Charter of the United Nations (Sanctions - Afghanistan) Amendment Regulations 2002 (No. 1)

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Charter of the United Nations (Sanctions-Afghanistan) Amendment Regulations 2002 (No. 1) 2002 No. 196

EXPLANATORY STATEMENT

STATUTORY RULES 2002 No. 196

Issued by the Authority of the Minister for Foreign Affairs

Subject:        Charter of the United Nations Act 1945

Charter of the United Nations (Sanctions-Afghanistan) Amendment Regulations 2002 (No. 1)

Section 6 of the Charter of the United Nations Act 1945 provides that the Governor-General may make Regulations for, and in relation to, giving effect to decisions that:

(a)       the Security Council has made under Chapter VII of the Charter of the United Nations; and

(b)       Article 25 of the Charter requires Australia to carry out;

insofar as those decisions require Australia to apply measures not involving the use of armed force.

The purpose of the Regulations is to amend the Charter of the United Nations (Sanctions Afghanistan) Regulations 2001 to give effect to Security Council Resolution 1390. The effect of the Regulations is to update elements of the principal Regulations by amending references to the 'Taliban', in order that the scope of the Regulations includes reference to 'bin Laden entities' and 'Taliban entities'.

On 16 January 2002, the Security Council passed Resolution 1390 which, among other things, expressed the decision of the Security Council to continue the measures imposed by Resolution 1333 (2000) and take note of the continued application of the measures imposed by paragraph 4(b) of Resolution 1267 (1999).

The measures decided in Resolution 1390 (2002) include freezing assets of these entities (as per Resolution 1267), and the prevention of the direct or indirect supply, sale and transfer, to these individuals, groups, undertakings and entities from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, or arms and related matériel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned and technical advice, assistance or training related to military activities.

Paragraph 4(b) of Resolution 1267 provides that States shall freeze funds and other financial resources, including funds derived or generated from property controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 (of Resolution 1267), and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any other persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as authorised by the Committee on a case-by-case basis on the grounds of humanitarian need.

Paragraph 8(c) of Resolution 1333 (2000), among other things, provides that the Committee maintains an updated list, based on information provided by States and regional organisations, of the individuals and entities designated as being associated with Usama bin Laden, including those in the Al-Qaida organisation.

Resolution 1390 (2002) calls on States to take measures with respect to Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to resolutions 1267 (1999) and 1333 (2000).

Details of the Regulations are set out in the Attachment.

ATTACHMENT

Charter of the United Nations (Sanctions - Afghanistan) Amendment Regulations 2002 (No. 1)

Details of the Regulations are as follows:

Regulation 1 states the name of the Regulations;

Regulation 2 states that the Regulations commence on gazettal;

Regulation 3 states that Schedule 1 amends the Charter of the United Nations (Sanctions Afghanistan) Regulations 2001 ('the principal Regulations');

Schedule 1 amends the principal Regulations as follows:

•       Regulation 3 of the principal Regulations is amended by omitting the words "and 1333" and inserting the words ", 1333 and 1390". Regulation 3 is also amended by omitting the references to "Taliban territory" contained in subparagraph 3(a)(i) and inserting references to "a place controlled by a bin Laden entity or a Taliban entity". References in subparagraph 3(a)(ii) to "the Taliban" are replaced with the words "a bin Laden entity or a Taliban entity". Paragraph 3(c) is amended to refer to "a bin Laden entity or a Taliban entity".

•       Regulation 6 of the principal Regulations is amended to insert a definition of "Resolution 1390".

•       Each mention of the words "in Taliban territory" in Subregulations 8(1), 8(3), 11(1), 11(3), 13(1) and 13(3) is omitted and the words "controlled by a bin Laden entity or a Taliban entity" inserted.

•       Each mention of the words "the Taliban" in Subregulations 9(1), 12(1) and 14(1) is omitted and the words "a bin Laden entity or a Taliban entity" are inserted.

•       Regulation 15 of the principal Regulations is amended by omitting the word "Interpretation" and substituting this with the heading "Definitions In this part:"

 

Overview

The Charter of the United Nations (Sanctions-Afghanistan) Amendment Regulations 2002 (No. 1) was enacted to update the existing sanctions regime against the Taliban and related entities in Afghanistan, as required by Security Council Resolution 1390. This amendment was necessitated by the evolving threat landscape and the need to adapt existing sanctions to address new entities associated with terrorism and the Taliban. Enacted by the Australian Parliament under the authority of the Minister for Foreign Affairs, the regulations aim to align Australian law with the international obligations set out by the United Nations Security Council, ensuring that Australia's sanctions regime is both comprehensive and effective in addressing the threat posed by terrorism and associated entities. The overarching policy objective of these regulations is to support global efforts in maintaining international peace and security by implementing targeted economic measures against specified entities.

Scope and Application

The Charter of the United Nations (Sanctions-Afghanistan) Amendment Regulations 2002 (No. 1) applies to all individuals and entities within Australia and Australian territories, extending to include those acting on behalf of or on behalf of Australian citizens or residents. This legislation is enacted under the authority granted by the Charter of the United Nations Act 1945, specifically to implement Security Council Resolution 1390. The Regulations amend the Charter of the United Nations (Sanctions Afghanistan) Regulations 2001 to align with the updated scope of sanctions, now including 'bin Laden entities' and 'Taliban entities'. This amendment ensures that Australia’s measures align with the international obligations imposed by the United Nations Security Council to prevent the supply of arms and financial resources to these entities. The Regulations cover the freezing of assets and the prohibition of supply, sale, and transfer of arms and related materials to the specified entities, ensuring compliance with the resolutions that mandate these sanctions.

Key Provisions

The Charter of the United Nations (Sanctions-Afghanistan) Amendment Regulations 2002 (No. 1) (the "Regulations") are designed to amend the Charter of the United Nations (Sanctions Afghanistan) Regulations 2001 (the "principal Regulations") to implement United Nations Security Council Resolution 1390 (2002). The Regulations update the principal Regulations by including references to 'bin Laden entities' and 'Taliban entities', thereby broadening the scope of the sanctions. Regulation 3 of the Regulations (Section 3) specifies that these amendments apply to the Charter of the United Nations (Sanctions Afghanistan) Regulations 2001, ensuring that the sanctions now cover a wider range of entities associated with the Taliban and Al-Qaida. The Regulations impose obligations on all Australian citizens, residents, and entities within Australia to comply with the sanctions imposed by the United Nations Security Council. This includes freezing any assets that these entities may hold, prohibiting the supply or sale of arms and related matériel, and preventing any financial transactions or the provision of technical assistance that could benefit these entities. Regulation 6 (Section 6) defines key terms such as 'Resolution 1390', ensuring clarity for those subject to the Regulations. Additionally, Regulations 8, 9, 11, 12, and 13 (Sections 8, 9, 11, 12, 13) explicitly state that any transactions or dealings with these entities, whether within Australia or involving Australian nationals abroad, are prohibited. Breach of these Regulations can result in serious legal consequences. Under Regulation 16 (Section 16), any person found guilty of contravening the Regulations may be subject to civil penalties, including fines and imprisonment. The specific penalties are not detailed in the explanatory statement, but they generally reflect the severity of the breach. For instance, supplying arms or financial resources to a listed entity could lead to substantial fines and lengthy imprisonment terms. It is important for all affected parties to adhere strictly to the Regulations to avoid these severe consequences.

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