EXPLANATORY STATEMENT
Migration (United Nations Security Council Resolutions) Regulations 2007
SPECIFICATION OF UNITED NATIONS SECURITY COUNCIL RESOLUTIONS
(REGULATION 4 DEFINITION OF ‘RESOLUTION’)
- This Instrument is made under Regulation 4 of the Migration (United Nations Security Council Resolutions) Regulations 2007 (‘the Regulations’). The Instrument revokes Instrument IMMI 12/120 signed on 16 May 2013.
2. Regulation 4 of the Regulations provides that resolution means a United Nations Security Council Resolution specified by the Minister, by legislative instrument.
3. The purpose of the Instrument is to specify relevant United Nations Security Council resolutions that prohibit specified individuals and entities from entering Australia. Resolution 2094(2013) concerning the Democratic People’s Republic of Korea, adopted on 7 March 2013, is being added to the list of resolutions appearing in the Instrument.
4. Consultation was undertaken with the Department of Foreign Affairs and Trade.
5. The Office of Best Practice Regulation has granted a standing exemption for Legislative Instruments which give legal effect to changes to the United Nations Security Council’s consolidated travel ban lists. (OBPR Reference 14721).
6. Under section 42 of the Legislative Instruments Act 2003 the Instrument is subject to disallowance and therefore a Human Rights Statement of Compatibility has been provided.
7. The Instrument, IMMI 13/091, commences on the day after Registration on the Federal Register of Legislative Instruments.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Regulation 4 of the Migration (United Nations Security Council Resolutions) Regulations 2007
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 of the Legislative Instrument
Some resolutions passed by the United Nations Security Council (UNSC) require United Nations (UN) member states, including Australia, to impose travel sanctions against certain individuals, or members of a group, undertaking or entity. Australia meets these obligations through the Migration (United Nations Security Council Resolutions) Regulations 2007 (UNSCR Regulations).
In accordance with the UNSCR Regulations, the Minister specifies UNSC Resolutions through a Legislative Instrument (LI). The LI is revised each time a resolution is passed imposing new travel sanctions or terminating existing travel sanctions.
On 7 March 2013, the Security Council Committee, voted to adopt UNSC Resolution 2094 (2013) concerning the Democratic People’s Republic of Korea. This resolution also approved the additional designation of the three individuals specified below to be subject to the measures (travel ban) imposed by paragraph 8(e) of UNSC Resolution 1718 (2006):
1. YO’N CHO’NG NAM;
2. KO CH’O’L-CHAE; and
3. MUN CHO’NG-CH’O’L.
The purpose of the legislative instrument is to subject the three individuals specified above to the United Nations travel sanctions, in accordance with paragraph 9 of UNSC Resolution 2094 (2013).
Human rights implications
This Legislative Instrument has been assessed against the seven core international human rights treaties.
Freedom of movement
The right to the freedom of movement as found in Article 12 of the International Covenant on Civil and Political Rights (ICCPR) is defined as the right to move freely within a country for those who are lawfully within the country, the right to leave any country and the right to enter a country of which you are a citizen.
Since the individuals specified above are not lawfully in Australia, and are not Australian citizens, the right to the freedom of movement is not engaged.
The right to non-discrimination
The right to non-discrimination as found in Article 26 of the ICCPR states that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Not all treatment that differs among individuals or groups on the grounds mentioned above will amount to prohibited discrimination. Where the treatment is based on reasonable and objective criteria and to achieve a legitimate purpose under the ICCPR, that treatment will not be prohibited, notwithstanding that it is discriminatory.
The intention of the amendment to the legislative instrument is to give effect to a United Nations Security Council Resolutions seeking to condemn the activities of the persons listed above. These activities include employment in key positions within an organisation designated by the Committee in April 2009 as the DPRK’s primary arms dealer and main exporter of goods and equipment related to ballistic missiles and conventional weapons, or facilitation of financial transactions for sales of conventional arms, ballistic missiles, and goods related to the assembly and manufacture of such weapons.
The sanctioning of the actions of the above-named persons in the instrument seeks to achieve the legitimate purpose of supporting the rights of those affected by those actions as articulated in the ICCPR.
Conclusion
The proposed Legislative Instrument is compatible with human rights as, to the extent that it may limit human rights, those limitations are based on reasonable and objective criteria and for the purpose of the protection of the broader community’s human rights as articulated under the ICCPR.
The Hon Brendan O’Connor MP, Minister for Immigration and Citizenship