AUTONOMOUS SANCTIONS AMENDMENT REGULATION 2013 (NO. 1) (SLI NO 198 OF 2013) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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AUTONOMOUS SANCTIONS AMENDMENT REGULATION 2013 (NO. 1) (SLI NO 198 OF 2013)

EXPLANATORY STATEMENT

Select Legislative Instrument 2013 No. 198

Autonomous Sanctions Act 2011

Autonomous Sanctions Amendment Regulation 2013 (No. 1)

Section 28 of the Autonomous Sanctions Act 2011 (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 Autonomous Sanctions Regulations 2011 (the Principal Regulations) facilitate the conduct of Australia's relations with certain countries, and with specific entities or persons outside Australia, through the imposition of autonomous sanctions in relation to those countries, or targeting those entities or persons.

The purpose of the Autonomous Sanctions Amendment Regulation 2013 (No. 1) (the Regulation) is to implement additional autonomous sanctions measures announced by the Minister for Foreign Affairs (the Minister) on 10 January 2013 in relation to Iran, in response to Iran's continuing non-compliance with United Nations Security Council resolutions on its nuclear program.

The Regulation amends the Principal Regulations so as to prohibit, without prior authorisation from the Minister:

. the supply, sale or transfer to Iran of graphite, raw and semi-finished metals, naval equipment and naval technology and software for integrating industrial processes as specified by the Minister in a separate instrument, as well as the provision of technical advice, assistance or training, financial assistance, a financial service or another service related to the supply, sale or transfer, or the manufacture, maintenance or use of such goods;

. the supply sale or transfer to Iran of vessels designed for the transport or storage of oil, gas or petrochemical products, as well as the provision of technical advice, assistance or training, financial assistance, a financial service or another service related to the supply, sale or transfer, or the manufacture, maintenance or use of such goods;

. the import, purchase or transport of Iranian natural gas products of a kind to be specified by the Minister in a separate instrument, as well as the provision of financial assistance or a financial service related to the import, purchase or transport of such products;

. the provision of the following services in respect of oil tankers and cargo vessels flying the flag of the Islamic Republic of Iran or owned, chartered or operated, directly or indirectly, by an Iranian person, entity or body:

(i) classification services; (ii) the supervision of, or participation in, the design, construction or repair of ships and their parts including blocks, elements, machinery, electrical installations and control installation, as well as related technical assistance, financing or financial assistance; (iii) the inspection, testing or certification of marine equipment, materials and components as well as the supervision of the installation on board and the supervision of system integration; and (iii) the carrying out of surveys, inspections, audits and visits and the issuance, renewal or endorsement of the relevant certificates and documents of compliance, on behalf of the flag State administration.

The Regulation amends the sanction laws in Part 3 of the Principal Regulations (regulations 12, 12A, 13, 13A, 14 and 15) to provide that strict liability applies to the circumstance that the relevant conduct is not in accordance with a permit under regulation 18. 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 these amendments 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.

The Regulation amends the structure of the 'sanctioned service' provisions in regulation 5 to clarify the separate elements and the operation of this regulation.

The Regulation amends regulations 4, 5 and 6 to replace references to 'Burma' with 'Myanmar,' consistent with Australian Government policy to refer to the country as Myanmar.

Details of the Regulation are set out in the Attachment.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Autonomous Sanctions Amendment Regulation 2013 (No. 1)

The Autonomous Sanctions Amendment Regulation 2013 (No. 1) (the Regulation) 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 Regulation is intended to give effect to additional autonomous sanctions measures announced by the Minister for Foreign Affairs (the Minister) on 10 January 2013 in relation to Iran, in response to Iran's continuing non-compliance with United Nations Security Council resolutions on its nuclear program.

The Regulation amends the Autonomous Sanctions Regulations 2011 (the Principal Regulations) by expanding the scope of existing measures targeted at trade and investment with Iran. These measures include restrictions on the supply, sale and transport to Iran and the import, purchase and transport from Iran, of new categories of goods and technology to be specified by the Minister in separate instruments.

The human rights obligation that may possibly be affected by the amendment to the Principal Regulations is the presumption of innocence. 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 engage 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 which is legitimate; (ii) based on reasonable and objective criteria, and (iii) proportionate to the aim to be achieved.

The Regulation is compatible with human rights because the limitations that arise are reasonable, necessary and proportionate measures which enable Australia to maintain its foreign policy and national security interests.

ATTACHMENT

Details of the Autonomous Sanctions Amendment Regulation 2013 (No. 1)

Section 1 - Name of Regulation

Section 1 provides that the name of the Regulation is the Autonomous Sanctions Amendment Regulation 2013 (No. 1).

Section 2 - Commencement

Section 2 provides that the Regulation commences on the day after it is registered.

Section 3 - Authority

Section 3 provides that the Regulation is made under the Autonomous Sanctions Act 2011.

Section 4 - Schedule

Schedule 4 provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 - Amendments

Item [1] - Subregulation 4 (2)

Item [1] repeals and substitutes a new table in subregulation 4 (2). The new table replaces the reference to 'Burma' with 'Myanmar' and updates the order of countries. The new table also amends the list of export sanctioned goods for Iran (item 2 of the table), by inserting new paragraphs (e): "graphite of a kind specified by the Minister in an instrument under this regulation;" (f): "raw metals of a kind specified by the Minister in an instrument under this regulation;" (g): "semi-finished metals of a kind specified by the Minister in an instrument under this regulation;" (h): "naval equipment of a kind specified by the Minister in an instrument under this regulation;" (i): "naval technology of a kind specified by the Minister in an instrument under this regulation;" (j): "software for integrating industrial processes, of a kind specified by the Minister in an instrument under this regulation;" and (k): "vessels designed for the transport or storage of oil, gas or petrochemical products."

Item [2] - Subregulation 4A (2) (at the end of table item 1, column headed "Goods")

Item [2] amends the list of goods for Iran in item 1 of the table in subregulation 4A (2) by adding new paragraph (d): "natural gas products of a kind specified by the Minister in an instrument under this regulation."

Item [3] - Regulation 5

Item [3] repeals and substitutes a new regulation 5 which streamlines the existing elements of the "sanctioned service" provisions into their separate elements and also incorporates an expanded scope of "sanctioned service" as it applies to Iran.

Subregulation 5 (1) provides that a "sanctioned service" is the provision to a person of: (a) technical advice, assistance or training; or (b) financial assistance; or (c) a financial service; or (d) another service, if it assists with, or is provided in relation to, a sanctioned supply.

Subregulation 5 (2) provides that a "sanctioned service" is also the provision to a person of: (a) financial assistance; or (b) a financial service; if it assists with, or is provided in relation to, a sanctioned import.

Subregulation 5 (3) expands the scope of a "sanctioned service" by providing that a "sanctioned service" is also the provision of a service mentioned in an item of the table for subregulation 5 (3) in respect of an oil tanker or cargo vessel: (a) flying the flag of the Islamic Republic of Iran; or (b) owned or controlled or operated, directly or indirectly, by an Iranian person, entity or body. The services in the table include: Item 1: "a classification service of any kind." Item 2: "the supervision or, or participation in, the design, construction or repair of ships and their parts, including any of the following: (a) blocks; (b) elements; (c) machinery; (d) electrical installations; (e) control installation; as well as any related technical assistance, financing or financial assistance." Item 3: "the inspection, testing and certification of marine equipment, materials and components as well as the supervision of the installation on board and the supervision of system integration." Item 4: "the carrying out of surveys, inspections, audits and visits and the issuance, renewal or endorsement of the relevant certificates and documents of compliance, on behalf of the flag State administration, in accordance with any of the following: (a) the International Convention for the Safety of Life at Sea, 1974, as amended (SOLAS 1974) and its 1988 Protocol; (b) the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978, as amended (MARPOL 73/78); (c) the Convention on the International Regulations for Preventing Collisions at Sea, 1972, as amended (COLREGs 1972); (d) the International Convention on Load Lines, 1966 (LL 1966) and its 1988 Protocol; (e) the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended (STCW); and (f) the International Convention on Tonnage Measurement of Ships, 1969 (TONNAGE 1969)."

Subregulation 5 (4) provides that a "sanctioned service" is also, for a country mentioned in an item of the table in subregulation 5 (4), the provision to the country, or a person for use in the country, of: (a) technical advice, assistance or training; or (b) financial assistance; or (c) a financial service; or (d) another service, if it assists with, or is provided in relation to, an activity mentioned in an item of the table in subregulation 5 (4).

Subregulation 5 (5) provides that a "sanctioned service" is also, for an entity or person mentioned in an item of the table in subregulation 5 (5), the provision to an entity or person of: (a) technical advice, assistance or training; or (b) financial assistance; or (c) a financial service; or (d) another service, if it assists with, or is provided in relation to, an activity involving the supply, sale, transfer, import, purchase or transport of an item of gold, precious metals and diamonds.

Item [4] - Subregulation 6 (1) (table)

Item [4] repeals and substitutes a new table in subregulation 6 (1). The new table replaces the references to 'Burma' with 'Myanmar' and updates the order of countries.

Item [5] - After subregulation 12 (1)

Item [5] inserts new subregulation 12 (1A) which provides that strict liability applies to the circumstance that the sanctioned supply is not in accordance with a permit under regulation 18. New subregulation 12 (1A) includes two notes: Note 1 is a standard note which refers to the definition of strict liability in section 6.1 of the Criminal Code. Note 2 explains that strict liability is not imposed on an individual for any other element of an offence under section 16 of the Act that relates to a contravention of regulation 12.

Item [6] - After subregulation 12A (1)

Item [6] inserts new subregulation 12A (1A) which provides that strict liability applies to the circumstance that the sanctioned import is not in accordance with a permit under regulation 18. New subregulation 12A (1A) includes two notes: Note 1 is a standard note which refers to the definition of strict liability in section 6.1 of the Criminal Code. Note 2 explains that strict liability is not imposed on an individual for any other element of an offence under section 16 of the Act that relates to a contravention of regulation 12A.

Item [7] - After subregulation 13 (1)

Item [7] inserts new subregulation 13 (1A) which provides that strict liability applies to the circumstance that the sanctioned service is not in accordance with a permit under regulation 18. New subregulation 13 (1A) includes two notes: Note 1 is a standard note which refers to the definition of strict liability in section 6.1 of the Criminal Code. Note 2 explains that strict liability is not imposed on an individual for any other element of an offence under section 16 of the Act that relates to a contravention of regulation 13.

Item [8] - After subregulation 13A (1)

Item [8] inserts new subregulation 13A (1A) which provides that strict liability applies to the circumstance that the sanctioned commercial activity is not in accordance with a permit under regulation 18. New subregulation 13A (1A) includes two notes: Note 1 is a standard note which refers to the definition of strict liability in section 6.1 of the Criminal Code. Note 2 explains that strict liability is not imposed on an individual for any other element of an offence under section 16 of the Act that relates to a contravention of regulation 13A.

Item [9] - After subregulation 14 (1)

Item [9] inserts new subregulation 14 (1A) which provides that strict liability applies to the circumstance that the making available of the asset is not in accordance with a permit under regulation 18. New subregulation 14 (1A) includes two notes: Note 1 is a standard note which refers to the definition of strict liability in section 6.1 of the Criminal Code. Note 2 explains that strict liability is not imposed on an individual for any other element of an offence under section 16 of the Act that relates to a contravention of regulation 14.

Item [10] - After subregulation 15 (1)

Item [10] inserts new subregulation 15 (1A) which provides that strict liability applies to the circumstance that the use or dealing with the asset is not in accordance with a permit under regulation 18. New subregulation 15 (1A) includes two notes: Note 1 is a standard note which refers to the definition of strict liability in section 6.1 of the Criminal Code. Note 2 explains that strict liability is not imposed on an individual for any other element of an offence under section 16 of the Act that relates to a contravention of regulation 15.

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