Commonwealth Numbered Regulations - Explanatory Statements

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CHARTER OF THE UNITED NATIONS (TERRORISM AND DEALINGS WITH ASSETS) REGULATIONS 2002 2002 NO. 314

EXPLANATORY STATEMENT

Statutory Rules 2002 No. 314

Issued by the Authority of the Minister for Foreign Affairs

Charter of the United Nations Act 1945

Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002

Section 20 of the Charter of the United Nations Act 1945 ("the Act") provides that a person who holds a freezable asset commits an offence if that 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 dealing with the asset. Section 21 of the Act provides that a person commits an offence if the person, directly or indirectly, makes an asset available to a proscribed person or entity. A "freezable asset" is an asset owned or controlled by a proscribed person or entity, or an asset listed by the Minister under section 15 of the Act, or is derived or generated from such assets. A "proscribed person or entity" is a person or entity listed by the Minister under section 15 or a person or entity proscribed by regulation under section 18.

Section 15 of the Act provides that the Governor-General may make regulations prescribing the matters of which the Minister must be satisfied before listing, by notice in the Gazette, a person, entity or asset, to give effect to a decision 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; and

(c)       relates to terrorism and dealings with assets.

Section 22A of the Charter of the United Nations Act 1945 provides that the GovernorGeneral may make regulations relating to procedures relating to assets that are, may be or may become freezable assets.

On 28 September 2001, the Security Council, acting under Chapter VII of the Charter of the United Nations, passed Resolution 1373 (2001) which, among other things, required States to freeze without delay 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, of entities owned or controlled directly or indirectly by such persons, and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities. It also required States to prohibit the making available, directly or indirectly, for the benefit of such persons and entities, of funds, financial assets or economic resources.

The purpose of the proposed Regulations is to implement Australia's obligations under Resolution 1373 to freeze terrorist assets and to prevent assets being made available to terrorists.

The Regulations will:

       require the Minister to list a person or entity pursuant to section 15 if the Minister is satisfied that the person or entity is a person or entity mentioned in Resolution 1373;

       allow the Minister to list an asset, or class of asset, pursuant to section 15 if the Minister is satisfied that the asset, or class of asset, is owned or controlled by a person or entity mentioned in Resolution 1373;

       allow a person who holds an asset that the person suspects is, or may be, a freezable asset to request the AFP to help in determining whether or not the asset is owned or controlled by a proscribed person or entity.

The Regulations commence on the commencement of Schedule 3 to the Suppression of the Financing of Terrorism Act 2002. This is expected to take place on 13 December 2002.

ATTACHMENT

Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002

Details of the Regulations are as follows:

Regulation 1 states the name of the Regulations;

Regulation 2 states that the Regulations commence on the commencement of Schedule 3 to the Suppression of the Financing of Terrorism Act 2002;

Regulation 3 states that the Charter of the United Nations (Anti-terrorism Measures) Regulations 2001 (Statutory Rules 2001 No. 297) are repealed;

Regulation 4 (1) provides that a person who, or an entity that, was a proscribed person or entity under the Charter of the United Nations (Anti-terrorism Measures) Regulations 2001 immediately before the repeal effected by regulation 3 is taken, on commencement of these Regulations, to have been listed under section 15 of the Charter of the United Nations Act 1945;

Regulation 4 (2) provides that an asset, or class of asset, that was listed under subregulation 7 (3) of the Charter of the United Nations (Anti-terrorism Measures) Regulations 2001 immediately before the repeal effected by regulation 3 is taken, on commencement of these Regulations, to be a listed asset;

Regulation 5 defines "Act", "AFP", "asset", "freezable asset", "listed asset", "proscribed person or entity", and "Resolution 1373"

Regulation 6 (1) provides that, for subsection 15 (2) of the Act, the Minister must list a person or entity if the Minister is satisfied that the person or entity is a person or entity mentioned in paragraph 1 (c) of Resolution 1373;

Regulation 6 (2) provides that, for subsection 15 (4) of the Act, the Minister may list an asset, or class of asset, if the Minister is satisfied that the asset, or class of asset, is owned or controlled by a person or entity mentioned in paragraph 1 (c) of Resolution 1373;

Regulation 7 (1) provides that the Department may give notice of decisions of the Minister to list a person or entity, or an asset or class of asset, under section 15 of the Act to any person who is engaged in the business of holding, dealing in, or facilitating dealing in, assets;

Regulation 7 (2) provides that the notice referred to in regulation 7 (1) may be given before notice of the listing that is the subject of the decisions is published in the Gazette;

Regulation 8 (1) provides that the Department must keep a document that sets out:

(a)       all persons and entities that are proscribed persons or entities; and

(b)       all assets or classes of assets currently listed under section 15;

Regulation 8 (2) provides that the Department must ensure that an electronic version of the document is made available to the public on the internet.

Regulation 9 (1) provides that a person who holds an asset that the person suspects is, or may be, a freezable asset may request the AFP to help the person determine whether or not the asset is owned or controlled by a proscribed person or entity;

Regulation 9 (2) provides that the request referred to in regulation 9 (1) must be accompanied by details of the asset, and as much information (including information about the owner or controller of the asset) as is known to the person making the request;

Regulation 9 (3) provides that the AFP must use its best endeavours to help a person who has made a request under regulation 9 (1);

Regulation 9 (4) provides that, as soon as practicable after the making of a request under regulation 9 (1), the AFP must respond in writing;

Regulation 9 (5) provides that the response referred to in regulation 9 (4) must state whether the AFP considers that:

(a)       it is likely that the asset is owned or controlled by a proscribed person or entity; or

(b)       it is unlikely that the asset is owned or controlled by a proscribed person or entity; or

(c)       it is unknown whether the asset is owned or controlled by a proscribed person or entity;

Regulation 10 (1) states that regulation 10 sets out what a person who is holding an asset must do if the person forms an opinion (a "notifiable opinion") that:

(a)       the asset is a freezable asset; or

(b)       the asset, having been a freezable asset, or having been previously treated by the person as a freezable asset, is not, or is no longer, a freezable asset.

Regulation 10 (2) provides that an opinion that an asset is not, or is no longer, a freezable asset is not a notifiable opinion if the asset has ceased to appear in the document mentioned in regulation 8 (1) because:

(a)       the asset is no longer a listed asset; or

(b)       the owner or controller of the asset is no longer a proscribed person or entity.

Regulation 10 (3) provides that, as soon as practicable after a person forms a notifiable opinion, the person must inform the AFP of

(a)       the asset about which the opinion was formed; and

(b)       the reasons for the opinion;

Regulation 11 (1) states that regulation 11 applies to a person who, at the time that something is done under the Act or these Regulations (a "relevant action") is:

(a)       the Minister; or

(b)       the Secretary of the Department; or

(c)       an officer of the Commonwealth; or

(d)       an AFP employee, or a member of the Australian Federal Police, within the meaning of the Australian Federal Police Act 1979; or

(e)       a person who holds a freezable asset or an asset that the person suspects may be a freezable asset; or

(f)       a person employed by a person mentioned in paragraph (1) (e);

Regulation 11 (2) provides that a person to whom this regulation applies is not required:

(a)       to produce in a court any document that has come into the custody or control of the person in the course of, or because of, the relevant action; or

(b)       to divulge or communicate to a court any matter or thing that has come to the notice of the person in the course of, or because of, the relevant action;

unless it is necessary to do so to carry into effect the provisions of the Act or these Regulations;

Regulation 12 provides that a person (including the Commonwealth) is not liable to an action, suit or proceeding for anything done or omitted to be done in good faith and without negligence under regulation 9 or 10.


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