EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 49
Charter of the United Nations Act 1945
Charter of the United Nations (Sanctions – Sierra Leone) Regulations 2008
The purpose of the Regulations is to implement Australia’s obligations under United Nations Security Council Resolution 1171 (5 June 1998), and to accommodate amendments made to the Act by the International Trade Integrity Act 2007. The Regulations also repeal the Charter of the United Nations (Sanctions – Sierra Leone) Regulations 1997, which currently implement Australia’s obligations under Resolution 1171.
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:
(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
in so far as those decisions require Australia to apply measures not involving the use of armed force.
Resolution 1171 requires Australia to prevent the supply, sale or transfer, directly or indirectly, to Sierra Leone of arms and related matériel of all types, except if the supply, sale or transfer is to the Government of Sierra Leone through points of entry named in Resolution 1171, or is for the sole use in Sierra Leone of the Military Observer Group of the Economic Community of West African States or the United Nations, in accordance with Resolution 1171. Australia is required to prevent such supply, sale or transfer from Australian territory, by Australian nationals, by persons using Australian flag vessels, and by persons using Australian flag aircraft.
Resolution 1171 was adopted under Article 41 of Chapter VII of the Charter of the United Nations and the measures are binding on Australia pursuant to Article 25 of that Charter. The relevant United Nations Security Council Resolutions can be found on the UN website (www.un.org).
The Regulations ensure that those aspects of the sanctions imposed by Resolution 1171 that cannot be implemented under existing regulations are adequately implemented into domestic law.
Australia generally implements territorial aspects of trade sanctions via specific regulation under the Customs (Prohibited Imports) Regulations 1956, the Customs (Prohibited Exports) Regulations 1958, and the Customs Regulations 1926, which are administered by the Australian Customs Service.
Interdepartmental and public consultation was undertaken during the preparation of the Regulations. The Department of Foreign Affairs and Trade conducted briefing sessions on the International Trade Integrity Act 2007, including the consequential amendments that would be required for each of the regulations made under the Act, in each State and Territory capital between September and November 2007. In addition, the Department gave industry-specific briefings to peak industry bodies assessed as most likely to be affected (the Australian Bankers Association, the Customs National Consultative Group and the Association of Minerals and Petroleum Lawyers). Finally, from August 2007 the Department posted notices on its website and on the business.gov.au consultation site inviting interested parties to provide written comments on a revised regulatory regime under the Act as amended. Other Commonwealth agencies, including the Attorney-General’s Department, were consulted during the drafting of the Regulations.
Details of the Regulations are set out in the Annex.
Annex
Charter of the United Nations (Sanctions — Sierra Leone) Regulations 2008
Details of the Regulations are as follows:
Part 1 Preliminary
Regulation 1 states that the name of the Regulations is the Charter of the United Nations (Sanctions — Sierra Leone) Regulations 2008.
Regulation 2 provides that the Regulations commence on the day after they are registered.
Regulation 3 repeals the Charter of the United Nations (Sanctions — Sierra Leone) Regulations 1997. The Regulations replace the Charter of the United Nations (Sanctions — Sierra Leone) Regulations 1997 in order to accommodate changes made to the Act by the International Trade Integrity Act 2007.
Regulation 4 provides for the definition of certain terms used in the Regulations, including “arms and related matériel”, “sanctioned service” and “sanctioned supply”.
Regulation 5 provides that “export sanctioned goods” means arms and related matériel.
Regulation 6 provides that a person who supplies, sells or transfers export sanctioned goods to another person, with the direct or indirect result that the goods are transferred to Sierra Leone, makes a “sanctioned supply”.
Part 2 UN sanction enforcement laws
Regulation 7 prohibits the making of a sanctioned supply without authorisation. Regulation 7 defines “authorised supply” as a sanctioned supply authorised by a permit issued under regulation 8 or, if the supply takes place in a foreign country, by a permit properly issued by that country in accordance with its obligations under United Nations Security Council Resolution 1171. This regulation will be specified by the Minister for Foreign Affairs in the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 as a “UN sanction enforcement law” pursuant to section 2B of the Charter of the United Nations Act (the Act). This will have the effect of making contravention of regulation 7 an offence under section 27 of the Act.
Regulation 7 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 regulation 7, thus giving the offence extraterritorial operation. In addition, the prohibition in regulation 7 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. Similarly, the prohibition in regulation 7 applies to a body corporate in relation to an unauthorised supply made by another body corporate or entity, wherever incorporated or situated, over which the first body corporate has effective control.
A defendant charged for contravening a UN sanction enforcement law under section 27 of the Act that relates to regulation 7 must establish that such a permit was in fact granted by a foreign government in relation to the otherwise sanctioned supply, sale or transfer in or from a foreign country. In other respects, for the purpose of regulation 7, the evidentiary burden remains with the prosecution.
Regulation 8 provides that the Minister for Foreign Affairs may, on application, and subject to conditions specified in the regulation, grant a person a permit authorising the making of a sanctioned supply if the sanctioned supply is to the Government of Sierra Leone, and made through a point of entry specified in a list supplied by the Government of Sierra Leone to the Secretary-General of the United Nations. A permit may also be granted if the supply is for the sole use in Sierra Leone of the Military Observer Group of the Economic Community of West African States or the United Nations.