Charter of the United Nations (Sanctions-Democratic People's Republic of Korea) (Documents) Instrument 2017 [F2017L00539]-Response required [2017] AUSStaCSDLM 211 (21 June 2017)

• Chapter 1
• New and continuing matters
• Response required

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Chapter 1

New and continuing matters

This chapter details concerns in relation to disallowable instruments of delegated legislation received by the Senate Standing Committee on Regulations and Ordinances (the committee) between 12 May 2017 and 25 May 2017

(new matters).

Response required

The committee requests an explanation or information from relevant ministers or instrument-makers with respect to the following concerns.

Instrument	Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) (Documents) Instrument 2017 [F2017L00539]
Purpose	Incorporates goods referenced in seven documents into the definition of export and import sanctioned goods in the Charter of the United Nations (Sanctions - Democratic People's Republic of Korea) Regulations 2008
Authorising legislation	Charter of the United Nations (Sanctions — Democratic People’s Republic of Korea) Regulations 2008
Department	Foreign Affairs and Trade
Disallowance	15 sitting days after tabling (tabled Senate 13 June 2017) Notice of motion to disallow currently must be given by 5 September 2017
Scrutiny principle	Standing Order 23(3)(a) and (b)

Unclear meaning of export and import sanctioned goods

This instrument gives effect in Australia to obligations arising from United Nations Security Council Resolution 1718 (2006), which requires member states to prevent the export of certain items to the Democratic People's Republic of Korea (DPRK).^[1]

This instrument repeals and replaces the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Document List 2014 [F2014L01746] to specify seven documents that determine goods that are prohibited for export to,

or importation from, DPRK. Goods described in these documents are included in the definition of export and import sanctioned goods for the purposes of the Charter of the United Nations (Sanctions — Democratic People's Republic of Korea) Regulations 2008 [F2016C01044] (DPRK Sanctions Regulations), which create offences for the export or import of sanctioned goods.

In accordance with its scrutiny principles 23(3)(a) and (b), the committee is interested to ensure that persons potentially subject to these offence provisions are able to determine with sufficient precision particular items that are export and import sanctioned goods for the purposes of the DPRK Sanctions Regulations.

The committee notes that the seven listed documents do not appear to contain precise descriptions of goods, such as would generally meet the committee's expectations in relation to appropriate drafting standards for the framing of an offence. For example, the documents INFCIRC/254/Rev.12/Part 1 and

INFCIRC/254/Rev.9/Part 2 appear to provide guidelines for nuclear transfers and transfers of nuclear-related dual-use equipment, materials, software and related technology, as opposed to specific descriptions of particular goods.

In this respect, the committee notes its previous consideration of a similar instrument (Charter of the United Nations (Sanctions - Iran) Document List Amendment 2016 [F2016L00116] (Iran list)),^[2] about which it raised concerns that persons potentially subject to offence provisions may not be able to determine

with sufficient precision particular items that are export and import sanctioned goods for the purposes of the Charter of the United Nations (Sanctions — Iran) Regulations 2008 [F2015C00063]. In concluding its examination of the Iran list, the committee noted the Minister for Foreign Affairs' advice that the goods listed in the documents referred to in the Iran list are an 'internationally accepted reference point for those industries, persons and companies that trade in such goods' and that the Department of Foreign Affairs and Trade (the department) provides a free service which, in doubtful cases, can make determinations as to whether a good is an import or export sanctioned good.

Given this previous advice, the committee wishes to confirm that:

• the goods listed in the documents specified by the instrument are an internationally accepted reference for those industries, persons and companies that trade in such goods; and

• the department provides a free service which can make determinations

as to whether a good is an import or export sanctioned good under this instrument.

In this regard, the committee notes its expectation that the explanatory statement (ES) to this instrument (and future similar instruments) include a statement to this effect.

The committee requests the advice of the minister in relation to the above.

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^[1] The resolution was adopted under Chapter VII of the Charter of the United Nations, and is therefore considered binding on Australia. See explanatory statement, p. 1.

^[2] See Delegated legislation monitor 5 of 2016, p. 53.