Explanatory Statement
Issued by the Authority of the Minister for Foreign Affairs
Autonomous Sanctions Regulations 2011
Autonomous Sanctions (Designated and Declared Persons – Burma) Amendment List 2012 (No. 1)
The Autonomous Sanctions Regulations 2011 (the Regulations) commenced on
15 December 2011. The purpose of the Regulations is to facilitate the conduct of Australia’s relations with certain countries, and with specific entities or persons outside Australia, through the imposition of autonomous sanctions in relation to those countries, or targeting those entities or persons.
Paragraph 6 (1) (a) of the Regulations authorises the Minister for Foreign Affairs (the Minister), by legislative instrument, to designate a person or entity on the basis that the person or entity is mentioned in an item of the table in regulation 6. The purpose of such a designation is to subject the designated person or entity to targeted financial sanctions. The designated person or entity becomes the object of the prohibition in regulation 14 (which prohibits directly or indirectly making an asset available to, or for the benefit of, a designated person or entity, other than as authorised by a permit granted under regulation 18). An asset owned or controlled by a designated person or entity is a “controlled asset”, subject to the prohibition in regulation 15 (which requires a person who holds an asset that is owned or controlled by a designated person or entity to freeze that asset, by prohibiting that person from either using or dealing with that asset, or allowing it to be used or dealt with, or facilitating the use of or dealing with it, other than as authorised by a permit granted under regulation 18).
Paragraph 6 (1) (b) of the Regulations authorises the Minister, by legislative instrument, to declare a person for the purpose of preventing the person from travelling to, entering or remaining in Australia on the basis that the person is mentioned in an item of the table in regulation 6.
The persons designated and declared by the Minister for the purpose of Australia’s autonomous sanctions in relation to Burma are listed in the Autonomous Sanctions (Designated and Declared Persons – Burma) List 2012 (the List).
The corresponding authority for the Minister to revoke designations and declarations made under regulation 6 is found in paragraph 10 (1) (a) (for designations) and
paragraph 10 (1) (b) (for declarations) of the Regulations. Sub-regulation 10 (2) provides that the Minister may revoke a designation or declaration on the Minister’s initiative.
On 16 April 2012 the Minister for Foreign Affairs announced his decision to revoke designations and declarations in relation to civilians on the List. The Autonomous Sanctions (Designated and Declared Persons – Burma) Amendment List 2012 (No. 1) (the Amendment List) amends the List to give effect to this decision.
Each person listed in Schedule 1 of the Amendment List remains designated by the Minister for the purposes of paragraph 6 (1) (a) of the Regulations and declared by the Minister for the purposes of paragraph 6 (1) (b) of the Regulations, on the basis that he or she is mentioned in Item 1 of the table in regulation 6; that is:
(a) A former member of the State Peace and Development Council (SPDC);
(b) A person who the Minister is satisfied is a business associate of the Burmese military;
(c) A current or former minister or a current or former deputy minister;
(d) A current or former military officer of the rank of Brigadier-General or higher;
(e) A senior official in any of Burma’s security or corrections agencies;
(f) A current or former senior officeholder of the Union Solidarity and Development Party (USDP) or the Union Solidarity and Development Association (USDA);
(g) A senior official or executive in a state-owned or a military-owned enterprise;
(h) An immediate family member of a person mentioned in any of paragraphs (a) to (g).
Relevant Commonwealth Government departments were consulted prior to and during the drafting of this legislative instrument. In order to meet the policy objective of prohibiting unauthorised financial transactions involving the persons specified in the Amendment List, the Department is satisfied that wider consultations beyond those it has already undertaken would be inappropriate (sub-sections 18 (1) and (2) (e) of the Legislative Instruments Act 2003).
Statement of Compatability with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Autonomous Sanctions (Designated and Declared Persons – Burma) Amendment List 2012 (No. 1)
The Autonomous Sanctions (Designated and Declared Persons – Burma) Amendment List 2012 (No. 1) (Amendment List) is compatible with with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The Amendment List amends the Autonomous Sanctions (Designated and Declared Persons – Burma) List 2012 (the List) to give effect to the joint announcement by the Minister and the Minister for Trade and Competitiveness on 16 April 2012 that the Australian Government would ease its sanctions in relation to Burma, including a reduction in the number of people subject to targeted financial sanctions under the Autonomous Sanctions Regulations 2011 and travel sanctions under the Migration Regulations 1994. The joint announcement acknowledged the role of President Thein Sein and the Burmese Government in delivering change, including through the release of over 500 political prisoners, progress toward peace with ethnic groups, and new laws that provide for greater freedom of expression and assembly, labour rights and political participation. Serving military figures and individuals of human rights concern will remain on the List.
A person or entity subject to designation or declaration under regulation 6 of the Regulations may apply to the Minister for the revocation of those decisions (regulation 11 of the Regulations). Decisions under both regulations 6 and 11 of the Regulations are judicially reviewable.
The targeted financial sanctions imposed on persons and entities designated under paragraph 6 (1) (a) of the Regulations do not affect the title to any asset owned or controlled by the designated person or entity. A designated person or entity may continue to draw on his or her frozen assets, or receive assets from other sources, to meet basic expenses, including for foodstuffs, rent or mortgage, medicines or medical treatment, taxes, insurance premiums, public utility charges, reasonable professional fees, reimbursement of expenses associated with the provision of legal services, or fees or service charges that are in accordance with a law in force in Australia for the routine holding or maintenance of frozen assets (regulations 18 and 20 of the Regulations).
Similarly, a designated person or entity may draw on frozen assets they own or control to satisfy any pre-existing judicial, administrative or arbitral lien or judgement awarded to another (non-designated) person or entity, as well as to make payments required under contracts, agreements or obligations made before the date on which those assets became frozen.
Regulation 19 authorises the Minister to waive the operation of a declaration under regulation 6 so as to allow the person to travel to, enter or remain in Australia, either on the grounds that it would be in the national interest or on humanitarian grounds.
The object and purpose of the Amendment List is, inter alia, to acknowledge and support the democratic transition underway in Burma and to continue to place pressure on key decision makers in Burma to allow the full enjoyment of the rights and freedoms referred to in subsection 3 (1) of the Human Rights (Parliamentary Scrutiny) Act 2011.