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 2019 (No. 1)
The purpose of the Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2019 (No. 1) (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–South Sudan) Amendment (2019 Measures No. 1) Regulations 2019 (the Regulations).
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 (Charter), which Australia is required to carry out pursuant to Article 25 of the Charter.
The Amendment Declaration gives effect to certain provisions of United Nations Security Council Resolution (UNSCR) 2428 (2018), which Australia is required to implement 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 Regulations that are declared to be UN sanction enforcement laws. Specifically, it adds references to new sections 4B and 4D of the Regulations.
Section 4B prohibits a person from making a sanctioned supply (a supply, sale or transfer of arms or related materiel to another person which directly or indirectly results in the supply, sale or transfer of arms or related materiel to South Sudan), unless authorised by a permit under section 4C.
Section 4D prohibits a person from providing a sanctioned service (provision of technical assistance, training, financial or other assistance related to military activities, or the provision, maintenance or use of any arms or related materiel (and includes the provision to South Sudan of armed mercenary personnel whether or not originating in Australia), unless authorised by a permit under section 4E.
No public consultation was undertaken under section 17 of the Legislation Act 2003 before this instrument was made as it represents a minor amendment. In addition, the instrument implements Australia’s international legal obligations arising from a decision of the United Nations Security Council.
The Amendment Declaration is 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 A.
Authority: Section 6 of the
Charter of the United
Nations Act 1945
ATTACHMENT A
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 2019 (No. 1) (the Amendment Declaration)
This legislative instrument is 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 Amendment Declaration amends Schedule 1 of the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (the Declaration) to add sections 4B and 4D of the Charter of the United Nations (Sanctions–South Sudan) Amendment (2019 Measures No.1) Regulations 2019 (the Regulations). This has the effect that sections 4B and 4D 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.
Human rights compatibility
The Amendment Declaration ensures that persons and entities who breach the United Nations Security Council (UNSC) arms embargo, imposed under UNSC Resolution 2428 in response to the widespread human suffering caused by the failure of South Sudan’s leaders to bring an end to internal political and military hostilities, will be subject to UNSC sanctions measures.
The Amendment Declaration advances human rights by ensuring that certain activities which may hinder the peace process and human rights in South Sudan (including the supply of arms or related materiel or the provision of related services) are subject to UNSC sanction measures.
The Parliamentary Joint Committee on Human Rights (Committee) 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. However, it has emphasised that Australia’s sanctions regimes should be proportionate to their stated objective.
The Regulations, insofar as they relate to the Amendment Declaration, engage the following human rights:
- the right to security of the person and freedom from arbitrary detention in Article 9 of the International Covenant on Civil and Political Rights (ICCPR); and
- the right to a fair trial and fair hearing in Article 14 of the ICCPR.
Right to security of the person and freedom from arbitrary detention
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.
Report
The PJCHR has previously expressed the view that regulations which are specified as ‘UN sanctions enforcement laws’ under the Declaration may engage and limit the right to liberty, because they may result in a penalty of imprisonment for a person.
In its Report No. 11 of 2017, the PJCHR noted that Australia’s human rights obligations require that 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 PJCHR further noted that measures limiting the right to liberty must be sufficiently precise such that people who would potentially be subject to them are aware of the consequences of their actions.
Permissible limitations
The Regulations introduce prohibitions in subsections 4B(2) and 4D(2) that, respectively, prohibit the making of a sanctioned supply or the provision of a sanctioned service. Because subsections 4B(2) and 4D(2) are specified as a ‘UN sanction enforcement law’ under the Declaration, contravening these prohibitions may, under Part 5 of the Charter of the United Nations Act 1945 (the Act), result in a penalty of imprisonment and, accordingly, engage the right to liberty.
The Government considers that any limitation on human rights that may arise as a consequence of these prohibitions constituting a UN sanction enforcement law is permissible and consistent with Australia’s obligations under international human rights law.
The new prohibitions under subsections 4B(2) and 4D(2) are clearly defined in the Regulations which are available on the Federal Register of Legislation (https://www.legislation.gov.au/Home). With respect to subsection 4B(2), the definition of a ‘sanctioned supply’ is set out in section 4A of the Regulations and is limited to the supply, sale or transfer of ‘arms or related materiel’ to another person which directly or indirectly results in the supply, sale or transfer of the ‘arms or related materiel’ to South Sudan. With respect to subsection 4D(2), the definition of a ‘sanctioned service’ is set out in section 4 of the Regulations and is limited to:
- the provision to South Sudan of technical assistance, training, financial or other assistance, related to military activities, or the provision, maintenance or use of any arms or related materiel; and
- includes the provision to South Sudan of armed mercenary personnel whether or not originating in Australia.
The Regulations delineate the application of the prohibitions to ensure the prohibitions can be readily understood. The Regulations have the legitimate aim of responding to the widespread human suffering caused by the failure of South Sudan’s leaders to bring an end to internal political and military hostilities.
The position of the Government is that the prohibitions in sections 4B and 4D, specified as a ‘UN sanction enforcement law’ 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 a fair trial and fair hearing: presumption of innocence
Article 14(1) of the ICCPR protects the right to a fair trial and a fair hearing. The right concerns procedural fairness, and applies where rights and obligations, such as personal property and other private rights, are to be determined. Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.
Report
The PJCHR has previously expressed the view, with respect to sanctions designations or declarations made under Australian sanctions law that are not subject to merits review, that Article 14 of the ICCPR is engaged in so far as they limit the avenues available to challenge the decision. The PJCHR Guidance Note 2: Offence provisions, civil penalties and human rights notes that, as strict liability offences allow for the imposition of criminal liability without the need to prove fault, strict liability offences interact with the presumption of innocence in Article 14(2) of the ICCPR.
Permissible limitations
With respect to the right to a fair hearing, the Government’s position is that any limitation on the access to merits review is justified. The Regulations and Amendment Declaration have the legitimate objective of responding to the failure of South Sudan’s leaders to bring an end to the hostilities in South Sudan, which have resulted in widespread human suffering.
The limitation on access to merits review in this context is reasonable as it reflects the seriousness of the foreign policy and national security considerations involved, as well as the fact that the Regulations implement a binding decision of the UNSC. Further, judicial review is available under the Administrative Decisions (Judicial Review) Act 1976.
With respect to the presumption of innocence, the PJCHR Guidance Note acknowledges that a strict liability offence will not necessarily be inconsistent with the presumption of innocence where they are reasonable, necessary and proportionate in pursuit of a legitimate objective.
The Regulations provide in subsections 4B(2) and 4D(2) that strict liability applies, respectively, to the circumstance where the making of the sanctioned supply is not authorised by a permit or where the provision of the sanctioned service is not authorised by a permit. The application of strict liability to this element of the prohibitions in 4B(2) and 4D(2) means that the prosecution will only need to prove that a permit does not exist. The defendant will not be able to argue that the conduct has been permitted in some other way, for example through a statement by the Minister which could be taken as de facto authorisation to engage in conduct that is prohibited under the Act.
The position of the Government is that the Regulations and Amendment Declaration are consistent with Article 14 as the strict liability in the Regulations is reasonably targeted to achieve the legitimate purpose of preventing a spurious defence that a statement of the Minister could be taken as de facto authorisation to engage in conduct that is prohibited under the Charter of the United Nations Act 1945, in addition to the overarching objectives of the UNSC arms embargo for South Sudan.
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 4B(7)) and in relation to a permit granted by a foreign country for a service provided in a foreign country (subsection 4D(7)).
The shifting of the evidentiary burden to the defendant in subsections 4B(7) and 4D(7) is justified on the basis that foreign permits granted to the defendant would be peculiarly within the defendant’s knowledge.
Conclusion
In expanding sanctions in relation to South Sudan, the Regulations have the legitimate aim of demonstrating the international community’s condemnation of the continued hostilities and violation of human rights and peace agreements in relation to South Sudan. Accordingly, the Government considers that the Regulations are compatible with human rights because they promote the protection of human rights and implement a binding decision of the UNSC, which Australia is required as a matter of international law to implement. To the extent it may limit human rights, the Government considers the measures are reasonable, necessary and proportionate.