Explanatory Statement
Issued by the Authority of the Minister for Foreign Affairs
Charter of the United Nations Act 1945
Charter of the United Nations (Designated Commonwealth Entity) Amendment Declaration 2008 (No. 1)
Section 2A of the Charter of the United Nations Act 1945 provides that the Minister for Foreign Affairs may, by legislative instrument, specify a Commonwealth entity as a “designated Commonwealth entity”. Such a specification confers certain powers upon the designated entity in relation to the administration of UN sanction enforcement laws. They are set out in sections 29, 30, 34 and 35 of the Act.
This instrument amends the Charter of the United Nations (Designated Commonwealth Entity) Declaration 2008 to specify, in addition to the Department of Foreign Affairs and Trade, the Australian Customs Service, the Australian Transaction Reports and Analysis Centre, and the Department of Defence as being designated Commonwealth entities for the purposes of the Act. Further Commonwealth entities specified by the Minister for Foreign Affairs as being designated Commonwealth entities under section 2A of the Act will be included in Schedule 1 to the instrument.
Section 29 provides that the CEO of a designated Commonwealth entity may be given any information or document by the CEO of a Commonwealth entity, despite any contrary law of the Commonwealth, State or Territory, for a purpose in connection with the administration of a UN sanction enforcement law.
Section 30 provides that the CEO of a designated Commonwealth entity may issue a written notice compelling a person, despite any contrary law of the Commonwealth, State or Territory, to give the CEO information or documents of the kind, by the time and in any manner or form, specified in the notice, for the purpose of determining whether a UN sanction enforcement law has been, or is being, complied with. Failure to comply with a section 30 notice may result in a penalty of 12 months imprisonment. A section 30 notice overrides a person’s privilege against self incrimination, but any information obtained may only be admissible as evidence in limited circumstances related to offences under the Act (specifically, the offence of providing false or misleading information in connection with a UN sanction enforcement law, or failure to comply with a section 30 notice).
Section 34 provides that the CEO of a designated Commonwealth entity may take and keep a copy of a document given to the CEO under section 30, but must return the document within a reasonable time.
Section 35 provides that an officer of a designated Commonwealth entity may, despite any contrary law of the Commonwealth, State or Territory, copy, make a record of or use, any information or document, or disclose any information, or give any document, to another officer of that entity, for a purpose in connection with the administration of a UN sanction enforcement law or compliance with a binding decision of the UN Security Council.
Finally, section 35 also provides that a CEO of a designated Commonwealth entity may, despite any contrary law of the Commonwealth, State or Territory, disclose any information or give any document to a Commonwealth, State or Territory Minister, to the CEO of another Commonwealth entity, to a State or Territory entity, to a foreign government entity, to a public international organisation or to a person specified by the Minister for Foreign Affairs in a legislative instrument, for a purpose in connection with the administration of a UN sanction enforcement law or compliance with a binding decision of the UN Security Council.
The Australian Customs Service, the Australian Transaction Reports and Analysis Centre, and the Department of Defence were consulted before the making of this instrument. Broader public consultation was not underaken as the specification designating Commonwealth entities does not have an impact on the application of existing regulations.
Overview
The Charter of the United Nations (Designated Commonwealth Entity) Amendment Declaration 2008 (No. 1) was enacted to address a gap in the administration of United Nations sanctions enforcement laws within Australia by specifying additional Commonwealth entities empowered to administer these laws. This legislative instrument amends the Charter of the United Nations (Designated Commonwealth Entity) Declaration 2008, originally enacted in 1945, to include the Australian Customs Service, the Australian Transaction Reports and Analysis Centre, and the Department of Defence as designated Commonwealth entities. The Australian Customs Service, the Australian Transaction Reports and Analysis Centre, and the Department of Defence were consulted during the creation of this instrument, though broader public consultation was not undertaken as the amendment does not impact the application of existing regulations. The policy objective of this instrument is to enhance the capacity of these specified entities to enforce UN sanctions within Australia by granting them specific powers, as outlined in sections 29, 30, 34, and 35 of the Charter of the United Nations Act 1945.
Scope and Application
The Charter of the United Nations (Designated Commonwealth Entity) Amendment Declaration 2008 (No. 1) extends the application of certain powers to additional Commonwealth entities, namely the Australian Customs Service, the Australian Transaction Reports and Analysis Centre, and the Department of Defence. This expansion of designated Commonwealth entities under section 2A of the Charter of the United Nations Act 1945 aims to enhance the administration of UN sanction enforcement laws by allowing these entities to access information and documents necessary for compliance. The powers conferred include the ability to request information or documents from any person, override privileges against self-incrimination, and disclose information to relevant authorities or foreign entities. These provisions apply despite contrary laws at the Commonwealth, State, or Territory level, underscoring the priority of UN sanctions enforcement. However, the information obtained can only be used as evidence in specific circumstances related to offences under the Act. The specified entities were consulted in the drafting of this amendment, and no broader public consultation was undertaken as the changes do not affect existing regulations.
Key Provisions
The Charter of the United Nations (Designated Commonwealth Entity) Amendment Declaration 2008 (No. 1) amends the Charter of the United Nations (Designated Commonwealth Entity) Declaration 2008 to specify additional entities as designated Commonwealth entities under section 2A of the Charter of the United Nations Act 1945. These entities include the Australian Customs Service, the Australian Transaction Reports and Analysis Centre, and the Department of Defence. This designation allows these entities to exercise specific powers related to the administration of UN sanction enforcement laws, as outlined in sections 29, 30, 34, and 35 of the Act.
Section 29 of the Act empowers the Chief Executive Officer (CEO) of a designated Commonwealth entity to receive any information or document from the CEO of another Commonwealth entity, regardless of any contrary laws at the Commonwealth, State, or Territory level. This provision facilitates the sharing of information for purposes related to the administration of UN sanction enforcement laws. Section 30 allows the CEO of a designated Commonwealth entity to issue a written notice compelling a person to provide specific information or documents. Failure to comply with such a notice can result in a penalty of up to 12 months imprisonment. Importantly, section 30 overrides a person's privilege against self-incrimination, but any information obtained can only be admissible as evidence in limited circumstances related to offences under the Act.
The obligations imposed by the Act on the designated entities include the ability to compel the provision of information and documents (section 30), to take and keep copies of documents provided in response to such notices (section 34), and to disclose information or documents to relevant authorities or entities (section 35). These provisions ensure that designated entities can effectively enforce UN sanctions and comply with binding decisions of the UN Security Council.
Failure to comply with a section 30 notice can lead to criminal penalties, with a maximum penalty of 12 months imprisonment. Additionally, any information obtained under section 30 can only be used in specific legal contexts, namely in relation to offences of providing false or misleading information in connection with a UN sanction enforcement law, or failure to comply with a section 30 notice. This limitation ensures that the enforcement powers granted by the Act are exercised within the bounds of the law.