Charter of the United Nations (Sanctions—Haiti) Regulations 2025

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Foreign Affairs

Charter of the United Nations Act 1945

Charter of the United Nations (Sanctions—Haiti) Regulations 2025

The Charter of the United Nations Act 1945 (the Act) provides legislative approval for the Charter of the United Nations (the Charter) in Australian law. Section 6 of the Act provides that the Governor-General may make regulations to give effect to decisions of the United Nations Security Council (UNSC) under Chapter VII of the Charter that 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 Charter of the United Nations (Sanctions—Haiti) Regulations 2025 (the Regulations) implement the decisions of the UNSC to impose sanctions in relation to Haiti, in order to meet Australia’s international obligations. These decisions are relevantly set out in UNSC Resolution 2653 (2022) (UNSCR 2653), UNSC Resolution 2664 (2022) (UNSCR 2664) and UNSC Resolution 2752 (2024) (UNSCR 2752), as extended by subsequent relevant resolutions where applicable.

The Regulations do not implement the travel ban measures established in UNSCR 2653. UNSC travel bans are implemented separately through the Migration (United Nations Security Council Resolutions) Regulations 2007 under the Migration Act 1958, which operate independently of the Regulations.

The preambles to UNSCR 2653, UNSCR 2664 and UNSCR 2752 note that the UNSC was acting under Chapter VII of the Charter. Decisions of the UNSC contained in UNSCR 2653, UNSCR 2664 and UNSCR 2752 are therefore binding on Australia.

UNSCR 2653 was adopted on 21 October 2022 in the context of high levels of gang violence, human rights abuses and other criminal activities, undermining the peace, stability and security of Haiti and its region. It establishes a Haiti Sanctions Committee to designate individuals or entities who are responsible for, or complicit in, or who have directly or indirectly engaged in actions that threaten the peace, security or stability of Haiti.

The Regulations implement the decision of the UNSC in paragraph 6 of UNSCR 2653 to impose targeted financial sanctions in relation to persons or entities designated by the Haiti Sanctions Committee. Paragraph 6 of UNSCR 2653 requires Australia to freeze all funds, other financial assets and economic resources on its territory that are owned or controlled, directly or indirectly, by designated individuals or entities, or by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them. Australia is also required to ensure that any funds, financial assets or economic resources are prevented from being made available, directly or indirectly, to or for the benefit of designated individuals or entities by Australians or by persons within Australia. Paragraphs 7, 8 and 9 of UNSCR 2653, along with paragraph 1 of UNSCR 2664, outline several exceptions to the measures.

The Regulations further implement the decision of the UNSC in paragraph 2 of UNSCR 2752 to impose an arms embargo in relation to Haiti. Paragraph 2 of UNSCR 2752 requires Australia to prevent the direct or indirect supply, sale or transfer to Haiti of arms and related matériel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, from or through Australian territory, by an Australian, or using Australian ship or aircraft. It also requires Australia to prevent the provision to Haiti of technical assistance, training, financial or other assistance related to military activities or the provision, maintenance or use of any arms and related matériel. Sub-paragraphs 2(a) – (c) of UNSCR 2752 outline several exceptions to the arms embargo, allowing the provision of otherwise sanctioned goods and services in a limited range of circumstances.

The Regulations provide that the defendant bears the evidential burden in relation to a permit granted by a foreign country for a supply, sale or transfer in or from a foreign country (subsection 6(5)) and in relation to a permit granted by a foreign country for a service provided in a foreign country (subsection 8(5)). Shifting the evidentiary burden to the defendant in subsections 6(5) and 8(5) is justified on the basis that foreign permits granted to the defendant would be peculiarly within the defendant’s knowledge.

Subsection 12(2) of the Regulations incorporates the Charter of the United Nations (Dealing with Assets) Regulations 2008 by reference. The reference to these regulations is ‘as in force from time to time’ because the Charter of the United Nations (Dealing with Assets) Regulations 2008 is a Commonwealth disallowable legislative instrument (and so is permitted by section 14 of the Legislation Act 2003 to be incorporated as in force from time to time), and section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003) has the effect that references to Commonwealth disallowable legislative instruments are taken to be references to those instruments as in force from time to time. The Charter of the United Nations (Dealing with Assets) Regulations 2008 is readily and freely available to the public on the Federal Register of Legislation, www.legislation.gov.au.

Subsection 6(3) of the Act provides that, despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection 6(1) of the Act may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force from time to time, or as existing from time to time.

Relying on the authorisation provided by subsection 6(3) of the Act, section 4 of the Regulations incorporates by reference ‘paragraph 6 of Resolution 2653 (including those measures as extended by a later resolution) or an equivalent paragraph of a later resolution of the Security Council relating to Haiti’. Subparagraphs 6(4)(b)(iii) and 8(4)(b)(iii) of the Regulations incorporate by reference ‘Resolution 2752 and any other relevant resolution of the Security Council’. UNSC resolutions do not operate in the same manner as Acts and legislative instruments. That is, subsequent resolutions in respect of a matter or issue do not always state that they are amending or replacing previous resolutions on that matter or issue. Rather, the resolutions need to be read in conjunction with one another. UNSC resolutions, including those referred to in the Regulations, can be found on the United Nations website, www.un.org.

The Act does not provide for merits review. Accordingly, decisions made under the Regulations are not subject to merits review. The Act has the legitimate objective, inter alia, of enabling Australia to give effect to sanctions-related decisions of the UNSC as set out in UNSC resolutions. The exclusion of merits review is warranted by Australia’s international obligation to implement UNSC resolutions as they arise. The exclusion of merits review in relation to decisions made under the Regulations is further warranted by the seriousness of the international peace and security and foreign policy considerations involved, as well as the potentially sensitive nature of the evidence relied on in reaching those decisions. Further, certain decisions made under the Regulations must be first notified to, or receive the approval of, the UNSC’s Haiti Sanctions Committee, rendering such decisions of the highest consequence for Government. Where the UNSC has resolved that there will be limitations on engagement with a sanctioned regime, Australia, as a member of the United Nations, must comply with these international obligations. While merits review is unavailable for a decision under the Regulations, an applicant can still seek judicial review of a decision.

The Regulations allow the Minister to delegate their powers and functions under the instrument to the Secretary of the Department or an SES employee, or acting SES employee, in the Department. This is necessary to ensure the efficient administration of Australia’s sanctions laws. The Regulations require the delegate to comply with any written directions of the Minister in performing a delegated function or exercising a delegated power.

The Regulations are exempt from sunsetting under table item 1 of section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015, on the basis that it is an instrument the sole purpose of which, or a primary purpose of which, is to give effect to an international obligation of Australia.

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

No public consultation was undertaken in relation to the Regulations in accordance with section 17 of the Legislation Act 2003 because the instrument implements Australia’s international legal obligations arising from decisions of the UNSC. The Department of Foreign Affairs and Trade conducts regular outreach to the Australian business community to explain Australian sanction laws implementing UNSC sanctions.

The Regulations commence on the day after registration and are a legislative instrument for the purpose of the Legislation Act 2003.

Details of the Regulations are set out in Attachment A.

The Regulations are 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 as set out in Attachment B.

ATTACHMENT A

Details of the Charter of the United Nations (Sanctions—Haiti) Regulations 2025

Section 1 – Name

Section 1 provides that the name of the instrument is the Charter of the United Nations (Sanctions—Haiti) Regulations 2025 (the Regulations).

Section 2 – Commencement

Section 2 provides that the Regulations commence the day after they are registered.

Section 3 – Authority

Section 3 provides that the Regulations are made under the Charter of the United Nations Act 1945 (the Act).

Section 4 – Definitions

Section 4 sets out the definition of certain terms used in the Regulations.

Section 5 – Definition of sanctioned supply

Section 5 sets out the definition of ’sanctioned supply’.

Section 6 – Prohibitions relating to a sanctioned supply

Section 6 prohibits a person from making a sanctioned supply that is not an authorised supply as defined in subsection 6(4) (subsection 6(1)). The prohibition also applies to a person, whether or not in Australia, and whether or not an Australian citizen, who uses the services of an Australian ship or an Australian aircraft to make an unauthorised supply (subsection 6(2)).

Subsection 6(3) provides that section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of subsection 6(1) or (2) of the Regulations, providing extraterritorial operation.

Subsection 6(5) provides that a defendant charged under section 27 of the Act in relation to conduct prohibited by section 6 bears the evidential burden in relation to establishing that a permit was in fact granted by a foreign country in relation to the sanctioned supply in or from a foreign country. In all other respects, the evidentiary burden for the purposes of section 6 remains with the prosecution.

Section 7 – Permit to make a sanctioned supply

Section 7 provides that the Minister may, on application grant a person a permit authorising the making of a sanctioned supply subject to any conditions specified by the Minister. A permit may be granted if the sanctioned supply is:

• a supply, sale or transfer to or by the United Nations, a mission authorised by the United Nations or a security unit that operates under the command of the Government of Haiti, intended to be used by or in coordination with those entities and solely to further the objectives of peace and stability in Haiti;
• a supply of non‑lethal military equipment intended solely for humanitarian or protective use, when intended to further the objectives of peace and stability in Haiti; or
• another supply, sale or transfer that has been approved in advance by the Committee established under paragraph 19 of UNSC Resolution 2653 (2022).

Section 8 – Prohibitions relating to a sanctioned service

Section 8 prohibits a person from providing a sanctioned service that is not an authorised service as defined in subsection 8(4) (subsection 8(1)). The prohibition also applies to a person, whether or not in Australia, and whether or not an Australian citizen, who uses the services of an Australian ship or an Australian aircraft to provide an unauthorised service (subsection 8(2)).

Subsection 8(3) provides that section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of subsection 8(1) or (2), providing extraterritorial operation.

Subsection 8(5) provides that a defendant charged under section 27 of the Act in relation to conduct prohibited by section 8 bears the evidential burden in relation to establishing that a permit was in fact granted by a foreign country in relation to the sanctioned service provided in a foreign country. In all other respects, the evidentiary burden for the purposes of section 8 remains with the prosecution.

Section 9 – Permit to provide a sanctioned service

Section 9 provides that the Minister may, on application grant a person a permit authorising the provision of a sanctioned service subject to any conditions specified. A permit may be granted if the sanctioned service is:

• training, assistance or provision of personnel related to a supply, sale or transfer to or by the United Nations, a mission authorised by the United Nations or a security unit that operates under the command of the Government of Haiti, intended to be used by or in coordination with those entities and solely to further the objectives of peace and stability in Haiti;
• technical training or assistance that is related to a supply of non‑lethal military equipment intended solely for humanitarian or protective use, when intended to further the objectives of peace and stability in Haiti; or
• another service consisting of training, assistance or provision of personnel that has been approved in advance by the Committee established under paragraph 19 of UNSC Resolution 2653 (2022).

Section 10 – Prohibition relating to dealings with designated persons or entities

Section 10 prohibits a person from directly or indirectly making an asset available to, or for the benefit of, a designated person or entity, unless authorised under subsection 10(2) (subsection 10(1)).

Under subsection 10(2), the making available of the asset is authorised if it is: (a) authorised by a permit under section 13 (paragraph 10(2)(a)); or (b) if it consists of the provision, processing or payment of funds, other financial assets or economic resources, or the provision of goods or services, necessary to ensure the timely delivery of humanitarian assistance in Haiti, or to support other activities that support basic human needs in Haiti, by specified organisations and their employees, grantees, subsidiaries or implementing partners when acting in that capacity (paragraph 10(2)(b)). The Committee established under paragraph 19 of UNSC Resolution 2653 (2022) is also able to identify organisations in relation to assistance or activities. Paragraph 10(2)(b) is intended to implement the humanitarian exemption contained in paragraph 1 of UNSC Resolution 2664 (2022) for Haiti as a new framework implemented under the Act. While it is expressly included in the Regulations, existing frameworks under the Act incorporate this exemption by operation of section 2B of the Act.

Subsection 10(3) provides that section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of subsection 10(1), providing extraterritorial operation.

Section 11 – Prohibition relating to controlled assets

Section 11 prohibits a person who holds a controlled asset from using or dealing with the asset, allowing the asset to be used or dealt with, or facilitating the use of, or the dealing with, the asset, unless authorised under subsection 11(2) (subsection 11(1)).

Under subsection 11(2), the use of or dealing with the asset is authorised if it is: (a) authorised by a permit under section 13 (paragraph11(2)(a)); or (b) if it consists of the provision, processing or payment of funds, other financial assets or economic resources, or the provision of goods or services, necessary to ensure the timely delivery of humanitarian assistance in Haiti, or to support other activities that support basic human needs in Haiti, by specified organisations and their employees, grantees, subsidiaries or implementing partners when acting in that capacity (paragraph11(2)(b)). The Committee established under paragraph 19 of UNSC Resolution 2653 (2022) is also able to identify organisations in relation to assistance or activities. Paragraph 11(2)(b) is intended to implement the humanitarian exemption contained in paragraph 1 of UNSC Resolution 2664 (2022) for Haiti as a new framework implemented under the Act. While it is expressly included in the Regulations, existing frameworks under the Act incorporate this exemption by operation of section 2B of the Act.

Subsection 11(3) provides that section 15.1 of the Criminal Code applies to an offence under section 27 of the Act that relates to a contravention of subsection 11(1), providing extraterritorial operation.

Section 12 – Permit for assets and controlled assets – application for permit

Section 12 allows a person to apply for a permit authorising: (a) the making available of an asset to a person or entity that would otherwise contravene subsection 10(1); or (b) a use of, or dealing with, a controlled asset that would otherwise contravene subsection 11(1). The application must be for a basic expense dealing, legally required dealing, contractual dealing, required payment dealing or extraordinary expense dealing as defined in regulation 5 of the Charter of the United Nations (Dealing with Assets) Regulations 2008 (subsection 12(2)).

Section 13 – Permit for assets and controlled assets – grant of permit

Section 13 sets out the requirements for the Minister to grant a permit on application made under section 12, subject to any conditions specified by the Minister. This includes requirements to notify or seek the prior approval of the Committee established under paragraph 19 of UNSC Resolution 2653 (2022) with respect to certain applications made under section 12.

Section 14 – Delegations by the Minister

Section 14 allows the Minister to delegate the Minister’s powers and functions under the Regulations to the Secretary of the Department or an SES employee, or acting SES employee, in the Department. In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Minister.

ATTACHMENT B

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 (Sanctions—Haiti) Regulations 2025

The Charter of the United Nations (Sanctions—Haiti) Regulations 2025 (the Regulations) are 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.

The Regulations establish a sanctions framework for Haiti to give effect to United Nations Security Council (UNSC) Resolution 2653 (2022) (UNSCR 2653), UNSC Resolution 2664 (2022) (UNSCR 2664) and UNSC Resolution 2752 (2024) (UNSCR 2752), as extended by subsequent relevant resolutions where applicable.

UNSCR 2653, under which the UNSC established the Haiti sanctions framework, was adopted by the Security Council on 21 October 2022 in the context of high levels of gang violence, human rights abuses and other criminal activities, undermining the peace, stability and security of Haiti and its region. It imposes targeted financial sanctions on those responsible for, or complicit in, or who have directly or indirectly engaged in actions that threaten the peace, security or stability of Haiti. The targeted financial sanctions are subject to several limited exceptions, including that set out in paragraph 1 of UNSCR 2664 which establishes a humanitarian exemption.

UNSCR 2752 further requires all Member States to implement an arms embargo in relation to Haiti, subject to exceptions in a limited range of circumstances.

Decisions of the UNSC contained in UNSCR 2653, UNSCR 2664 and UNSCR 2752 were made under Chapter VII of the Charter of the United Nations (the Charter), which Australia is required to carry out pursuant to Article 25 of the Charter.

In line with UNSCR 2653 and subsequent relevant resolutions, the Regulations impose targeted financial sanctions against persons or entities designated by the UNSC as responsible for, or complicit in, or having directly or indirectly engaged in actions that threaten the peace, security, and stability of Haiti, including:

• engaging in, directly or indirectly, or supporting criminal activities and violence involving armed groups and criminal networks that promote violence, including forcible recruitment of children by such groups and networks, kidnappings, trafficking in persons and the smuggling of migrants, and homicides and sexual and gender-based violence;

• supporting illicit trafficking and diversion of arms and related matériel l, or illicit financial flows related thereto;

• acting for or on behalf of or at the direction of or otherwise supporting or financing an individual or entity designated in connection with the activity described above, including through the direct or indirect use of the proceeds from organised crime, including proceeds from illicit production and trafficking in drugs and their precursors originating in or transiting through Haiti, the trafficking in persons and the smuggling of migrants from Haiti, or the smuggling and trafficking of arms to or from Haiti;

• acting in violation of the arms embargo in relation to Haiti, or as having directly or indirectly supplied, sold, or transferred to armed groups or criminal networks in Haiti, or as having been the recipient of, arms or any related matériel , or any technical advice, training, or assistance, including financing and financial assistance, related to violent activities of armed groups or criminal networks in Haiti;

• planning, directing, or committing acts that violate international human rights law or acts that constitute human rights abuses, including those involving extrajudicial killing, including of women and children, and the commission of acts of violence, abduction, enforced disappearances, or kidnappings for ransom in Haiti;

• planning, directing or committing acts involving sexual and gender-based violence, including rape and sexual slavery, in Haiti;

• obstructing delivery of humanitarian assistance to Haiti or access to, or distribution of, humanitarian assistance in Haiti;

• attacking personnel or premises of United Nations missions and operations in Haiti, providing support for such attacks;

• engaging in activities that destabilize Haiti through the illicit exploitation or trade of natural resources.

Consistent with UNSCR 2752, the Regulations prohibit the direct or indirect supply, sale or transfer of ‘arms or related matériel’ to Haiti, subject to the following exceptions:

• a supply, sale or transfer to or by the United Nations, a mission authorised by the United Nations, or a security unit that operates under the command of the Government of Haiti, intended to be used by or in coordination with those entities and solely to further the objectives of peace and stability in Haiti;

• a supply of non‑lethal military equipment intended solely for humanitarian or protective use, when intended to further the objectives of peace and stability in Haiti;

• another supply, sale or transfer that has been approved in advance by the Haiti Sanctions Committee.

Consistent with UNSCR 2752, the Regulations also prohibit the provision of technical assistance, training, financial or other assistance related to military activities or to the provision, maintenance or use of ‘arms or related matériel’ to Haiti, subject to the following exceptions:

• training, assistance or provision of personnel that is related to a supply, sale or transfer to or by the United Nations, a mission authorised by the United Nations, or a security unit that operates under the command of the Government of Haiti, intended to be used by or in coordination with those entities and solely to further the objectives of peace and stability in Haiti;

• technical training or assistance that is related to a supply of non‑lethal military equipment intended solely for humanitarian or protective use, when intended to further the objectives of peace and stability in Haiti;

• another service consisting of training, assistance or provision of personnel that has been approved in advance by the Haiti Sanctions Committee.

Human rights compatibility

The Regulations implement binding decisions of the UNSC pursuant to Chapter VII of the Charter, which Australia is required as a matter of international law to implement.

Consistently with the Haiti sanctions framework established by the UNSC under UNSCR 2653, the objective of the Regulations is to respond to high levels of gang violence, human rights abuses and other criminal activities, undermining the peace, stability and security of Haiti and its region.

The Regulations, which implement UNSCR 2653, UNSCR 2664 and UNSCR 2752 into Australian law, advance human rights by ensuring that those involved in activities which undermine the peace, security and stability of Haiti are subject to targeted financial sanctions, along with establishing an arms embargo in relation to Haiti as required by UNSCR 2752.

Accordingly, the Government considers that the Regulations are compatible with human rights because they promote the protection of human rights and implement binding decisions of the UNSC in accordance with Australia’s international obligations. To the extent that they may limit human rights, the Government considers the measures contained in the Regulations are a reasonable, necessary and proportionate means of achieving the legitimate objective of the Regulations while giving effect to Australia’s international obligations.

The Parliamentary Joint Committee on Human Rights (PJCHR) has accepted that the use of sanctions to apply pressure to regimes and individuals in order to end the repression of human rights may be regarded as a legitimate objective for the purposes of international human rights law. It has also expressed concern that Australia’s sanctions frameworks may not be proportionate to their stated objective.

The human rights compatibility of the Regulations is addressed by reference to each of the human rights engaged below.

Right to privacy

Right

Article 17 of the International Covenant on Civil and Political Rights (the ICCPR) prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence and unlawful attacks on a person’s honour and reputation.

The use of the term ‘arbitrary’ in the ICCPR indicates that circumstances may justify interference, where necessary, reasonable and proportionate with a person’s right to privacy. Any interferences with privacy must therefore be consistent with the provisions, aims and objectives of the ICCPR and should be reasonable, proportionate and necessary in the individual circumstances. Arbitrariness connotes elements of injustice, unpredictability, unreasonableness, capriciousness and ‘unproportionality’.[1]

Permissible limitations

The Regulations are not an unlawful interference with an individual’s right to privacy. The Regulations are made pursuant to section 6 of the Charter of the United Nations Act 1945 (the Act), which states that the Governor‑General may make regulations for and in relation to giving effect to decisions that the Security Council makes under Chapter VII of the Charter of the United Nations and that Article 25 of the Charter requires Australia to carry out.

The measures contained in the Regulations are not an arbitrary interference with an individual’s right to privacy. An interference with privacy will not be arbitrary where it is reasonable, necessary and proportionate in the individual circumstances.

To the extent it is impacted, the imposition of targeted financial sanctions under the Regulations constitutes a reasonable limitation on the right to privacy. Pursuant to section 4 of the Regulations, the United Nations Committee established under paragraph 19 of UNSCR 2653 (the Haiti Sanctions Committee) is responsible for designating people for the imposition of targeted financial sanctions. The Haiti Sanctions Committee uses predictable, publicly available criteria when designating a person as being subjected to such measures. These criteria capture only those persons who the Haiti Sanctions Committee is satisfied are responsible for, or complicit in, or have directly or indirectly engaged in actions that threaten the peace, security, and stability of Haiti.

The imposition of targeted financial sanctions under the Regulations is necessary and proportionate. They are only imposed, pursuant to the Charter, in response to actions that threaten Haiti’s peace, security, and stability, as outlined in UNSCR 2653. Noting the seriousness of this situation, which includes high levels of gang violence, human rights abuses and other criminal activity, the targeting of specific individuals for financial sanctions is the least rights-restrictive way to respond.  

Accordingly, the imposition of targeted financial sanctions under the Regulations is reasonable, necessary and proportionate to the individual circumstances that the sanctions seek to address. Any interference with the right to privacy as a consequence of the operation of the Regulations is not arbitrary or unlawful and is consistent with Australia’s obligations under Article 17 of the ICCPR.

Rights to a fair and public hearing and presumption of innocence

Article 14(1) of the ICCPR protects the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. The right is concerned with procedural fairness, rather than with the substantive decision of the court or tribunal. Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Permissible limitations

With respect to the right to a fair hearing, any limitation on the access to merits review is justified. The Regulations have the legitimate objective of giving effect to sanctions-related decisions of the UNSC in response to high levels of gang violence, human rights abuses and other criminal activities, undermining the peace, stability and security of Haiti and its region.

The limitation on access to merits review in this context is reasonable as it reflects the seriousness of the international peace and security and foreign policy considerations involved, while also implementing binding decisions of the UNSC in line with Australia’s international obligations. Further, while merits review is unavailable for a UNSC decision to designate a person for the purposes of the Regulations, judicial review is available.

With respect to the presumption of innocence, the Regulations provide that the defendant bears the evidential burden in relation to a permit granted by a foreign country for a supply, sale or transfer in or from a foreign country (subsection 6(5)) and in relation to a permit granted by a foreign country for a service provided in a foreign country (subsection 8(5)).

The shifting of the evidentiary burden to the defendant in subsections 6(5) and 8(5) is justified on the basis that foreign permits granted to the defendant would be peculiarly within the defendant’s knowledge.

Rights to liberty and security of the person and to freedom from arbitrary detention

Article 9 of the ICCPR protects the right to liberty and security of person, including the right not to be arbitrarily detained. The use of the term ‘arbitrary’ indicates that a person may be arrested or detained in circumstances where it is necessary, reasonable and proportionate. Article 9 also provides for an exception to the right to liberty on grounds established by law.

Permissible limitations

Sections 6, 8, 10 and 11 of the Regulations will be declared as ‘UN sanction enforcement laws’ under the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (the Declaration), meaning that contravening these prohibitions may, pursuant to section 27 of the Act, result in a penalty including imprisonment and engage the right to liberty.

Any limitation on human rights that may arise as a consequence of sections 6, 8, 10 or 11 of the Regulations constituting ‘UN sanction enforcement laws’ under the Declaration is permissible and consistent with Australia’s obligations under international human rights law.

The new prohibitions in sections 6, 8, 10 and 11 of the Regulations use clear language and terms.

With respect to section 6, the definition of a ‘sanctioned supply’ is set out in section 5 of the Regulations and is limited to the supply, sale or transfer of ‘arms or related matériel’ to another person which directly or indirectly results in the supply, sale or transfer of the ‘arms or related matériel’ to Haiti.

With respect to section 8, the definition of a ‘sanctioned service’ is set out in section 4 of the Regulations and is limited to the provision of technical assistance, training, financial or other assistance related to military activities or to the provision, maintenance or use of ‘arms or related matériel’ to Haiti.

With respect to sections 10 and 11, the Regulations define the terms ‘designated person or entity’ and ‘controlled asset’ in section 4, to delineate the application of the prohibitions and to ensure the prohibitions can be readily understood.

The Regulations have the legitimate aim of giving effect to sanctions-related decisions of the UNSC in response to high levels of gang violence, human rights abuses and other criminal activities, undermining the peace, stability and security of Haiti and its region.

Accordingly, the prohibitions introduced in sections 6, 8, 10 and 11, specified as ‘UN sanction enforcement laws’ under the Declaration, are a reasonable, necessary and proportionate means of achieving the legitimate objective of the Regulations, and implementing a binding decision of the UNSC.

Right to an adequate standard of living

Right

The right to an adequate standard of living is contained in Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (the ICESCR) and requires States to ensure the availability and accessibility of the resources that are essential to the realisation of the right, including food, water, clothing and housing.

Article 4 of ICESCR provides that this right may be subject to such limitations ‘as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. The limitations must be proportionate and must be the least restrictive alternative where several types of limitations are available.

Permissible limitations

Any limitation on the enjoyment of Article 11(1), to the extent that it occurs, is reasonable and necessary to achieve the objective of the Regulations and is proportionate due to the targeted nature of the financial sanctions imposed. The Regulations also provide sufficient flexibility to allow for any adverse impacts on family members as a consequence of targeted financial sanctions to be mitigated. The Regulations provide that the Minister may, on application, grant a permit for the payment of basic expenses (among others) in certain circumstances. The objective of sections 12 and 13 of the Regulations, which allow for permits to pay for basic expenses is, in part, to enable the Australian Government to administer its sanctions frameworks in a manner compatible with relevant human rights standards.

The permit process is a flexible and effective safeguard on any limitation to the enjoyment of Article 11(1).

Rights of equality and non-discrimination

The right to equality and non-discrimination under Articles 2, 16 and 26 of the ICCPR provide that everyone is entitled to enjoy their rights without discrimination on any grounds, and that people are equal before the law and are entitled to the equal and non-discriminate protection of the law.

Discrimination is impermissible differential treatment among persons or groups that result in a person or a group being treated less favourably than others, based on one of the prohibited grounds for discrimination. However, differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria, serves a legitimate purpose, and is a proportionate means of achieving that purpose.

Permissible limitations

Any differential treatment of people as a consequence of the application of the Regulations does not amount to discrimination pursuant to Article 26 of the ICCPR.

The objective of the Regulations is to give effect to sanctions-related decisions of the UNSC in response to high levels of gang violence, human rights abuses and other criminal activities, undermining the peace, stability and security of Haiti and its region.

On the basis that the Regulations relate to actions which threaten Haiti’s peace, security, and stability, it is possible that the Haiti Sanctions Committee may be more likely to designate people with Haitian nationality or of Haitian national origin. Any such difference in treatment on the basis of nationality or national origin would have an objective and justifiable basis and would be reasonable and proportionate in the circumstances of each case. 

The designation criteria contained in paragraph 15 of UNSCR 2653 are reasonable and objective. They are reasonable in that they relate only to the situation in Haiti, and apply notably in relation to actions which the UNSC has specifically determined threaten Haiti’s peace, security, and stability. The criteria are also objective, as they provide a clear, consistent and objectively verifiable reference point by which the UNSC is able to make a designation. The Regulations serve a legitimate objective, as discussed above.

Finally, the Regulations are necessary and proportionate. The imposition of financial sanctions is a highly targeted, justified and minimally rights-restrictive means of achieving the aims of the Regulations.

The Government does not have information that supports the view that affected groups are vulnerable. Rather, those subject to targeted financial sanctions are persons the Haiti Sanctions Committee has specifically determined, on the basis of the criteria established by the UNSC, are involved in actions that threaten Haiti’s peace, security, and stability. Further, there are several safeguards, such as the availability of judicial review, in place to ensure that any limitation is proportionate to the objective being sought.

[1] Manfred Nowak, United Nations Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 1993) 178.