Charter of the United Nations (Sanctions Sudan) Regulations 2005 (Cth)

Charter of the United Nations (Sanctions — Sudan) Regulations 2005

Select Legislative Instrument 2005 No. 99 as amended

made under the

Charter of the United Nations Act 1945

This compilation was prepared on 18 November 2006

taking into account amendments up to SLI 2006 No. 299

Prepared by the Office of Legislative Drafting and Publishing,

Attorney‑General’s Department, Canberra

Contents

 

Part 1Introductory

  1Name of Regulations [see Note 1]

 These Regulations are the Charter of the United Nations (Sanctions — Sudan) Regulations 2005.

2Commencement [see Note 1]

 These Regulations commence on the day after they are registered.

3Object

 The object of these Regulations is to assist in giving effect to Resolution 1556, Resolution 1591 and Resolution 1672, by:

• (a)

  preventing a person in Australia, or a citizen of Australia who is outside Australia, from doing anything that assists, or results in:

  • (i)

    arms or related matériel being sold or supplied to a non‑government entity or individual operating in Sudan in the state of North Darfur, South Darfur or West Darfur; or

  • (ii)

    technical training or other assistance in relation to the provision, manufacture, maintenance or use of arms or related materiel being provided to a non‑government entity or individual operating in Sudan in the state of North Darfur, South Darfur or West Darfur; and

• (b)

  preventing the use of Australian aircraft or ships in relation to a matter mentioned in subparagraph (a) (i); and

• (c)

  preventing a person:

  • (i)

    from using or dealing with assets owned or controlled by a designated person or entity; and

  • (ii)

    from making any asset available to a designated person or entity.

4Extra‑territorial operation of Regulations

 These Regulations have extra‑territorial operation according to their terms.

5Definitions

 In these Regulations:

Act means the Charter of the United Nations Act 1945.

arms or related matériel includes:

• (a)

  weapons; and

• (b)

  ammunition; and

• (c)

  military vehicles and equipment; and

• (d)

  spare parts and accessories for the things mentioned in paragraphs (a) to (c); and

• (e)

  paramilitary equipment.

Note   Paramilitary equipment includes parts and accessories designed or adapted for use in, or with, paramilitary equipment mentioned in paragraphs (a) to (e) of the definition of paramilitary equipment (see paragraph (f) of that definition.

asset means an asset described in the definition of asset in section 14 of the Act.

Australian aircraft means an aircraft registered in Australia under the Civil Aviation Act 1988.

Australian ship means a ship registered in Australia under the Shipping Registration Act 1981.

authorised operation means an operation of the following kinds, including operations led by regional organisations, that is authorised by the United Nations or is carried out with the consent of the relevant parties:

(a) monitoring;

(b) verification operations;

(c) peace support operations.

Comprehensive Peace Agreement means the peace agreement between Government of Sudan and the Sudan People’s Liberation Movement/Army, signed at Nairobi on 9 January 2005.

designated entity means an entity that is owned or controlled, directly or indirectly, by:

• (a)

  a designated person; or

• (b)

  a person acting on behalf of, or at the direction of, a designated person.

designated person means a person:

• (a)

  designated by the Committee under subparagraph 3 (c) of Resolution 1591; or

• (b)

  specified in Resolution 1672.

Note   For a list of designated persons and designated entities, see the Department of Foreign Affairs and Trade ( in conduct means do an act or omit to perform an act.

excluded asset means an asset (if any) that, under subparagraph 3 (g) of Resolution 1591, is not an asset to which subparagraph 3 (e) of Resolution 1591 applies.

freezable asset means an asset in Australia(other than an excluded asset) that is owned or controlled, directly or indirectly, by a designated person, or held by a designated entity.

non‑governmental entity or individual means any entity (including the Janjaweed) or individual who is not acting on behalf of the Government of Sudan.

N’djamena Ceasefire Agreement means the ceasefire agreement between the Government of Sudan, the Sudan Liberation Movement and the Justice and Equality Movement, signed at N’djamena on 8 April 2004.

paramilitary equipment means any of the following:

• (a)

  batons, clubs, riot sticks and similar devices of a kind used for law enforcement purposes;

• (b)

  body armour, including:

  • (i)

    bullet‑resistant apparel; and

  • (ii)

    bullet‑resistant pads; and

  • (iii)

    protective helmets;

• (c)

  handcuffs, leg‑irons and other devices used for restraining prisoners;

• (d)

  riot protection shields;

• (e)

  whips;

• (f)

  parts and accessories designed or adapted for use in, or with, equipment mentioned in any of paragraphs (a) to (e).

protective clothing includes protective military jackets and helmets.

Resolution 1556 means Resolution 1556 (2004) of the Security Council of the United Nations, adopted on 30 July 2004.

Resolution 1591 means Resolution 1591 (2005) of the Security Council of the United Nations, adopted on 29 March 2005.

Resolution 1672 means Resolution 1672 (2006) of the Security Council of the United Nations, adopted on 25 April 2006.

Part 2Restriction on supply of arms etc

  6Application of Part

 This Part applies to a person in Australia or a citizen of Australia who is outside Australia.

7Restriction on sale of arms etc

• (1)

  A person must not engage in conduct that assists, or results in, the sale or supply of arms or related matériel to a party to the N’djamena Ceasefire Agreement, a belligerent or a non‑governmental entity or individual operating in Sudan in the state of North Darfur, South Darfur or West Darfur.

  Penalty:   50 penalty units.

• (2)

  Subregulation (1) does not apply in relation to a sale or supply, if the sale or supply:

  • (a)

    is for the purpose of an authorised operation or in support of the implementation of the Comprehensive Peace Agreement; or

  • (b)

    is of non‑lethal military equipment that is intended solely for humanitarian use, human rights monitoring or protective use; or

  • (c)

    is of protective clothing that is intended to be worn only by:

    • (i)

      a member of the personnel of the United Nations; or

    • (ii)

      a person engaged in human rights monitoring; or

    • (iii)

      a representative of the media; or

    • (iv)

      a humanitarian or development worker or an associated person.

8Restriction on provision of technical assistance etc

• (1)

  A person must not engage in conduct that assists, or results in, the provision, to a party to the N’djamena Ceasefire Agreement, a belligerent or a non‑governmental entity or individual operating in Sudan in the state of North Darfur, South Darfur or West Darfur, of technical training or other assistance in relation to the provision, manufacture, maintenance or use of arms or related matériel.

  Penalty:   50 penalty units.

• (2)

  Subregulation (1) does not apply in relation to a provision of training or assistance, if the provision of training or assistance:

  • (a)

    is for the purpose of an authorised operation or in support of the implementation of the Comprehensive Peace Agreement; or

  • (b)

    relates to non‑lethal military equipment that is intended solely for humanitarian use, human rights monitoring or protective use; or

  • (c)

    relates to protective clothing that is intended to be worn only by:

    • (i)

      a member of the personnel of the United Nations; or

    • (ii)

      a person engaged in human rights monitoring; or

    • (iii)

      a representative of the media; or

    • (iv)

      a humanitarian or development worker or an associated person.

Part 3Restriction on use of Australian aircraft and ships

  9Use of aircraft and ships for transfer of arms and related matériel

• (1)

  The owner, pilot in command or operator of an Australian aircraft must not allow the aircraft to be used in a way that assists, or results in, the sale or supply of arms or related matériel to a party to the N’djamena Ceasefire Agreement, a belligerent or a non‑governmental entity or individual operating in Sudan in the state of North Darfur, South Darfur or West Darfur.

  Penalty:   50 penalty units.

• (2)

  The owner, master or operator of an Australian ship must not allow the ship to be used in a way that assists, or results in, the sale or supply of arms or related matériel to a party to the N’djamena Ceasefire Agreement, a belligerent or a non‑governmental entity or individual operating in Sudan in the state of North Darfur, South Darfur or West Darfur.

  Penalty:   50 penalty units.

• (3)

  Subregulations (1) and (2) do not apply in relation to a sale or supply, if the sale or supply:

  • (a)

    is for the purpose of an authorised operation or in support of the implementation of the Comprehensive Peace Agreement; or

  • (b)

    is of non‑lethal military equipment that is intended solely for humanitarian use, human rights monitoring or protective use; or

  • (c)

    is of protective clothing that is intended to be worn only by:

    • (i)

      a member of the personnel of the United Nations; or

    • (ii)

      a person engaged in human rights monitoring; or

    • (iii)

      a representative of the media; or

    • (iv)

      a humanitarian or development worker or an associated person.

Part 4Freezable assets and restriction on movement of assets to designated persons and designated entities

  10Offence – dealing with freezable assets

• (1)

  A person commits an offence if:

  • (a)

    the person holds a freezable asset; and

  • (b)

    the person:

    • (i)

      uses or deals with the freezable asset; or

    • (ii)

      allows the freezable asset to be used or dealt with; or

    • (iii)

      facilitates the use of the freezable asset or dealing with the freezable asset; and

  • (c)

    the use or dealing is not in accordance with a notice under regulation 12.

  Penalty:   50 penalty units.

• (2)

  Strict liability applies to the circumstance that the use or dealing is not in accordance with a notice under regulation 12.

  Note   For strict liability, see subsection 6.1 of the Criminal Code.

• (3)

  It is a defence if the person proves that the use or dealing was solely for the purpose of preserving the value of the freezable asset.

  Note   A defendant bears an evidential burden in relation to the matters set out in subregulation (3) (see section 13.3 of the Criminal Code).

• (4)

  Section 15.1 of the Criminal Code (extended geographical jurisdiction — category A) applies to an offence against subregulation (1).

11Offence – giving an asset to a designated person or designated entity

• (1)

  A person commits an offence if:

  • (a)

    the person, directly or indirectly, makes an asset available to a designated person or designated entity; and

  • (b)

    the making available of the asset is not in accordance with a notice under regulation 12.

  Penalty:   50 penalty units.

• (2)

  Strict liability applies to the circumstance that the making available of the asset is not in accordance with a notice under regulation 12

  Note   For strict liability, see subsection 6.1 of the Criminal Code.

• (3)

  Section 15.1 of the Criminal Code (extended geographical jurisdiction — category A) applies to an offence against subregulation (1).

12Authorised dealings

• (1)

  The owner or holder of a freezable asset may apply in writing to the Minister for permission to use or deal with the freezable asset in a specified way.

• (2)

  The owner or holder of an asset may apply in writing to the Minister for permission to make the asset available to a designated person or designated entity specified in the application.

• (3)

  The Minister may, by written notice:

  • (a)

    permit a freezable asset specified in the notice to be used or dealt with in a specified way; or

  • (b)

    permit an asset specified in the notice to be made available to a designated person or designated entity specified in the notice.

• (4)

  The Minister may issue such a notice on his or her own initiative or upon application under subregulation (1) or (2).

• (5)

  The notice may be subject to conditions, and may be expressed to apply from a date before the notice is given.

• (6)

  The notice must be given to the owner or holder of the asset as soon as practicable after it is made.

• (7)

  A notice that is given by the Minister on the basis of false or misleading information is taken to have no effect.

• (8)

  The Minister may delegate the Minister’s powers and functions under this regulation (other than this power of delegation) to:

  • (a)

    the Secretary of the Department; or

  • (b)

    an SES employee, or acting SES employee, in the Department.

• (9)

  The delegation must be in writing.

• (10)

  The delegate must comply with any directions of the Minister in exercising powers or functions under the delegation.

Notes to the Charter of the United Nations (Sanctions — Sudan) Regulations 2005

Note 1

The Charter of the United Nations (Sanctions — Sudan) Regulations 2005 (in force under the Charter of the United Nations Act 1945) as shown in this compilation comprise Select Legislative Instrument 2005 No. 99 amended as indicated in the Tables below.

Table of Instruments

Year and Number	Date of FRLI registration	Date of commencement	Application, saving or transitional provisions
2005 No. 99	27 May 2005 (see F2005L01235)	28 May 2005
2006 No. 299	17 Nov 2006 (see F2006L03699)	18 Nov 2006	—

Table of Amendments

ad. = added or inserted  am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Part 1
R. 3..........................................	am. 2006 No. 299
R. 5..........................................	am. 2006 No. 299
Part 2
R. 7..........................................	am. 2006 No. 299
Note to r. 7..............................	rep. 2006 No. 299
R. 8..........................................	am. 2006 No. 299
Note to r. 8..............................	rep. 2006 No. 299
R. 9..........................................	am. 2006 No. 299
Note to r. 9..............................	rep. 2006 No. 299
Part 4
Part 4.......................................	ad. 2006 No. 299
R. 10........................................	ad. 2006 No. 299
R. 11........................................	ad. 2006 No. 299
R. 12........................................	ad. 2006 No. 299