Explanatory Statement
Issued by the Authority of the Minister for Foreign Affairs
Charter of the United Nations Act 1945
Charter of the United Nations (Listed Persons and Entities) Amendment (No. 3) Instrument 2024
The purpose of the Charter of the United Nations (Listed Persons and Entities) Amendment (No. 3) Instrument 2024 (the 2024 Instrument) is to list one entity, Ansar Allah, 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, 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 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 the entity listed 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 entity set out in Schedule 1 of the Instrument to targeted financial sanctions. The listing is made under section 15 of the Act on the basis that the Minister is satisfied that the entity meets the listing criteria set out in subregulation 20(1) of the Dealing with Assets Regulations. That is, that they are a person or entity mentioned in paragraph 1(c) of UNSCR 1373.
Broadly, the effect of targeted financial sanctions under the Act 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).
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.
Attachment A
Details of the Charter of the United Nations (Listed Persons and Entities) Amendment (No. 3) 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. 3) 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.
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 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 Ansar Allah to Schedule 1 of the Principal Instrument.
The entity is listed for targeted financial sanctions as the Minister is satisfied on reasonable grounds that it 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. 3) 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. 3) Instrument 2024 (the 2024 Instrument) is to list Ansar Allah 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 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 entity named in the 2024 Instrument.
The rights 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 rights 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 entity listed is 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 the 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 the entity that participates in or facilitates terrorist acts, helps to achieve this objective by denying such an entity 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 objectives 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 rights 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.