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2002
THE PARLIAMENT OF THE COMMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
CHARTER OF THE
UNITED NATIONS AMENDMENT BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated by the authority of the Minister for
Foreign Affairs,
the Honourable Alexander Downer
MP)
CHARTER OF THE UNITED NATIONS AMENDMENT BILL
2002
Outline
The purpose of the Bill is to amend section 22 of the
Charter of the United Nations Act 1945 (“the Act”). Section 22 of
the Act is in Part 4 of the Act. Part 4 of the Act creates offences of dealing
with freezable assets (section 20) and of giving an asset to a proscribed person
or entity (section 21). “Freezable assets” are assets owned or
controlled by a proscribed person or entity, or listed assets, or assets derived
or generated from assets owned or controlled by a proscribed person or entity or
listed assets. A “proscribed person or entity” is a person or
entity either listed by the Minister for Foreign Affairs under section 15 or
proscribed by regulation under section 18. Section 22 provides for the owner of
a freezable asset seeking to use that asset in a specified way (subsection (1)),
or the owner of an asset seeking to make the asset available to a specified
proscribed person or entity (subsection (2)), to apply in writing to the
Minister for Foreign Affairs for permission to do so. Subsection (3) permits
the Minister to make such permissions by written notice. Part 4 of the Act has
not commenced.
The first purpose of the Bill is to amend section 22 of
the Act to give to holders of assets the same ability as owners of assets to
apply to the Minister for Foreign Affairs for the permissions provided for in
subsections (1) and (2). The offences in sections 20 and 21 apply to
individuals or institutions who hold assets on behalf of other people, such as
trustees and financial institutions, as well as to the owners themselves. It is
foreseeable that such individuals or institutions may need to deal with an asset
that may be a freezable asset, or make an asset available to a person or entity
who may be proscribed, during the period in which they are establishing the
identity of the asset or the person or entity concerned. Regulations are
currently being developed under section 22A of the Act to provide for a
mechanism by which holders of assets may request the help of the Australian
Federal Police (“the AFP”) to establish whether the offences apply
in relation to a specific asset or a specific person or entity, as recommended
by the Senate Legal and Constitutional Committee in its Report of its Inquiry
into the Security Legislation Amendment (Terrorism) Bill 2002 (Recommendation
7(a)). For this mechanism to be effective, it is necessary to amend section 22
to give the holders of assets the same ability as the owners of assets to apply
to the Minister for Foreign Affairs for permission to deal with an asset that
may be a freezable asset, or make an asset available to a person or entity who
may be proscribed, while they seek the assistance of the AFP.
The second
purpose of the Bill is to amend section 22 of the Act to ensure the ability of
the Minister for Foreign Affairs to issue a notice under subsection (3) on his
own motion. Part 4 of the Act will replace the Charter of the United Nations
(Anti-terrorism Measures) Regulations (“the Regulations”) which is
currently in force. Under the Regulations (regulation 8), the Minister has the
ability to issue on his own motion a notice with the same effect as a notice
under section 22, subsection (3) of the Act. The Government has received advice
that under section 22 of the Act, the Minister’s ability to issue such
notices is restricted to situations where the owner of an asset makes an
application for a notice pursuant to subsections (1) and (2). It was not the
Government’s intention to limit the Minister’s authority in this way
in the transition from the mechanism provided for in the Regulations to the
mechanism established by the Act.
Financial Impact
Statement
There are no direct or indirect financial impacts from this
Bill.
Notes on Clauses
Clause 1 provides that the Act
may be cited as the Charter of the United Nations Amendment Act
2002.
Clause 2 provides for sections 1 to 3 of the Act to commence on
the day on which the Act receives the Royal Assent, and for Schedule 1 to
commence immediately after the commencement of Part 4 of the Charter of the
United Nations Act 1945.
Clause 3 provides that the Charter of the
United Nations Act be amended as set out in the applicable items in Schedule
1.
Item 1 of Schedule 1 amends subsection (1) by inserting the words
“or holder” after the word “owner”, so as to allow the
holder of a freezable asset to apply in writing to the Minister for permission
to use or deal with the asset in a specified way.
Item 2 of Schedule 1
amends subsection (2) by inserting the words “or holder” after the
word “owner”, so as to allow the holder of an asset to apply in
writing to the Minister for permission to make the asset available to a
proscribed person or entity specified in the application.
Item 3 of
Schedule 1 inserts a new subsection (3A) to allow the Minister to issue a notice
permitting a specified freezable asset to be dealt with in a specified way, or a
specified asset to be made available to a specified proscribed person or entity,
on his or her own initiative or upon application under subsection (1) or
(2).
Item 4 of Schedule 1 amends subsection (5) by inserting the words
“or holder” after the word “owner”, so as to require
that a notice made by the Minister under subsection (3) be given to the holder
of the asset as soon as practicable after it is made.