Commonwealth Numbered Regulations - Explanatory Statements

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CHARTER OF THE UNITED NATIONS (ANTI-TERRORISM MEASURES) REGULATIONS 2001 2001 NO. 297

Statutory Rules 2001 No. 297

Issued by the Authority of the Minister for Foreign Affairs

Charter of the United Nations Act 1945

Charter of the United Nations (Anti-terrorism Measures) Regulations 2001

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 28 September 2001, the Security Council passed Resolution 1373 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 or financial or other related services.

The purpose of the Regulations is to implement Australia's obligations under Resolution 1373, by putting in place measures as 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 a person or entity mentioned in Resolution 1373, 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 a person or entity mentioned in Resolution 1373.

The Regulations commence on 15 October 2001.

ATTACHMENT

Charter of the United Nations (Anti-terrorism Measures) Regulations 2001

Details of the Regulations are as follows:

Regulation 1 states the name of the Regulations;

Regulation 2 states that the Regulations commence on 15 October 2001;

Regulation 3 states that the object of the Regulations is to assist in giving effect to Resolution 1373 (2001) of the Security Council of the United Nations;

Regulation 4 provides that the Regulations have extra-territorial operation according to their terms;

Regulation 5 provides that Chapter 2 of the Criminal Code applies on and from 15 October 2001 to all offences created by the Regulations;

Regulation 6 defines 'Resolution 1373', 'asset', 'freezable asset', 'proscribed', and 'entity';

Regulation 7(1) provides that if the Minister is satisfied that a person or entity is a person or entity mentioned in paragraph 1(c) of Resolution 1373, the Minister must list the name, or names, of the person or entity in the Gazette;

Regulation 7(2) provides that a person or entity so listed is a proscribed person or entity for the Regulations;

Regulation 7(3) provides that the Minister may also list assets, or classes of assets, that the Minister is satisfied are owned or controlled by a person or entity mentioned in paragraph 1 (c) of Resolution 1373;

Regulation 8 provides that the Minister, or a person authorised by the Minister, may, by written notice, permit a freezable asset to be used or dealt with in a specified way; or permit an asset to be made available to a proscribed person or entity, and that such a notice may be subject to conditions;

Regulation 9(1) provides that a person who holds a freezable 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 dealing with the asset, and the person is reckless as to whether the asset is a freezable asset, and the use or dealing is not in accordance with a notice under regulation 8, with a penalty of 50 penalty units;

Regulation 9(2) provides that strict liability applies to the element that the use or dealing is not in accordance with a notice under regulation 8;

Regulation 9(3) provides that it is a defence if the person proves that the use or dealing was solely for the purpose of preserving the value of the asset;

Regulation 9(4) defines 'person' for the purposes of Regulation 9 to mean a person (including a body corporate) in Australia, or an Australian citizen outside Australia;

Regulation 10(1) provides that a person commits an offence if the person, directly or indirectly, makes an asset available to a proscribed person or entity, and the person is reckless as to whether the person or entity is a proscribed person or entity, and the making available of the asset is not in accordance with a notice under regulation 8, with a penalty of 50 penalty units;

Regulation 10(2) provides that strict liability applies to the element that the making available of the asset is not in accordance with a notice under regulation 8;

Regulation 10(3) defines 'person' for the purposes of Regulation 10 to mean a person (including a body corporate) in Australia, or an Australian citizen outside Australia;

Regulation 11 provides that a person is not liable to suit for anything done in good faith, and without negligence, in purported compliance with the Regulations;

Regulation 12 provides that, if an asset was not used or dealt with by the holder in accordance with the instructions of the owner or controller of the asset, and the holder was acting in good faith, and without negligence, in purported compliance with these regulations, and the asset was not a freezable asset, the owner of the asset is entitled to be compensated by the Commonwealth for any loss resulting from the application of these Regulations.