Autonomous Sanctions - Department of Foreign Affairs and Trade

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Autonomous Sanctions

Reform of Australia’s Legislative Framework

Sanctions and Transnational Crime

Department of Foreign Affairs and Trade

sanctions@dfat.gov.au

http://www.dfat.gov.au/un/unsc_sanctions/index.html


What are sanctions?



coercive measures not involving the use of armed force;



imposed in response to situations of international concern (
eg
, threat
to / breach of international peace and security, including WMD
proliferation and terrorism, or widespread human rights abuses);



either by the United Nations Security Council (and binding on all UN
Members);



or autonomously by one or more states acting in concert (“autonomous
sanctions”).

What are the objectives of sanctions?



limit adverse consequences of the situation (
eg
, deny access to arms, or
WMD dual use goods);



seek to influence those responsible for creating the situation of
international concern to modify their behaviour to remove the concern;
and



penalise those responsible (
eg
, deny access to international travel or to
the international financial system).

What is the basis of sanctions?



Sanctions can be imposed by the
United Nations Security Council
(UNSC)


in response to threats to or breaches of international peace and
security


all UN Member States are obliged to implement



Sanctions can be imposed by states autonomously of the UNSC
(
autonomous sanctions
)


in situations where the UNSC cannot impose sanctions


or to supplement UNSC sanctions measures


How are sanctions given effect in Australia?



Sanctions imposed by the UNSC are given legal effect in Australia through
the
Charter of the United Nations Act 1945
.


provides for declaration of laws as “UN sanction enforcement laws”


provides for making of dedicated regulations to apply UNSC sanctions


Australia’s autonomous sanctions will soon be given legal effect through
the
Autonomous Sanctions Act 2011
.


provides for declaration of laws as “sanctions laws”


provides for making of dedicated regulations to apply autonomous
sanctions

Autonomous Sanctions Act 2011

Rationale


allow greater flexibility in the range of measures Australia can apply, to
ensure Australia’s autonomous sanctions match the scope and extent of
measures implemented by like
-
minded countries.



assist administration and compliance by removing distinctions between
the scope and extent of autonomous sanctions and UN sanction
enforcement laws.



provide a framework for regulations applying autonomous sanctions
allowing the necessary flexibility to respond to international
developments in a timely way.

Providing for autonomous sanctions (Part 2)


the Minister may specify a provision of a law of the Commonwealth as a

sanction law
” by legislative instrument (s. 6).



such provisions may either be:


purpose made in regulations made under the Act
(s. 10, 28)
; or


an existing law that can be used for autonomous sanctions purposes



any permit under sanctions regulations obtained using false or
misleading information is deemed null and void
ab

initio (s.15)

Enforcing autonomous sanctions (Part 3)


offence to contravene a sanction law or a condition in a permit
granted under a sanction law (s.16)


for individuals: maximum 10 years imprisonment and a fine the
greater of $275,000 or three times the transaction value


for bodies corporate: a fine the greater of $1.1 million or three
times the transaction value (strict liability offence)


offence to provide false or misleading information in connection with
the administration of sanctions laws, including permit applications

(s.17)

Collection and use of information (Part 4)


allow sanctions enforcement agencies to compel the production of
written information and documents, including under oath (s.19, 20)


12 months imprisonment for failure to comply (s.21)


overrides any inconsistent Commonwealth, State or Territory law
and the privilege against self incrimination


cannot be used in evidence (except for alleged breaches of s.17


false and misleading information


or s.21


failure to comply with
notice) (s.22)


allow Commonwealth agencies to provide sanctions enforcement
agencies with information relevant to sanctions (s.18)


allow sanction enforcement agencies to share information with a range
of other entities for sanctions
-
related purposes (s.24)


Autonomous Sanctions Regulations

Autonomous Sanctions Regulations
will give effect to Australia’s existing
autonomous sanctions regimes:



Burma:
arms embargo / targeted financial sanctions / travel bans


Democratic People’s Republic of Korea:
targeted financial sanctions /

port bans


Fiji:
arms embargo / travel bans


Former Yugoslavia:
targeted financial sanctions / travel bans


Iran:
arms embargo and
chem
-
bio dual use goods / targeted financial
sanctions
/ travel bans


Libya:

targeted financial sanctions / travel bans


Syria:
arms embargo / targeted financial sanctions / travel bans


Zimbabwe:

arms embargo / targeted financial sanctions / travel bans

Part 2 Autonomous sanctions

Autonomous Sanctions Regulations 2011

Export sanctioned
goods

for
Burma
,
Fiji
,
Syria
,
Zimbabwe


arms or related
matériel

(including weapons, ammunition, military
vehicles and equipment, spare parts and accessories for these,
paramilitary equipment)


for
Iran


arms
or related
matériel


g
oods

mentioned in the Australia Group Common Control Lists

(of
chemical weapons precursors, dual
-
use chemical / biological
manufacturing facilities and equipment and related technology and
software, biological agents, and plant and animal pathogens)


T
he
Minister may, by legislative instrument, designate goods as export
sanctioned goods for a country mentioned in the designation

Sanctioned
supply

A
person makes a sanctioned supply if:


(a)

the
person
supplies, sells or transfers
goods to another person; and

(b)

the goods are
export sanctioned goods
in relation to a country; and

(c)

as a
direct or indirect
result of the supply, sale or transfer the goods
are transferred:

(
i
)

to

that country; or

(ii)

for use in
that country; or

(iii)

for the benefit of
that country.


Sanctioned service

A sanctioned
service, for
Burma
,
Fiji
,
Iran
,
Syria

and
Zimbabwe
,
is the
provision to a person of
:


(a)

technical advice, assistance or training; or

(b)

financial assistance; or

(c)

a financial service; or

(d)

another service;


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



An
activity involving the supply, sale, transfer, manufacture,
maintenance or use of an
export sanctioned
good
; or



A military activity.


Designation of persons or
entities

The
Minister may, by legislative
instrument:



designate
a person or
entity mentioned
in an item of the
table.



designate a person or entity
if
the Minister is satisfied that the person
or entity is contributing to the proliferation of weapons of mass
destruction
.



designate an asset that is owned or controlled by a designated person
or entity as a designated asset.


In
designating a person or
entity,
the Minister may
specify the purpose :


to prevent
the designated person from travelling
to Australia


to restrict
dealings in listed assets for the designated person or entity.




Sanctioned
vessels

Designation
of vessels



T
he
Minister may, by legislative instrument, designate a vessel, or each
vessel in a class of vessels, as a sanctioned vessel for a country
mentioned in the
designation.



Directions to sanctioned vessels



The Minister, having regard to Australia’s obligations at international law,
may direct a sanctioned vessel to:



(a)

lea
ve

Australia, including by a particular route; or

(b)

not enter a particular port or place, or any port or place, in
Australia.




D
esignation duration and revocation

A
designation ceases to have effect on: the third anniversary of
its taking effect
,
unless the Minister, by legislative instrument, declares that the designation
continues to have effect, in which case; the third anniversary of the making of the
most recent declaration in relation to the designation.


The
Minister may, by legislative instrument, revoke a designation on
his / her
initiative,
or on application by the designated person or entity to which the
designation relates (or the owner or controller of the sanctioned
vessel)


An
application to revoke a designation must be in writing and set out the
circumstances relied upon to justify the application. The Minister is not required
to consider an application (the current application) by a person or entity under
this regulation if the person or entity has made an application under this
regulation within 1 year before the current application.


Part 3 Sanctions laws

Autonomous Sanctions Regulations 2011

Prohibitions: goods / services

Prohibitions
relating to a sanctioned supply


A
person contravenes
the Regulations if the
person makes a sanctioned
supply that is not authorised.


Prohibitions
relating to the provision of sanctioned services


A
person contravenes
the Regulations if the
person provides a sanctioned
service that is either:


not authorised; or


not
provided in relation to
an authorised sanctioned supply.



Prohibitions: goods / services

The Regulations apply to:



any person in Australia;


any person using an Australian flagged vessel or aircraft;


any Australian citizen or body corporate anywhere in the world


any Australian body corporate, in relation to the actions of another
body corporate or entity, wherever incorporated or
situated, over
whose actions it has effective control

Targeted financial sanctions

Prohibition of dealing with designated persons or entities



A person contravenes
the Regulations
if the person directly or indirectly
makes an asset available to, or for the benefit of, a
designated person or
entity
without authorisation.



Prohibition of dealing with controlled assets



A person who holds a
controlled asset
contravenes
the Regulations
if the
person uses or deals with it, or allows it to be used or dealt with, or
facilitates the use of the asset or dealing with it, without
authorisation.




Prohibitions: sanctioned vessels

A
person contravenes the Regulations if he or she contravenes a direction
given to a sanctioned vessel unless:




the contravening act was necessary to secure the safety of the
sanctioned vessel or human
life; or




the contravening act was authorised or required under Part

IIIAAA of
the
Defence Act 1903
.



A sanctioned vessel that contravenes a direction other than under these
circumstances is forfeited to the
Commonwealth.




Part 4 Authorisations

Autonomous Sanctions Regulations 2011

Minister may grant
permits

The Minister, on his or her own initiative, or on application by a person,
and subject to specified conditions, may authorise:



(a)

the making of a sanctioned supply; or

(b)

the provision of a sanctioned service; or

(c)

the making available of an asset to a designated person or
entity; or

(d)

a use of, or a dealing with, a controlled asset



if satisfied that it would be in the national interest to do so.


Permit for assets and controlled
assets

An application for

authorisation to make available an asset to a person or
entity, or to use or deal with a controlled asset,
must be:


(a)

for
basic expenses
(eg food, accommodation, medical, taxes,
insurance, utilities, reasonable professional fees, legal expenses); or

(b)

legally required
(judicial, administrative or arbitral lien or
judgment made prior to the designation and not for the benefit of a
designated person); or

(c)

a
contractual dealing
(interest or other earnings due on
accounts holding controlled assets; or payments required under
contracts made before the designation).


The above limitation applies only to applications for authorisation.

Part 5 Dealing with assets

Autonomous Sanctions Regulations 2011

Consolidated
list

Advance notice of listing of persons, entities and assets



DFAT may give notice of a designation before it is published to any person
who is engaged in the business of holding, dealing in, or facilitating
dealing in, assets.



Consolidated list of entities, persons and assets



DFAT must maintain, on its website, a document that sets out all
designated persons, entities and assets. The document may be
consolidated with the consolidated list provided for in the
Charter of the
United Nations (Dealing with Assets) Regulations 2008
.




Notice to AFP

Informing AFP of opinion about asset



A person who holds an asset he or she believes is, or was, a controlled
asset, must inform the AFP as soon as practicable.



Request to AFP for help



A person who suspects he or she holds a controlled asset may request
the AFP to help determine whether or not the asset is owned or
controlled by a designated person or
entity. (This
does not limit
reporting obligations under the
Financial Transaction Reports Act

1988

or
the
Anti
-
Money Laundering and Counter
-
Terrorism Financing Act 2006
.)




Who needs to be aware of sanctions
laws
?


persons
engaged in trade or other business in a country subject to
sanctions, or with individuals in (or close to) government in such a
country
;


persons
involved in the trade in armaments or other equipment for
armed forces (manufacturers, brokers, freight forwarders, trade
financiers);


persons
involved in the provision of services related to military
activities, or to any person on the manufacture of use of military
equipment;


persons
who deal in assets (in particular, the financial services sector)

S
anctions
due
diligence

T
ransactions involving a
sanctions
-
affected country



enhanced precautions are required to ensure the transaction does not involve
unauthorised goods, services and persons subject to sanctions for that country


T
ransactions involving
goods or services subject to sanctions



sanctions prohibit the direct or indirect provision of prohibited goods / services
to the sanctioned country


enhanced precautions are required to mitigate the risk of diversion to the
sanctioned country


T
ransactions involving
sanctions
-
designated persons / entities



prohibition applies equally to persons acting on behalf or at the direction of, or
entities owned or controlled by, such persons / entities