Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2024

Administered by Department of Foreign Affairs and Trade

Legislation au F2024L00251 Not in force Legislative Instrument

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Explanatory Statement

 

Issued by the Authority of the Assistant Minister for Foreign Affairs

 

Charter of the United Nations Act 1945

 

Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2024

 

The purpose of the Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2024 (the 2024 Instrument) is to list two entities for targeted financial sanctions under Part 4 of the Charter of the United Nations Act 1945 (the Act). Targeted financial sanctions under the Act (also known as counter-terrorism financing sanctions) prohibit individuals and bodies corporate from using or dealing with assets owned or controlled by, or making an asset available directly or indirectly to, a listed person or entity.

 

The Act provides legislative approval for the Charter of the United Nations (the Charter) in Australian law. Part 4 of the Act gives effect to United Nations Security Council (UNSC) decisions that relate to terrorism and dealings with assets, made under Chapter VII of the Charter. Australia is required under Article 25 of the Charter to carry out such UNSC decisions, and the Act provides for this in relation to certain measures not involving the use of armed force.

 

The Act makes provision for, among other things, the listing of persons or entities involved in the commission of terrorist acts. This sanctions framework implements Australia’s international obligation to cooperate on the prevention of terrorist financing.

 

Section 15 of the Act, read in conjunction with subregulation 20(1) of the Charter of the United Nations (Dealing with Assets) Regulations 2008 (Dealing with Assets Regulations), obliges the Assistant Minister for Foreign Affairs (the Minister) to list a person or entity for targeted financial sanctions, if the Minister is satisfied on reasonable grounds that they are a person or entity mentioned in paragraph 1(c) of UNSC Resolution 1373 (2001) (UNSCR 1373). That is, that they are: a person who commits, or attempts to commit, terrorist acts or participates in or facilitates the commission of terrorist acts; an entity owned or controlled directly or indirectly by such persons; or a person or entity acting on behalf of, or at the direction of, such persons and associated persons and entities. 

 

UNSCR 1373 is published on the following website (www.undocs.org/S/RES/1373(2001)) and can be freely accessed and used by members of the public.

 

Consideration of human rights

 

The 2024 Instrument advances human rights by restricting the access of listed entities to assets that could be used to commit or facilitate terrorist acts. Australia endeavours to comply with its obligations under international human rights laws, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

 

Effect of the 2024 Instrument

 

The effect of the 2024 Instrument is to subject the entities set out in Schedule 1 of the Instrument to targeted financial sanctions. The listings are made under section 15 of the Act on the basis that the Minister is satisfied that the entities meet the listing criteria set out in subregulation 20(1) of the Dealing with Assets Regulations. That is, that they are an entity mentioned in paragraph 1(c) of UNSCR 1373.

 

Broadly, the effect of targeted financial sanctions under the Act (also known as counter-terrorism financing sanctions) is to:

  • prohibit individuals and bodies corporate from using or dealing with assets owned or controlled by a listed person or entity, unless the Minister has granted a permit authorising them to do so; and
  • prohibit individuals and bodies corporate from making an asset available directly or indirectly to a listed person or entity, unless the Minister has granted a permit authorising them to do so.

 

Listings under section 15 of the Act cease to have effect after three years (subsection 15A(1) of the Act), unless the Minister declares that a listing continues to have effect (subsection 15A(2) of the Act). Rather than make such a declaration, the Minister may alternatively make a new listing that is the same in substance as another listing (paragraph 15A(6)(c) of the Act).

 

On this occasion, the Minister decided to make a new listing under section 15 of the Act to enable the listing of these entities to be included in a single compilation instrument of listed persons and entities under Part 4 of the Act. While listings under Part 4 of the Act have historically appeared across multiple instruments, the Department of Foreign Affairs and Trade (DFAT) intends to consolidate listings under Part 4 of the Act into one instrument over time. This will assist the public in accessing information on listings under Part 4 of the Act.

 

Listings may be revoked under section 16 of the Act either at the Minister’s own instigation or on application by the listed person or entity. 

 

Further details of the 2024 Instrument are set out in Attachment A. 

 

The 2024 Instrument is exempt from sunsetting under table item 1 of regulation 11 of the Legislation (Exemptions and Other Matters) Regulation 2015 on the basis that the Instrument’s sole or primary purpose is to give effect to an international obligation of Australia.

 

The Office of Impact Analysis (OIA) has advised that a Regulation Impact Statement is not required for listing instruments of this nature (OIA reference: OBPR22-01748).

 

Consultation

 

The measures imposed through the 2024 Instrument were subject to thorough vetting by Australian Government agencies as well as consultation with relevant international partners.

 

In accordance with standard practice, DFAT also invited submissions from the public, including listed entities or their authorised representatives, relevant to the Minister’s consideration of their listing under Part 4 of the Act. The consultation period opened on 25 January 2024 and closed at 5.00pm AEST on 15 February 2024. No submissions were received.

Attachment A

 

Details of the Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2024

 

Section 1 – Name

 

This section provides that the title of the instrument is the Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2024 (the 2024 Instrument).

 

Section 2 – Commencement

 

This section provides for commencement the day after the 2024 Instrument is registered.

 

Section 3 – Authority

 

This section provides that the 2024 Instrument is made under section 15 of the Charter of the United Nations Act 1945.

 

Listings for the entities proposed to be listed were previously made in gazette notices. The 2024 Instrument provides for the listings to be made as new listings under section 15 of the Charter of the United Nations Act 1945, rather than having them continue to have effect under section 15A of that Act.

 

Section 4 – Schedules

 

This section provides that each instrument that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the 2024 Instrument has effect according to its terms.

 

Schedule 1 – Amendments

 

Charter of the United Nations (Listed Persons and Entities) Instrument 2022

 

Item 1 – Clause 1 of Schedule 1 (at the end of the table)

 

Schedule 1 of the Charter of the United Nations (Listed Persons and Entities) Instrument 2022 (the Principal Instrument) sets out entities that, by operation of section 5 of the Principal Instrument, are listed by the Assistant Minister for Foreign Affairs (the Minister) for targeted financial sanctions (also known as counter-terrorism financing sanctions), which prohibit individuals and bodies corporate from using or dealing with assets owned or controlled by, or making an asset available directly or indirectly to, a listed person or entity.  

 

This Item adds two entities to Schedule 1 of the Principal Instrument.

 

These entities are listed for targeted financial sanctions as the Minister is satisfied on reasonable grounds that each is: an entity owned or controlled directly or indirectly by a person who commits, or attempts to commit, terrorist acts or participates in or facilitates the commission of terrorist acts; an entity acting on behalf of, or at the direction of, such an entity; or an entity acting on behalf of, or at the direction of, a person who commits, attempts to commit, or participates in or facilitates the commission of, terrorist acts. 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2024

This Legislative Instrument 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.

Overview of the Legislative Instrument

The purpose of the Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2024 (the 2024 Instrument) is to list two entities for targeted financial sanctions under Part 4 of the Charter of the United Nations Act 1945 (the Act). Targeted financial sanctions under the Act (also known as counter-terrorism financing sanctions) prohibit individuals and bodies corporate from using or dealing with assets owned or controlled by, or making an asset available directly or indirectly to, a listed person or entity.

 

The Act provides legislative approval for the Charter of the United Nations (the Charter) in Australian law. Part 4 of the Act gives effect to United Nations Security Council (UNSC) decisions that relate to terrorism and dealing with assets in relation to terrorists, made under Chapter VII of the Charter. Australia is required under Article 25 of the Charter to carry out such UNSC decisions, and the Act provides for this in relation to certain measures not involving the use of armed force.

 

The Act makes provision for, among other things, the listing of persons or entities involved in the commission of terrorist acts. This sanctions framework implements Australia’s international obligation to cooperate on the prevention of terrorist financing.

 

Section 15 of the Act, read in conjunction with subregulation 20(1) of the Charter of the United Nations (Dealing with Assets) Regulations 2008 (Dealing with Assets Regulations), obliges the Assistant Minister for Foreign Affairs (the Minister) to list a person or entity for targeted financial sanctions, if the Minister is satisfied on reasonable grounds that they are a person or entity mentioned in paragraph 1(c) of UNSC Resolution 1373 (2001) (UNSCR 1373). That is, that they are: a person who commits, or attempts to commit, terrorist acts or participates in or facilitates the commission of terrorist acts; an entity owned or controlled directly or indirectly by such persons; or a person or entity acting on behalf of, or at the direction of, such persons and associated persons and entities. 

 

UNSCR 1373 is published on the following website (www.undocs.org/S/RES/1373(2001)) and can be freely accessed and used by members of the public.

Under section 17 of the Act, a listed person or entity, or their authorised representative, may apply in writing to the Minister at any time to have the listing revoked. 

Human rights implications

The 2024 Instrument engages the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR):

  • the right to life (Article 6 of the ICCPR);
  • the right to freedom of thought, conscience and religion (Article 18 of the ICCPR);
  • the right to freedom from the advocacy of national, racial or religious hatred (Article 20 of the ICCPR); and
  • the right to self-determination, including to freely dispose of natural wealth and resources (Article 1 of the ICCPR and Article 1 of the ICESCR).

It is well accepted that international human rights law obligations are owed to individuals only, and are not owed to non-natural persons, such as bodies corporate or bodies politic. The rights considered below are those of individuals which may be affected by the listing of the entities named in the 2024 Instrument.

 

The right to life (Article 6 of the ICCPR); to freedom of thought, conscience and religion (Article 18 of the ICCPR); and to freedom from the advocacy of national, racial or religious hatred (Article 20 of the ICCPR)

The 2024 Instrument promotes the right to life; to freedom of thought, conscience and religion; and to freedom from the advocacy of national, racial or religious hatred. 

The 2024 Instrument’s effect is the prevention and suppression of terrorist acts. Targeted financial sanctions imposed in the 2024 Instrument will ensure that the entities listed are denied access to assets that could be used to carry out or facilitate terrorist acts. Terrorist acts are calculated to provoke a state of terror in the general public. They may result in death or injury to individuals and are designed to promote a particular thought, conscience or religion, or advocate for national, racial or religious hatred. 

Targeted financial sanctions therefore promote human rights in this case by reducing the threat of terrorist acts which, by their nature, impact on the enjoyment of human rights and freedoms.

 

The right to self-determination, including to freely dispose of natural wealth and resources (Article 1 of the ICCPR and Article 1 of the ICESCR)

Article 1 of the ICCPR and Article 1 of the ICESCR provides a right to self-determination, including to freely dispose of natural wealth, resources, and assets.

The effect of targeted financial sanctions on entities is that members of the public are unable to provide assets to those listed under the Act.

The objective of this 2024 Instrument is to give effect to Australia’s international obligation to supress terrorist financing. The imposition of targeted financial sanctions through the listing of entities which participate in or facilitate terrorist acts help to achieve this objective by denying such entities the financial means to undertake terrorist activities. 

Listed entities may apply for their designation to be revoked. Australia’s counter-terrorism financing sanctions listings are also subject to periodic review. Section 15A of the Act provides that a listing ceases to have effect after three years, unless the Minister declares that the listing continues to have effect. This provision ensures the listing remains current and appropriate.

Under section 17 of the Act, a listed entity, or its authorised representative, may apply in writing to the Minister at any time to have the listing revoked. The application must set out the circumstances relied upon to justify the application. To assist with an application, the Department of Foreign Affairs and Trade will provide a listed entity, or its authorised representative, with an unclassified statement of reasons for the listing, upon written request.

The measures in the 2024 Instrument which may limit a right to self-determination are reasonable, necessary and proportionate in achieving the objective of suppressing terrorism financing, and complying with Australia’s international obligations.

Conclusion

The 2024 Instrument is compatible with human rights because targeted financial sanctions preventing and supressing terrorism financing promote the right to life, to freedom of thought, conscience and religion, and to freedom from the advocacy of national, racial or religious hatred. To the extent that it may limit human rights, such limitations are reasonable, necessary and proportionate.

 

 

Overview

The Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2024 aims to list two entities for targeted financial sanctions under Part 4 of the Charter of the United Nations Act 1945. Enacted by the Assistant Minister for Foreign Affairs, this instrument responds to Australia’s commitment to implementing United Nations Security Council resolutions related to terrorism financing, particularly those under Chapter VII of the Charter of the United Nations. The policy objective is to enforce sanctions that prohibit individuals and bodies corporate from using or dealing with assets owned or controlled by listed entities, thereby preventing and suppressing terrorist financing. The instrument aligns with Australia’s international obligations under Article 25 of the Charter and facilitates the implementation of UNSC Resolution 1373 (2001), which mandates the listing of entities involved in or facilitating terrorist acts. This legislative instrument serves to advance human rights by restricting the access of listed entities to assets that could be used to commit or facilitate terrorist acts. By preventing terrorist financing, the instrument helps to reduce the threat of terrorist acts that undermine the enjoyment of human rights and freedoms, including the right to life, freedom of thought, conscience, and religion, and freedom from the advocacy of national, racial, or religious hatred. The measures are considered reasonable, necessary, and proportionate to achieve the objective of suppressing terrorist financing and comply with Australia's international obligations.

Scope and Application

The Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2024 (the 2024 Instrument) applies to two entities listed for targeted financial sanctions under Part 4 of the Charter of the United Nations Act 1945 (the Act). This Act provides legislative approval for the Charter of the United Nations in Australian law and gives effect to United Nations Security Council decisions relating to terrorism and dealing with assets made under Chapter VII of the Charter. The Act applies to individuals and bodies corporate that engage in, or have assets used for, terrorist activities, prohibiting them from using or dealing with assets owned or controlled by, or making an asset available directly or indirectly to, a listed person or entity. The geographic reach of the Act is national, as it enforces international obligations under the Charter within Australian jurisdiction. The Act does not specify any exclusions or exemptions but allows for the revocation of listings by the listed entity or their authorised representative. The 2024 Instrument exempts itself from sunsetting provisions, ensuring its continued effect to fulfil Australia's international obligations.

Key Provisions

The Charter of the United Nations (Listed Persons and Entities) Amendment (No. 2) Instrument 2024 (the 2024 Instrument) amends the Charter of the United Nations (Listed Persons and Entities) Instrument 2022 (the Principal Instrument) by adding two entities to Schedule 1. These additions are made under section 15 of the Charter of the United Nations Act 1945 (the Act), which provides for the listing of entities for targeted financial sanctions, also known as counter-terrorism financing sanctions. These sanctions prohibit individuals and bodies corporate from using or dealing with assets owned or controlled by, or making an asset available directly or indirectly to, a listed person or entity. The listings in the 2024 Instrument are based on the Minister being satisfied that the entities meet the criteria set out in subregulation 20(1) of the Charter of the United Nations (Dealing with Assets) Regulations 2008 (the Dealing with Assets Regulations). This means that the entities are either involved in committing, attempting to commit, or facilitating terrorist acts, or are acting on behalf of, or at the direction of, such persons or entities. The 2024 Instrument imposes several obligations on parties affected by the listings. Firstly, individuals and bodies corporate are prohibited from using or dealing with assets owned or controlled by the listed entities, or making assets available to them, unless authorised by a permit issued by the Minister. This is to prevent the flow of funds that could be used to support terrorist activities. Additionally, listed entities are subject to these prohibitions, which restrict their ability to engage in financial transactions and obtain resources. The listings also require the Department of Foreign Affairs and Trade to provide listed entities or their authorised representatives with an unclassified statement of reasons for their listing upon request, to assist them in any application for revocation. The Minister is also required to consider applications from listed entities to have their listing revoked, in accordance with section 17 of the Act. Failure to comply with the provisions of the 2024 Instrument may result in offences and penalties. Section 20 of the Act outlines the civil and criminal penalties for breaches of the counter-terrorism financing sanctions, which can include substantial fines and imprisonment. Specifically, an individual who contravenes a provision of the Act or the Dealing with Assets Regulations may be liable to a penalty of up to 5,000 penalty units for a corporation (currently AUD 5 million) and up to 10,000 penalty units for an individual (currently AUD 10 million). Additionally, an individual officer of a body corporate who is responsible for the contravention may be personally liable for a penalty of up to 500 penalty units (currently AUD 500,000). These penalties are intended to deter non-compliance and enforce the targeted financial sanctions against listed entities. The 2024 Instrument is designed to give effect to Australia’s international obligations under the Charter of the United Nations and the relevant UNSC resolutions, particularly in relation to the prevention of terrorist financing. By listing entities involved in terrorist activities, the Instrument aims to restrict their access to financial resources that could be used to further such activities. This, in turn, helps to protect human rights by preventing and suppressing terrorist acts, which often result in death, injury, and the advocacy of hatred. The measures in the 2024 Instrument are considered necessary and proportionate to achieve the objective of suppressing terrorist financing and complying with Australia’s international obligations.

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