Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2018 (No. 1)

Administered by Department of Foreign Affairs and Trade

Legislation au F2018L00701 Not in force Legislative Instrument

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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 2018 (No. 1)

 

The purpose of the Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2018 (No. 1) (the 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 (Resolution 2397) Regulations 2018 (the Regulation).

 

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. The term ‘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 Australia is required to carry out pursuant to Article 25 of the Charter. 

 

The Declaration gives effect to certain provisions of United Nations Security Council Resolution (UNSCR) 2397 (2017), which Australia is required to implement pursuant to Article 25 of the Charter. By Item 1 of Schedule 1 of the Declaration, the Minister substituted the existing Schedule 1 of the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 with 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 Regulation) that are declared to be UN sanction enforcement laws. In particular, it adds references to Regulations 9A and 11CA of the Charter of the United Nations (Sanctions-Democratic People’s Republic of Korea) Regulations 2008 (as amended by the Regulation).

 

Regulation 9A creates a prohibition on using an Australian pipeline, Australian railway, or a vehicle that is registered or required to be registered under a law of a State or Territory, to transport refined petroleum products, crude oil, industrial machinery, transportation vehicles, and iron steel and other metals (with an exception for the provision of spare parts needed to maintain the safe operation of DPRK commercial civilian passenger aircraft) for the purpose of supplying them to the Democratic People’s Republic of Korea (DPRK).

 

Regulation 11CA creates a prohibition on procuring fishing rights (directly or indirectly) from the DPRK, a person or entity in the DPRK, or a national of the DPRK.

 

No public consultation was undertaken under section 17 of the Legislation Act 2003 before this instrument was made as it represents a minor amendment and does not substantially alter existing arrangements, in accordance with section 17(2) of the Legislation Act 2003. In addition, the instrument implements Australia’s international legal obligations arising from a decision of the United Nations Security Council.  

 


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 2018 (No. 1)

 

The purpose of the Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2018 (No. 1) (the 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 (Resolution 2397) Regulations 2018 (the Regulation).

 

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. The term ‘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 (the Charter), which Australia is required to carry out pursuant to Article 25 of the Charter.

 

By Item 1 of Schedule 1 of the Amendment Declaration, the Minister substituted the existing Schedule 1 of the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 with 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 Regulation) that are declared to be UN sanction enforcement laws. In particular, it adds references to Regulations 9A and 11CA of the Charter of the United Nations (Sanctions-Democratic People’s Republic of Korea) Regulations 2008 (as amended by the Regulation).

 

Regulation 9A creates a prohibition on using an Australian pipeline, Australian railway, or a vehicle that is registered or required to be registered under a law of a State or Territory, to transport refined petroleum products, crude oil, industrial machinery, transportation vehicles, and iron steel and other metals (with an exception for the provision of spare parts needed to maintain the safe operation of DPRK commercial civilian passenger aircraft) for the purpose of supplying them to the Democratic People’s Republic of Korea (DPRK).

 

Regulation 11CA creates a prohibition on procuring fishing rights (directly or indirectly) from the DPRK, a person or entity in the DPRK, or a national of the DPRK.

Right to a fair hearing and right to liberty

 

The Declaration amends Schedule 1 of the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 to add Regulation 9A and Regulation 11CA of the Charter of the United Nations (Sanctions-Democratic People’s Republic of Korea) Regulations 2008.  This has the effect that Regulation 9A and 11CA are declared as ‘UN sanction enforcement laws’, meaning that contravening these prohibitions may, pursuant to section 27 of the Charter of the United Nations Act 1945, result in a penalty of imprisonment. 

 

Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) protects the right to a fair trial and a fair hearing. Article 9 of the ICCPR protects the right to liberty, including the right not to be arbitrarily detained.  The notion of arbitrariness incorporates elements of inappropriateness, injustice and lack of predictability. 

 

In its Report No. 11 of 2017, the Parliamentary Joint Committee on Human Rights (the Committee) considered a previous amendment to the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008.  The Committee noted that Australia’s human rights obligations require that any interferences with a person’s human rights must have a clear basis in law, meaning that any measures which interfere with human rights must be sufficiently certain and accessible, such that people are able to understand when an interference with their rights will be justified.  The Committee also expressed the view that regulations which are specified as ‘UN sanction enforcement laws’ by the Declaration may engage and limit the right to liberty, because they may result in a penalty of imprisonment for a person. The Committee expressed concern that the definition of UN sanction enforcement laws lacked sufficient certainty and could, in certain circumstances, result in arbitrary detention.

 

The Government considers that any limitation on human rights that may arise as a consequence of the inclusion of Regulation 9A and Regulation 11CA in the Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2018 (No. 1) is permissible and consistent with Australia’s obligations under international human rights law.  The new prohibitions in Regulation 9A and Regulation 11CA of the Regulation use clear language and terms, such as ‘pipeline in Australia’, ‘railway in Australia’, ‘vehicle that is registered, or is required to be registered, under a law of a State or Territory’ to delineate their application, and can be readily understood. 

 

In expanding sanctions on the DPRK, the Declaration has the legitimate aim of modifying the DPRK’s behaviour and demonstrating the international community’s condemnation of the DPRK’s actions. The Declaration also implements a binding decision of the United Nations Security Council pursuant to Chapter VII of the Charter, which Australia is required as a matter of international law to implement. The Government believes that the prohibitions in Regulation 9A and Regulation 11CA are a reasonable, necessary and proportionate means of achieving the legitimate and lawful objective of effecting change in the DPRK’s behaviour and implementing a binding decision of the United Nations Security Council.

 

The Government notes that it keeps its sanctions regimes under regular review, and will continue to consider issues such as human rights compatibility going forward.

 

Overview

The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2018 (No. 1) amends 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 (Resolution 2397) Regulations 2018. Enacted by the Minister for Foreign Affairs under the Charter of the United Nations Act 1945, the Declaration aims to ensure Australia’s compliance with its international obligations under Chapter VII of the Charter of the United Nations by specifying additional provisions of Commonwealth laws as UN sanction enforcement laws. These provisions include the prohibitions on transporting certain goods to the Democratic People’s Republic of Korea via Australian infrastructure and procuring fishing rights from the DPRK, a person or entity in the DPRK, or a national of the DPRK. The Declaration amends the 2008 Declaration by specifying these new regulations as UN sanction enforcement laws, thereby making contraventions of these provisions subject to penalties under the Charter of the United Nations Act 1945. The Declaration responds to the need for Australia to implement United Nations Security Council Resolution 2397 (2017), which mandates sanctions on the DPRK to modify its behaviour and demonstrate international condemnation. While the Parliamentary Joint Committee on Human Rights expressed concerns about the potential for arbitrary detention arising from the inclusion of these regulations, the Government maintains that the new prohibitions are clear and necessary to achieve the legitimate aim of implementing a binding decision of the United Nations Security Council. The Government also notes that it regularly reviews its sanctions regimes to address human rights considerations.

Scope and Application

The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2018 (No. 1) 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 (Resolution 2397) Regulations 2018. This Amendment Declaration applies to individuals and bodies corporate who may commit an offence if they engage in conduct that contravenes a UN sanction enforcement law, as defined in the Charter of the United Nations Act 1945. The amendment is designed to align Australian law with the decisions of the United Nations Security Council under Chapter VII of the Charter of the United Nations, which Australia is obligated to implement under Article 25 of the Charter. By incorporating certain provisions of the Regulations into the Declaration, it ensures that these provisions are recognised as UN sanction enforcement laws, subject to the penalties outlined in the Act. The scope of the Amendment Declaration is national, as it pertains to the enforcement of international sanctions within Australia. The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2018 (No. 1) specifically adds Regulations 9A and 11CA of the Charter of the United Nations (Sanctions-Democratic People’s Republic of Korea) Regulations 2008 to Schedule 1 of the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008, thereby making them UN sanction enforcement laws. Regulation 9A prohibits the use of Australian infrastructure to transport specific goods to the Democratic People’s Republic of Korea, with an exception for spare parts necessary for the safe operation of DPRK commercial civilian passenger aircraft. Regulation 11CA prohibits procuring fishing rights from the DPRK, a person or entity in the DPRK, or a national of the DPRK. These additions are intended to further restrict trade and economic activities with the DPRK in line with international sanctions. The Amendment Declaration does not explicitly state any exclusions or exemptions, although the application of these regulations would depend on the specific circumstances and the interpretation of the terms used.

Key Provisions

The Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2018 (No. 1) 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 (Resolution 2397) Regulations 2018. Specifically, Item 1 of Schedule 1 of the Declaration substitutes the existing Schedule 1 of the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 with a replacement Schedule 1. This replacement Schedule 1 specifies the provisions of Commonwealth laws that are UN sanction enforcement laws under subsection 2B(1) of the Charter of the United Nations Act 1945 for the purposes of section 27 and related provisions of the Act. The substitution includes references to all provisions of the Charter of the United Nations (Sanctions-Democratic People’s Republic of Korea) Regulations 2008 (as amended by the Regulation) that are declared to be UN sanction enforcement laws. In particular, it adds references to Regulations 9A and 11CA of the Charter of the United Nations (Sanctions-Democratic People’s Republic of Korea) Regulations 2008. Regulation 9A prohibits the use of Australian pipelines, railways, or vehicles registered or required to be registered under a law of a State or Territory to transport certain goods to the Democratic People’s Republic of Korea, with an exception for spare parts needed to maintain the safe operation of DPRK commercial civilian passenger aircraft. Regulation 11CA prohibits procuring fishing rights from the DPRK, a person or entity in the DPRK, or a national of the DPRK. By making these regulations UN sanction enforcement laws, the Declaration enforces the United Nations Security Council’s decisions under Chapter VII of the Charter of the United Nations, which Australia is required to implement under Article 25 of the Charter. The obligations imposed by the Declaration on individuals and entities include strict compliance with the prohibitions set out in Regulations 9A and 11CA. These prohibitions are broad and cover a range of activities involving the transport of specified goods to the DPRK and the procurement of fishing rights from the DPRK or related entities. Individuals and bodies corporate must ensure that their activities do not contravene these regulations, as doing so would constitute an offence under the Charter of the United Nations Act 1945. Non-compliance can lead to significant legal repercussions. Breach of the provisions specified in the Declaration can result in criminal penalties. According to subsections 27(1) and (5) of the Charter of the United Nations Act 1945, individuals and bodies corporate can commit an offence if they engage in conduct that contravenes a UN sanction enforcement law. The maximum penalties for such offences are not explicitly stated in the Declaration but are likely to be severe, considering the nature of the sanctions and the obligations under international law. The enforcement of these regulations aims to ensure that Australia meets its international obligations and contributes to the global efforts to influence the behaviour of the DPRK.

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