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 (No. 1) Instrument 2025
The purpose of the Charter of the United Nations (UN Sanction Enforcement Law) Amendment (No. 1) Instrument 2025 (the Amendment Instrument) is to make consequential amendments to the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (the Declaration) to reflect the making of the Charter of the United Nations (Sanctions—Haiti) Regulations 2025 (the Regulations).
Subsections 27(1) and 27(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 a decision that the United Nations Security Council (UNSC) 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 Instrument gives effect to certain provisions of UNSC Resolution 2653 (2022) (UNSCR 2653), UNSC Resolution 2664 (2022) (UNSCR 2664), and UNSC Resolution 2752 (2024) (UNSCR 2752), as extended by subsequent relevant resolutions where applicable, which Australia is required to implement pursuant to Article 25 of the Charter.
By Item 1 of Schedule 1 of the Amendment Instrument, the Minister repeals and substitutes the existing Schedule 1 of the Declaration 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 replacement Schedule 1 includes reference to all of the provisions of the Regulations that are declared to be UN sanction enforcement laws. In particular, it adds references to sections 6, 8, 10 and 11 of the Regulations.
Section 6 of the Regulations prohibits a person from making a sanctioned supply (a supply, sale or transfer of arms or related matériel to another person which directly or indirecty results in the supply, sale or transfer of arms or related matériel to Haiti), unless the sanctioned supply is an authorised supply – including as authorised by a permit under section 7 of the Regulations.
Section 8 of the Regulations 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 matériel, to Haiti), unless the sanctioned service is an authorised service – including as authorised by a permit under section 9 of the Regulations.
Section 10 of the Regulations prohibits a person from directly or indirectly making an asset available to, or for the benefit of, a designated person or entity, unless authorised – including by a permit under section 13 of the Regulations.
Section 11 of the Regulations prohibits a person who holds a controlled asset from using or dealing with the asset, allowing the asset to be used or dealt with, or facilitating the use of, or the dealing with, the asset, unless authorised – including by a permit under section 13 of the Regulations.
No public consultation was undertaken pursuant to section 17 of the Legislation Act 2003. The instrument implements Australia’s international legal obligations arising from decisions of the UNSC. The Department of Foreign Affairs and Trade conducts regular outreach to the Australian business community to explain Australian sanction laws implementing UNSC sanctions.
Details of the Amendment Instrument are set out in Attachment A.
The Amendment 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 as set out in Attachment B.
ATTACHMENT A
Details of the Charter of the United Nations (UN Sanction Enforcement Law) Amendment (No. 1) Instrument 2025
Section 1 – Name
Section 1 provides that the name of the instrument is the Charter of the United Nations (UN Sanction Enforcement Law) Amendment (No. 1) Instrument 2025 (Amendment Instrument).
Section 2 – Commencement
Section 2 provides that the Amendment Instrument commences at the same time as the Charter of the United Nations (Sanctions—Haiti) Regulations 2025.
Section 3 – Authority
Section 3 provides that the Amendment Instrument is made under subsection 2B(1) of the Charter of the United Nations Act 1945.
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to the Amendment Instrument is amended or repealed as set out in the Schedule.
Schedule 1 – Amendments
Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008
Item 1 – Schedule 1
By Item 1, the Minister repeals and substitutes 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 replacement Schedule 1 includes reference to all provisions of the Charter of the United Nations (Sanctions—Haiti) Regulations 2025 that are declared to be UN sanction enforcement laws.
ATTACHMENT B
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 (No. 1) Instrument 2025
The Charter of the United Nations (UN Sanction Enforcement Law) Amendment (No. 1) Instrument 2025 (the Amendment 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.
The Amendment Instrument repeals and substitutes Schedule 1 of the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (the Declaration) to add sections 6, 8, 10 and 11 of the Charter of the United Nations (Sanctions—Haiti) Regulations 2025 (the Regulations). This has the effect that sections 6, 8, 10 and 11 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 including imprisonment.
Human rights compatibility
The Amendment Instrument ensures that persons and entities who engage in activities which undermine the peace, security or stability of Haiti will be subject to United Nations Security Council (UNSC) sanctions measures.
The Parliamentary Joint Committee on Human Rights (PJCHR) 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. It has also expressed concern that Australia’s sanctions frameworks may not be proportionate to their stated objective.
The human rights compatibility of the Amendment Instrument is addressed by reference to each of the human rights engaged below.
Rights to a fair and public hearing and presumption of innocence
Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) protects the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. The right is concerned with procedural fairness, rather than with the substantive decision of the court or tribunal. Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
Permissible limitations
With respect to the right to a fair hearing, any limitation on the access to merits review is justified. The Regulations, which contain the sections declared as ‘UN sanction enforcement laws’ through the Amendment Instrument, have the legitimate objective of giving effect to sanctions-related decisions of the UNSC in response to high levels of gang violence, human rights abuses and other criminal activities, undermining the peace, stability and security of Haiti and its region.
The limitation on access to merits review in this context is reasonable as it reflects the seriousness of the international peace and security and foreign policy considerations involved, while also implementing binding decisions of the UNSC in line with Australia’s international obligations. Further, while merits review is unavailable for a UNSC decision to designate a person for the purposes of the Regulations, judicial review is available.
With respect to the presumption of innocence, 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 6(5)) and in relation to a permit granted by a foreign country for a service provided in a foreign country (subsection 8(5)).
The shifting of the evidentiary burden to the defendant in subsections 6(5) and 8(5) is justified on the basis that foreign permits granted to the defendant would be peculiarly within the defendant’s knowledge.
Rights to liberty and security of the person and to freedom from arbitrary detention
Article 9 of the ICCPR protects the right to liberty and security of person, including the right not to be arbitrarily detained. The use of the term ‘arbitrary’ indicates that a person may be arrested or detained in circumstances where it is necessary, reasonable and proportionate in accordance with procedures established by law.
Permissible limitations
Through the Amendment Instrument, sections 6, 8, 10 and 11 of the Regulations will be declared as ‘UN sanction enforcement laws’ under the Declaration, meaning that contravening these prohibitions may, pursuant to section 27 of the Act, result in a penalty including imprisonment and engage the right to liberty.
Any limitation on human rights that may arise as a consequence of sections 6, 8, 10 or 11 of the Regulations constituting ‘UN sanction enforcement laws’ under the Declaration is permissible and consistent with Australia’s obligations under international human rights law.
The new prohibitions in sections 6, 8, 10 and 11 of the Regulations use clear language and terms.
With respect to section 6, the definition of a ‘sanctioned supply’ is set out in section 5 of the Regulations and is limited to the supply, sale or transfer of ‘arms or related matériel’ to another person which directly or indirectly results in the supply, sale or transfer of the ‘arms or related matériel ’ to Haiti.
With respect to section 8, the definition of a ‘sanctioned service’ is set out in section 4 of the Regulations and is limited to the provision of technical assistance, training, financial or other assistance related to military activities or to the provision, maintenance or use of ‘arms or related matériel ’ to Haiti.
With respect to sections 10 and 11, the Regulations define the terms ‘designated person or entity’ and ‘controlled asset’ in section 4, to delineate the application of the prohibitions and to ensure the prohibitions can be readily understood.
The Regulations have the legitimate aim of giving effect to sanctions-related decisions of the UNSC in response to high levels of gang violence, human rights abuses and other criminal activities, undermining the peace, stability and security of Haiti and its region.
Accordingly, the prohibitions introduced in sections 6, 8, 10 and 11, specified as ‘UN sanction enforcement laws’ under the Declaration through the Amendment Instrument, are a reasonable, necessary and proportionate means of achieving the legitimate objective of the Regulations, and implementing a binding decision of the UNSC.