Commonwealth Numbered Regulations - Explanatory Statements
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CHARTER OF THE UNITED NATIONS LEGISLATION AMENDMENT (2021 MEASURES NO. 1) REGULATIONS 2021 (F2021L01175)
EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Foreign Affairs
Charter of the United Nations Act 1945
Charter of the United Nations Legislation Amendment (2021 Measures No. 1) Regulations 2021
The Charter of the United Nations Act 1945 (the Act) provides legislative approval for the Charter of the United Nations (the Charter) in Australian law. Section 6 of the Act provides that the Governor-General may make regulations to give effect to decisions of the United Nations Security Council (UNSC) under Chapter VII of the Charter that Article 25 of the Charter requires Australia to carry out, insofar as those decisions require Australia to apply measures not involving the use of armed force.
The Charter of the United Nations Legislative Amendment (2021 Measures No. 1) Regulations 2021 (the Regulations) amends the Charter of the United Nations (Sanctions-- Central African Republic) Regulation 2014 (the CAR Regulation), the Charter of the United Nations (Sanctions--Democratic Republic of the Congo) Regulations 2008 (the DRC Regulations), the Charter of the United Nations (Sanctions--Al-Qaida) Regulations 2008 (the Al-Qaida Regulations) and the Charter of the United Nations (Sanctions--Somalia) Regulations 2008 (the Somalia Regulations) to implement United Nations Security Council resolutions (UNSCRs) that modify existing sanctions in relation to each sanctions regime. Consequential amendments would be required to the Charter of the United Nations (Dealing with Assets) Regulations 2008 (the Dealing with Assets Regulations) to ensure the updated Al-Qaida Regulations are correctly referenced. Consequential amendments to the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (the Declaration) will also be required to ensure that the updated Regulations are correctly referenced.
Broadly, the Regulations makes amendments to:
* the permit-granting powers in the CAR Regulations to reflect the changes to the arms embargo exemptions in UNSCR 2507 (2020) and UNSCR 2536 (2020);
* the permit-granting powers in the DRC Regulations to reflect the changes to the arms embargo exemptions in UNSCR 2293 (2016) (as renewed by UNSCR 2478 (2019) and UNSCR 2528 (2020);
* extend the sanctions measures imposed under the Al-Qaida Regulations to the Islamic State in Iraq and the Levant (ISIL, also known as Da'Esh) to reflect UNSCR 2253 (2015);
* the permit-granting powers in the Somalia Regulations to reflect the changes to the arms embargo in UNSCR 2551 (2020) which introduces additional controls for Improvised Explosive Device components and amends the arms embargo exemption requirements; and
* the Dealing with Assets Regulations to reflect that, once the Regulations are in effect, the Al-Qaida Regulations will be known as the Charter of the United Nations (Sanctions--ISIL (Da'esh) and Al-Qaida) Regulations 2008.
* the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (the Declaration) will also be required to ensure that the updated Regulations are correctly referenced.
Details of the Regulations are set out in Attachment A to this explanatory statement.
Subsection 6(3) of the Act provides that, despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection 6(1) of the Act may make provision in relation to a matter by applying, adopting or incorproating any matter contained in an instrument or other writing as in force or existing from time to time.
The Regulations seek to incorporate relevant UNSC Resolutions and the ISIL (Da'esh) and Al-Qaida Sanctions List as existing from time to time.
UNSC Resolutions, including those referred to in the Regulations, can be accessed free of charge on the internet on several official UN webpages including at https://www.un.org/securitycouncil/content/resolutions and https://www. securitycouncilreport.org/un_documents_type/security-council-resolutions/. Further, UNSC Resolutions can be found on numerous official organisational internet sites using general internet search inquiries. UNSC Resolutions do not operate in the same manner as Acts and legislative instruments. That is, subsequent Resolutions in respect of a matter or issue do not always state that they are amending or replacing previous Resolutions on that matter or issue. Rather, the Resolutions need to be read in conjunction with one another.
The ISIL (Da'esh) and Al-Qaida Sanctions List as referred to in the Regulations is updated regularly on the basis of relevant information provided by Member States and international and regional organizations. An updated List is accessible on the ISIL (Da'esh) and Al-Qaida Sanctions Committee's website at the following URL: www.un.org/securitycouncil/sanctions/1267/aq_sanctions_list.
The United Nations Security Council Consolidated List is also updated following all changes made to the ISIL (Da'esh) and Al-Qaida Sanctions List. An updated version of the Consolidated List is accessible via the following URL: www.un.org/securitycouncil/content/un-sc-consolidated-list.
Decisions made under the Regulations are not subject to merits review as one of the objective of the Act is to give effect to UNSC resolutions as they arise. The exclusion of merits review is warranted by Australia's international obligation to implement UNSC resolutions as they arise.
Sanctions operate to prohibit particular activities with very limited exceptions. Activities which would be otherwise prohibited are only authorised where a permit has been issued. Permits can only be issued in a limited range of circumtances, as determined by the United Nations Security Council as set out in relevant UNSCRs. Applying strict liability to whether an activity in question is authorised by a permit, rendering it a factual question, maintains the intergrity of the permit granting system and its strict adherance to the narrow range of exceptions allowed by relevant UNSCRs.
No public consultation was undertaken in relation to the Regulations pursuant to section 17 of the Legislation Act 2003 as the Regulations implement Australia's international legal obligations arising from decisions of the UNSC. As such, consultation is not be appropriate or practicable to undertake. The Australian Sanctions Office within the Department of Foreign Affairs and Trade conducts regular outreach to the Australian business community to explain Australian sanction laws implementing UNSC sanctions.
The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purpose of the Legislation Act 2003.
The Regulations commence on the day after the Regulations are registered on the Federal Register of Legislation.
The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required when implementing a decision of the UNSC concerning sanctions (OBPR reference: 44148).
The Regulations are 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.
.
Authority: Section 6 of the
Charter of the United
Nations Act 1945
ATTACHMENT A
Charter of the United Nations Legislation Amendment (2021 Measures No. 1) Regulations 2021
Section 1 - Name
Section 1 provides that the title of the instrument is the Charter of the United Nations Legislation Amendments (2021 Measures No. 1) Regulations 2021(Regulations).
Section 2 - Commencement
Section 2 provides that all provisions of the instrument commence the day after the instrument is registered.
Section 3 - Authority
Section 3 provides that the instrument is made under the Charter of the United Nations Act 1945.
Section 4 - Schedules
Section 4 establishes that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 - Amendments
Part 1 - Central African Republic
Part 1 of Schedule 1 sets out the changes the Regulations make to the Charter of the United Nations (Sanctions-- Central African Republic) Regulation 2014 (CAR Regulations).
The CAR Regulations give effect in Australia to sanctions obligations arising from UNSCR 2127 (2013) and its successors. UNSCRs 2507 (2020) and 2536 (2020) modified the exemptions and notification requirements related to certain sanctioned activities.
The Regulations amends the current provision in relation to the supplies of non-lethal military equipment intended solely for humanitarian or protective use from requiring advanced approval to requiring Member States provide advanced notification to the Central African Republic Committee.
Item 1
Item 1 is a technical amendment that repeals the definition of Resolution 2387 as this resolution is no longer referred to in the Regulations.
Item 2
Item 2 inserts a definition in relation to Resolution 2499.
Items 3 to 8
Items 3 to 8 amends Regulation 9 of the CAR Regulations to allow the Minister for Foreign Affairs and Trade (the Minister) to grant a permit authorising the supply of export sanctioned goods (arms or related matériel) to the Central African Republic in certain circumstances. These circumstances reflect the UNSC exemptions in relation to the CAR arms embargo.
Item 3
Item 4
Item 4 amends subparagraph 9(2)(d)(ii) to give effect to the new notification provision imposed by UNSCR 2499 in relation to the supply of non-lethal military equipment intended solely for humanitarian or protective use. Reference to advance approval of such a supply from the Central African Republic Committee will be repealed.
Item 5
Item 6
Item 6 implements UNCR 2488 and UNSCR 2057 to amend the definition of 'arms or related lethal equipment' to goods covered by subsection 2(A) of the Regulations.
Item 7
Item 7 amends subparagraph 9(2)(g)(ii), in line with UNSCR 2499 requiring advance notification to, rather than advance approval by the Central African Republic Committee.
Item 8
Item 8 inserts a new description of arms and related matériel for the purposes of the Regulations.
Item 9
Item 9 amends the current permit provisions concerning the provision of technical assistance or training related to a supply of non-lethal military equipment intended solely for humanitarian or protective use. The requirement to seek advanced approval from the Central African Republic Committee of the intended technical assistance or training will be replaced with the requirement to notify the Central African Republic Committee of the intended technical assistance or training.
Part 2 - Democratic Republic of the Congo
Part 2 of Schedule 1 sets out the changes the Regulations make to the Charter of the United Nations (Sanctions--Democratic Republic of the Congo) Regulations 2008 (DRC Regulations).
The DRC Regulations give effect in Australia to sanctions obligations arising from UNSCR 1493 (2003) and its successors. UNSCR 2293 (2016), as renewed by UNSCRs 2478 (2019) and 2528 (2020), modified the arms embargo by providing that the supply and/or sale of arms or related matériel, or the provision of assistance or personnel related to military activities, for activities not otherwise listed must be approved in advance by the UNSC Committee concerning the Democratic Republic of Congo (established under UNSCR 1533). To give effect to these UNSCRs the Regulations implement a new criteria that must be met before a permit may be granted to conduct these activities. The Regulations also changes reference to the United Nations Organisation Mission in the Democratic Republic of Congo (MONUC) to the United Nations Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO) to reflect the updated name of the United Nations mission in accordance with UNSCR 1925 (2010).
Item 10
Item 10 is a technical amendment. It amends the note in Regulation 4 of the DRC Regulations to replace the reference to 2014 with 2021.
The note to the definition of 'designated person or entity'in Regulation 4 of the DRC Regulations indicates where the list of designated persons and entities maintained by the UNSC Committee concerning the Democratic Republic of the Congo can be viewed.
Item 11
Item 11 is a consequential amendment to item 12 and repeals the definition of MONUC.
Item 12
Item 12 inserts the definition of MONUSCO to give effect to UNSCR 1925. This item also provides the definition of protective clothing as described by paragraph 3(b) of UNSC Resolution 2293.
Item 13
Item 13 is a technical amendment that repeals the definition of UNSC Resolution 1439 as it will no longer be referred to in the Regulations.
Item 14
Item 14 is a technical amendment to the note in subregulation 8(6) to replace 2014 with 2021.
Item 15
Regulation 9 of the DRC Regulations allows the Minister to grant a permit authorising the supply of export sanctioned goods (arms or related matériel) to the Democratic Republic of the Congo in certain circumstances. These circumstances reflect the UNSC exemptions to the DRC arms embargo.
Item 15 amends paragraph 9 to replace the term "MONUC" with "MONUSCO or the African Union-Regional Task Force" to give effect to paragraph 3(a) of UNSC Resolution 2293. This amendment allows the Minister to grant a permit if the supply is intended solely for the support of, or use by, either of these organisations
Item 16
Item 16 gives effect to paragraph 3(d) of UNSC Resolution 2293 which allows the Minister to grant a permit for a supply of arms or related matériel that will have been approved in advance by the UNSC Committee concerning the Democratic Republic of Congo.
Item 17
The note to subregulation 9(3) of the DRC Regulations indicates where UNSC resolutions relating to the Democratic Republic of the Congo can be viewed.
Item 17 is a technical amendment to the note in subregulation 9(3) to replace 2014 with 2021.
Item 18
The note to subregulation 10(6) of the DRC Regulations indicates where UNSC resolutions relating to the Democratic Republic of the Congo can be viewed.
Item 18 is a technical amendment to the note in subregulation 10(6) to replace 2014 with 2021.
Item 19
Regulation 11 of the DRC Regulations allows the Minister to grant a permit authorising the provision of assistance, advice or training in relation to military activities in the Democratic Republic of the Congo in certain circumstances. These circumstances reflect the UNSC exemptions to the DRC arms embargo.
Item 19 repeals the existing paragraph referring to MONUC, and replace it with one that will allow the Minister to grant a permit for the provision of a service if the service consists of assistance, advice or training intended solely for the support of, or use by, MONUSCO or the African Union-Regional Task Force. This item gives effect to paragraph 3(a) of UNSC Resolution 2293.
Item 20
Item 20 gives effect to paragraph 3(d) of UNSC Resolution 2293 and allows the Minister to grant a permit for the provision of assistance, or the provision of personnel, that will have been approved in advance by the UNSC Committee concerning the Democratic Republic of Congo.
Item 21
The note to subregulation 11(3) of the DRC Regulations indicates where UNSC resolutions relating to the Democratic Republic of the Congo can be viewed.
Item 21 is a technical amendment to the note in subregulation 11(3) to replace 2014 with 2021.
Part 3 - ISIL(Da'esh) and Al-Qaida
Part 3 of Schedule 1 sets out the changes the Regulations will make to the Charter of the United Nations (Dealing with Assets) Regulations 2008 and the Charter of the United Nations (Sanctions--Al-Qaida) Regulations 2008 (Al-Qaida Regulations).
The Al-Qaida Regulations give effect in Australia to sanctions obligations arising from UNSCR 1267 (1999) and 1989 (2011). UNSCR 2253 (2015), updated by UNSCR 2368 (2017), modified the existing sanctions regime to specify that sanctions measures previously imposed (assets freeze, travel ban and arms embargo) also apply to the Islamic State in Iraq and the Levant (ISIL, also known as Da'Esh), and associated individuals and entities. The Regulations gives effect to UNSCR 2253.
Item 22
Item 22 updates Regulation 4 paragraph (a) to replace the definition of 'Sanctions Regulations' with Charter of the United Nations (Dealing with Assets) Regulations.
Item 23
Item 23 changes the name of the Charter of the United Nations (Sanctions--Al-Qaida) Regulations 2008 to the Charter of the United Nations (Sanctions--ISIL (Da'esh) and Al-Qaida) Regulations 2008.
Item 24
Item 24 amends the definition of 'designated person or entity' to include reference to the Islamic State in Iraq and the Levant (ISIL, also known as Da'esh), and to update the references to persons or entities designated for the purpose of the ISIL (Da'esh) & Al-Qaida Sanctions List.
Item 25
Item 25 repeals the definition of Resolution 1989 following the amendment to the definition of 'designated person or entity'.
Part 4 --Somalia
Part 4 of Schedule 1 sets out the changes the Regulations makes to the Charter of the United Nations (Sanctions--Somalia) Regulations 2008 (Somalia Regulations).
The Somalia Regulations give effect in Australia to sanctions obligations arising from UNSCR 751 (1992) and its successors. UNSCR 2551 (2020) adjusts the arms embargo, including exemptions and notification requirements, and introduces additional controls for Improvised Explosive Device components. The Regulations updates the requirements to notify, or seek advance approval from, the UNSC Committee concerning Somalia before a permit may be granted, and introduce additional criteria for supplies of Improvised Explosive Device components, to give effect to UNSCR 2551 (2020).
Item 26
The note to the definition of 'designated person or entity' in Regulation 4 of the Somalia Regulations indicates where the list of designated persons and entities maintained by the UNSC Committee concerning Somalia can be viewed.
Item 10 is a technical amendment to the note in regulations 4 of the Somalia Regulations to replace 2014 with 2021.
Item 27
Item 27 repeals the definition of Resolution 733 because the term is not used in the Regulations. The definition of Resolution 2111 is also removed by this Item as a consequential amendment to Item 30, which sees an amended permit-grantingcriteria in subregulation 9 as set out in UNSC Resolution 2551.
Item 28
Item 28 inserts a definition of UNSC Resolution 2551.
Item 29
The note to subregulation 8(6) of the Somalia Regulations indicates where UNSC resolutions relating to Somalia can be viewed.
Item 29 is a technical amendment to the note in subregulation 8(6) to replace 2014 with 2021.
Item 30
Regulation 9 of the Somalia Regulations allows the Minister to grant a permit authorising the supply of export sanctioned goods (weapons or military equipment) to Somalia in certain circumstances. These circumstances reflect the UNSC exemptions to the Somalia arms embargo.
Item 30 replaces the criteria that needs to be met before a permit for a sanctioned supply to be granted with new criteria to give effect to paragraphs 9, 10, 11, 12 and 19(a) of UNSC Resolution 2551. In some circumstances, advance notification to, or approval of the UNSC Committee concerning Somalia is required before the Minister can otherwise authorise the supply of export sanctioned goods to Somalia.
Item 31 and 32
Item 31 introduces a requirement that a permit for the supply of certain goods that can be used in the manufacture of Improvised Explosive Devices may only be granted if the Minister is satisfied the goods will not be used in the manufacture in Somalia of an Improvised Explosive Device, or there is no significant risk that the goods may be used in the manufacture in Somalia of an Improvised Explosive Device.
Item 32 specifies that where a permit is granted for such supplies the Minister must notify the UNSC Committee concerning Somalia of the supply within 15 working days after the supply takes place. This reflects paragraphs 26 and 27 of UNSC Resolution 2551.
Item 33
Item 33 adds a reference to new subregulation 2A in subregulation 9(3) to ensure that the requirements regarding the information to be supplied in a notice or request for advance approval of the UNSC Committee concerning Somalia also apply in respect of Improvised Explosive Device components that is provided for by Item 31.
Item 34
The note to subregulation 9(3) of the Somalia Regulations indicates where UNSC resolutions relating to Somalia can be viewed.
Item 34 is a technical amendment to subregulation 9(3) of the Somalia Regulation to replace 2014 with 2021.
Item 35
The note to subregulation 10(6) of the Somalia Regulations indicates where UNSC resolutions relating to Somalia can be viewed.
Item 35 is a technical amendment to the note in subregulation 10(6) of the Somalia Regulations to replace 2014 with 2021.
Item 36
Regulation 11 of the Somalia Regulations allows the Minister to grant a permit authorising the provision of assistance, advice or training in relation to military activities in Somalia in certain circumstances. These circumstances reflect the UNSC exemptions to the Somalia arms embargo.
Item 36 replaces the criteria that must be met before a permit for a sanctioned service may be granted with new criteria to give effect to paragraphs 9, 12 and 19(a) of UNSC Resolution 2551. In some circumstances, advance notification to the UNSC Committee concerning Somalia is required before the Minister can otherwise authorise the provision of a sanctioned service to Somalia.
Item 37
The note to subregulation 11(3) of the Somalia Regulations indicates where UNSC resolutions relating to Somalia can be viewed.
Item 37 is a technical amendment to subregulation 11(3) of the Somalia Regulations to replace 2014 with 2021.
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 Legislation Amendment (2021 Measures No. 1) Regulations 2021
(the Regulations)
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 Charter of the United Nations Act 1945 (the Act) provides legislative approval for the Charter of the United Nations (the Charter) in Australian law. United Nations Security Council (UNSC) decisions made under Chapter VII of the Charter relate to action with respect to threats to the peace, breaches of the peace, and acts of aggression. Article 25 of the Charter requires United Nations Member States to accept and carry out the decisions of the UNSC.
Section 6 of the Act therefore provides that the Governor-General may make regulations to give effect to decisions of the UNSC under Chapter VII of the Charter that Article 25 of the Charter requires Australia to carry out, in so far as those decisions require Australia to apply measures not involving the use of armed force.
The Regulations amends the Charter of the United Nations (Sanctions--Central African Republic) Regulation 2014 (The CAR Regulations), Charter of the United Nations (Sanctions--Democratic Republic of the Congo) Regulations 2008 (the DRC Regulations), Charter of the United Nations (Sanctions--Somalia) Regulations 2008 (the Somalia Regulations), and the Charter of the United Nations (Sanctions--Al-Qaida) Regulations 2008 (the Al-Qaida Regulations) to implement decisions of the United Nations Security Council (UNSC) in relation to the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Somalia, and the Islamic State of Iraq and the Levant (ISIL) and Al-Qaida. Consequential amendments will also be made to the Charter of the United Nations (Dealing with Assets) Regulations 2008 (the Dealing with Assets Regulations) to reflect changes to the Al-Qaida Regulations. Consequential amendments to the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (the Declaration) will also be required to ensure that the Regulations are correctly referenced.
The amendments to the CAR Regulations update the criteria that must be met before a permit for certain sanctioned activities may be granted by the Minister for Foreign Affairs or their delegate. These amendments reflect updates made to the sanctions regime by United Nations Security Council Resolution (UNSCR) 2507 (2020), 2536 (2020) and earlier resolutions.
The amendments to the DRC Regulations allow for a permit to be granted for the supply and/or sale of arms or related matériel, or the provision of assistance or personnel related to military activities if the sanctioned supply or sanctioned service has approved in advance by the Democratic Republic of Congo Sanctions Committee. The amendments also change the references to the United Nations Organisation Mission in the Democratic Republic of Congo (MONUC) to the United Nations Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO) to reflect the updated name of the United Nations mission. These amendments reflect changes made to the DRC sanctions regime by UNSCR 2293 (2016) and renewed by UNSCRs 2478 (2019) and 2528 (2020).
The amendments to the Al-Qaida Regulations apply sanctions measures previously imposed on Al-Qaida and associated individuals and entities to the Islamic State in Iraq and the Levant (ISIL, also known as Da'Esh) and associated individuals and entities. These amendments give effect to UNSCR 2253 (2015).
The amendments to the Somalia Regulations update the criteria that must be met before a permit for a sanctioned supply or sanctioned service may be granted, including specific requirements for improvised explosive device components. These amendments reflect changes made to the sanctions regime by UNSCRs 2498 (2019) and 2551 (2020).
Human rights implications and compatability
The Regulations promote protection of human rights and implement binding decisions of the United Nation Security Council into Australian law, which Australia is required as a matter of international law to implement.
The Regulations,advance human rights by ensuring that certain activities which may hinder the peace process and human rights in the Central African Republic, the Democratic Republic of the Congo, Somalia, and those concerning Al-Qaida and ISIL, are subject to UNSC sanction measures.
The Parliamentary Joint Committee on Human Rights has that accepted the use of sanctions to apply pressure to regimes and individuals with the objective of ending 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.
In accordance with the description of the Regulation above, the Government believes that the Regulations are a reasonable, necessary and proportionate means of achieving the legitimate and lawful objective of effecting change in the behaviour of relevant regimes, persons, entities, organisations and institutions in the Central African Republic, the Democratic Republic of the Congo, Somalia, and those connected to Al-Qaida and ISIL.
Given the primary purpose of the Regulations is to update existing exceptions to the arms embargo and extend the sanctions measures imposed by the Al-Qaida Regulations, the amendments do not change the broader operation of the regimes, the Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
The Legislative Instrument is compatible with human rights because it promotes the protection of human rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.