Charter of the United Nations (Sanctions Haiti) Regulations (Cth)

Statutory Rules 1994

No. 158 1

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Charter of the United Nations (Sanctions—Haiti) Regulations

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Charter of the United Nations Act 1945.

Dated 1 June 1994.

 BILL HAYDEN

 Governor-General

By His Excellency’s Command,

GARETH EVANS

Minister for Foreign Affairs

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Citation

 1. These Regulations may be cited as the Charter of the United Nations (Sanctions—Haiti) Regulations.

[NOTE: These Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]

Interpretation

 2. In these Regulations, unless the contrary intention appears:

“authorised person” means:

• (a)

  the Minister for Foreign Affairs; or

• (b)

  an officer of the Department of Foreign Affairs and Trade referred to in regulation 4;

“de facto authority”:

• (a)

  means the persons governing Haiti at any time after the coup d’état in 1991 against the government of President Jean-Bertrand Aristide, including the following persons:

  • (i)

    an officer of the military forces of Haiti;

  • (ii)

    a person employed by, or acting on behalf of, the military forces of Haiti;

  • (iii)

    an officer of the police force of Haiti;

  • (iv)

    a person employed by, or acting on behalf of, the police force of Haiti;

  • (v)

    a person who had substantial involvement in effecting the coup;

  (vi) a person who has had substantial involvement in governing Haiti since the coup; and

• (b)

  does not include the government of Haiti against which the coup was effected;

“registered aircraft” means an aircraft registered in Australia under the Civil Aviation Act 1988;

“registered ship” means a ship registered under the Shipping Registration Act 1981;

“relative”, in relation to a de facto authority, means:

• (a)

  the spouse of the person; or

• (b)

  a child, adopted child, parent, brother or sister of the person; or

• (c)

  a step-child, adopted step-child, step-parent, step-brother or step-sister of the person.

Application of the Regulations

 3. These Regulations have extra-territorial operation according to their terms.

Authorised officer

 4. The Minister for Foreign Affairs may, in writing, authorise an officer of the Department of Foreign Affairs and Trade for the purposes of these Regulations.

Financial sanctions against Haiti: persons in Australia

 5.(1) Subject to subregulations (2), a person in Australia who holds the following funds or financial resources must not, without the written permission of an authorised person, intentionally or recklessly use the funds for any purpose:

• (a)

  funds that are owned by:

  • (i)

    the government of Haiti; or

  • (ii)

    a de facto authority; or

  • (iii)

    a relative of a de facto authority;

• (b)

  funds that are controlled, directly or indirectly, by:

  • (i)

    the government of Haiti; or

  • (ii)

    a de facto authority; or

  • (iii)

    a relative of a de facto authority;

• (c)

  funds that are controlled, directly or indirectly, by an entity that is owned or controlled by:

  • (i)

    the government of Haiti; or

  • (ii)

    a de facto authority; or

  • (iii)

    a relative of a de facto authority.

Penalty:  50 penalty units.

 (2) When deciding whether to grant permission under subregulation (1), the authorised person must take into account:

• (a)

  Australia’s relations with other countries; and

• (b)

  Australia’s obligations under international law.

 (3) A permission may be expressed to be subject to conditions, including:

• (a)

  the amount of the funds that may be used; and

• (b)

  the circumstances in which the funds may be used; and

• (c)

  the period of effect of the permission.

 (4) A permission granted under subregulation (1) does not permit the person to use the funds in a particular manner if, apart from this regulation, the person would not be able to use the funds in that manner.

Financial sanctions against Haiti: citizens of Australia who are outside Australia

 6. (1) Subject to subregulation (2), a citizen of Australia who is outside Australia, and who holds the following funds or financial resources, must not, without the written permission of an authorised person, intentionally or recklessly use the funds for any purpose:

• (a)

  funds that are owned by:

  • (i)

    a de facto authority; or

  • (ii)

    a relative of a de facto authority;

• (b)

  funds that are controlled, directly or indirectly, by:

  • (i)

    a de facto authority; or

  • (ii)

    a relative of a de facto authority;

• (c)

  funds that are controlled, directly or indirectly, by an entity that is owned or controlled by:

  • (i)

    a de facto authority; or

  • (ii)

    a relative of a de facto authority.

Penalty:  50 penalty units.

 (2) When deciding whether to grant permission under subregulation (1), the authorised person must take into account:

• (a)

  Australia’s relations with other countries; and

• (b)

  Australia’s obligations under international law.

 (3) A permission may be expressed to be subject to conditions, including:

• (a)

  the amount of the funds that may be used; and

• (b)

  the circumstances in which the funds may be used; and

• (c)

  the period of effect of the permission.

 (4) A permission granted under subregulation (1) does not permit the person to use the funds in a particular manner if, apart from this regulation, the person would not be able to use the funds in that manner.

Prohibition on assisting export from Haiti

 7.(1) A person in Australia must not, intentionally or recklessly:

• (a)

  assist the export from Haiti of goods originating in Haiti; or

• (b)

  assist the movement of goods:

  • (i)

    that originate in Haiti; and

  • (ii)

    that are exported from Haiti after the day on which this regulation commences;

unless the goods are referred to in subregulation (3).

Penalty:  50 penalty units.

 (2) A citizen of Australia who is outside Australia must not, intentionally or recklessly:

• (a)

  assist the export from Haiti of goods originating in Haiti; or

• (b)

  assist the movement of goods:

  • (i)

    that originate in Haiti; and

  • (ii)

    that are exported from Haiti after the day on which this regulation commences;

unless the goods are referred to in subregulation (3).

Penalty:  50 penalty units.

 (3) For the purposes of subregulations (1) and (2), the goods are:

• (a)

  publications;

• (b)

  sound recordings;

• (c)

  films;

• (d)

  goods similar to those in paragraph (a), (b) or (c).

Prohibition on dealings in certain products

 8.(1) A citizen of Australia who is outside Australia must not, intentionally or recklessly, deal in prescribed goods.

Penalty:  50 penalty units.

 (2) A person in Australia must not, intentionally or recklessly, deal in prescribed goods.

Penalty:  50 penalty units.

 (3) The owner, the master or the operator of a registered ship must not, intentionally or recklessly, allow the ship to be used to carry prescribed goods.

Penalty:  50 penalty units.

 (4) The owner, pilot in command or the operator of a registered aircraft must not, intentionally or recklessly, allow the aircraft to be used to carry prescribed goods.

Penalty:  50 penalty units.

 (5) In this regulation “prescribed goods”:

• (a)

  means goods:

  • (i)

    that originate in Haiti; and

  • (ii)

    that are exported from Haiti after the day on which this regulation commences; and

• (b)

  does not include publications, sound recordings, films and similar goods.

Prohibition on supplying goods in Haiti

 9.(1) A citizen of Australia who is outside Australia must not, without the written permission of an authorised person, intentionally or recklessly provide goods, other than the goods referred to in the Schedule, to:

• (a)

  a person or body in Haiti; or

• (b)

  a person or body for the purpose of a business carried on in, or operated from, Haiti.

Penalty:  50 penalty units.

 (2) The owner, the master and the operator of a registered ship must not, without the written permission of an authorised person, intentionally or recklessly allow the ship to be used to provide goods, other than the goods referred to in the Schedule, to:

• (a)

  a person or body in Haiti; or

• (b)

  a person or body for the purpose of a business carried on in, or operated from, Haiti.

Penalty:  50 penalty units.

 (3) The owner, the pilot in command and the operator of a registered aircraft must not, without the written permission of an authorised person, intentionally or recklessly allow the aircraft to be used to provide goods, other than the goods referred to in the Schedule, to:

• (a)

  a person or body in Haiti; or

• (b)

  a person or body for the purpose of a business carried on in, or operated from, Haiti.

Penalty:  50 penalty units.

 (4) When deciding whether to grant permission under subregulation (1) (2) or (3), the authorised person must take into account:

• (a)

  Australia’s relations with other countries; and

• (b)

  Australia’s obligations under international law.

 (5) A permission may be expressed to be subject to conditions, including:

• (a)

  the quantity of the goods that may be provided; and

• (b)

  the circumstances in which the goods may be provided; and

• (c)

  the period of effect of the permission.

No liability for certain actions

 10.(1) A person referred to in subregulation (2) has no cause of action against a person in relation to a bond, guarantee, indemnity or engagement that is issued or granted in relation to a contract or transaction if the performance of the contract or transaction has been affected by a requirement of these Regulations.

 (2) Subregulation (1) applies to the following persons:

• (a)

  a de facto authority;

• (b)

  a person in Haiti;

• (c)

  a body in Haiti;

• (d)

  a person claiming through or for the benefit of:

  • (i)

    a person in Haiti; or

  • (ii)

    a body in Haiti.

Certain applications to be referred

 11.(1) If, in relation to an application for:

• (a)

  a permission under subregulation 5 (1) or 6 (1) to use funds; or

• (b)

  a permission under subregulation 9 (1), (2) or (3) to provide goods;

an authorised person is of the opinion that the permission should not be granted, the authorised person must refer the application to the Minister for Foreign Affairs.

 (2) On an application being referred to the Minister, the Minister must:

• (a)

  grant the permission; or

• (b)

  refuse to grant the permission.

 (3) This regulation does not affect the power of the Minister or any authorised person to grant a permission under subregulation 5 (1), 6 (1) or 9 (1), (2) or (3) subject to conditions or requirements.

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 SCHEDULE Regulation 9

GOODS TO WHICH REGULATION 9 DOES NOT APPLY

Column 1

Item No.

Column 2

Goods

1

Goods that are likely to be used for medical purposes only

2

Food

3

Publications, sound recordings, films and similar goods

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NOTE

1. Notified in the Commonwealth of Australia Gazette