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CHARTER OF THE UNITED NATIONS (SANCTIONS-AFGHANISTAN) AMENDMENT REGULATIONS 2001 (NO. 1) 2001 NO. 298
EXPLANATORY STATEMENT
Statutory Rules 2001 No. 298
Issued by the Authority of the Minister for Foreign Affairs
Charter of the United Nations Act 1945
Charter of the United Nations (Sanctions-Afghanistan) Amendment Regulations 2001 (No. 1)
Section 6 of the Charter of the United Nations Act 1945 provides that the Governor-General may make Regulations for, and in relation to, giving effect to decisions that:
(a) the Security Council has made under Chapter VII of the Charter of the United Nations; and
(b) Article 25 of the Charter requires Australia to carry out;
insofar as those decisions require Australia to apply measures not involving the use of armed force.
On 15 October 1999, the Security Council passed Resolution 1267 which, among other things, required States to freeze funds and other financial resources of the Taliban or any undertaking owned or controlled by the Taliban and to prevent their nationals or persons within their territory making funds or financial resources available to the Taliban or any undertaking owned or controlled by the Taliban. On 19 December 2000, the Security Council passed Resolution 1333 which among other things, required States to impose a freeze on the funds and other financial assets of Usama bin Laden and his associates, including the Al-Qaida organisation, and to prevent their nationals or persons within their territory making funds or financial resources available to Usama bin Laden and his associates, including the Al-Qaida organisation.
Resolution 1267 established a Committee, which has the function of (for the purposes of Resolution 1267) designating undertakings owned or controlled by the Taliban, and (for the purposes of Resolution 1333) designating individuals and entities associated with Usama bin Laden. The Committee also has the function of authorising, on a case-by-case basis on the grounds of humanitarian need, the making available of funds or financial resources available to the Taliban or any undertaking owned or controlled by the Taliban, which would otherwise be contrary to Resolution 1267.
The purpose of the Regulations is to amend the Charter of the United Nations (Sanctions - Afghanistan) Regulations 2001 so as to implement Australia's obligations under Resolutions 1267 and 1333, by putting in place measures as described above. The Charter of the United Nations (Sanctions - Afghanistan) Regulations 2001, in combination with the Customs (Prohibited Exports) Regulations 1958, implemented the other parts of those Resolutions, but did not implement the measures described above.
The Regulations will:
. Prohibit a person (including a body corporate) in Australia, or an Australian citizen outside Australia, from using or dealing with an asset owned or controlled directly or indirectly by the Taliban or an undertaking designated by the Committee established under Resolution 1267 as being owned or controlled by the Taliban, or allowing or facilitating the use of or dealing with such an asset. This prohibition will not apply where the using or dealing is in accordance with an authorisation by the Committee.
. Prohibit a person (including a body corporate) in Australia, or an Australian citizen outside Australia, from using or dealing with an asset owned or controlled directly or indirectly by Usama bin Laden, the Al-Qaida organisation or an undertaking designated by the Committee established under Resolution 1267 as being associated with Usama bin Laden, or allowing or facilitating the use of or dealing with such an asset.
. Prohibit a person (including a body corporate) in Australia, or an Australian citizen outside Australia, from making an asset available to the Taliban or an undertaking designated by the Committee established under Resolution 1267 as being owned or controlled by the Taliban. This prohibition will not apply where the using or dealing is in accordance with an authorisation by the Committee.
. Prohibit a person (including a body corporate) in Australia, or an Australian citizen outside Australia, from making an asset available to Usama bin Laden, the Al-Qaida organisation or an undertaking designated by the Committee established under Resolution 1267 as being associated with Usama bin Laden.
The Regulations commence on gazettal.
ATTACHMENT
Charter of the United Nations (Sanctions - Afghanistan) Amendment Regulations 2001 (No. 1).
Details of the proposed Regulations are as follows:
Regulation 1 states the name of the Regulations;
Regulation 2 states that the Regulations commence on gazettal;
Regulation 3 states that Schedule 1 amends the Charter of the United Nations (Sanctions - Afghanistan) Regulations 2001 ('the principal Regulations');
Schedule 1 amends the principal Regulations as follows:
. Regulation 3 of the principal Regulations is amended to omit the words 'Resolution 1333 (2000) of the Security Council of the United Nations' and insert the words 'Resolutions 1267 and 1333', and to insert a new paragraph 3(c) to read 'preventing a person in Australia, or a citizen of Australia, from dealing with financial assets of the Taliban or Usama bin Laden, or individuals or entities associated with them;
. Regulation 6 of the principal Regulations is amended to insert definitions of 'asset', 'bin Laden asset', 'bin Laden entity', 'Committee', 'Resolution 1267', 'Taliban asset' and 'Taliban entity';
. A new Part 4 is inserted after Part 3 of the principal Regulations. The new Part 4 contains the following provisions:
- The new Regulation 15 defines 'asset', 'bin Laden asset', 'bin Laden entity', 'Taliban asset' and 'Taliban entity';
- The new Regulation 16(1) provides that a person who holds a Taliban asset commits an offence if the person uses or deals with the asset, or allows the asset to be used or dealt with, or facilitates the use of the asset or the dealing with the asset, and the person is reckless as to whether the asset is a Taliban asset, and the use or dealing is not accordance with an authorisation by the Committee under paragraph 4(b) of Resolution 1267, with a penalty of 50 penalty units;
- The new Regulation 16(2) provides that strict liability applies to the element that the use or dealing is not accordance with an authorisation by the Committee under paragraph 4(b) of Resolution 1267;
- The new Regulation 16(3) provides that a person who holds a bin Laden asset commits an offence if the person uses or deals with the asset, or allows the asset to be used or dealt with, or facilitates the use of the asset or the dealing with the asset, and the person is reckless as to whether the asset is a bin Laden asset, with a penalty of 50 penalty units;
- The new Regulation 16(4) provides that it is a defence to a charge under the new Regulations 16(1) or the new Regulation 16(3) if the person charged proves that the use or dealing was solely for the purpose of preserving the value of the asset;
- The new Regulation 16(5) defines 'person' for the purposes of the new Regulation 16 to mean a person (including a body corporate) in Australia or an Australian citizen outside Australia;
- The new Regulation 17(1) provides that a person commits an offence if the person, directly or indirectly, makes an asset available to a Taliban entity, and the person is reckless as to whether the entity is a Taliban entity, and the making available of the asset is not accordance with an authorisation by the Committee under paragraph 4(b) of Resolution 1267, with a penalty of 50 penalty units;
- The new Regulation 17(2) provides that strict liability applies to the element that the making available of the asset is not accordance with an authorisation by the Committee under paragraph 4(b) of Resolution 1267;
- The new Regulation 17(3) provides that a person commits an offence if the person, directly or indirectly, makes an asset available to a bin Laden entity, and the person is reckless as to whether the entity is a bin Laden entity, with a penalty of 50 penalty units;
- The new Regulation 17(4) defines 'person' for the purposes of the new Regulation 17 to mean a person (including a body corporate) in Australia or an Australian citizen outside Australia.