An Act to approve the Charter of the United Nations, and to enable Australia to apply sanctions giving effect to certain decisions of the Security Council
Part 1—Preliminary
1 Short title
This Act may be cited as the Charter of the United Nations Act 1945.
2 Definitions
In this Act:
asset means:
(a) an asset of any kind or property of any kind, whether tangible or intangible, movable or immovable, however acquired; and
(b) a legal document or instrument in any form, including electronic or digital, evidencing title to, or interest in, such an asset or such property, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, debt instruments, drafts and letters of credit.
CEO, in relation to a Commonwealth entity, means the chief executive officer (however described) of that entity.
Charter of the United Nations means the Charter of the United Nations, done at San Francisco on 26 June 1945 [1945] ATS 1.
Note: The text of the Charter of the United Nations is set out in Australian Treaty Series 1945 No. 1. In 2007, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
designated Commonwealth entity means a Commonwealth entity that is specified in an instrument under section 2A.
foreign government entity means:
(a) the government of a foreign country or of part of a foreign country; or
(b) an authority of the government of a foreign country; or
(c) an authority of the government of part of a foreign country.
officer of a Commonwealth entity includes:
(a) the CEO of the Commonwealth entity; and
(b) an employee of the Commonwealth entity; and
(c) any other person engaged by the Commonwealth entity, under contract or otherwise, to exercise powers, or perform duties or functions, of the Commonwealth entity.
public international organisation has the meaning given by section 70.1 of the Criminal Code.
State or Territory entity means:
(a) a State or Territory; or
(b) an authority of a State or Territory.
UN sanction enforcement law means a provision that is specified in an instrument under subsection 2B(1).
2A Meaning of designated Commonwealth entity
The Minister may, by legislative instrument, specify a Commonwealth entity as a designated Commonwealth entity.
2B Meaning of UN sanction enforcement law
(1) The Minister may, by legislative instrument, specify a provision of a law of the Commonwealth as a UN sanction enforcement law.
(2) The Minister may specify a provision in relation to particular circumstances.
(3) The Minister may only specify a provision to the extent that it gives effect to a decision that:
(a) the Security Council has made under Chapter VII of the Charter of the United Nations; and
(b) Article 25 of the Charter requires Australia to carry out;
in so far as that decision requires Australia to apply measures not involving the use of armed force.
Note: Articles 39 and 41 of the Charter provide for the Security Council to decide what measures not involving the use of armed force are to be taken to maintain or restore international peace and security.
(4) A provision may be specified whether or not the provision is made for the sole purpose of giving effect to a decision of the Security Council.
(5) A provision ceases to be a UN sanction enforcement law to a particular extent if:
(a) Article 25 of the Charter of the United Nations ceases to require Australia to carry out a decision referred to in subsection (3); and
(b) the provision gave effect to that decision to that extent; and
(c) the provision does not give effect to any other decision referred to in subsection (3) to that extent.
3 Extension to external Territories
This Act extends to every external Territory.
4 Act binds the Crown
(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(2) Nothing in this Act renders the Crown in any right liable to be prosecuted for an offence.
Part 2—Approval of Charter
5 Approval
The Charter of the United Nations (a copy of which is set out in the Schedule) is approved.
Part 3—Regulations to Apply Security Council Sanctions
Division 1—Making and effect of regulations
6 Regulations may apply sanctions
(1) The Governor‑General may make regulations for and in relation to giving effect to decisions that:
(a) the Security Council makes under Chapter VII of the Charter of the United Nations; and
(b) Article 25 of the Charter requires Australia to carry out;
in so far as those decisions require Australia to apply measures not involving the use of armed force.
Note: Articles 39 and 41 of the Charter provide for the Security Council to decide what measures not involving the use of armed force are to be taken to maintain or restore international peace and security.
(2) Without limiting subsection (1), the regulations may give effect to a decision of the Security Council by any or all of the following means:
(a) proscribing persons or entities;
(b) restricting or preventing uses of, dealings with, and making available, assets;
(c) restricting or preventing the supply, sale or transfer of goods or services;
(d) restricting or preventing the procurement of goods or services;
(e) providing for indemnities for acting in compliance or purported compliance with those regulations;
(f) providing for compensation for owners of assets;
(g) authorising the making of legislative instruments.
(3) Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection (1) may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
7 Regulations may have extra‑territorial effect
(1) The regulations may be expressed to have extra‑territorial effect.
(2) If they are so expressed, they have effect accordingly, and so does Division 2 of this Part.
8 Regulations expire when sanctions resolution ceases to bind Australia
(1) In so far as the regulations provide for or in relation to giving effect to a particular decision of the Security Council:
(a) they cease to have effect when Article 25 of the Charter of the United Nations ceases to require Australia to carry out that decision; and
(b) they do not revive, even if Australia again becomes required to carry out the decision.
(2) However, to avoid doubt, nothing in this section prevents the repeal of regulations, or the making of regulations that are the same in substance as regulations that have ceased to have effect because of this section.
9 Effect of regulations on earlier Commonwealth Acts and on State and Territory laws
The regulations have effect despite:
(a) an Act enacted before the commencement of this section; or
(b) an instrument made under such an Act (including such an instrument made at or after that commencement); or
(c) a law of a State or Territory; or
(d) an instrument made under such a law; or
(e) any provision of the Corporations Act 2001 or the Australian Securities and Investments Commission Act 2001, or of regulations made under those Acts; or
(f) an instrument made under such a provision.
10 Later Acts not to be interpreted as overriding this Part or the regulations
(1) An Act enacted at or after the commencement of this section is not to be interpreted as:
(a) amending or repealing, or otherwise altering the effect or operation of, a provision of this Part or of the regulations; or
(b) authorising the making of an instrument amending or repealing, or otherwise altering the effect or operation of, a provision of this Part or of the regulations.
(2) Subsection (1) does not affect the interpretation of an Act so far as that Act provides expressly for that Act, or for an instrument made under that Act, to have effect despite this Act, despite the regulations, or despite a specified provision of this Act or of the regulations.
11 Other instruments giving effect to Security Council decisions
To avoid doubt, the validity or operation of an instrument made under another Act is not affected merely because the instrument was made in connection with giving effect to a decision of the Security Council.
Division 2—Enforcing the regulations
12 Offences
(1) The regulations may prescribe penalties of not more than 50 penalty units for offences against the regulations.
(2) The limitation on penalties in subsection (1) does not prevent the regulations from requiring someone to make a statutory declaration.
13 Injunctions
(1) If a person has engaged, is engaging, or proposes to engage, in conduct involving a contravention of the regulations, a superior court may by order grant an injunction restraining the person from engaging in conduct specified in the order.
(2) An injunction may only be granted on application by the Attorney‑General.
(3) On an application, the court may, if it thinks it appropriate, grant an injunction by consent of all parties to the proceedings, whether or not the court is satisfied that subsection (1) applies.
(4) A superior court may, if it thinks it desirable, grant an interim injunction pending its determination of an application.
(5) A court is not to require the Attorney‑General or anyone else, as a condition of granting an interim injunction, to give an undertaking as to damages.
(6) A court may discharge or vary an injunction it has granted.
(7) The power to grant or vary an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in such conduct; and
(b) whether or not the person has previously engaged in such conduct.
(8) In this section:
superior court means the Federal Court of Australia or the Supreme Court of a State or Territory.
13A Invalidation of permission, authorisations etc.
A licence, permission, consent, approval or authorisation granted under the regulations (a relevant authorisation) is taken never to have been granted if information contained in, or information or a document accompanying, the application for the relevant authorisation:
(a) is false or misleading in a material particular; or
(b) omits any matter or thing without which the information or document is misleading in a material particular.
Part 4—Security Council decisions that relate to terrorism and dealings with assets
14 Definitions
In this Part:
freezable asset means an asset that:
(a) is owned or controlled by a proscribed person or entity; or
(b) is a listed asset; or
(c) is derived or generated from assets mentioned in paragraph (a) or (b).
listed asset means an asset listed by the Minister under section 15.
proscribed person or entity means:
(a) a person or entity listed by the Minister under section 15; or
(b) a person or entity proscribed by regulation under section 18.
superior court means the Federal Court of Australia or the Supreme Court of a State or Territory.
15 Listing persons, entities and assets
(1) The Minister must, by legislative instrument, list a person or entity under this section if the Minister is satisfied on reasonable grounds of the prescribed matters.
(2) The Governor‑General may make regulations prescribing the matters of which the Minister must be satisfied before listing a person or entity under subsection (1).
(3) The Minister may, by legislative instrument, list an asset, or class of asset, under this section if the Minister is satisfied on reasonable grounds of the prescribed matters.
(4) The Governor‑General may make regulations prescribing the matters of which the Minister must be satisfied before listing an asset under subsection (3).
(5) A matter must not be prescribed under subsection (2) or (4) unless the prescription of the matter would give effect to a decision that:
(a) the Security Council has made under Chapter VII of the Charter of the United Nations; and
(b) Article 25 of the Charter requires Australia to carry out; and
(c) relates to terrorism and dealings with assets.
15A Duration of listing
(1) A listing under section 15 ceases to have effect on:
(a) if no declaration under subsection (2) has been made in relation to the listing—the third anniversary of the day on which the listing took effect; or
(b) otherwise—the third anniversary of the making of the most recent declaration under subsection (2) in relation to the listing.
(2) The Minister may declare, in writing, that a specified listing under section 15 continues to have effect.
(3) The Minister must not:
(a) make a declaration under subsection (2) specifying the listing of a person or entity unless the Minister is satisfied on reasonable grounds of the matters prescribed for the purposes of subsection 15(2); or
(b) make a declaration under subsection (2) specifying the listing of an asset, or class of asset, unless the Minister is satisfied on reasonable grounds of the matters prescribed for the purposes of subsection 15(4).
(4) The regulations may prescribe a form for a declaration under subsection (2).
(5) A declaration made under subsection (2) is not a legislative instrument.
(6) To avoid doubt, subsection (1) does not prevent:
(a) the revocation, under section 16, of a listing; or
(b) the revocation of a listing by operation of section 19; or
(c) the making of a new listing that is the same in substance as another listing (whether the new listing is made or takes effect before or after the other listing ceases to have effect because of subsection (1)).
16 Minister may revoke the listing
(1) The Minister may, by legislative instrument, revoke a listing under section 15 if the Minister is satisfied that the listing is no longer necessary to give effect to a decision that:
(a) the Security Council has made under Chapter VII of the Charter of the United Nations; and
(b) Article 25 of the Charter requires Australia to carry out; and
(c) relates to terrorism and dealings with assets.
(2) The Minister may revoke the listing either at the Minister’s own instigation or on application by the listed person or entity.
17 Listed person or entity may apply to have the listing revoked
(1) A listed person or entity may apply to the Minister to have the listing revoked.
(2) The application must:
(a) be in writing; and
(b) set out the circumstances relied upon to justify the application.
(3) The Minister is not required to consider an application (the current application) by a listed person or entity under this section if the listed person or entity has made an application under this section within one year before the current application.
18 Proscription by regulation
(1) The Governor‑General may make regulations proscribing persons or entities under this section.
(2) A person or entity must not be proscribed under subsection (1) unless the proscription would give effect to a decision:
(a) that the Security Council has made under Chapter VII of the Charter of the United Nations; and
(b) that Article 25 of the Charter requires Australia to carry out; and
(c) that relates to terrorism and dealings with assets; and
(d) under which the person or entity is identified (whether in the decision or using a mechanism established under the decision) as a person or entity to which the decision relates.
(3) The regulations may proscribe persons or entities under this section by incorporating a list of persons or entities identified, either in the decision itself or using a mechanism established under the decision, as persons or entities to which the decision relates. The list may be incorporated by the regulations as it exists from time to time.
19 Effect of resolution ceasing to bind Australia
(1) In so far as a listing under section 15 gives effect to a particular decision of the Security Council, the listing is revoked when Article 25 of the Charter of the United Nations ceases to require Australia to carry out that decision.
(2) In so far as regulations proscribing a person or entity under section 18 give effect to a particular decision of the Security Council:
(a) the regulations cease to have effect when Article 25 of the Charter of the United Nations ceases to require Australia to carry out that decision; and
(b) they do not revive, even if Australia again becomes required to carry out the decision.
(3) However, to avoid doubt, nothing in this section prevents:
(aa) a listing ceasing to have effect under section 15A; or
(a) the revocation, under section 16, of a listing; or
(b) the repeal of regulations; or
(c) the making of regulations that are the same in substance as regulations that have ceased to have effect because of this section.
20 Offence—dealing with freezable assets
Offence for individuals
(1) An individual commits an offence if:
(a) the individual holds an asset; and
(b) the individual:
(i) uses or deals with the asset; or
(ii) allows the asset to be used or dealt with; or
(iii) facilitates the use of the asset or dealing with the asset; and
(c) the asset is a freezable asset; and
(d) the use or dealing is not in accordance with a notice under section 22.
(2) Strict liability applies to the circumstance that the use or dealing with the asset is not in accordance with a notice under section 22.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) It is a defence if the individual proves that the use or dealing was solely for the purpose of preserving the value of the asset.
Note: The individual bears a legal burden in relation to a matter in subsection (3) (see section 13.4 of the Criminal Code).
Penalty for individuals
(3A) An offence under subsection (1) is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding the amount worked out under subsection (3B), or both.
(3B) For the purposes of subsection (3A), the amount is:
(a) if the contravention involves a transaction or transactions the value of which the court can determine—whichever is the greater of the following:
(i) 3 times the value of the transaction or transactions;
(ii) 2,500 penalty units; or
(b) otherwise—2,500 penalty units.
Offence for bodies corporate
(3C) A body corporate commits an offence if:
(a) the body corporate holds an asset; and
(b) the body corporate:
(i) uses or deals with the asset; or
(ii) allows the asset to be used or dealt with; or
(iii) facilitates the use of the asset or dealing with the asset; and
(c) the asset is a freezable asset; and
(d) the use or dealing is not in accordance with a notice under section 22.
(3D) An offence under subsection (3C) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3E) It is a defence if the body corporate proves that:
(a) the use or dealing was solely for the purpose of preserving the value of the asset; or
(b) the body corporate took reasonable precautions, and exercised due diligence, to avoid contravening subsection (3C).
Note: The body corporate bears a legal burden in relation to a matter in subsection (3E) (see section 13.4 of the Criminal Code).
Penalty for bodies corporate
(3F) An offence under subsection (3C) is punishable on conviction by a fine not exceeding:
(a) if the contravention involves a transaction or transactions the value of which the court can determine—whichever is the greater of the following:
(i) 3 times the value of the transaction or transactions;
(ii) 10,000 penalty units; or
(b) otherwise—10,000 penalty units.
(4) Section 15.1 of the Criminal Code (extended geographical jurisdiction—category A) applies to an offence against subsection (1) or (3C).
21 Offence—giving an asset to a proscribed person or entity
Offence for individuals
(1) An individual commits an offence if:
(a) the individual, directly or indirectly, makes an asset available to a person or entity; and
(b) the person or entity to whom the asset is made available is a proscribed person or entity; and
(c) the making available of the asset is not in accordance with a notice under section 22.
(2) Strict liability applies to the circumstance that the making available of the asset is not in accordance with a notice under section 22.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty for individuals
(2A) An offence under subsection (1) is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding the amount worked out under subsection (2B), or both.
(2B) For the purposes of subsection (2A), the amount is:
(a) if the contravention involves a transaction or transactions the value of which the court can determine—whichever is the greater of the following:
(i) 3 times the value of the transaction or transactions;
(ii) 2,500 penalty units; or
(b) otherwise—2,500 penalty units.
Offence for bodies corporate
(2C) A body corporate commits an offence if:
(a) the body corporate, directly or indirectly, makes an asset available to a person or entity; and
(b) the person or entity to whom the asset is made available is a proscribed person or entity; and
(c) the making available of the asset is not in accordance with a notice under section 22.
(2D) An offence under subsection (2C) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2E) It is a defence if the body corporate proves that it took reasonable precautions, and exercised due diligence, to avoid contravening subsection (2C).
Note: The body corporate bears a legal burden in relation to a matter in subsection (2E) (see section 13.4 of the Criminal Code).
Penalty for bodies corporate
(2F) An offence under subsection (2C) is punishable on conviction by a fine not exceeding:
(a) if the contravention involves a transaction or transactions the value of which the court can determine—whichever is the greater of the following:
(i) 3 times the value of the transaction or transactions;
(ii) 10,000 penalty units; or
(b) otherwise—10,000 penalty units.
(3) Section 15.1 of the Criminal Code (extended geographical jurisdiction—category A) applies to an offence against subsection (1) or (2C).
22 Authorised dealings
(1) The owner or holder of a freezable asset may apply in writing to the Minister for permission to use or deal with the asset in a specified way.
(2) The owner or holder of an asset may apply in writing to the Minister for permission to make the asset available to a proscribed person or entity specified in the application.
(3) The Minister may, by written notice:
(a) permit a freezable asset specified in the notice to be used or dealt with in a specified way; or
(b) permit an asset specified in the notice to be made available to a proscribed person or entity specified in the notice.
(3A) The Minister may issue such a notice on his or her own initiative or upon application under subsection (1) or (2).
(4) The notice may be subject to conditions.
(5) The notice must be given to the owner or holder of the asset as soon as practicable after it is made.
(6) The Minister may delegate the Minister’s powers and functions under this section to:
(a) the Secretary of the Department; or
(b) an SES employee, or acting SES employee, in the Department.
The delegation must be in writing.
(7) The delegate must comply with any directions of the Minister in exercising powers or functions under the delegation.
22A Regulations on procedures relating to freezable assets
(1) The Governor‑General may make regulations relating to procedures relating to assets that are, may be or may become freezable assets.
(2) The regulations may provide for procedures relating to information (including personal information) relating to such assets in circumstances involving:
(a) a listing, or proposed listing, of a person, entity, asset or class of asset under section 15; or
(b) a question whether an asset is or may become a freezable asset; or
(c) an application for, or grant of, permission under section 22.
(3) Subsection (2) does not limit subsection (1).
22B Invalidation of notice for false or misleading information
A notice under section 22 is taken never to have been made if information contained in, or information or a document accompanying, the application for the notice:
(a) is false or misleading in a material particular; or
(b) omits any matter or thing without which the information or document is misleading in a material particular.
23 Part prevails over conflicting legal obligations
This Part prevails over provisions in laws of the Commonwealth, or of a State or Territory, that would otherwise require a person to act in contravention of this Part.
24 Indemnity for holder of assets
A person is not liable to an action, suit or proceeding for anything done or omitted to be done in good faith and without negligence in compliance or purported compliance with this Part.
25 Compensation for persons wrongly affected
If:
(a) the owner or controller of an asset instructs a person holding the asset to use or deal with it; and
(b) the holder refuses to comply with the instruction; and
(c) the refusal was in good faith, and without negligence, in purported compliance with this Part; and
(d) the asset was not a freezable asset; and
(e) the owner of the asset suffered loss as a result of the refusal;
the owner of the asset is entitled to be compensated by the Commonwealth for that loss.
26 Injunctions
(1) If a person has engaged, is engaging, or proposes to engage, in conduct involving a contravention of this Part, a superior court may by order grant an injunction restraining the person from engaging in conduct specified in the order.
(2) An injunction may only be granted on application by the Attorney‑General.
(3) On an application, the court may, if it thinks it appropriate, grant an injunction by consent of all parties to the proceedings, whether or not the court is satisfied that subsection (1) applies.
(4) A superior court may, if it thinks it desirable, grant an interim injunction pending its determination of an application.
(5) A court is not to require the Attorney‑General or anyone else, as a condition of granting an interim injunction, to give an undertaking as to damages.
(6) A court may discharge or vary an injunction it has granted.
(7) The power to grant or vary an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in such conduct; and
(b) whether or not the person has previously engaged in such conduct.
Part 5—Offences relating to UN sanctions
27 Offence—Contravening a UN sanction enforcement law
Individuals
(1) An individual commits an offence if:
(a) the individual engages in conduct; and
(b) the conduct contravenes a UN sanction enforcement law.
(2) An individual commits an offence if:
(a) the individual engages in conduct; and
(b) the conduct contravenes a condition of a licence, permission, consent, authorisation or approval (however described) under a UN sanction enforcement law.
(3) An offence under subsection (1) or (2) is punishable on conviction by imprisonment for not more than 10 years or a fine not exceeding the amount worked out under subsection (4), or both.
(4) For the purposes of subsection (3), the amount is:
(a) if the contravention involves a transaction or transactions the value of which the court can determine—whichever is the greater of the following:
(i) 3 times the value of the transaction or transactions;
(ii) 2,500 penalty units; or
(b) otherwise—2,500 penalty units.
Bodies corporate
(5) A body corporate commits an offence if:
(a) the body corporate engages in conduct; and
(b) the conduct contravenes a UN sanction enforcement law.
(6) A body corporate commits an offence if:
(a) the body corporate engages in conduct; and
(b) the conduct contravenes a condition of a licence, permission, consent, authorisation or approval (however described) under a UN sanction enforcement law.
(7) Subsection (5) or (6) does not apply if the body corporate proves that it took reasonable precautions, and exercised due diligence, to avoid contravening that subsection.
Note: The body corporate bears a legal burden in relation to a matter in subsection (7) (see section 13.4 of the Criminal Code).
(8) An offence under subsection (5) or (6) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(9) An offence under subsection (5) or (6) is punishable on conviction by a fine not exceeding:
(a) if the contravention involves a transaction or transactions the value of which the court can determine—whichever is the greater of the following:
(i) 3 times the value of the transaction or transactions;
(ii) 10,000 penalty units; or
(b) otherwise—10,000 penalty units.
Definitions
(10) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
28 Offence—False or misleading information given in connection with a UN sanction enforcement law
(1) A person commits an offence if:
(a) the person gives information or a document to a Commonwealth entity; and
(b) the information or document is given in connection with the administration of a UN sanction enforcement law; and
(c) the information or document:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information or document is misleading.
Penalty: Imprisonment for 10 years or 2,500 penalty units, or both.
(2) A person (the first person) commits an offence if:
(a) the first person gives information or a document to another person; and
(b) the first person is reckless as to whether the other person or someone else will give the information or document to a Commonwealth entity in connection with the administration of a UN sanction enforcement law; and
(c) the information or document:
(i) is false or misleading; or
(ii) omits any matter or thing without which the information or document is misleading.
Penalty: Imprisonment for 10 years or 2,500 penalty units, or both.
(3) Subsection (1) or (2) does not apply:
(a) as a result of subparagraph (1)(c)(i) or (2)(c)(i)—if the information or document is not false or misleading in a material particular; or
(b) as a result of subparagraph (1)(c)(ii) or (2)(c)(ii)—if the information or document did not omit any matter or thing without which the information or document is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Geographical application of offences
(4) Section 15.1 of the Criminal Code (extended geographical jurisdiction—category A) applies to an offence against subsection (1) or (2).
Part 6—Information relating to UN sanctions
29 CEO of Commonwealth entity may give information or document
(1) The CEO of a Commonwealth entity may give any information or document to the CEO of a designated Commonwealth entity for a purpose in connection with the administration of a UN sanction enforcement law.
(2) Subsection (1) applies despite any other law of the Commonwealth, a State or a Territory.
30 Power to require information or documents to be given
(1) The CEO of a designated Commonwealth entity may, for the purpose of determining whether a UN sanction enforcement law has been or is being complied with, give a person a written notice requiring the person to do either or both of the following:
(a) to give the CEO information of the kind, by the time and in any manner or form, specified in the notice;
(b) to give the CEO documents of the kind, by the time and in any manner, specified in the notice.
(2) The person must comply with the notice despite any other law of the Commonwealth, a State or a Territory.
(3) The time specified in the notice must be reasonable, having regard to all the circumstances.
(4) The person may, before the time specified in the notice, request the CEO to extend the time by which the information or documents must be given.
(5) The CEO may, by written notice given to the person, vary the notice under subsection (1) to specify a later time by which the information or documents must be given.
(6) Subsection (5) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to a notice under subsection (1).
Note: Subsection 33(3) of the Acts Interpretation Act 1901 deals with revocation and variation etc. of instruments.
(7) Subsection (1) does not apply if:
(a) the person is the Commonwealth or a Commonwealth entity; or
(b) the person:
(i) is, or has at any time been, an officer of a Commonwealth entity; and
(ii) obtained or generated the information or document in the course of carrying out his or her duties as an officer of the Commonwealth entity.
31 Information may be required to be given on oath
(1) The CEO may require the information to be verified by, or given on, oath or affirmation.
(2) The oath or affirmation is an oath or affirmation that the information is true.
32 Offence for failure to comply with requirement
(1) A person commits an offence if:
(a) the person has been given a notice under section 30; and
(b) the person does not comply with the notice.
Penalty: Imprisonment for 12 months.
(2) Section 15.1 of the Criminal Code (extended geographical jurisdiction—category A) applies to an offence against subsection (1).
33 Self‑incrimination not an excuse
(1) An individual is not excused from giving information or a document under section 30 on the ground that the information, or the giving of the document, might tend to incriminate the individual or otherwise expose the individual to a penalty or other liability.
(2) However, neither the information given nor the giving of the document is admissible in evidence against the individual in any criminal proceedings, or in any proceedings that would expose the individual to a penalty, other than proceedings for an offence against:
(a) section 28 (false or misleading information given in connection with a UN sanction enforcement law); or
(b) section 32 (failure to comply with requirement to give information or document).
34 CEO may copy documents
If a person gives a document to the CEO of a designated Commonwealth entity under section 30, the CEO:
(a) may take and keep a copy of the document; and
(b) must return the document to the person within a reasonable time.
35 Further disclosure and use of information and documents
Disclosure and use of information etc. within entity
(1) An officer of a designated Commonwealth entity may do any of the following for a purpose in connection with the administration of a UN sanction enforcement law or with a decision of the Security Council referred to in section 6:
(a) copy, make a record of or use, any information or document;
(b) disclose any information, or give any document, to another officer of that entity.
Disclosure outside of entity
(2) A CEO of a designated Commonwealth entity may disclose any information or give any document to any of the following for a purpose in connection with the administration of a UN sanction enforcement law or with a decision of the Security Council referred to in section 6:
(a) a Minister of the Commonwealth, a State or a Territory;
(b) the CEO of another Commonwealth entity;
(c) a State or Territory entity;
(d) a foreign government entity;
(e) a public international organisation;
(f) a person specified in an instrument under subsection (3).
(3) The Minister may, by legislative instrument, specify a person for the purposes of paragraph (2)(f).
(4) Subsections (1) and (2) apply despite any other law of the Commonwealth, a State or a Territory.
36 Protection from liability
(1) A person who, in good faith, gives, discloses, copies, makes a record of or uses information or a document under section 29, 30, 34 or 35 is not liable:
(a) to any proceedings for contravening any other law because of that conduct; or
(b) to civil proceedings for loss, damage or injury of any kind suffered by another person because of that conduct.
(2) Subsection (1) does not prevent the person from being liable to a proceeding for conduct of the person that is revealed by the information or document.
37 Retention of records and documents
(1) A person who applies for a licence, permission, consent, authorisation or approval under a UN sanction enforcement law (a relevant authorisation) must retain any records or documents relating to that application for the period of 5 years beginning on:
(a) if the relevant authorisation was granted—the last day on which an action to which the relevant authorisation relates was done; or
(b) if the relevant authorisation was not granted—the day on which the application was made.
(2) A person who is granted a licence, permission, consent, authorisation or approval under a UN sanction enforcement law (a relevant authorisation) must retain any records or documents relating to the person’s compliance with any conditions to which the relevant authorisation is subject for the period of 5 years beginning on the last day on which an action to which the relevant authorisation relates was done.
Note: A person may commit an offence if the person fails to give under section 30 a record or document that is required to be retained under this section: see section 32.
38 Delegation
(1) The CEO of a Commonwealth entity may, by written instrument, delegate all or any of his or her powers or functions under this Part to:
(a) an SES employee or acting SES employee of the entity; or
(b) an employee of the entity of equivalent rank to an SES employee.
(2) In exercising powers or performing functions delegated under subsection (1), the delegate must comply with any directions of the CEO.
Part 7—Miscellaneous
38A Effect of certain listings
(1) In this section:
listing:
(a) means one of the following as in force at any time before the commencement of this section:
(i) a listing under subsection 15(1) of a person or entity;
(ii) a listing under subsection 15(3) of an asset or class of asset; and
(b) to avoid doubt, includes a listing given effect by regulation 4 of the previous regulations.
previous regulations means the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002.
registered means registered on:
(a) the Federal Register of Legislation (within the meaning of the Legislation Act 2003); or
(b) the Register (within the meaning of the Legislative Instruments Act 2003 as in force before 5 March 2016).
(2) Subsection (4) applies if, apart from this section, a listing would not have applied, or been enforceable, in relation to a person at a time before the commencement of this section only because the listing was not registered at the time.
(3) Subsection (4) also applies if, apart from this section, a listing would not have applied in relation to a person at a time before the commencement of this section only because the listing was taken to be repealed by paragraph 32(2)(b) of the Legislative Instruments Act 2003 (as in force before 5 March 2016) because the listing had not been registered by a particular time.
(4) The listing is taken, for all purposes, to have been registered at the time.
(5) To avoid doubt:
(a) anything done or purported to have been done by a person that would have been invalid except for subsection (4) is taken always to have been valid, despite any effect that may have on the accrued rights of any person; and
(b) this section applies in relation to civil and criminal proceedings, including proceedings that are pending or concluded.
39 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.