Autonomous Sanctions & UNSC Sanctions Compliance Guide

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1


Autonomous Sanctions

&

UNSC Sanctions

Compliance Guide
























CONTENTS


PART A

AUTONOMOUS SANCTIONS

Page





Background









2



How is this relevant to the University?






2



Sanctions currently in force








3


PART B

UNITED NATIONS S
ECURITY COUNCIL SANCTIONS





Background









7



How is this relevant to the University?






7



Sanctions currently in force








8



This guide

aims to provide a general overview of the legal and regulatory framework relating
to
Australia’s autonomous sanctions

and
United Nations Security Council sanctions
.


This
Guide

does not contain a complete
list of applicable
autonomous or UNSC
s
anctions.
Staff are advised that legal compliance obligations in this area are fluid and subje
ct to change,
depending on

foreign policy considerations from time to time.


This Guide
is
current

as at
November

2012, and

staff are advised to check the Department of
Foreign Affairs and Trade website

for the
most updated list of autonomous

and UNSC
san
ctions
:
http://www.dfat.gov.au/un/unsc_sanctions/iran_autonomous_sanctions.html


Staff with queries may contact our office for more comprehensive advice as necessary.

2


PART A

AUTONOMOUS SANCTIONS

1.

Background

Autonomous sanctions are
punitive measures (not including armed force)
whi
ch are

imposed by the
Australian Government as a matter of foreign policy on
overseas entities and countries. They can
be
designed to
supplement United Nations Security Council (‘UNSC’) sanctions.


These measures can include
prohibitions on financial trans
actions,
migration restrictions on specified
individuals from sanctioned countries,

and

restrictions on the supply of, or training in relation to the use of,

arms or
related materiel’ i.e. military materials and equipment
.


While autonomous sanctions have

been
utilised

by the Government for many years,
there is now a
legislative framework for the
implementation of autonomous sanctions in Australian law

by virtue of the
Autonomous Sanctions Act 2011
(Cth) (‘Act’) and
Autonomous Sanctions Regulations 2011

(C
th)
(‘Regulations’).


The Act provides that the
Minister may specific a provision of a Commonwealth law to be a ‘sanction law’
and
significant penalties
may be applied in the event of a breach of a sanction l
aw.


Various provisions in the Regulations have

since been specified as ‘sanction laws’.


These penalties include

imprisonment of up to 10 years in the case of a natural person, and a fine of up to
$275,000 (or three times the value of the relevant transaction, whichever is the greater amount) in the
case of a
body corporate.

A body corporate may have a defence if it is able to show that it took reasonable precautions
and exercised due diligence to avoid contravening the relevant sanction law.


As at October 2012, ther
e are autonomous sanctions in forc
e against
Burma, North Korea, Fiji, former
Yugoslavia, Iran, Libya, Syria
and

Zimbabwe
.


2.

How is this relevant to the University?


Autonomous sanctions have the effect of prohibiting the
University from activities including the following:




providing tra
ining, financial assistance or technical advice which assists with military activities, the
sale/transfer of arms and related materials, or the maintenance or use of weapons, military vehicles,
spare parts etc for certain countries (Iran, Syria, Burma, Fij
i and Zimbabwe);




selling or transferring weapons, military vehicles, spare parts or related items or accessories (including
software) to certain countries (Iran, Syria, Burma, Fiji and Zimbabwe);




making available or giving money or property of any kind t
o or for the benefit of certain named people or
senior officials of certain countries (DPRK, FFRY, Fiji, Iran, Libya, Syria and Zimbabwe). A list is
published by the Dept of Foreign Affairs and Trade;

and




dealing with
the
assets

(financial or otherwise)

o
f certain listed individuals or entities.


The following are e
xamples of how a University might breach the sanctions
:




A Iranian student of engineering is provided with training that assists her to maintain a military vehicle


BREACH OF AUTONOMOUS SANCTIO
NS REGULATIONS WHICH PROHIBIT THE PROVISION OF
TRAINING WHICH ASSISTS WITH CERTAIN MILITARY ACTIVITIES


3




A University, through its Science Faculty, enters into an agreement with a company in Syria to provide
software that assists in the detection of radar

-

BREACH OF AUTONOMOUS SANCTIONS
REGULATIONS WHICH PROHIBIT THE TRANSFER OF ITEMS CONNECTED WITH THE MILITARY


3.

Sanctions currently in force


As noted above, various provisions in the Regulations have since been specified a ‘sanction laws’. The follow
ing
is a list of the current sanctions which are in force as at October 2012.


a.

Sanctioned supply (regulation 4 & 12)


It is prohibited to

direct
ly

or indirect
ly

supply, sale or transfer of the following
‘export sanctioned
goods


to
another person, whic
h will have the effect of being used, or benefitting
the relevant sanctioned country
, as
set out in the table below.


Country

Goods

Burma

Arms or related materiel


Fiji

Arms or related materiel


Iran



Arms or related materiel

(in relation to Iran, the
Department of Foreign
Affairs and Trade
-

‘DFAT’
-

桡s⁩湤ic慴敤⁴ a琠t潯摳d⁴桥⁍u湩瑩潮s⁌is琠t映
瑨攠 a敦敮ce p瑲慴t杩g 䝯潤s 䱩i琬t 慬潮朠 睩瑨 g潯ds 潮 t桥 乵cl敡r
p異灬p敲e⁇ 潵瀠䍯湴牯r⁌is瑳⁡t搠Missil攠呥捨湯l潧y⁃ 湴牯r⁒ 杩浥⁷潵ld
constitute ‘arm
s or related materiel’)
;




Goods mentioned in the Australia Group Common Control Lists
;




Equipment and technology for the oil and gas industry, or the petrochemical
industry, of a kind specified by the Minister

in the
Autonomous Sanctions
(Export Sanctioned

Goods

Iran) Specification 2012
;




Newly printed or unissued Iranian denominated bank notes or newly minted
or unissued Iranian denominated coinage
; and




G
old, precious metals and diamonds (applies only to the sale, supply or
transfer of such goods to the
government of Iran or its public bodies,
corporations or agencies, including persons, entities or bodies acting on
their behalf or at their direction and entities or bodies owned or controlled by
them).



Syria



Arms or related materiel
;




Equipment and tec
hnology for use in the construction or installation of new
power plants for electricity, of a kind specified by the Minister


Autonomous
Sanctions (Export Sanctioned Goods
-

Syria) Specification 2012
;




Equipment and technology for the oil and gas industry, or the petrochemical
industry, of a kind specified by the Minister

in

the

Autonomous Sanctions
(Export Sanctioned Goods
-

Syria) Specification 2012
;


4




Newly printed or unissued Syrian denominated bank notes or newly minted
or unissued Syrian deno
minated coinage
;




Equipment, technology or software for the monitoring or interception of
internet or telephone communications, of a kind specified by the Minister

in
the

Autonomous Sanctions (Export Sanctioned Goods
-

Syria) Specification
2012
;




Luxury goods of a kind specified by the Minister
;




G
old, precious metals and diamonds (applies only to the sale, supply or
transfer
of such goods to the government of Syria or its public bodies,
corporations or agencies, including persons, entities or bodies acting on
their behalf or at their direction and entities or bodi
es owned or controlled by
them)
; and




D
esignated goods of partic
ular concern if destined for end
-
users in Syria.

As
designated by th
e

Minister in the

Autonomous Sanctions (Export Sanctioned
Goods


Syria) Designation 2012
.



Zimbabwe

Arms or related materiel



* The above goods are also export sanctioned goods for the purposes of s. 11 of the
Customs (Prohibited Exports)
Regulations 1958 (Cth)
. This means that it is prohibited to export th
e above goods if the immediate or final destination of the
goods is, or is intended to be, the country for which they are export sanctioned goods
.


b.

Sanctioned import (regulation 4
A

& 12
A
)


It is prohibited to

import, purchase or transport the following

‘import sanctioned goods’ where these goods
have originated in, or are exported from the relevant sanctioned country, as set out in the table below.


Country

Goods

Iran



S
pecified crude oil
,

petroleum products

and
petrochemical products

as
specified by the Minister

in the
Autonomous Sanctions (Import Sanctioned
Goods

Iran) Specification 2012
; and




G
old, precious metals and diamonds (applies only to the import, purchase or

transport of such goods from or for the government of Iran or its public
bodies, corporations or agencies, including persons, entities or bodies acting
on their behalf or at their direction and entities or bodies owned or controlled
by them).



Syria




S
p
ecified crude oil
,

petroleum
and
petrochemical products

as specified by
the

Minister in the

A
utonomous Sanctions (Import Sanctioned Goods


Syria) Specification 2012
; and



g
old, precious metals and diamonds (applies only to the import, purchase or
transport of such goods from

or for the government of Syria or its public
bodies, corporations or agencies, including persons, entities or bodies acting
on their behalf or at their direction and entities or bodies owned or controlled
5


by them).


c.

Sanctioned service (reg
ulation

5 &
13)


It is prohibited to provide:


a)

technical advice, assistance or training,

b)

financial assistance,

c)

a financial service, or

d)

or another service,


if it assists with, or is provided in relation to
-


i.

a military activity, or

ii.

an activity involving the supply,
sale, transfer, manufacture, maintenance or use of an export
sanctioned good (see above

goods listed in the table under (a) sanctioned supply
) for the relevant
sanctioned country.


The relevant countries are Burma, Fiji, Iran, Syria and Zimbabwe.


d.

Desi
gnated person or entity (reg
ulation

6
, 14 & 15
)


It is p
rohibited

to
directly or indirectly
make

an asset available to, or for the benefit of, a designated person
or entity.

There is currently no definition for ‘assets’, accordingly it is understood that t
his would include both
fina
ncial and non
-
financial assets. For example, it would be an offence for the University to enrol a
designated individual as a student, or to enter into a consultancy or other arrangement with a designated
entity.


Persons and enti
ties are designated via federal legislative instrument by the Minister, commonly under the
title ‘
Autonomous Sanctions (Designated Persons and Entities


[COUNTRY]) List 2012
’ and in the
Consolidated List published by DFAT and amended from time to time.


There are designations in place relating to persons and entities from DPRK, FFRY, Fiji, Iran, Libya, Syria
and Zimbabwe (designations relating to Burma
and Fiji
have recently been revoked by the Minister).


DFAT publishes and maintains a

Consolidated List
of

individuals and entities that have been designated
under both the Autonomous Sanctions framework, and
the
UNSC Sanctions

framework
.
Relevant staff
should

check the Consolidated List on

a regular bas
is, as it is frequently updated.


Staff can also
subsc
ribe to be notified of changes to the List.

The List is available at
:

http://www.dfat.gov.au/icat/UNSC_financial_sanctions.html
.


Where
there is a match with an individual or entity
on the List, the Australian Federal Police (‘AFP’) is able
to provide assistance with confirming whether an individual or entity is in fact so designated and the relevant
asset prohibited. The Compliance team can assist with this process, and can contact t
he AFP on the
University’s behalf if required.

6


e.

Designated assets (reg
ulation

7 & 15)


It is prohibited
to use or deal

with an asset which is owned or controlled by certain persons or entities from
sanctioned countries. Such assets have to be designated

by the Minister under a legislative instrument (to
date, no assets have been so designated).


f.

Sanctioned commercial activity

(regulation 5A & 13A)


The following commercial activities
with
Iranian
and
Syrian
entities
are prohibited:


Country

Commercia
l Activity

Iran



the
acquisition or extension of an interest in, or the establishment of or
participation in a joint venture with, or the granting of

a financial loan or
credit to entities engaged in the Iranian petrochemical industry, various
sectors of t
he oil and gas industry
;




t
he sale (or otherwise making available) of an interest in a commercial
activity in the Australian oil and gas industry (refining of fuels, exploration
and production of crude oil and natural gas, and the liquefaction of natural
g
as)
to the government of Iran, a natural person or resident in Iran, or an
entity formed or incorporated
in
Iran
;




t
he setting up in Australia of a representative office, or of a branch or
subsidiary, of, or the acquisition or extension of an interest in a
n Australian
financial institution b
y

a

financial institution domiciled in Iran
,
a branch or a
subsidiary, wherever located, of a financial institution domiciled in Iran
,
a
financial institution, wherever domiciled, that is controlled by an entity or a
per
son domiciled in Iran
; and




t
he establishment, by a financial institution, of a joint venture, or a
correspondent banking relationship, or a bank account, with a financial
institution domiciled in Iran
,
a branch or a subsidiary, wherever located, of a
fina
ncial institution domiciled in Iran
,
a financial institution, wherever
domiciled, that is controlled by an entity or a person domiciled in Iran
.


Syria




the
acquisition or extension of an interest in, or the establishment of or
participation in a joint ve
nture with, or the granting of

a financial loan or
credit to entities engaged in the Syrian petrochemical industry, various
sectors of the oil and gas industry, or
an entity in Syria engaged in the
construction or installation of new power plants for elect
ricity production
;




t
he sale (or otherwise making available) of an interest in a commercial
activity in the Australian oil and gas industry (refining of fuels, exploration
and production of crude oil and natural gas, and the liquefaction of natural
gas)
to

the government of Syria, a natural person or resident in Iran, or an
entity formed or incorporated in Syria
;




t
he setting up in Australia of a representative office, or of a branch or
subsidiary, of, or the acquisition or extension of an interest in an Au
stralian
financial institution b
y a

financial institution domiciled in
Syria
,
a branch or a
7


subsidiary, wherever located, of a financial institution domiciled in
Syria
,
a
financial institution, wherever domiciled, that is controlled by an entity or a
perso
n domiciled in
Syria
; and




t
he establishment, by a financial institution, of a joint venture, or a
correspondent banking relationship, or a bank account, with a financial
institution domiciled in Iran
,
a branch or a subsidiary, wherever located, of a
finan
cial institution domiciled in
Syria
,
a financial institution, wherever
domiciled, that is controlled by an entity or a person domiciled
in Syria
.


g.

Migration restrictions

(regulation 6)


Various restrictions
prohibit

the entry or transit through Austral
ia of nationals from

North Korea
,

Former
Yugoslavia
,

Iran
,

Libya
,

Syria
, and

Zimbabwe
.


Some of these prohibitions relate to persons who are specifically declared by the Minister,
or who have
been assessed under specific criteria or
under the
Migration Regulations 1994
, Regulation 2.43(1)(a)(i)(A)
and Public Interest Criterion 4003(a)
.


Particular requirements apply to student visa applications from

Zimbabwe


namely, all

student visa
applications from Zimbabwe are screened to identify whether any applicants were adult children of
Zimbabwean individuals subject to Australian travel and financial sanctions. Applications so identified are
referred to t
he Minister for Foreign Affairs for consideration as to whether their presence in Australia would
be in Australia's foreign policy interests.


h
.

Port restrictions

(regulations 8, 16 & 17)


It is prohibited for a North Korean flagged vessel to enter into a

port or place in Australia under the
Maritime
Transport and Offshore Facilities Act 200
2
(Cth)
. The Minister is expected to issue a legislative instrument
under the Regulations designating particular vessels.



PART
B

UNITED NATIONS SECURITY COUNCIL SANCT
IONS

1.

Background

In addition to Australia’s autonomous sanctions, the University must comply with

sanctions which are imposed by
the UNSC.

Under the
Charter for the United Nations Act 1945

(Cth), UNSC sanctions are translated into Australian law
throu
gh

regulations enacted relevant to each sanctioned
country, for example


Charter of the United Nations
(Sanctions


Iran) Regulations 2008

(Cth).

There are more countries subject to UNSC sanctions than are subject to autonomous sanctions.

Conversely,
some
countries that are subject to autonomous sanctions are not subject to UNSC sanctions.

UNSC sanctions
are currently in force in relation to

the
Ivory Coast
,
Democratic Republic of Congo
,
North
Korea
,
Eritrea
,
Guinea
-
Bissau
,
Iran
,
Iraq
,
Lebanon
,
Liberia
,
Lib
ya
,
Somalia
,
Sudan
, the
Al
-
Qaida

and

Taliban

organisations, and to
Bin Ladin
.





8


2.

How is this relevant to the University?


The University must comply with UNSC sanctions as they
have been implemented in Australian law and
accordingly form part of our le
gal compliance obligations.


It

is recognised that the University’s
focus

has been on autonomous sanctions
, in part due to the new legal
framework provided for under the Act and Regulations, which set
s

significant penalties applicable for breach.


Nevert
heless, s
taff are required to maintain a general awareness of the relevant

UNSC

sanctions,
and

additional
advice can be sought where necessary.


3.

Sanctions currently in force



There are many similarities between UNSC sanctions and Australia’s autonomou
s sanctions.

Sanctions relating
to many of the
UNSC
-
sanctioned countries also prohibit:


(a)

t
he
supp
ly of

sanctioned goods
, which are typically

arms or related materiel
,

to the relevant
sanctioned countries.


It should be noted that

some countries have a mor
e extensive list of sanctioned goods than others.
For example, sanctioned goods for
North Korea

also include items on
International Atomic Energy
Agency documents
, and luxury goods
.



Importantly,
sanctions against Iran

contain an extensive list of sanctio
ned goods

which
includes items
mentioned
in

the
:




Guidelines for the Export of Nuclear Material, Equipment and Technology
;





Guidelines for Transfers of Nuclear
-
related Dual use Equipment, Materials, Software and
Related Technology
;
and




various items, ma
terials, equipment, goods and technology related to balli
stic missile
-
related programmes
;




items that the Minister for Foreign Affairs has determined could, if exported to Iran,
contribute to Iran's enrichment
-
related, reprocessing or heavy water
-
related a
ctivities, to
the development of nuclear weapon delivery systems, or to the pursuit of activities related
to other topics about which the IAEA has expressed concerns or identified as outstanding
mentioned in the

Charter of the United Nations (Sanctions
-

Iran) (Export Sanctioned
Goods) List Determination 2008

(Cth)
;

and




any battle tanks, armoured combat vehicles, large calibre artillery systems, com
bat aircraft,
attack helicopters, warships, missiles or missile systems as defined for the purpose of the
United Nations Register of Conventional Arms, or related materiel, including spare parts
.


(b)

t
he
procurement of
sanctioned goods
,
which are typically ar
ms or related materiel, from the
relevant sanctioned countries including North Korea, Eritrea, Libya
. In relation to
Iran
, it is also
prohibited to procure the above mentioned sanctioned goods.
The procurement of charcoal from
Somalia,

along with the provi
sion of financing for the acquisition of sanctioned goods
from Somalia
is prohibited. The procurement of
rough diamonds from the Ivory Coast is

also

prohibited.


(c)

t
he provision of technical training or assistance

related to the provision, manufacture,
maint
enance or use of
sanctioned goods, typically
arms or related materie
l, to a range of
sanctioned countries.


9



(d)

t
he procurement of technical training or assistance

related to

military activities or the provision,
manufacture, maintenance or use of arms or rel
ated materiel from sanctioned countries including
Eritrea

and North Korea.


(e)

d
ealing
s

with

the

assets of
designated entities or persons

from the relevant sanctioned
countries
that have been listed in DFAT’s
Consolidated List

or is otherwise declared by the
Minister in accordance with the relevant regulation for each sanctioned country.
In relation to
Iran
,
targeted financial sanctions prohibit transactions with persons and entities listed by the Security
Council or by the 1737 Committee.


See above at page
5 (part 3(d)) for more general information about DFAT’s Consolidated List. The
List may be accessed at
http://www.dfat.gov.au/icat/UNSC_financial_sanctions.html
.


(f)

certain investments

and business dealings with Iranian entities
particularly relating to
-




the provision of
technical assistance or training, financial assistance, investment, brokering or
other services, and the transfer of financial resources or services

relating to sancti
oned goods
;




the
unauthorised provision of bunkering services, such as provision of fuel or supplies, or other
servicing of vessels, to Iranian
-
owned or
-
contracted vessels, including chartered vessels
;





the
sale, or otherwise making available, to Iran or

an Iranian person or entity, of an interest in
any commercial activity involving uranium mining, the production or use of nuclear materials
and technology, in particular uranium
-
enrichment and reprocessing activities, all heavy
-
water
activities, or techno
logy
-
related to ballistic missiles capable of delivering nuclear weapons
;
or




with an Iranian entity specified by the Minister in the
Charter of the

United Nations (Sanctions


Iran) (Specified Entities) List 2010

(Cth)
on the grounds that unauthorised business with that
entity may contribute to Iran's proliferation
-
sensitive nuclear activities,
or
the development of
nuclear delivery systems
.


(g)

restri
ctions

on entry into, or transit through, Australia
for persons who are listed by the
Security Council or the 1521 Committee under the
Migration (Un
ited Nations Security Council
Resolutions) Regulations 2007

(Cth)



*

*

*




November

2012

Governance and Compliance