How are UN sanctions implemented in Australia?

Controls on trade in goods and services and financial restrictions against persons and entities designated by the Security Council are implemented through regulations made under the Charter of the United Nations Act 1945 (the UN Charter Act). Depending upon their terms, these controls apply to:

• any person in Australia;
• any Australian anywhere in the world;
• companies incorporated overseas that are owned or controlled by Australians or persons in Australia;
• any person using an Australian flag vessel or aircraft to transport goods or transact services subject to UN sanctions.

The Customs Act 1901 and regulations made under that Act are also used to implement controls specifically on the trade in goods to and from Australia. Exports of UN-sanctioned goods from Australia are controlled by the Customs (Prohibited Exports) Regulations 1958. Imports of UN-sanctioned goods to Australia are controlled by the Customs (Prohibited Imports) Regulations 1956.

Finally, the Migration Act 1958 is used to implement travel bans and restrictions applied to persons, or classes of persons, designated by the Security Council. The authority to refuse a visa to, or cancel the visa of, an individual subject to UN travel bans is provided in the Migration (United Nations Security Council Resolutions) Regulations 2007.

How are UN Security Council sanctions enforced in Australia?

Breaches of controls on trade in sanctioned goods and services, or dealings with sanctions-designated individuals and entities, are serious criminal offences under Australian legislation implementing UN sanctions. These offences are:

• the contravention of any law designated by the Minister for Foreign Affairs as a UN sanction enforcement law in the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008 (UN Charter Act section 27)
  • This covers controls on the trade in sanctioned goods and services established through regulations made under the UN Charter Act implementing country-specific sanctions regimes.
  • It also includes financial sanctions prohibiting the unauthorised use or dealing with the assets of, or making assets available to, persons and entities designated by the UNSC under country-specific sanctions regimes and by the UNSC Committee established under Resolution 1267 (on Al Qaida and the Taliban);
• unauthorised use or dealing with assets owned or controlled by a person or entity proscribed by the Minister for Foreign Affairs for their association with the commission of terrorist acts (UN Charter Act section 20)
  • This relates to Australia's implementation of UNSC Resolution 1373 (2001) on terrorism;
• making assets available without authorisation to a person or entity proscribed by the Minister for Foreign Affairs for their association with the commission of terrorist acts (UN Charter Act section 21),
  • This also relates to Australia's implementation of UNSC Resolution 1373 (2001) on terrorism; and
• the importation to Australia (Customs Act section 233BABAB) or unauthorised exportation from Australia (Customs Act 233BABAC) of UN‑sanctioned goods
  • This covers controls established in the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958.

For bodies corporate, each of the above offences are of strict liability, unless the body corporate can prove that it took reasonable precautions, and exercised due diligence, to avoid contravening the law in question.

The penalty upon conviction for these offences is:

• for individuals: a maximum 10 years' imprisonment or a maximum fine the greater of 3 times the value of the transaction in breach of sanctions (if this can be calculated) or A$275,000.
• for bodies corporate: a maximum fine the greater of 3 times the value of the transaction in breach of sanctions (if this can be calculated) or A$1.1 million.

Offences for false or misleading conduct in relation to Australia's UN sanction enforcement laws

There are also penalties for false or misleading conduct in the context of the administration of Australian UN sanction enforcement laws.

Under the UN Charter Act (section 28), it is an offence to give information or a document to a Commonwealth entity, in connection with the administration of a UN sanction enforcement law, that is false or misleading in a material particular, either by virtue of the inclusion or exclusion of material in the information or document. The penalty for this offence is 10 years' imprisonment or a fine of A$275,000, or both.

Similarly, under the Customs Act (section 233C), it is an offence to make an application to import or export UN‑sanctioned goods to or from Australia, that is false or misleading in a material particular either by virtue of the inclusion or exclusion of information in the application. The penalties are:

• for individuals, 10 years' imprisonment or A$275,000, or both.
• for bodies corporate, A$1,375,000.

Any authorisation granted under the UN Charter Act or its regulations (UN Charter Act sections 13A and 22B), or to import or export UN‑sanctioned goods to or from Australia (Customs Act sections 52 and 112B), is taken never to have been granted if the application for the authorisation was false or misleading in a material particular either by virtue of the inclusion or exclusion of information in the application