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Charter of the United Nations Amendment Bill 2021

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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)

 

               



 

CHARTER OF THE UNITED NATIONS AMENDMENT BILL 20 21

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 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).





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.

 

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.

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.



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 i s 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.

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 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.