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SLI 2008 No. 29 Regulations as amended, taking into account amendments up to Charter of the United Nations Legislation Amendment (Central African Republic and Yemen) Regulation 2014
These Regulations implement Australia’s obligations to freeze assets and prevent assets being made available to all persons and entities designated by the United Nations Security Council as being subject to such measures.
Administered by: Foreign Affairs and Trade
Registered 16 May 2014
Start Date 16 May 2014
End Date 21 Aug 2015
Table of contents.

Description: Commonwealth Coat of Arms

Charter of the United Nations (Dealing with Assets) Regulations 2008

Select Legislative Instrument No. 29, 2008 as amended

made under the

Charter of the United Nations Act 1945

Compilation start date:                     16 May 2014

Includes amendments up to:            SLI No. 48, 2014

About this compilation

This compilation

This is a compilation of the Charter of the United Nations (Dealing with Assets) Regulations 2008 as in force on 16 May 2014. It includes any commenced amendment affecting the legislation to that date.

This compilation was prepared on 16 May 2014.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of each amended provision.

Uncommenced amendments

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in the endnotes.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If a provision of the compiled law is affected by a modification that is in force, details are included in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled law has expired or otherwise ceased to have effect in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Name of Regulations........................................................................... 1

2............ Commencement................................................................................... 1

3............ Repeal................................................................................................. 1

4............ Definitions.......................................................................................... 1

5............ Permissible dealings for sanctions regulations.................................... 3

Part 2—Grounds for listing persons, entities or assets                                    6

20.......... Listing for Resolution 1373................................................................ 6

21.......... Advance notice of listing of persons, entities and assets..................... 6

Part 3—Authorised dealings                                                                                           7

30.......... Definitions for Part 3.......................................................................... 7

31.......... Authorised dealings............................................................................ 8

Part 4—Miscellaneous                                                                                                         9

40.......... Consolidated list of entities, persons and assets.................................. 9

41.......... Request to AFP for help..................................................................... 9

42.......... Notification....................................................................................... 10

43.......... Protection of information.................................................................. 10

44.......... Indemnity.......................................................................................... 11

Endnotes                                                                                                                                    12

Endnote 1—About the endnotes                                                                            12

Endnote 2—Abbreviation key                                                                                14

Endnote 3—Legislation history                                                                             15

Endnote 4—Amendment history                                                                           16

Endnote 5—Uncommenced amendments [none]                                          17

Endnote 6—Modifications [none]                                                                         17

Endnote 7—Misdescribed amendments [none]                                             17

Endnote 8—Miscellaneous [none]                                                                        17

 


Part 1Preliminary

  

1  Name of Regulations

                   These Regulations are the Charter of the United Nations (Dealing with Assets) Regulations 2008.

2  Commencement

                   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 the following:

                     (a)  the Charter of the United Nations (Sanctions—Al‑Qaida) Regulations 2008;

                    (aa)  the Charter of the United Nations (Sanctions—Central African Republic) Regulation 2014;

                     (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—Eritrea) Regulations 2010;

                      (f)  the Charter of the United Nations (Sanctions—Iran) Regulations 2008;

                     (g)  the Charter of the United Nations (Sanctions—Iraq) Regulations 2008;

                     (h)  the Charter of the United Nations (Sanctions—Lebanon) Regulations 2008;

                      (i)  the Charter of the United Nations (Sanctions—Liberia) Regulations 2008;

                      (j)  the Charter of the United Nations (Sanctions—Libyan Arab Jamahiriya) Regulations 2011;

                     (k)  the Charter of the United Nations (Sanctions—Somalia) Regulations 2008;

                      (l)  the Charter of the United Nations (Sanctions—Sudan) Regulations 2008;

                    (m)  the Charter of the United Nations (Sanctions—the Taliban) Regulation 2013;

                  (ma)  the Charter of the United Nations (Sanctions—Yemen) Regulation 2014;

                     (n)  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 2Grounds 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 3Authorised 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 4Miscellaneous

  

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.

 


Endnotes

Endnote 1—About the endnotes

The endnotes provide details of the history of this legislation and its provisions. The following endnotes are included in each compilation:

 

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnote 5—Uncommenced amendments

Endnote 6—Modifications

Endnote 7—Misdescribed amendments

Endnote 8—Miscellaneous

 

If there is no information under a particular endnote, the word “none” will appear in square brackets after the endnote heading.

 

Abbreviation key—Endnote 2

The abbreviation key in this endnote sets out abbreviations that may be used in the endnotes.

 

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

 

The legislation history in endnote 3 provides information about each law that has amended the compiled law. The information includes commencement information for amending laws and details of application, saving or transitional provisions that are not included in this compilation.

 

The amendment history in endnote 4 provides information about amendments at the provision level. It also includes information about any provisions that have expired or otherwise ceased to have effect in accordance with a provision of the compiled law.

 

Uncommenced amendments—Endnote 5

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in endnote 5.

 

Modifications—Endnote 6

If the compiled law is affected by a modification that is in force, details of the modification are included in endnote 6.

 

Misdescribed amendments—Endnote 7

An amendment is a misdescribed amendment if the effect of the amendment cannot be incorporated into the text of the compilation. Any misdescribed amendment is included in endnote 7.

 

Miscellaneous—Endnote 8

Endnote 8 includes any additional information that may be helpful for a reader of the compilation.

 

Endnote 2—Abbreviation key

 

ad = added or inserted

pres = present

am = amended

prev = previous

c = clause(s)

(prev) = previously

Ch = Chapter(s)

Pt = Part(s)

def = definition(s)

r = regulation(s)/rule(s)

Dict = Dictionary

Reg = Regulation/Regulations

disallowed = disallowed by Parliament

reloc = relocated

Div = Division(s)

renum = renumbered

exp = expired or ceased to have effect

rep = repealed

hdg = heading(s)

rs = repealed and substituted

LI = Legislative Instrument

s = section(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

mod = modified/modification

Sdiv = Subdivision(s)

No = Number(s)

SLI = Select Legislative Instrument

o = order(s)

SR = Statutory Rules

Ord = Ordinance

Sub-Ch = Sub-Chapter(s)

orig = original

SubPt = Subpart(s)

par = paragraph(s)/subparagraph(s)

/sub-subparagraph(s)

 

 

Endnote 3—Legislation history

 

Number and year

FRLI registration

Commencement

Application, saving and transitional provisions

2008 No. 29

20 Mar 2008 (see F2008L00917)

(a)

2008 No. 42

11 Apr 2008 (see F2008L01051)

12 Apr 2008

2009 No. 6

9 Feb 2009 (see F2009L00282)

10 Feb 2009

2010 No. 33

2 Mar 2010 (see F2010L00576)

3 Mar 2010

72, 2013

17 May 2013 (see F2013L00791)

Sch 2: 18 May 2013 (see s. 2)

48, 2014

15 May 2014 (see F2014L00539)

Sch 1 (items 1, 2): 16 May 2014

 

(a)             Regulation 2 of SLI 2008 No. 29 provides as follows:

                  These Regulations commence immediately after the commencement of Schedule 1 to the International Trade Integrity Act 2007.

                  The International Trade Integrity Act 2007 commenced on 24 March 2008.

Endnote 4—Amendment history

 

Provision affected

How affected

Part 1

 

r. 4......................................

am. 2008 No. 42; 2009 No. 6; 2010 No. 33; No 72, 2013; No 48, 2014

r. 5......................................

am. 2008 No. 42

 

Endnote 5—Uncommenced amendments [none]

Endnote 6—Modifications [none]

Endnote 7—Misdescribed amendments [none]

Endnote 8—Miscellaneous [none]