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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CHARTER OF THE UNITED NATIONS AMENDMENT BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Foreign Affairs, Senator the Honourable Marise Payne)
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CHARTER OF THE UNITED NATIONS AMENDMENT BILL 2021
OUTLINE
1. The Charter of the United Nations Amendment Bill 2021 (Amendment Bill) will
amend the Charter of the United Nations Act 1945 (COTUNA) to specify that counter-
terrorism financial sanctions listings (CT listings) made under section 15 of COTUNA and
revocations made under section 16 of COTUNA be made by legislative instrument. The
Amendment Bill will also confirm the validity of action that has been taken, or which may in
the future need to be taken, in respect of conduct relating to existing CT listings that were
made under COTUNA but not registered on the Federal Register of Legislation (FRL) at the
time of their making.
2. COTUNA provides legislative approval for the Charter of the United Nations (the
Charter) in Australian law. Part 4 of COTUNA gives effect to United Nations Security
Council (UNSC) decisions made under Chapter VII of the Charter that relate to terrorism and
dealing with assets in relation to terrorists. Australia is required under Article 25 of the
Charter to carry out such UNSC decisions, insofar as those decisions require Australia to
apply measures not involving the use of armed force.
3. Section 15 of COTUNA, read in conjunction with subregulation 20(1) of the Charter
of the United Nations (Dealing with Assets) Regulations 2008 (Dealing with Assets
Regulations), obliges the Minister for Foreign Affairs (the Minister) to list a person or entity
for counter-terrorism financial sanctions, if the Minister is satisfied that they are a person or
entity mentioned in paragraph 1(c) of UNSC Resolution 1373 (2001) (UNSCR 1373). That
is, that they are: a person who commits, attempts to commit, or participates in or facilitates
the commission of, terrorist acts; an entity owned or controlled by such persons; or a person
or entity acting on behalf of, or at the direction of, such persons and entities. Section 15 of
COTUNA further gives the Minister the power to list an asset, or a class of asset, if the
Minister is satisfied that the asset, or class of asset, is owned or controlled by a person or
entity mentioned in paragraph 1(c) of UNSCR 1373.
4. COTUNA makes provision for, amongst other things, the listing of persons or entities
associated with the commission of terrorist acts. This regime is an important tool which
implements Australia's international obligation to cooperate on the prevention of terrorist
financing. The purpose of a listing under section 15 of COTUNA is to make it an offence to
use or deal with the assets of, or make an asset available to, the listed person or entity, as well
as to use or deal with a listed asset or class of asset. Consistent with Australia's international
obligations, this measure is designed to prevent and suppress terrorist acts by stemming
access to funds and other financial and economic resources.
5. All CT listings made or revoked since 2001 (when UNSCR 1373 obligations began)
have been undertaken in accordance with COTUNA. CT listings have been published in the
Commonwealth Gazette and set out in a Consolidated List maintained by the Department of
Foreign Affairs and Trade (DFAT) pursuant to regulation 40 of the Dealing with Assets
Regulations. The Consolidated List is available on the DFAT website:
www.dfat.gov.au/international-relations/security/sanctions/consolidated-list. On
26 May 2021, all existing CT listings were registered as legislative instruments on the FRL.
6. The Amendment Bill will not retrospectively change the operation of COTUNA, alter
a criminal offence, impose any additional punishment, or vary the terms or scope of any
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previous CT listings made by the authority of the Minister. Rather, the Amendment Bill
clarifies the process by which CT listings are made and puts beyond doubt any question of
the application and enforceability of validly made listings to ensure that Australia's Part 4
COTUNA counter-terrorism legislative framework is able to operate as intended by
Parliament to prevent and respond to the financing of terrorism.
7. The making of CT listings by legislative instrument, and their consequent registration
on the FRL align with the broader objective of promoting the accessibility of the law. The
proposed amendments to COTUNA set out in the Amendment Bill will ensure that all
instruments made under section 15 of COTUNA can be found as legislative instruments on
the FRL, the central repository of Commonwealth legislation.
8. Consultation has been undertaken with appropriate Commonwealth agencies. The
proposed amendments set out in the Amendment Bill would not alter the existing regulatory
framework that is set out in COTUNA. As such, a regulatory impact statement was not
required (OBPR reference 44000).
FINANCIAL IMPACT
9. There is no direct financial impact from this Amendment Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
10. The Amendment Bill 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 full statement of compatibility with human rights for
the Amendment Bill is included in this Explanatory Memorandum (Attachment A).
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CHARTER OF THE UNITED NATIONS AMENDMENT BILL 2021
NOTES ON CLAUSES
Clause 1 Short title
11. Clause 1 provides for the short title of the Act to be the Charter of the United Nations
Amendment Act 2021 (the Amendment Act).
Clause 2 Commencement
12. Subclause 2(1) provides for the commencement of the whole of the Amendment Act
on the day after it receives Royal Assent.
13. Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is
not a part of the Amendment Act, and information may be inserted in this column, or
information in it may be edited, in any published version of this Amendment Act.
Clause 3 Schedules
14. Clause 3 provides that legislation specified in a Schedule to the Amendment Act is
amended or repealed as set out in the applicable items of the Schedule concerned, and any
other item in a Schedule has effect according to its terms.
SCHEDULE 1--AMENDMENTS
Charter of the United Nations Act 1945
Item 1
15. Item 1 amends subsection 15(1) of COTUNA to require that a decision of the Minister
to list a person or entity for counter-terrorism financial sanctions be made by legislative
instrument.
Item 2
16. Item 2 amends subsection 15(3) of COTUNA to require that a decision of the Minister
to list an asset, or class of asset, as a 'freezable asset' be made by legislative instrument.
Item 3
17. Item 3 repeals subsections 15(6) and 15(7) of COTUNA. Those provisions are no
longer necessary as items 1 and 2 require listing decisions under subsection 15(1) and (3) of
COTUNA to be made by legislative instrument.
Item 4
18. Item 4 amends subsection 16(1) of COTUNA to require that a decision of the Minister
to revoke the listing of a person, entity, asset or class of asset be made by legislative
instrument.
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Item 5
19. Item 5 repeals subsections 16(3) and (4) of COTUNA. Those provisions are no
longer necessary as item 4 requires revocation decisions under subsection 16(1) of COTUNA
to be made by legislative instrument.
Item 6
20. Item 6 inserts a new section 38A into COTUNA to preserve the application and
enforceability of listings validly made under COTUNA that were in force at any time prior to
the commencement of the amendments. This is necessary as historically CT listings have
been treated as being administrative in character and therefore not subject to the registration
requirement in the Legislation Act.
21. New subsection 38A(1) defines the terms 'listing', 'previous regulations', and
'registered' for the purposes of new section 38A. The definition of 'listing', which relies on
the defined term 'previous regulations' in its interpretation, reflects that prior to December
2002, Australia implemented its obligation under UNSCR 1373 to list persons and entities for
counter-terrorism financial sanctions through the Charter of the United Nations (Anti-
terrorism Measures) Regulations 2001 (2001 Regulations). All listings made under the 2001
Regulations are taken to have been made under section 15 of COTUNA through the
transitional provisions set out in regulation 4 of the Charter of the United Nations (Terrorism
and Dealing with Assets) Regulations 2002. The definition of 'listing' therefore captures all
listings made at any time before the commencement of the proposed Amendment Act. The
definition of 'registered' reflects that the Legislation Act has been amended since its original
introduction as the Legislative Instruments Act 2003 (the LIA).
22. The intention of new subsections 38A(1) to (4) is to put beyond doubt the application
and enforceability of previously unregistered CT listings (including past or future action
taken in reliance on such listings), for the period during which they were unregistered.
Although unregistered, these listings complied with all the listing requirements under
COTUNA. These requirements included publication in the Commonwealth Gazette
(available from the FRL) and inclusion in the Consolidated List on the DFAT website. New
subsection 38A(2) ensures that new section 38A captures listings that would otherwise not
have had effect because of the operation of subsection 12(2) of the Legislation Act (or its
predecessor subsection 12(2) of the LIA) or not have been enforceable because of section
15K of the Legislation Act (or former subsection 31(1) of the LIA). New subsection 38A(3)
ensures that new section 38A captures listings that were repealed under paragraph 32(2)(b) of
the LIA.
23. New section 38A does not make unlawful conduct that was lawful at the time it was
performed, impose any additional punishment or vary the terms or scope of any previous CT
listings made by the authority of the Minister. Rather, it confirms the application and
enforceability of CT listings that, although previously not registered on the FRL, were validly
made in accordance with the legal and procedural requirements set out in COTUNA. It
thereby ensures that the law can be applied and enforced as intended by Parliament in
introducing legislation to prevent the financing of terrorism. The new section 38A of the
Amendment Bill does not interfere with the exercise of judicial power, as the question as to
whether a person's conduct constitutes a breach of counter-terrorism sanctions set out in
COTUNA remains a matter for judicial determination. Consequently, there is no interference
with the operation of Chapter III of the Constitution.
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24. New subsection 38A(5) is made for the avoidance of doubt. New paragraph
38A(5)(a) provides that anything done or purported to have been done by a person that would
have been invalid except for new subsection 38A(4) is taken to have been valid despite any
effect that may have on the accrued rights of any person. This includes any action taken, or
that may in the future be taken, under sections 20 or 21 of COTUNA (the offences of dealing
with freezable assets and giving an asset to a listed person or entity) and section 30 (issuing
of a production notice). New paragraph 38A(5)(b) provides that new section 38A applies in
relation to civil and criminal proceedings, including proceedings that are pending or
concluded.
25. Relevant Commonwealth agencies have been consulted and there are no current or
upcoming prosecutions that would be impacted by the proposed amendments to COTUNA.
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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 AMENDMENT BILL 2021
1. The Charter of the United Nations Amendment Bill 2021 (Amendment Bill) 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 Amendment Bill
2. The Amendment Bill will amend the Charter of the United Nations Act 1945
(COTUNA) to specify that counter-terrorism financial sanctions listings (CT listings) made
under section 15 of COTUNA and revocations made under section 16 of COTUNA be made
by legislative instrument. The Amendment Bill will also confirm the validity of action that
has been taken, or which may in the future need to be taken, in respect of conduct relating to
existing CT listings that were made under COTUNA but not registered on the Federal
Register of Legislation (FRL) at the time they were made.
3. COTUNA provides legislative approval for the Charter of the United Nations (the
Charter) in Australian law. Part 4 of COTUNA gives effect to United Nations Security
Council (UNSC) decisions made under Chapter VII of the Charter that relate to terrorism and
dealing with assets in relation to terrorists. Australia is required under Article 25 of the
Charter to carry out such UNSC decisions, insofar as those decisions require Australia to
apply measures not involving the use of armed force.
4. Section 15 of COTUNA, read in conjunction with subregulation 20(1) of the Charter
of the United Nations (Dealing with Assets) Regulations 2008 (Dealing with Assets
Regulations), obliges the Minister for Foreign Affairs (the Minister) to list a person or entity
for counter-terrorism financial sanctions, if the Minister is satisfied that they are a person or
entity mentioned in paragraph 1(c) of the UNSC Resolution 1373 (2001) (UNSCR
1373). That is, that they are: a person who commits, attempts to commit, or participates in or
facilitates the commission of, terrorist acts; an entity owned or controlled by such persons; or
a person or entity acting on behalf of, or at the direction of, such persons and entities.
Section 15 of COTUNA further gives the Minister the power to list an asset, or a class of
asset, if the Minister is satisfied that the asset, or class of asset, is owned or controlled by a
person or entity mentioned in paragraph 1(c) of UNSCR 1373.
5. COTUNA makes provision for, amongst other things, the listing of persons or entities
associated with the commission of terrorist acts. This regime is an important tool which
implements Australia's international obligation to cooperate on the prevention of terrorist
financing. The purpose of a listing under section 15 of COTUNA is to make it an offence to
use or deal with the assets of, or make an asset available to, the listed person or entity, as well
as to use or deal with a listed asset or class of asset. Consistent with Australia's international
obligations, this measure is designed to prevent and suppress terrorist acts by stemming
access to funds and other financial and economic resources.
1
6. All CT listings made or revoked since 2001 (when UNSCR 1373 obligations began)
have been undertaken in accordance with COTUNA. CT listings have been published in the
Commonwealth Gazette and set out in a Consolidated List maintained by the Department of
Foreign Affairs and Trade (DFAT) pursuant to section 40 of the Dealing with Assets
Regulations. The Consolidated List is available on the DFAT website:
www.dfat.gov.au/international-relations/security/sanctions/consolidated-list.
7. The making of CT listings by legislative instrument, and their consequent registration
on the FRL align with the broader objective of promoting the accessibility of the law. The
proposed amendments to COTUNA set out in the Amendment Bill will ensure that all
instruments made under section 15 of COTUNA can be found as legislative instruments on
the FRL, the central repository of Commonwealth legislation.
Human rights implications
8. Terrorist acts have an impact on the enjoyment of human rights, including the right to
life. Counter-terrorism financing measures, including those contained in Part 4 of COTUNA
which are upheld by the transitional provisions in the Amendment Bill, advance human rights
by ensuring that Australia has the legal framework in place to prevent and suppress the
commission of terrorist acts. This statement considers the specific human rights implications
of the proposed amendments to COTUNA in the Amendment Bill.
9. The following rights and freedoms are considered in relation to this Amendment Bill:
a. the prohibition on retrospective criminal laws in Article 15 of the ICCPR,
b. the right to an effective remedy; and
c. the prohibition on interference with privacy and attacks on reputation in
Article 17 of the ICCPR.
10. It is well accepted that international human rights law obligations are owed to
individuals only, and are not owed to non-natural persons, such as bodies corporate or bodies
politic.
Prohibition on retrospective criminal laws
11. The prohibition on retrospective criminal laws is not engaged here. This amendment
does not create an offence for acts done before the legislation commences, expand the range
of activities that are covered by an existing criminal offence or increase the maximum or
mandatory punishment for persons convicted of a criminal offence. Rather, it retrospectively
puts beyond doubt the validity of previously unregistered CT listings that, although not
registered on the FRL, were validly made under COTUNA, as well as preserving any past or
future action taken in reliance on them.
Right to an effective remedy
12. The proposed amendments to COTUNA (new section 38A) do not specifically
remove a cause of action for affected persons to seek an effective remedy. However, the
amendments put beyond doubt the applicability and enforceability of previously unregistered
CT listings that, although not registered on the FRL, were validly made under COTUNA. In
2
doing so, the amendments remove a possible ground of challenge for convicted persons to
contest their convictions on the grounds that, at the time they engaged in their illegal actions,
the listing instrument relevant to the conviction, was not registered on the FRL and so was
not enforceable. This preserves past or future action taken in reliance on these listings. This
limitation is permissible as it serves a legitimate objective, has a rational connection to that
objective, and is reasonable, necessary and proportionate.
13. The objective of the limitation is to ensure that Australia's counter-terrorism
legislative framework operates as intended by Parliament and complies with the obligations
of the Legislation Act 2003. This limitation has a rational connection to achieving this
outcome as without it, the validity of past convictions or any future action taken in relation to
the CT listings during the period they were not registered on the FRL, may be brought into
question. The limitation is reasonable in the context of Australia's international obligation to
combat the financing of terrorism and to protect national security. It is also necessary to put
beyond doubt the validity of past and potential future action taken by the Commonwealth,
proportionate as it corrects administrative action (the registration process of CT listings), and
does not affect the minimum guarantees in criminal proceedings contained in the ICCPR.
Furthermore, it does not remove all rights of affected persons to effective remedies because it
merely provides for the registration of CT listings and retrospectively confirms the validity of
previously unregistered CT listings. In particular, it remains open for a listed person to apply
for revocation of their listing or seek judicial review of their listing, or for an affected person
(including convicted persons) to seek review by a higher court of a conviction or sentence
handed down under COTUNA.
Prohibition on interference with privacy and attacks on reputation
14. The prohibition on interference with privacy and attacks on reputation is not engaged
here. This is because the amendments to section 15 of COTUNA to require the Minister to
list persons by legislative instrument do not change the public nature of their listing or
otherwise affect the extent to which Part 4 of COTUNA permits interference with a person's
privacy, family, home or correspondence. Nor does it unlawfully attack a person's reputation.
Even prior to the introduction of the amendments, the names and biodata of listed persons
were published in the Commonwealth Gazette and included in the Consolidated List
maintained by DFAT and available on its website, pursuant to section 40 of the Dealing with
Assets Regulations. The only change the amendments will make to this is that they will be
registered as Legislative Instruments on the FRL rather than published as Commonwealth
Gazette notices.
Conclusion
15. The Amendment Bill is compatible with human rights because to the extent that it
may limit rights, those limitations are reasonable, necessary, and proportionate.
3