Part 1 Preliminary
1 Name
of Regulations [see Note
1]
These Regulations are the Charter of the United Nations (Dealing with Assets) Regulations 2008.
2 Commencement
[see Note 1]
These Regulations commence immediately after the
commencement of Schedule 1 to the International Trade Integrity Act
2007.
3 Repeal
The Charter of the United Nations (Terrorism and
Dealings with Assets) Regulations 2002 are repealed.
4 Definitions
In these Regulations:
Act means the Charter of the United
Nations Act 1945.
AFP means the Australian Federal Police
constituted by section 6 of the Australian Federal Police Act 1979.
controlled asset means:
(a) a freezable asset; or
(b) a controlled asset as defined in any of the
Sanctions Regulations.
designated person or entity means:
(a) a proscribed person or entity; or
(b) a designated person or entity as defined in
any of the Sanctions Regulations.
Resolution 1373 means Resolution 1373 (2001)
of the Security Council of the United Nations.
Sanctions Regulations means any of the
following:
(a) the Charter of the United Nations
(Sanctions — Afghanistan) Regulations 2008;
(b) the Charter of the United Nations
(Sanctions — Côte d’Ivoire) Regulations 2008;
(c) the Charter of the United Nations
(Sanctions — Democratic People’s Republic of Korea) Regulations 2008;
(d) the Charter of the United Nations
(Sanctions — Democratic Republic of the Congo) Regulations 2008;
(e) the Charter of the United Nations
(Sanctions — Iran) Regulations 2008;
(f) the Charter of the United Nations
(Sanctions — Iraq) Regulations 2008;
(g) the Charter of the United Nations
(Sanctions — Lebanon) Regulations 2008;
(h) the Charter of the United Nations
(Sanctions — Liberia) Regulations 2008;
(i) the Charter of the United Nations
(Sanctions — Rwanda) Regulations 2008;
(j) the Charter of the United Nations
(Sanctions — Sierra Leone) Regulations 2008;
(k) the Charter of the United Nations
(Sanctions — Somalia) Regulations 2008;
(l) the Charter of the United Nations
(Sanctions — Sudan) Regulations 2008;
(m) these Regulations.
Note For these Regulations:
(a) the Department is the Department of
Foreign Affairs and Trade and the Minister is the Minister for
Foreign Affairs; and
(b) the following terms are defined in the Act:
· asset
(section 2);
· freezable
asset (section 14);
· proscribed
person or entity (section 14).
5 Permissible
dealings for sanctions regulations
(1) This regulation defines various permissible dealings
for the Sanctions Regulations.
(2) If a set of Sanctions Regulations adopts any of subregulations (3)
to (7):
(a) a reference in the subregulation to a
designated person or entity is a reference to a designated person or entity as
defined in those Regulations; and
(b) a reference in the subregulation to a
controlled asset is a reference to a controlled asset as defined in those
Regulations.
(3) A dealing constituted by:
(a) a payment to:
(i) a designated person; or
(ii) a person or entity acting on
behalf of, or at the direction of, a designated person or entity; or
(iii) an entity owned or controlled by
a designated person or entity; or
(b) a use or dealing with a controlled asset;
is a basic expense dealing if it is necessary for
basic expenses, including the following:
(c) foodstuffs;
(d) rent or mortgage;
(e) medicines or medical treatment;
(f) taxes;
(g) insurance premiums;
(h) public utility charges;
(i) reasonable professional fees;
(j) reimbursement of expenses associated with
the provision of legal services;
(k) fees or service charges that are in
accordance with national laws for the routine holding or maintenance of frozen
assets.
(4) A dealing constituted by:
(a) a payment to:
(i) a designated person; or
(ii) a person or entity acting on
behalf of, or at the direction of, a designated person or entity; or
(iii) an entity owned or controlled by
a designated person or entity; or
(b) a use or dealing with a controlled asset;
is a legally required dealing if:
(c) it is necessary to satisfy a judicial,
administrative or arbitral lien or judgement that was made prior to the date on
which the person or entity became a designated person or entity; and
(d) it is not for the benefit of a designated
person or entity.
(5) A dealing constituted by:
(a) a payment to:
(i) a designated person; or
(ii) a person or entity acting on
behalf of, or at the direction of, a designated person or entity; or
(iii) an entity owned or controlled by
a designated person or entity; or
(b) a use or dealing with a controlled asset;
is a contractual dealing if it is a payment:
(c) to apply interest or other earnings due on
accounts holding controlled assets; or
(d) required under contracts, agreements or
obligations made before the date on which those accounts became accounts
holding controlled assets.
Note If the account into which the
payment is paid is frozen under Sanctions Regulations, this payment will also
be frozen once received.
(6) A dealing constituted by:
(a) a payment by:
(i) a designated person; or
(ii) a person or entity acting on
behalf of, or at the direction of, a designated person or entity; or
(iii) an entity owned or controlled by
a designated person or entity;
is a required payment dealing if:
(b) the payment is required under a contract made
before the person or entity became a designated person or entity; and
(c) the payment is not directly or indirectly
being received by a designated person or entity.
(7) Any other dealing constituted by:
(a) a payment to:
(i) a designated person; or
(ii) a person or entity acting on
behalf of, or at the direction of, a designated person or entity; or
(iii) an entity owned or controlled by
a designated person or entity; or
(b) a use or dealing with a controlled asset;
is an extraordinary expense dealing if it is
necessary for extraordinary expenses.
Part 2 Grounds for listing persons, entities or assets
20 Listing for Resolution 1373
(1) For subsection 15 (2) of the Act, the
Minister must list a person or entity if the Minister is satisfied that the
person or entity is a person or entity mentioned in paragraph 1 (c)
of Resolution 1373.
(2) For subsection 15 (4) of the Act, the Minister
may list an asset, or 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 Resolution 1373.
Note Paragraph 1 (c) of
Resolution 1373 requires States to:
‘Freeze without delay funds and other
financial assets or economic resources of persons who commit, or attempt to
commit, terrorist acts or participate in or facilitate the commission of
terrorist acts; of entities owned or controlled directly or indirectly by such
persons; and of persons and entities acting on behalf of, or at the direction
of such persons and entities, including funds derived or generated from
property owned or controlled directly or indirectly by such persons and
associated persons and entities;’.
21 Advance
notice of listing of persons, entities and assets
(1) The Department may give notice of decisions of the
Minister to list a person or entity, or an asset or class of asset, under
section 15 of the Act to any person who is engaged in the business of
holding, dealing in, or facilitating dealing in, assets.
(2) The notice may be given before notice of the listing
that is the subject of the decisions is published in the Gazette.
Part 3 Authorised
dealings
30 Definitions for Part 3
(1) In this Part, a dealing
constituted by:
(a) a payment to a proscribed person or entity,
or a payment to a person or entity acting on behalf of, or at the direction of
a proscribed person or entity; or
(b) a use or dealing with a freezable asset;
is basic expense dealing if it is necessary for
basic expenses, including the following:
(c) foodstuffs;
(d) rent or mortgage;
(e) medicines or medical treatment;
(f) taxes;
(g) insurance premiums;
(h) public utility charges;
(i) reasonable professional fees;
(j) reimbursement of expenses associated with
the provision of legal services;
(k) fees or service charges that are in
accordance with national laws for the routine holding or maintenance of frozen
assets.
(2) In this Part a dealing constituted by:
(a) a payment to a proscribed person or entity,
or a payment to a person or entity acting on behalf of, or at the direction of
a proscribed person or entity; or
(b) a use or dealing with a freezable asset;
is a contractual dealing if it is a payment:
(c) to apply interest or other earnings due on
accounts holding freezable assets; or
(d) required under
contracts, agreements or obligations made before the date on which those
accounts became accounts holding freeazable assets.
Note If the account into which the
payment is paid is frozen under Sanctions Regulations, this payment will also
be frozen once received.
(3) In this Part any other dealing constituted by:
(a) a payment to a proscribed person or entity,
or a payment to a person or entity acting on behalf of, or at the direction of
a proscribed person or entity; or
(b) a use or dealing with a freezable asset;
is an extraordinary expense dealing.
31 Authorised dealings
(1) When an application has been made
under section 22 of the Act in relation to a use of or dealing with a
freezable asset, the Minister may authorise the use or dealing if it is a basic
expense dealing, a contractual dealing or an extraordinary expense dealing.
(2) An application must specify which
kind of dealing mentioned in subregulation (2) the application is for.
Part 4 Miscellaneous
40 Consolidated
list of entities, persons and assets
(1) The Department must maintain a document that sets
out:
(a) all persons and entities that are currently
designated persons or entities; and
(b) all assets or classes of assets currently
listed under section 15 of the Act.
(2) The Department must ensure that an electronic
version of the document is made available to the public on the internet.
41 Request
to AFP for help
(1) A person who holds an asset that the person suspects
is, or may be, a controlled asset may request the AFP to help the person
determine whether or not the asset is owned or controlled by a designated
person or entity.
(2) The request must be accompanied by details of the
asset, and as much information about the asset (including information about the
owner or controller of the asset) as is known to the person making the request.
(3) The AFP must use its best endeavours to help a
person who has made a request under subregulation (1).
(4) As soon as practicable after receiving a request under
subregulation (1), the AFP must respond in writing.
(5) The response must state whether the AFP considers
that:
(a) it is likely that the asset is owned or
controlled by a designated person or entity; or
(b) it is unlikely that the asset is owned or controlled
by a designated person or entity; or
(c) it is unknown
whether the asset is owned or controlled by a designated person or entity.
Note These Regulations do not limit the
obligation of:
(a) a cash dealer under section 16 of the Financial
Transaction Reports Act 1988 to report a suspicious transaction; or
(b) a reporting entity under the Anti‑Money
Laundering and Counter‑Terrorism Financing Act 2006.
42 Notification
(1) This regulation sets out what a person who is
holding an asset must do if the person forms an opinion (a notifiable
opinion) that:
(a) the asset is a controlled asset; or
(b) the asset, having been a controlled asset, or
having been previously treated by the person as a controlled asset, is not, or
is no longer, a controlled asset.
(2) Paragraph (1) (b) does not apply if:
(a) the asset has been removed from the list
mentioned in regulation 40; or
(b) all designated persons associated with the
asset have been removed from the list.
(3) As soon as practicable after a person forms a
notifiable opinion, the person must inform the AFP of:
(a) the asset about which the opinion was
formed; and
(b) as much information about the asset
(including information about the owner or controller of the asset) as is known
to the person; and
(c) the reasons for the opinion.
43 Protection
of information
(1) This regulation applies to a person who, at the
time that something is done under the Act or these Regulations (a relevant
action), is:
(a) the Minister; or
(b) the Secretary of the Department; or
(c) an officer of the Commonwealth; or
(d) an AFP employee, or a member of the
Australian Federal Police, within the meaning of the Australian Federal
Police Act 1979; or
(e) a person who holds a controlled asset or an
asset that the person suspects may be a controlled asset; or
(f) a person employed by a person mentioned in
paragraph (e).
(2) A person to whom this regulation applies is not
required:
(a) to produce in a court any document that has
come into the custody or control of the person in the course of, or because of,
the relevant action; or
(b) to divulge or communicate to a court any
matter or thing that has come to the notice of the person in the course of, or
because of, the relevant action;
unless it is necessary to do so to comply with the Act or these
Regulations.
44 Indemnity
A person (including the Commonwealth) is not liable
to an action, suit or proceeding for anything done or omitted to be done in
good faith and without negligence under regulation 41 or 42.
Note Section 24 of the Act is an
indemnity for anything done or omitted to be done in compliance or purported
compliance with the Act.