Commonwealth Numbered Regulations - Explanatory Statements

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CHARTER OF THE UNITED NATIONS (SANCTIONS -- ERITREA) REGULATIONS 2010 (SLI NO 32 OF 2010)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 32

 

Issued by the Authority of the Minister for Foreign Affairs

 

Charter of the United Nations Act 1945

 

Charter of the United Nations (Sanctions – Eritrea) Regulations 2010

 

The purpose of the Regulations is to implement Australia’s obligations under United Nations Security Council (UNSC) Resolution 1907 (23 December 2009), imposing sanctions against Eritrea. Resolution 1907 was adopted in response to the ongoing border dispute between Djibouti and Eritrea, as well as Eritrea’s support to armed groups destabilising and undermining peace and reconciliation in Somalia, which the UNSC determined constituted a threat to international peace and security.

 

Section 6 of the Charter of the United Nations Act 1945 (the Act) provides that the Governor-General may make Regulations for and in relation to giving effect to decisions that the Security Council has made under Chapter VII of the Charter of the United Nations and Article 25 of the Charter requires Australia to carry out, in so far as those decisions require Australia to apply measures not involving the use of armed force.

 

Paragraph 5 of Resolution 1907 obliges UN Member States to prevent the sale or supply to Eritrea, by their nationals or from their territories or using their flag vessels or aircraft, of arms and related materiel of all types, as well as technical assistance, training, financial and other assistance related to the military activities or to the provision, manufacture, maintenance or use of these items. Paragraph 6 of Resolution 1907 obliges all UN Member States to prohibit the procurement of the items, training and assistance described in paragraph 5 of Resolution 1907 from Eritrea by their nationals, or using their flag vessels or aircraft.

 

Regulation 8 of the Regulations prohibits the making of a “sanctioned supply”, which is defined by regulation 6 as the direct or indirect supply, sale or transfer of arms or related materiel to Eritrea. Regulation 9 of the Regulations prohibits the procurement of arms or related materiel from Eritrea or from a person or entity in Eritrea. Regulation 10 of the Regulations prohibits the provision of a “sanctioned service” to, or the procurement of a “sanctioned service” from, Eritrea, or a person or entity in Eritrea. Regulation 7 defines “sanctioned service” as technical assistance or training, or financial or other assistance, including investment, brokering or other financial services, related to military activities or the supply, sale, transfer, manufacture, maintenance or use of export sanctioned goods.

 

Paragraph 12 of Resolution 1907 requires UN Member States to prevent the direct or indirect supply, sale or transfer of arms and related materiel by their nationals or from their territories or using their flag vessels and aircraft, and the direct or indirect supply of technical assistance or training, financial and other assistance including investment, brokering or other financial services, related to military activities or to the supply, sale, transfer, manufacture, maintenance or use of weapons and military equipment, to individuals or entities designated by the Committee established by resolution 751 (1992) and expanded by resolution 1844 (2008) (“the Committee”). The Regulations define such conduct as a “prohibited supply to designated person or entity” (regulation 4) and a “prohibited service to designated person or entity” (regulation 5) respectively, and provide that such conduct contravenes the regulation (regulation 11).

 

Paragraph 13 of Resolution 1907 additionally requires that UN Member States impose targeted financial sanctions against the entities and individuals designated by the Committee. Resolution 1907 provides narrow exceptions to these obligations. These targeted financial sanctions are implemented by the Regulations by prohibiting making assets available to designated persons or entities (regulation 12) and prohibiting the use or dealing with assets owned or controlled by designated persons or entities, thereby freezing such assets (regulation 13).

 

Regulation 14 of the Regulations provides for the Minister to authorise certain transactions involving designated persons or entities, as specifically allowed under the exceptions in Resolution 1907.

 

Regulations 8, 9, 10, 11, 12 and 13 of the Regulations are specified by the Minister for Foreign Affairs as UN sanction enforcement laws pursuant to section 2B of the Charter of the United Nations Act 1945, and included in the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008.

 

The Regulations ensure that those aspects of the sanctions imposed by resolution 1907 that cannot be implemented under existing regulations are adequately implemented into domestic law.

 

Resolution 1907 was adopted under Chapter VII of the Charter of the United Nations and the measures are binding on Australia pursuant to Article 25 of that Charter.

 

The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.

 

No public consultation was undertaken under section 17 of the Legislative Instruments Act 2003 before this instrument was made as the instrument was required as a matter of urgency, in accordance with section 18 of the Legislative Instruments Act 2003, to comply with reporting requirements mandated by the United Nations Security Council.

 

Details of the Regulations are set out in the Annex.

 

Authority: Section 6 of the

Charter of the United Nations Act 1945


Annex

 

Charter of the United Nations (Sanctions — Eritrea) Regulations 2010

 

Details of the Regulations are as follows:

 

Part 1 Preliminary

 

Regulation 1 states that the name of the Regulations is the Charter of the United Nations (Sanctions — Eritrea) Regulations 2010.

 

Regulation 2 provides that the Regulations commence on the day after they are registered.

 

Regulation 3 provides for the definition of certain terms used in the Regulations, including “arms or related materiel”, “sanctioned service”, “sanctioned supply”, “export sanctioned goods”, “designated person or entity”, “import sanctioned goods” and “controlled asset”.

 

Regulation 4 provides that a person who supplies, sells or transfers export sanctioned goods to a designated person or entity, or to a person who is not a designated person or entity and, as a direct or indirect result of the supply, sale or transfer the goods are transferred to a designated person or entity, makes a “prohibited supply to a designated person or entity”.

 

Regulation 5 provides that a person who makes a direct or indirect provision to a designated person or entity of technical assistance or training, or financial or other assistance, including investment, brokering or other financial services, related to military activities or the supply, sale transfer, manufacture, maintenance or use of export sanctioned goods, makes a “prohibited service to a designated person or entity”.

 

Regulation 6 provides that a person who supplies, sells or transfers export sanctioned goods to another person with the direct or indirect result that the goods are transferred to Eritrea, makes a “sanctioned supply”.

 

Regulation 7 provides that a person who provides to Eritrea technical assistance, training, financial and other assistance related to military activities, or the provision, manufacture, maintenance or use of arms or related materiel, makes a “sanctioned service”.

 

Part 2 UN sanction enforcement laws

 

Regulation 8 prohibits the making of a sanctioned supply. The prohibition in regulation 8 applies to a person, whether or not in Australia, and whether or not an Australian citizen, who uses the services of an Australian ship or an Australian aircraft to make an unauthorised supply. Similarly, the prohibition in regulation 8 applies to a body corporate in relation to an unauthorised supply made by another body corporate or entity, wherever incorporated or situated, over which the first body corporate has effective control.

 

This regulation is specified by the Minister for Foreign Affairs in the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (“the UN Sanction Enforcement Law Declaration”) as a “UN sanction enforcement law” pursuant to section 2B of the Charter of the United Nations Act (the Act). This has the effect of making contravention of regulation 8 an offence under section 27 of the Act. Section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of regulation 8, thus giving the offence extraterritorial operation.

 

Regulation 9 prohibits the procurement of import sanctioned goods from Eritrea of from a person or entity in Eritrea. The prohibition in regulation 9 also applies to a person, whether or not in Australia, and whether or not an Australian citizen, who uses the services of an Australian ship or an Australian aircraft to transport export sanctioned goods in the course of, or for the purpose of, making a sanctioned supply. Similarly, the prohibition in regulation 9 applies to a body corporate if the body corporate has effective control over the actions of another body corporate or entity, wherever incorporated or situated and the other body corporate or entity procures import sanctioned goods from Eritrea or from a person or entity in Eritrea.

 

Regulation 9 is specified by the Minister for Foreign Affairs in the UN Sanction Enforcement Law Declaration as a “UN sanction enforcement law” pursuant to section 2B of the Act. This has the effect of making contravention of regulation 9 an offence under section 27 of the Act. Section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of regulation 9, thus giving the offence extraterritorial operation.

 

Regulation 10 prohibits the provision of a sanctioned service to, or the procurement of a sanctioned service from, Eritrea or a person in Eritrea. The prohibition in regulation 10 applies to a person, whether or not in Australia, and whether or not an Australian citizen, who uses the services of an Australian ship or an Australian aircraft to provide a sanctioned service. Regulation 10 also provides that a body corporate contravenes this regulation if the body corporate has effective control over the actions of another body corporate or entity, wherever incorporated or situated, and the other body corporate or entity provides a sanctioned service.

 

Regulation 10 is specified by the Minister for Foreign Affairs in the UN Sanction Enforcement Law Declaration as a “UN sanction enforcement law” pursuant to section 2B of the Act. This has the effect of making contravention of regulation 10 an offence under section 27 of the Act. Section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of regulation 10, thus giving the offence extraterritorial operation.

 

Regulation 11 prohibits the provision of a prohibited supply to a designated person or entity, or the provision of a prohibited service to a designated person or entity. Regulation 11 provides that a body corporate contravenes the regulation if the body corporate has effective control over the actions of another body corporate or entity, wherever incorporated or situated, and the other body corporate or entity makes a prohibited supply or a prohibited service to a designated person or entity.

 

Regulation 11 is specified by the Minister for Foreign Affairs in the UN Sanction Enforcement Law Declaration as a “UN sanction enforcement law” pursuant to section 2B of the Act. This has the effect of making contravention of regulation 11 an offence under section 27 of the Act. Section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of regulation 11, thus giving the offence extraterritorial operation.

 

Regulation 12 provides for the prohibition of dealing with designated persons or entities. A person contravenes regulation 12 if they directly or indirectly make an asset available to, or for the benefit of, a designated person or entity, or a person or entity acting on behalf of or at the direction of a designated person or entity, without a permit issued under regulation 14.

 

Regulation 12 is specified by the Minister for Foreign Affairs in the UN Sanction Enforcement Law Declaration as a “UN sanction enforcement law” pursuant to section 2B of the Act. This has the effect of making contravention of regulation 12 an offence under section 27 of the Act. Section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of regulation 12, thus giving the offence extraterritorial operation.

 

Regulation 13 provides for prohibitions relating to controlled assets. A controlled asset is an asset that is owned or controlled by a designated person or entity. A person contravenes regulation 13 if the person directly or indirectly makes an asset available to, or for the benefit of, a designated person or entity, without a permit under regulation 14.

 

Regulation 13 is specified by the Minister for Foreign Affairs in the UN Sanction Enforcement Law Declaration as a “UN sanction enforcement law” pursuant to section 2B of the Act. This has the effect of making contravention of regulation 13 an offence under section 27 of the Act. Section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of regulation 13, thus giving the offence extraterritorial operation.

 

Regulation 14 provides that the Minister has the power to grant, on application, a permit authorising that an asset be made available to a person or entity that would otherwise contravene the offence in sub-regulation 12(1), or a permit authorising the use of, or dealing with, a controlled asset. Such a permit can only be issued for a basic expense dealing, a legally required dealing, or an extraordinary expense dealing as defined in Regulation 5 of the Charter of the United Nations (Dealing with Assets) Regulations 2008.

 

If an application is for a basic expense dealing, the Minister must notify the Committee established under Resolution 751 and expanded by Resolution 1844 (“the Committee”) of the application and may grant a permit only if 3 working days have passed since the notice was given and the Committee has not advised against granting the permit to the applicant. If the application is for a legally required dealing, the Minister must notify the Committee of the application. If the application is for an extraordinary expense dealing, the Minister must notify the Committee of the application and may grant the permit only with the approval of the Committee.

 


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