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. 3)
The purpose of the Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 3) (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. 2) 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. 2) Regulations 2017) that are declared to be UN sanction enforcement laws. In particular, it adds references to Regulations 11AA, 11J and 11L 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.2) Regulations 2017).
In addition, and in accordance with section 8 of the Charter of the United Nations Act 1945, the Charter of the United Nations (Sanctions – Liberia) Regulations 2008 ceased to have effect with the adoption of UN Security Council Resolution 2288 (2016). The substituted Schedule therefore no longer includes any reference to the Charter of the United Nations (Sanctions – Liberia) 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. 3)
The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 3) (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. 2) Regulations 2017. The Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No. 2) 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. 2) Regulations 2017) that are declared to be UN sanction enforcement laws. In particular, it adds references to Regulations 11AA, 11J and 11L 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. 2) Regulations 2017).
In addition, and in accordance with section 8 of the Charter of the United Nations Act 1945, the Charter of the United Nations (Sanctions – Liberia) Regulations 2008 ceased to have effect with the adoption of UN Security Council Resolution 2288 (2016). The substituted Schedule therefore no longer includes any reference to the Charter of the United Nations (Sanctions – Liberia) 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. 3) was enacted to amend the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 in response to the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No. 2) Regulations 2017. This amendment was made to ensure that the domestic legal framework aligns with recent changes in United Nations sanctions related to the Democratic People's Republic of Korea. The enacting body is the Minister for Foreign Affairs, acting under the authority provided by subsections 27(1) and (5) of the Charter of the United Nations Act 1945, which criminalises conduct that contravenes UN sanction enforcement laws. The policy objective of this amendment is to effectively implement the United Nations Security Council's resolutions and decisions by updating the specified Commonwealth laws that give effect to these sanctions.
The Amendment Declaration includes a new Schedule 1 to the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008, adding references to specific regulations amended by the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No. 2) Regulations 2017, such as Regulations 11AA, 11J, and 11L. Furthermore, it removes references to the Charter of the United Nations (Sanctions – Liberia) Regulations 2008, which were superseded by UN Security Council Resolution 2288 (2016). This amendment ensures that the Australian legal framework accurately reflects current international obligations under the UN Charter.
Scope and Application
The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 3) 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. 2) Regulations 2017. This amendment ensures that the domestic legal framework aligns with the latest sanctions imposed by the United Nations Security Council. The Amendment Declaration applies to individuals and bodies corporate who must comply with the specified Commonwealth laws that are now identified as UN sanction enforcement laws, particularly those concerning sanctions against the Democratic People’s Republic of Korea. These laws are designed to enforce measures decided by the UN Security Council under Chapter VII of the Charter of the United Nations, excluding those involving the use of armed force. The geographic and jurisdictional reach of this legislation is national, as it pertains to all persons and entities within Australia. There are no specific exclusions or exemptions detailed in the Amendment Declaration, which extends its application through the specified legislative instruments.
Key Provisions
The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 3) (the Amendment Declaration) primarily serves to update the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (the Declaration) to reflect the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Amendment (2017 Measures No. 2) Regulations 2017. This update ensures that the legislative framework aligns with recent UN Security Council decisions regarding sanctions on the Democratic People’s Republic of Korea. Specifically, Item 1 of Schedule 1 to the Amendment Declaration replaces the existing Schedule 1 of the Declaration, now specifying the provisions of Commonwealth laws that are UN sanction enforcement laws pursuant to subsection 2B(1) of the Charter of the United Nations Act 1945 (the Act). The new Schedule includes references to all provisions of the Charter of the United Nations (Sanctions-Democratic People’s Republic of Korea) Regulations 2008 (as amended) that are declared to be UN sanction enforcement laws, with particular additions of Regulations 11AA, 11J, and 11L.
Under the Charter of the United Nations Act 1945, the obligations imposed on individuals and bodies corporate are significant. According to section 27(1) and (5) of the Act, any person who engages in conduct that contravenes a UN sanction enforcement law commits an offence. The term 'UN sanction enforcement law' is defined in section 2 of the Act, encompassing any provision specified in an instrument under subsection 2B(1) of the Act. Section 2B allows the Minister to specify Commonwealth law provisions as UN sanction enforcement laws, provided these provisions implement UN Security Council decisions under Chapter VII of the Charter of the United Nations, as required by Article 25 of the Charter, particularly where these decisions mandate measures not involving the use of armed force. The updated Schedule 1, therefore, ensures that the specified sanctions and related laws are effectively enforced within Australia.
Breaches of the requirements under the Charter of the United Nations Act 1945 can lead to both civil and criminal consequences. Specifically, individuals and bodies corporate found to have contravened a UN sanction enforcement law, as specified in the updated Schedule 1, may face penalties. The maximum penalties for such offences can be substantial, reflecting the seriousness of non-compliance with international sanctions. The precise penalties are determined by the courts, but they can include significant fines and potential imprisonment, depending on the severity and nature of the breach. Additionally, the Act allows for enforcement actions and legal proceedings to be initiated against those found in violation of the specified sanctions laws.