EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 113
Issued by the Authority of the Minister for Foreign Affairs
Charter of the United Nations Act 1945
Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Amendment Regulations 2009 (No. 1)
The purpose of the Regulations is to update the Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Regulations 2008 (the Principal Regulations) in order to bring them into conformity with decisions of the United Nations Security Council (UNSC).
Section 6 of the Charter of the United Nations Act 1945 (the Act) provides that the Governor-General may make regulations for, and in relation to, giving effect to decisions that the United Nations Security Council has made under Chapter VII of the Charter of the United Nations which Article 25 of the Charter requires Australia to carry out, in so far as those decisions require Australia to apply measures not involving the use of armed force.
The Principal Regulations currently implement Australia’s obligations under UNSC Resolutions 1735 (2006), 1390 (2002) and 1267 (1999) to, inter alia, freeze the funds and other financial assets owned or controlled by, and prevent funds and other financial assets being made available to, Al-Qaida, the Taliban and Usama bin Laden and other individuals, groups, undertakings and entities associated with them.
Paragraph 1(a) of UNSC Resolution 1452 (2002) provides that these measures do not apply to funds and other financial assets or economic resources that have been determined by a State to be necessary for basic expenses. A basic expense could include payment for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums and the payment of public utility charges. Approval as a basic expense requires notification by the States to the Committee established pursuant to UNSC Resolution 1267 (the Committee) of the intention to authorise, where appropriate, access to such funds, assets or resources and in the absence of a negative decision by the Committee within 48 hours of such notification.
However, paragraph 15 of UNSC Resolution 1735 (2006) extended the 48 hour time period referred to in paragraph 1(a) of UNSC Resolution 1452 (2002) to 3 working days. Prior to their amendment by the Regulations, the Principal Regulations referred to the original 48 hour time period.
The Regulations amend the Principal Regulations to change from 48 hours to 3 working days the time period that must have passed after the Minister for Foreign Affairs notifies the Committee of an application for a basic expense dealing before the Minister may grant a basic expense permit. The Regulations also amend the Principal Regulations to define a ‘working day’ as ‘a day that is not a Saturday, a Sunday or a Public Holiday’.
Details of the Regulations are set out in the Annex.
Annex
Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Amendment Regulations 2009 (No. 1)
Details of the proposed Regulations are as follows:-
Regulation 1 states that the name of the proposed Regulations is the Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Amendment Regulations 2009 (No. 1).
Regulation 2 provides that the Regulations commence on the day after they are registered.
Regulation 3 provides that Schedule 1 would amend the Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Regulations 2008.
Schedule 1 Amendments to the Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Regulations 2008
Item 1 amends regulation 4 by inserting a definition of ‘working day’ as ‘a day that is not a Saturday, a Sunday or a Public Holiday’.
Item 2 amends subregulation 12(4)(b) by omitting ‘48 hours’ and inserting ‘3 working days’ which reflects the extended period for consideration of basic expense notifications by the Committee established under Resolution 1267. The extension of this period is required by United Nations Security Council Resolution 1735 (2006).
Overview
The Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Amendment Regulations 2009 (No. 1) were enacted to update the Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Regulations 2008, ensuring they remain in line with decisions made by the United Nations Security Council. These regulations were introduced by the Australian Government under the authority granted by section 6 of the Charter of the United Nations Act 1945, which allows the Governor-General to implement UNSC decisions that require measures not involving the use of armed force. The primary objective of these amendments is to reflect the changes in the UNSC’s timeline for considering notifications related to basic expenses, as stipulated in Resolution 1735 (2006). The Regulations modify the previous 48-hour notification period to a 3-working-day period, aligning Australian legislation with the updated UNSC requirements and ensuring compliance with international obligations.
Scope and Application
The Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Amendment Regulations 2009 (No. 1) are designed to bring the Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Regulations 2008 into line with decisions made by the United Nations Security Council. This legislation applies to all persons and entities within Australia, ensuring compliance with UNSC resolutions aimed at preventing financial transactions and the provision of funds to Al-Qaida, the Taliban, Usama bin Laden, and associated individuals, groups, undertakings, and entities. The Regulations are issued under the authority of the Minister for Foreign Affairs and have a national jurisdictional reach. The Regulations also include provisions that exclude certain transactions deemed necessary for basic expenses, such as foodstuffs, rent or mortgage payments, medicines, taxes, insurance premiums, and public utility charges, subject to notification and approval by the Committee established under UNSC Resolution 1267. Additionally, the Regulations modify the time period for processing basic expense notifications from 48 hours to 3 working days, aligning with UNSC Resolution 1735 (2006).
Key Provisions
The Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Amendment Regulations 2009 (No. 1) primarily revise the existing sanctions framework under the Charter of the United Nations (Sanctions – Al-Qaida and the Taliban) Regulations 2008, in alignment with United Nations Security Council (UNSC) decisions. Regulation 3 and Item 2 of Schedule 1 update the time period within which the Minister for Foreign Affairs can grant a permit for a basic expense exemption, extending it from 48 hours to 3 working days. A working day is defined in Item 1 as any day that is not a Saturday, Sunday, or a Public Holiday. These amendments reflect the requirements of UNSC Resolution 1735 (2006), which extended the original 48-hour period for such notifications.
The Regulations impose specific obligations on the Minister for Foreign Affairs and other relevant authorities. Regulation 3 and Item 2 of Schedule 1 detail the procedural requirement that the Minister must wait for 3 working days after notifying the Committee established under UNSC Resolution 1267 of an application for a basic expense exemption before granting a permit. This ensures compliance with the UNSC's decision to extend the review period for such applications. The definition of a 'working day' in Item 1 ensures clarity and consistency in the application of this timeframe.
Failure to comply with the provisions of the Regulations could result in non-adherence to the UNSC resolutions, which might lead to diplomatic repercussions or undermine Australia's commitments under international law. However, the Regulations themselves do not explicitly outline specific offences, penalties, or consequences for non-compliance. Instead, the primary repercussions would stem from the potential for Australia to be seen as failing to meet its obligations under the UN Charter and relevant Security Council resolutions, which could affect its standing in international forums.