Explanatory Statement
Issued by the Authority of the Minister for Foreign Affairs
Autonomous Sanctions Regulations 2011
Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Amendment List 2013
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 persons or entities outside Australia, through the imposition of autonomous sanctions in relation to those countries, or targeting those persons or entities.
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 and entities designated, and persons declared, by the Minister for the purpose of Australia’s autonomous sanctions in relation to Libya are listed in the Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) 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.
The Minister has decided to revoke the listing of the Libyan Housing Infrastructure Board as a designated entity on the basis that it no longer has any connection to the former Qadhafi regime in Libya. The Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Amendment List 2013 (the Amendment List) gives effect to the decision of the Minister.
Each person and entity 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, she or it is mentioned in Item 6 of the table in regulation 6 - that is: (a) a person that the Minister is satisfied is a close associate of the former Qadhafi regime, has assisted, or is assisting, in the violation of United Nations Security Council resolutions in relation to Libya, or is an immediate family member of such a person; or (b) an entity that the Minister is satisfied is under the control of one or more members of the Qadhafi family, or has assisted, or is assisting, in the violation of United Nations Security Council resolutions in relation to Libya.
Australia’s embassies in Brussels and Rome were consulted prior to the drafting of this legislative instrument. In order to meet the policy objective of prohibiting unauthorised financial transactions involving the persons and entities specified in the Amendment List, the Department of Foreign Affairs and Trade (the Department) is satisfied that wider consultations would be inappropriate (sub-sections 18 (1) and (2) (e) of the Legislative Instruments Act 2003).
The legal framework for the imposition of autonomous sanctions by Australia, of which the List and the Amendment List are part, has been the subject of extensive consultation with governmental and non-governmental stakeholders since May 2010. The Department conducts briefings for State and Territory government agencies and the private sector on the implementation and administration of autonomous sanctions, as well as industry-specific sessions for the financial services sector and the tertiary education sector.
Statement of Compatability with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Amendment List 2013
The Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Amendment List 2013 (the Amendment List) is compatible 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.
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.