Charter of the United Nations (Sanctions - Democratic Republic of the Congo) Regulations 2005

Charter of the United Nations (Sanctions — Democratic Republic of the Congo) Regulations 2005

Select Legislative Instrument 2005 No. 98 as amended

made under the

Charter of the United Nations Act 1945

This compilation was prepared on 18 November 2006
taking into account amendments up to SLI 2006 No. 299

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

Contents

Part 1 Introductory 

 1 Name of Regulations [see Note 1]

 2 Commencement [see Note 1]

 3 Object 

 4 Extra‑territorial operation of Regulations 

 5 Definitions 

Part 2 Restriction on supply of arms etc 

 6 Application of Part 

 7 Restriction on sale of arms etc 

 8 Restriction on provision of technical assistance etc 

Part 3 Restriction on use of Australian aircraft and ships             

 9 Use of Australian aircraft and ships for supply of arms etc 

Part 4 Freezable assets and restriction on movement of assets to designated persons and designated entities             

 10 Offence — dealing with freezable assets 

 11 Offence — giving an asset to a designated person or designated entity             

 12 Authorised dealings 

Notes   

Part 1 Introductory

1 Name of Regulations [see Note 1]

  These Regulations are the Charter of the United Nations (Sanctions — Democratic Republic of the Congo) Regulations 2005.

2 Commencement [see Note 1]

  These Regulations commence on the day after they are registered.

3 Object

  The object of these Regulations is to assist in giving effect to Resolution 1493, Resolution 1533 and Resolution 1596 by:

 (a) restricting the supply of arms and related matériel, and the provision of assistance, advice and training related to military activities to Democratic Republic of the Congo; and

 (b) preventing a person:

 (i) from using or dealing with assets owned or controlled by a designated person or entity; and

 (ii) from making any asset available to a designated person or entity.

4 Extra‑territorial operation of Regulations

  These Regulations have extra‑territorial operation according to their terms.

5 Definitions

  In these Regulations:

Act means the Charter of the United Nations Act 1945.

arms or related matériel includes:

 (a) weapons; and

 (b) ammunition; and

 (c) military vehicles and equipment; and

 (d) spare parts and accessories for the things mentioned in paragraphs (a) to (c); and

 (e) paramilitary equipment.

Note   Paramilitary equipment includes parts and accessories designed or adapted for use in, or with, paramilitary equipment mentioned in paragraphs (a) to (e) of the definition of paramilitary equipment (see paragraph (f) of that definition.

asset means an asset described in the definition of asset in section 14 of the Act.

Australian aircraft means an aircraft registered in Australia under the Civil Aviation Act 1988.

Australian ship means a ship registered in Australia under the Shipping Registration Act 1981.

Committee means the Committee established under paragraph 8 of Resolution 1533.

designated entity means an entity designated by the Committee under paragraph 15 of Resolution 1596.

designated person means a person designated by the Committee under paragraph 13 of Resolution 1596.

Note   For a list of designated persons and designated entities, see the Department of Foreign Affairs and Trade (www.dfat.gov.au).

engage in conduct means do an act or omit to perform an act.

excluded asset means an asset (if any) that, under paragraph 16 of Resolution 1596, is not an asset to which paragraph 15 of Resolution 1596 applies.

freezable asset means an asset in Australia (other than an excluded asset) that is owned or controlled, directly or indirectly, by a designated person, or held by a designated entity.

integration has the same meaning as in Resolution 1596.

MONUC means the United Nations Organization Mission in the Democratic Republic of the Congo.

paramilitary equipment means any of the following:

 (a) batons, clubs, riot sticks and similar devices of a kind used for law enforcement purposes;

 (b) body armour, including:

 (i) bullet‑resistant apparel; and

 (ii) bullet‑resistant pads; and

 (iii) protective helmets;

 (c) handcuffs, leg irons and other devices used for restraining prisoners;

 (d) riot protection shields;

 (e) whips;

 (f) parts and accessories designed or adapted for use in, or with, equipment mentioned in paragraphs (a) to (e).

Resolution 1493 means Resolution 1493 (2003) of the Security Council of the United Nations, adopted on 28 July 2003, as affected by Resolution 1552 (2004), adopted on 27 July 2004.

Resolution 1533 means Resolution 1533 (2004) of the Security Council of the United Nations, adopted on 12 March 2004.

Resolution 1596 means Resolution 1596 (2005) of the Security Council of the United Nations, adopted on 18 April 2005.

Part 2 Restriction on supply of arms etc

6 Application of Part

  This Part applies to a person in Australia or a citizen of Australia who is outside Australia.

7 Restriction on sale of arms etc

 (1) A person must not engage in conduct that assists, or results in, the sale or supply of arms or related matériel to any recipient in the territory of the Democratic Republic of the Congo.

Penalty:   50 penalty units.

 (2) Subregulation (1) does not apply in relation to:

 (a) a sale or supply to the Government of the Democratic Republic of the Congo for the use of units of the army and police of the Democratic Republic of the Congo, if:

 (i) those units:

 (A) have completed the process of their integration; or

 (B) operate under the command of the état‑major intégré of the Armed Forces or of the National Police of the Democratic Republic of the Congo; or

 (C) are in the process of their integration, in the territory of the Democratic Republic of the Congo outside the provinces of North Kivu and South Kivu and the Ituri district; and

 (ii) the sale or supply is made to a receiving site as designated by the Government of National Unity and Transition in coordination with MONUC; and

 (iii) the sale or supply is notified in advance to the Committee; or

 (b) a sale or supply to MONUC; or

 (c) a sale or supply of non‑lethal military equipment intended solely for humanitarian or protective use if the sale or supply is:

 (i) made to a receiving site as designated by the Government of National Unity and Transition in coordination with MONUC; and

 (ii) notified in advance to the Committee.

 (3) For paragraphs (2) (a) and (c), strict liability applies to the circumstance that a sale or supply is notified in advance to the Committee.

Note   For strict liability, see subsection 6.1 of the Criminal Code.

8 Restriction on provision of technical assistance etc

 (1) A person must not engage in conduct that assists, or results in, the provision of assistance (including financing and financial assistance), advice or training relating to military activities to any recipient in the territory of the Democratic Republic of the Congo.

Penalty:   50 penalty units.

 (2) Subregulation (1) does not apply in relation to:

 (a) the provision of assistance, advice or training to the Government of the Democratic Republic of the Congo for the use of units of the army and police of the Democratic Republic of the Congo, if:

 (i) those units:

 (A) have completed the process of their integration; or

 (B) operate under the command of the état‑major intégré of the Armed Forces or of the National Police of the Democratic Republic of the Congo; or

 (C) are in the process of their integration, in the territory of the Democratic Republic of the Congo outside the provinces of North Kivu and South Kivu and the Ituri district; and

 (ii) the provision of the assistance, advice or training is notified in advance to the Committee; or

 (b) the provision of assistance, advice or training to MONUC; or

 (c) the provision of assistance, advice or training:

 (i) relating to non‑lethal military equipment intended solely for humanitarian or protective use; and

 (ii) the provision of which is notified in advance to the Committee.

 (3) For paragraphs (2) (a) and (c), strict liability applies to the circumstance that a provision is notified in advance to the Committee.

Note   For strict liability, see subsection 6.1 of the Criminal Code.

Part 3 Restriction on use of Australian aircraft and ships

9 Use of Australian aircraft and ships for supply of arms etc

 (1) The owner, pilot in command or operator of an Australian aircraft must not allow the aircraft to be used in a way that assists, or results in, the sale or supply of arms or related matériel to any recipient in the territory of the Democratic Republic of the Congo.

Penalty:   50 penalty units.

 (2) The owner, master or operator of an Australian ship must not allow the aircraft to be used in a way that assists, or results in, the sale or supply of arms or related matériel to any recipient in the territory of the Democratic Republic of the Congo.

Penalty:   50 penalty units.

 (3) Subregulations (1) and (2) do not apply in relation to:

 (a) a sale or supply to the Government of the Democratic Republic of the Congo for the use of units of the army and police of the Democratic Republic of the Congo, if:

 (i) those units:

 (A) have completed the process of their integration; or

 (B) operate under the command of the état‑major intégré of the Armed Forces or of the National Police of the Democratic Republic of the Congo; or

 (C) are in the process of their integration, in the territory of the Democratic Republic of the Congo outside the provinces of North Kivu and South Kivu and the Ituri district; and

 (ii) the sale or supply is made to a receiving site as designated by the Government of National Unity and Transition in coordination with MONUC; and

 (iii) the sale or supply is notified in advance to the Committee; or

 (b) a sale or supply to MONUC; or

 (c) a sale or supply of non‑lethal military equipment intended solely for humanitarian or protective use if the sale or supply is:

 (i) made to a receiving site as designated by the Government of National Unity and Transition in coordination with MONUC; and

 (ii) notified in advance to the Committee.

 (4) For paragraphs (3) (a) and (c), strict liability applies to the circumstance that a sale or supply is notified in advance to the Committee.

Note   For strict liability, see subsection 6.1 of the Criminal Code.

Part 4 Freezable assets and restriction on movement of assets to designated persons and designated entities

10 Offence — dealing with freezable assets

 (1) A person commits an offence if:

 (a) the person holds a freezable asset; and

 (b) the person:

 (i) uses or deals with the freezable asset; or

 (ii) allows the freezable asset to be used or dealt with; or

 (iii) facilitates the use of the freezable asset or dealing with the freezable asset; and

 (c) the use or dealing is not in accordance with a notice under regulation 12.

Penalty:   50 penalty units.

 (2) Strict liability applies to the circumstance that the use or dealing is not in accordance with a notice under regulation 12.

Note   For strict liability, see subsection 6.1 of the Criminal Code.

 (3) It is a defence if the person proves that the use or dealing was solely for the purpose of preserving the value of the freezable asset.

Note   A defendant bears an evidential burden in relation to the matters set out in subregulation (3) (see section 13.3 of the Criminal Code).

 (4) Section 15.1 of the Criminal Code (extended geographical jurisdiction — category A) applies to an offence against subregulation (1).

11 Offence — giving an asset to a designated person or designated entity

 (1) A person commits an offence if:

 (a) the person, directly or indirectly, makes an asset available to a designated person or designated entity; and

 (b) the making available of the asset is not in accordance with a notice under regulation 12.

Penalty:   50 penalty units.

 (2) Strict liability applies to the circumstance that the making available of the asset is not in accordance with a notice under regulation 12

Note   For strict liability, see subsection 6.1 of the Criminal Code.

 (3) Section 15.1 of the Criminal Code (extended geographical jurisdiction — category A) applies to an offence against subregulation (1).

12 Authorised dealings

 (1) The owner or holder of a freezable asset may apply in writing to the Minister for permission to use or deal with the freezable asset in a specified way.

 (2) The owner or holder of an asset may apply in writing to the Minister for permission to make the asset available to a designated person or designated entity specified in the application.

 (3) The Minister may, by written notice:

 (a) permit a freezable asset specified in the notice to be used or dealt with in a specified way; or

 (b) permit an asset specified in the notice to be made available to a designated person or designated entity specified in the notice.

 (4) The Minister may issue such a notice on his or her own initiative or upon application under subregulation (1) or (2).

 (5) The notice may be subject to conditions, and may be expressed to apply from a date before the notice is given.

 (6) The notice must be given to the owner or holder of the asset as soon as practicable after it is made.

 (7) A notice that is given by the Minister on the basis of false or misleading information is taken to have no effect.

 (8) The Minister may delegate the Minister’s powers and functions under this regulation (other than this power of delegation) to:

 (a) the Secretary of the Department; or

 (b) an SES employee, or acting SES employee, in the Department.

 (9) The delegation must be in writing.

 (10) The delegate must comply with any directions of the Minister in exercising powers or functions under the delegation.

Notes to the Charter of the United Nations (Sanctions — Democratic Republic of the Congo) Regulations 2005

Note 1

The Charter of the United Nations (Sanctions — Democratic Republic of the Congo) Regulations 2005 (in force under the Charter of the United Nations Act 1945) as shown in this compilation comprise Select Legislative Instrument 2005 No. 98 amended as indicated in the Tables below.

Table of Instruments

Table of Amendments