealing with Assets) Regulations 2008 [F2021C00916].

^[4] Charter of the United Nations 1945, articles 2 and 41.

^[5] Charter of the United Nations 1945, section 103: 'In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail'. However, there is a body of academic literature arguing that international human rights law does apply to the UN Security Council (UNSC). See, e.g. Nadeshda Jayakody, 'Refining United Nations Security Council Targeted Sanctions: 'Proportionality' as a way forward for human rights protection', Security and Human Rights, vol. 29, 2018 pp. 90–119. At p. 99, the author states that the 'most convincing argument in favour of the application of human rights to the UNSC [United Nations Security Council] is the UN Charter itself. The Charter obliges the UNSC to act in accordance with the UN's purposes and principles, 28 one of which is to "promote and encourage respect for human rights and fundamental freedoms." Another is to settle situations which might breach the peace "in conformity with the principles of justice and international law." As a result, there is a strong textual argument to be made that respect for human rights is inherent in the UN Charter. The UNSC must respect human rights by virtue of its own governing document.'

^[6] Al-Dulimi and Montana Management Inc. v Switzerland, European Court of Human Rights (Grand Chamber) Application No.5809/08 (2016) [140] and [145]–[146]. At paragraph [153], the Court outlined various criticisms of the UN sanctions system with respect to human rights, including consistent criticisms from Special Rapporteurs of the UN and other regional and domestic courts.

^[7] Charter of the United Nations Act 1945, sections 20–22. It is noted that the legislative instrument also lists one entity for sanctions, however, noting that human rights apply to persons not entities, this entry is only concerned with the listing of individuals.

^[8] United Nations Security Council, Resolution 1373(1)(c), S/RES/1373 (2001), made on 28 September 2001.

^[9] Item 2. All three individuals listed as dual Australian citizens have had their Australian passports either revoked or cancelled.

^[10] Noting that the scope of a State party's obligations under human rights treaties extends to all those within the State’s jurisdiction. For instance, article 2(1) of the International Covenant on Civil and Political Rights requires a state ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’.

^[11] Charter of the United Nations Act 1945, sections 20 and 21. Section 22 relates to authorised dealings.

^[12] Charter of the United Nations Act 1945, section 22.

^[13] Charter of the United Nations (Dealing with Assets) Regulations 2008, section 5.

^[14] Charter of the United Nations (Dealing with Assets) Regulations 2008, subsection 5(3).

^[15] See, most recently, Parliamentary Joint Committee on Human Rights, Report 15 of 2021 (8 December 2021), pp. 2–11 (Autonomous Sanctions), and Report 8 of 2021 (23 June 2021) pp. 27–35 and Report 10 of 2021 (25 August 2021) pp. 117–128 (Charter of UN Sanctions). See also Report 2 of 2019 (2 April 2019) pp. 112–122; Report 6 of 2018 (26 June 2018) pp. 104–131; Report 4 of 2018 (8 May 2018) pp. 64–83; Report 3 of 2018 (26 March 2018) pp. 82–96; Report 9 of 2016 (22 November 2016) pp. 41–55; Thirty-third Report of the 44th Parliament (2 February 2016) pp. 17–25; Twenty-eighth Report of the 44th Parliament (17 September 2015) pp. 15–38; Tenth Report of 2013 (26 June 2013) pp. 13–19; Sixth Report of 2013 (15 May 2013) pp. 135–137.

^[16] Statement of compatibility, p. 4. It is noted that the statement of compatibility incorrectly identified other rights as being promoted, such as the right to self-determination (which is a collective, not individual, human right).

^[17] The sanctions regime may also engage and limit the right to an adequate standard of living if an individual was unable to meet their basic needs or those of their family as a result of their assets being frozen. However, the statement of compatibility (p. 5) has adequately justified this potential limitation. In particular, the provisions allowing for authorised dealings appear to be sufficient to mitigate the risk of the right to an adequate standard of living being impermissibly limited. Further, it is noted that the individual who is located in Australia is detained in Melbourne Assessment Prison and it is therefore likely that his basic needs are being met (such as access to food, shelter and water). This right is therefore not considered in this entry. For a general discussion on the human rights implications of targeted sanctions see Matthew Happold, 'Targeted Sanctions and Human Rights', in Paul Eden and Matthew Happold (eds), Economic Sanctions and International Law, Hart Publishing, Oxford, 2016, pp. 87–112.

^[18] Statement of compatibility, pp. 5–6.

^[19] International Covenant on Civil and Political Rights, article 17.

^[20] HM Treasury v Ahmed [2010] UKSC2 at [60] (Ahmed).

^[21] Ahmed at [192] per Lord Brown.

^[22] International Covenant on Civil and Political Rights, article 14.

^[23] Al-Dulimi and Montana Management Inc. v Switzerland, European Court of Human Rights (Grand Chamber) Application No.5809/08 (2016) [146]–[147].

^[24] Al-Dulimi and Montana Management Inc. v Switzerland, European Court of Human Rights (Grand Chamber) Application No.5809/08 (2016) [146].

^[25] Statement of compatibility, pp. 4 and 6.

^[26] See, most recently, Parliamentary Joint Committee on Human Rights, Report 8 of 2021 (23 June 2021) pp. 27–35 and Report 10 of 2021 (25 August 2021) pp. 117–128.

^[27] Charter of the United Nations (Dealing with Assets) Regulations 2008, section 20.

^[28] See Sayadi and Vinck v Belgium, UN Human Rights Committee (Application No. 1472/2006) (22 October 2008) [10.8 and [10.12]], where the UN Human Rights Committee noted that as a criminal investigation against listed persons was dismissed, restrictions on those persons were not necessary and violated their right to freedom of movement and right to privacy.

^[29] Statement of compatibility, p. 6.

^[30] United Nations Security Council, Resolution 1373(1)(c), S/RES/1373 (2001), made on 28 September 2001.

^[31] Al-Dulimi and Montana Management Inc. v Switzerland, European Court of Human Rights (Grand Chamber) Application No.5809/08 (2016) [147].

^[32] Al-Dulimi and Montana Management Inc. v Switzerland, European Court of Human Rights (Grand Chamber) Application No.5809/08 (2016) [151].

^[33] Charter of the United Nations Act 1945, section 15A.

^[34] Charter of the United Nations Act 1945, subsections 15A(2) and (5).

^[35] Charter of the United Nations Act 1945, section 17.

^[36] Parliamentary Joint Committee on Human Rights, Report 15 of 2021 (8 December 2021), pp. 2–11 (Autonomous Sanctions) and Report 8 of 2021 (23 June 2021) pp. 27–35 and Report 10 of 2021 (25 August 2021) pp. 117–128 (Charter of UN Sanctions). See also Report 9 of 2016 (22 November 2016) p. 53; Report 6 of 2018 (26 June 2018) pp. 128–129; and Report 2 of 2019 (2 April 2019) p. 122.

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FRL No.	F2023L01372
Purpose	This legislative instrument amends the Charter of the United Nations (Listed Persons and Entities) Instrument 2022 to list seven persons and one entity for counter-terrorism financing sanctions under Part 4 of the Charter of the United Nations Act 1945
Portfolio	Foreign Affairs and Trade
Authorising legislation	Charter of the United Nations Act 1945
Disallowance	15 sitting days after tabling (tabled in the House of Representatives and in the Senate on 16 October 2023). Notice of motion to disallow must be given by 28 November 2023 in the Senate and by 8 February 2024 in the House)^[2]
Rights	Fair hearing; privacy

Australian Parliamentary Joint Committee on Human Rights

Charter of the United Nations (Listed Persons and Entities) Amendment (No 2) Instrument 2023 - New and Ongoing Matters [2023] AUPJCHR 114 (15 November 2023)