Federal Register of Legislation - Australian Government

Primary content

Declarations/Other as made
This instrument amends the Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) List 2012 and renews targeted financial sanctions and/or travel restrictions that would otherwise lapse on 21 persons and 9 entities in respect of Libya.
Administered by: Foreign Affairs and Trade
Registered 13 Feb 2018
Tabling HistoryDate
Tabled HR13-Feb-2018
Tabled Senate14-Feb-2018

Explanatory Statement

 

 

Issued by the Authority of the Minister for Foreign Affairs

 

Autonomous Sanctions Regulations 2011

 

Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Continuing Effect Declaration and Revocation Instrument 2018

 

Section 28 of the Autonomous Sanctions Act 2011 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The Autonomous Sanctions Regulations 2011 (the Regulations) facilitate the conduct of Australia’s relations with Libya, and with specific persons or entities outside Australia, through the imposition of autonomous sanctions in relation to Libya, and through targeting those persons or entities.

 

The Regulations permit the Minister to designate a person or entity for targeted financial sanctions and/or declare a person for the purposes of a travel ban, if they satisfy a range of criteria, as set out in regulation 6.

 

The purpose of a designation is to subject the designated person or entity to targeted financial sanctions. There are two types of targeted financial sanctions under the Regulations:

 

·         the designated person or entity becomes the object of the prohibition in regulation 14 (which prohibits directly or indirectly making an asset available to, or for the benefit of, a designated person or entity, other than as authorised by a permit granted under regulation 18); and/or

·         an asset owned or controlled by a designated person or entity is a “controlled asset”, subject to the prohibition in regulation 15 (which requires a person who holds a controlled asset to freeze that asset, by prohibiting that person from either using or dealing with that asset, or allowing it to be used or dealt with, or facilitating the use of or dealing with it, other than as authorised by a permit granted under regulation 18).

 

The purpose of a declaration is to prevent a person from travelling to, entering or remaining in Australia.

 

Designated persons and entities and declared persons in respect of Libya are listed in the Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) List 2012.

 

The persons listed in Schedule 1, and the entities listed in Schedule 2, of the Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Continuing Effect Declaration and Revocation Instrument 2018 (the Libya List) were originally designated and (where relevant) declared pursuant to subregulation 6(1) of the Regulations for Libya on the basis that the person or entity met the criteria mentioned in the table in subregulation 6(1) of the Regulations for Libya; that is:

 

a)      a person who the Minister is satisfied was a close associate of the former Qadhafi regime;

b)      an entity that the Minister is satisfied is under the control of one or more members of Muammar Qadhafi’s family;

c)      a person or entity that the Minister is satisfied has assisted, or is assisting, in the violation of Resolution 1970 or 1973 of the United Nations Security Council, or a subsequent resolution to Resolutions 1970 or 1973;

d)     an immediate family member of a person mentioned in a) or c). 

 

Sections 4 and 5 of the Libya List contain the Minister’s declaration under subregulation 9(3) that the designations and (where relevant) the declarations of the persons and entities listed in Schedule 1 and Schedule 2, respectively (who were originally designated and/or declared in 2012, and last renewed in 2015) continue to have effect.

 

Section 6 of the Libya List contains the Minister’s revocation of the designation and declaration of the person listed in Schedule 3 (who was originally designated and declared in 2012, and last renewed in 2015).

 

The Libya List renews targeted financial sanctions and/or travel restrictions that would otherwise lapse on 21 persons and 9 entities, each of which the Minister is satisfied is mentioned in Item 5 of the table in subregulation 6(1) of the Regulations.

 

The legal framework for the imposition of autonomous sanctions by Australia, of which the Regulations and the Libya List are part, has been the subject of extensive consultation with governmental and non-governmental stakeholders since May 2010. 

 

The Department of Foreign Affairs and Trade (the Department) conducts public consultations, including with the Australian financial services sector and broader business community, in relation to these types of measures.  Relevant Commonwealth Government departments were consulted prior to and during the drafting of this legislative instrument.  

 

The Department undertook public consultation through its website seeking submissions from interested parties and to afford natural justice to those persons and entities whose designations and (where relevant) declarations were being reviewed.  No submissions were received in response to these consultations.


Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Continuing Effect Declaration and Revocation Instrument 2018

 

The Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Continuing Effect Declaration and Revocation Instrument 2018 (the Libya List) 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.

 

A person or entity subject to designation or declaration under regulation 6 of the Regulations may apply to the Minister for the revocation of those decisions (regulation 11 of the Regulations).  Decisions under both regulations 6 and 11 of the Regulations are judicially reviewable.

 

The targeted financial sanctions imposed on persons and entities designated under paragraph 6(1)(a) of the Regulations do not affect the title to any asset owned or controlled by the designated person or entity.  A designated person or entity may continue to draw on his or her frozen assets, or receive assets from other sources, to meet basic expenses, including for foodstuffs, rent or mortgage, medicines or medical treatment, taxes, insurance premiums, public utility charges, reasonable professional fees, reimbursement of expenses associated with the provision of legal services, or fees or service charges that are in accordance with a law in force in Australia for the routine holding or maintenance of frozen assets (regulations 18 and 20 of the Regulations).

 

Similarly, a designated person or entity may draw on frozen assets they own or control to satisfy any pre-existing judicial, administrative or arbitral lien or judgement awarded to another (non-designated) person or entity, as well as to make payments required under contracts, agreements or obligations made before the date on which those assets became frozen.

 

Regulation 19 authorises the Minister to waive the operation of a declaration under regulation 6 so as to allow the person to travel to, enter or remain in Australia, either on the grounds that it would be in the national interest or on humanitarian grounds.

 

The Department of Foreign Affairs and Trade (DFAT) undertook public consultation through its website seeking submissions from interested parties and to afford natural justice to those persons and entities whose designations and (where relevant) declarations were to lapse and were being reviewed.  No submissions were received.