Explanatory Statement
Issued by the Authority of the Minister for Foreign Affairs
Charter of the United Nations Act 1945
Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 2)
The purpose of the Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 2) (the Amendment Declaration) is to make a consequential amendment to the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 to reflect the making of the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No.1) Regulations 2017.
Subsections 27(1) and (5) of the Charter of the United Nations Act 1945 (the Act) provide respectively that individuals and bodies corporate commit an offence if they engage in conduct that contravenes a UN sanction enforcement law. ‘UN sanction enforcement law’ is defined in section 2 of the Act to mean a provision that is specified in an instrument under subsection 2B(1) of the Act. Section 2B provides that the Minister may, by legislative instrument, specify a provision of a law of the Commonwealth to be a UN sanction enforcement law to the extent that the provision gives 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.
By item 1 of Schedule 1 of the Amendment Declaration, the Minister substituted for the existing Schedule 1 of the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 a replacement Schedule 1. The replacement Schedule 1 specifies the provisions of Commonwealth laws that are UN sanction enforcement laws pursuant to subsection 2B(1) of the Act for the purposes of section 27 and related provisions of the Act. The substituted Schedule includes references to all of the provisions of the Charter of the United Nations (Sanctions-Democratic People’s Republic of Korea) Regulations 2008 (as amended by the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No.1) Regulations 2017) that are declared to be UN sanction enforcement laws, including the new regulation 13AA of the Charter of the United Nations (Sanctions-Democratic People’s Republic of Korea) Regulations 2008.
No public consultation was undertaken under section 17 of the Legislation Act 2003 before this instrument was made as the instrument represents a minor amendment and does not substantially alter existing arrangements, in accordance with section 17(2) of the Legislation Act 2003.
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 (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 2)
The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 2) (Amendment Declaration) makes consequential amendments to the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (Declaration) to reflect the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No. 1) Regulations 2017. The Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No. 1) Regulations 2017 amended the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Regulations 2008.
Each item in Schedule 1 of the Declaration is specified as a UN sanction enforcement law. The Amendment Declaration substitutes a new Schedule 1 to include all the provisions of the Charter of the United Nations (Sanctions - Democratic People’s Republic of Korea) Regulations 2008 (as amended by the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No. 1) Regulations 2017) that are declared to be UN sanction enforcement laws, including the new regulation 13AA of the Charter of the United Nations (Sanctions-Democratic People’s Republic of Korea) Regulations 2008.
The consequential amendments made by the Amendment Declaration do not engage, and are therefore 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.
Overview
The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 2) amends the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 to incorporate the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No. 1) Regulations 2017. This amendment was introduced to ensure that the existing framework for implementing UN sanctions against the Democratic People’s Republic of Korea is up-to-date with the latest measures decided by the United Nations Security Council. The Charter of the United Nations Act 1945 empowers the Minister for Foreign Affairs to specify provisions of Commonwealth laws as UN sanction enforcement laws, which individuals and bodies corporate must comply with. By making these consequential amendments, the Declaration ensures that all relevant sanctions and related provisions are correctly identified and enforced in accordance with Australia’s international obligations under the UN Charter.
Scope and Application
The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 2) amends the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 to reflect the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No.1) Regulations 2017. This amendment involves updating the list of provisions in the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Regulations 2008 that are considered UN sanction enforcement laws, including the addition of the new regulation 13AA. The Charter of the United Nations Act 1945 applies to individuals and bodies corporate who engage in conduct that contravenes a UN sanction enforcement law, as defined in the Act. This encompasses any measures required by the United Nations Security Council under Chapter VII of the Charter of the United Nations, which Australia is obligated to implement under Article 25, excluding those measures involving the use of armed force. The Amendment Declaration has a national reach as it pertains to the implementation of international obligations under the Charter of the United Nations, and it extends the application of the specified Commonwealth laws to ensure compliance with UN sanctions against the Democratic People’s Republic of Korea. No exclusions or exemptions are noted in the Amendment Declaration, but the scope of application is determined by the provisions specified in the amended Schedule 1.
Key Provisions
The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 2) (the Amendment Declaration) primarily focuses on updating the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 to incorporate the recent changes made by the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No.1) Regulations 2017. This amendment ensures that the Australian legislation remains aligned with the latest United Nations Security Council decisions under Chapter VII of the Charter of the United Nations. The key sections involved are subsections 27(1) and (5) of the Charter of the United Nations Act 1945, which define the offence of contravening a UN sanction enforcement law (sections 27(1) and (5)).
The Amendment Declaration imposes several obligations on individuals and entities in Australia. It mandates that anyone engaging in conduct that contravenes a UN sanction enforcement law commits an offence, as specified in section 27(1) of the Act. The term 'UN sanction enforcement law' is defined in section 2 of the Act to include provisions specified in an instrument under section 2B(1). By updating the Schedule 1 of the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008, the Amendment Declaration ensures that all relevant Commonwealth laws, including the amended Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Regulations 2008, are appropriately identified as UN sanction enforcement laws (Schedule 1, item 1).
Under the Charter of the United Nations Act 1945, any breach of the specified UN sanction enforcement laws can lead to significant legal consequences. Specifically, section 27(5) states that individuals and bodies corporate can be found guilty of an offence for engaging in conduct that contravenes these laws. The penalties for such offences are not explicitly detailed in the Amendment Declaration but generally include fines and imprisonment as stipulated in the Charter of the United Nations Act 1945. For example, section 27(6) of the Act provides that an individual can be fined up to 5,000 penalty units and/or imprisoned for five years, while a body corporate can be fined up to 25,000 penalty units. These penalties reflect the seriousness of contravening international sanctions designed to maintain global peace and security.