Charter of the United Nations (Sanctions-Democratic People's Republic of Korea) Amendment Regulation 2016 [F2016L01829]-Response required [2017] AUSStaCSDLM 6 (8 February 2017)

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Instrument	Charter of the United Nations (Sanctions—Democratic People’s Republic of Korea) Amendment Regulation 2016 [F2016L01829]
Purpose	Amends the Charter of the United Nations (Sanctions — Democratic People’s Republic of Korea) Regulations 2008 to give effect to United Nations Security Council Resolution 2270 (2016)
Last day to disallow	30 March 2017
Authorising legislation	Charter of the United Nations Act 1945
Department	Foreign Affairs and Trade
Scrutiny principle	Standing Order 23(3)(b)

Insufficient information regarding strict liability offences

Regulation 11B creates offences for engaging in sanctioned commercial activity. Strict liability applies to the elements of the offences that the sanctioned commercial activity is not an authorised commercial activity.

Regulation 11C creates offences relating to holding a bank account. Strict liability applies to the elements of the offences that the minister has directed the person, by written notice, to close the bank account.

Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2016 (No. 2) [F2016L01857] designates regulations 11B and 11C as UN sanction enforcement laws. This means that contravention of these regulations is punishable by up to ten years imprisonment and/or a fine of up to 2500 penalty units (currently $450 000).^[1]

With respect to these offences, the ES to the regulation states:

The Regulation provides for strict liability in new Regulation 11B and new Regulation 11D. However, in effect this means that strict liability applies to the existence or otherwise of a permit or a notice from the Minister, respectively. It does not apply to any other elements of the offences. This is appropriate because either the permit (or notice) exists or it does not exist.

The committee notes that, as drafted, Regulation 11D does not appear to create a strict liability offence.

Given the potential consequences of strict liability offence provisions, the committee generally requires a detailed justification for the inclusion of any such offences in delegated legislation. The committee notes that in respect of the above offences the ES provides only a brief justification for the framing of the offences.

The committee also draws the minister's attention to the discussion of strict liability offences in the Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notice and Enforcement Powers,^[2] as providing useful guidance for justifying the use of strict liability offences in accordance with the committee's scrutiny principles.

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

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[1] See the combined effect of the Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2016 (No. 2) [F2016L01857], which designates certain regulations of the Charter of the United Nations (Sanctions—Democratic People’s Republic of Korea) Amendment Regulation 2016 [F2016L01829] as UN Sanction Enforcement Laws under section 2B of the Charter of the United Nations Act 1945, read with section 27 of that Act which makes contravention of a UN sanction enforcement law a criminal offence.

[2] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications /Pages/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers.aspx (accessed 31 January 2017).