2002

THE PARLIAMENT OF THE COMMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

CHARTER OF THE UNITED NATIONS AMENDMENT BILL 2002

EXPLANATORY MEMORANDUM

(Circulated by the authority of the Minister for Foreign Affairs, 
the Honourable Alexander Downer MP)

CHARTER OF THE UNITED NATIONS AMENDMENT BILL 2002

Outline

The purpose of the Bill is to amend section 22 of the Charter of the United Nations Act 1945 (“the Act”).  Section 22 of the Act is in Part 4 of the Act.  Part 4 of the Act creates offences of dealing with freezable assets (section 20) and of giving an asset to a proscribed person or entity (section 21).  “Freezable assets” are assets owned or controlled by a proscribed person or entity, or listed assets, or assets derived or generated from assets owned or controlled by a proscribed person or entity or listed assets.  A “proscribed person or entity” is a person or entity either listed by the Minister for Foreign Affairs under section 15 or proscribed by regulation under section 18.  Section 22 provides for the owner of a freezable asset seeking to use that asset in a specified way (subsection (1)), or the owner of an asset seeking to make the asset available to a specified proscribed person or entity (subsection (2)), to apply in writing to the Minister for Foreign Affairs for permission to do so.  Subsection (3) permits the Minister to make such permissions by written notice.  Part 4 of the Act has not commenced.

The first purpose of the Bill is to amend section 22 of the Act to give to holders of assets the same ability as owners of assets to apply to the Minister for Foreign Affairs for the permissions provided for in subsections (1) and (2).  The offences in sections 20 and 21 apply to individuals or institutions who hold assets on behalf of other people, such as trustees and financial institutions, as well as to the owners themselves.  It is foreseeable that such individuals or institutions may need to deal with an asset that may be a freezable asset, or make an asset available to a person or entity who may be proscribed, during the period in which they are establishing the identity of the asset or the person or entity concerned.  Regulations are currently being developed under section 22A of the Act to provide for a mechanism by which holders of assets may request the help of the Australian Federal Police (“the AFP”) to establish whether the offences apply in relation to a specific asset or a specific person or entity, as recommended by the Senate Legal and Constitutional Committee in its Report of its Inquiry into the Security Legislation Amendment (Terrorism) Bill 2002 (Recommendation 7(a)).  For this mechanism to be effective, it is necessary to amend section 22 to give the holders of assets the same ability as the owners of assets to apply to the Minister for Foreign Affairs for permission to deal with an asset that may be a freezable asset, or make an asset available to a person or entity who may be proscribed, while they seek the assistance of the AFP.

The second purpose of the Bill is to amend section 22 of the Act to ensure the ability of the Minister for Foreign Affairs to issue a notice under subsection (3) on his own motion.  Part 4 of the Act will replace the Charter of the United Nations (Anti-terrorism Measures) Regulations (“the Regulations”) which is currently in force.  Under the Regulations (regulation 8), the Minister has the ability to issue on his own motion a notice with the same effect as a notice under section 22, subsection (3) of the Act.  The Government has received advice that under section 22 of the Act, the Minister’s ability to issue such notices is restricted to situations where the owner of an asset makes an application for a notice pursuant to subsections (1) and (2).  It was not the Government’s intention to limit the Minister’s authority in this way in the transition from the mechanism provided for in the Regulations to the mechanism established by the Act.

Financial Impact Statement

There are no direct or indirect financial impacts from this Bill.

Notes on Clauses

Clause 1 provides that the Act may be cited as the Charter of the United Nations Amendment Act 2002.

Clause 2 provides for sections 1 to 3 of the Act to commence on the day on which the Act receives the Royal Assent, and for Schedule 1 to commence immediately after the commencement of Part 4 of the Charter of the United Nations Act 1945.

Clause 3 provides that the Charter of the United Nations Act be amended as set out in the applicable items in Schedule 1.

Item 1 of Schedule 1 amends subsection (1) by inserting the words “or holder” after the word “owner”, so as to allow the holder of a freezable asset to apply in writing to the Minister for permission to use or deal with the asset in a specified way.  

Item 2 of Schedule 1 amends subsection (2) by inserting the words “or holder” after the word “owner”, so as to allow the holder of an asset to apply in writing to the Minister for permission to make the asset available to a proscribed person or entity specified in the application.  

Item 3 of Schedule 1 inserts a new subsection (3A) to allow the Minister to issue a notice permitting a specified freezable asset to be dealt with in a specified way, or a specified asset to be made available to a specified proscribed person or entity, on his or her own initiative or upon application under subsection (1) or (2).

Item 4 of Schedule 1 amends subsection (5) by inserting the words “or holder” after the word “owner”, so as to require that a notice made by the Minister under subsection (3) be given to the holder of the asset as soon as practicable after it is made.