Charter of the United Nations Act 1945 Listing 2010 (No 1)

The central concept is ‘listing’ under section 15 of the Charter of the United Nations Act 1945. The Act gives the Minister for Foreign Affairs power to list persons or entities by legislative instrument where necessary to give effect to a decision of the UN Security Council under Chapter VII of the UN Charter. The specific decision here is Security Council Resolution 1373, adopted unanimously after the 11 September 2001 attacks, which imposes binding obligations on all UN member states to suppress the financing of terrorism. Paragraph 1(c) requires states to freeze without delay funds and other financial assets of persons who commit, or attempt to commit, terrorist acts; who participate in or facilitate the commission of such 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. The listing instruments state that the designation of each named individual is ‘necessary to give effect’ to that paragraph. The note to the 2010 instrument refers to Regulation 20 of the Charter of the United Nations (Dealing with Assets) Regulations 2008, which imposes a further condition: the Minister must be satisfied that the person is ‘mentioned in’ paragraph 1(c). This is a threshold condition, but the instrument itself does not disclose the material on which the Minister relied to reach that satisfaction.

A key concept is ‘assets’ as defined in the Act. The term is broad, covering not just cash and bank accounts but also funds, financial assets, economic resources (including oil, minerals, real estate), property of every description, and any interest in property. The prohibition on ‘dealing’ extends to transferring, converting, disposing of, or moving assets; making funds or other assets available directly or indirectly to or for the benefit of a listed person; and doing any act that in any way facilitates such dealings. The concept is strict‑liability: a person can be guilty even if they did not know the counterparty was listed, although knowledge may affect penalty.

The listing also depends on the concept of ‘ownership or control’. A person or entity can be listed if they are owned or controlled by a person caught by paragraph 1(c), or if they act on behalf of or at the direction of such a person. This means the net can extend beyond the primary target to their family members, associates, and corporate entities. In the present lists, all 16 individuals are listed as primary persons, but the concepts of control and ownership mean financial institutions must also freeze any assets belonging to organisations in which these individuals hold a significant interest. Because several of the listed persons have addresses recorded as ‘Unknown’, it is possible that the Minister designated them without precise current contact details, making compliance more difficult for third parties who may hold assets in the name of an alias or a related entity whose connection to the listed person is not immediately apparent.

Another concept is the temporary nature of the listing: a listing remains in force until it is revoked by the Minister or set aside by a court. The Act provides for de‑listing applications, but the procedure is not defined in the instrument. The Minister must de‑list if satisfied that the person is no longer covered by the relevant UNSC resolution. Neither the 2010 listing nor the 2009 listing contains a sunset clause or review date. They continue indefinitely until cancelled. This creates a legal risk for listed persons who may have been wrongly included: they bear the burden of initiating a de‑listing process, with no automatic periodic review.

The immediate and primary targets are the 16 named individuals. They lose the ability to access any funds or economic resources they own or control within Australia’s jurisdiction. This includes bank accounts, shares, real property, insurance policies, superannuation holdings, and even personal effects of significant value. Because each individual is a Spanish national currently imprisoned (in most cases) or with an unknown address, the practical effect may be limited domestically if they hold no assets in Australia. However, the listing extends to assets held by any person or entity acting on their behalf. This could affect family members, friends, lawyers, or corporate entities in Spain or elsewhere who receive funds from Australia or hold assets connected to the listed person.

The listing also directly affects Australian financial institutions such as banks, credit unions, building societies, foreign exchange dealers, remittance providers, and digital currency exchanges. These entities are required by the Act and the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth) to screen all customers and transactions against the consolidated sanctions list maintained by the Australian Department of Foreign Affairs and Trade (DFAT). Any match - whether by name, alias, date of birth, or passport number - triggers a mandatory freeze and a report to the Australian Federal Police and AUSTRAC. The costs of compliance are not trivial: institutions must invest in name‑screening software, maintain up‑to‑date lists (which change frequently as new listings and de‑listings occur), and train staff to handle ambiguous matches. False positives require manual review, and a failure to freeze when required carries criminal penalties.

Other businesses are affected if they provide financial services or trade in goods that could be considered economic resources. Real estate agents, lawyers (when handling settlement funds), accountants, and even retailers who accept large cash payments may inadvertently deal with a listed person. The Act applies to ‘any person’, not just financial institutions. An individual who rents a property to a listed person’s family member could be committing an offence if the rent constitutes making an economic resource available. Lawyers who receive funds from a listed person for legal fees must seek a permit before accepting payment. The listing also affects foreign governments and international organisations that operate in Australia; they must ensure their programmes do not inadvertently benefit a listed person.

Because the listed persons are Spanish nationals with no known Australian addresses, the practical exposure for Australian persons is low unless the individuals have hidden assets or associates in Australia. Nonetheless, the listing imposes a continuing due diligence obligation. Any time a new customer opens an account or a transaction is processed, the institution must check against the list. The cost is diffuse across the financial system but concentrated on compliance departments. There is no compensation for the cost of screening or freezing. The benefit is the prevention of terrorist financing, which is a public good, but the instrument itself does not quantify that benefit or provide any evidence that these particular individuals pose a current threat to Australia.

The principal duty is the prohibition on dealing with the assets of a listed person. Section 20 of the Charter of the United Nations Act 1945 makes it an offence to directly or indirectly make an asset available to a listed person, to use or deal with an asset held by or on behalf of a listed person, or to facilitate such dealing, unless a permit has been issued. The duty applies to all persons (natural and corporate) in Australia and to Australian citizens and bodies corporate outside Australia. It is a strict liability offence for the physical elements, meaning that a person can be liable even if they did not know the counterparty was listed. However, the fault element for the ‘dealings’ part is intention or recklessness as to making the asset available; the prosecution does not need to prove knowledge of the listing. The practical consequence is that financial institutions must have robust screening systems; an employee who fails to identify a match can expose the institution to prosecution.

Another duty is the obligation to freeze assets immediately upon becoming aware, or having reasonable grounds to suspect, that a person is listed. There is no grace period. If a bank discovers that an existing customer appears on the list, it must freeze all accounts and notify the Minister and the AFP. The bank cannot simply close the account or return the funds; it must hold them frozen subject to any subsequent permit or de‑listing. The bank also has a duty not to tip off the listed person: it cannot inform the customer of the freezing without risking criminal liability. This can create tension with the customer’s right to know, but the Act provides that tipping off is an offence.

Listed persons have rights, although the instrument does not enumerate them. Under the Act, a listed person may apply for a permit to access frozen assets for basic expenses (such as food, rent, medicines, legal fees) or for extraordinary expenses. The Minister has discretion to grant a permit if satisfied that the funds are needed for such purposes and that the expenditure does not contravene the UNSC resolution. The application process is administrative and can be slow. Listed persons also have the right to seek judicial review of the listing in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 or under the original jurisdiction of the High Court. However, the scope of review is limited: the Court can consider whether the Minister had jurisdiction, whether the listing was for a proper purpose, and whether there was procedural fairness. But because the listing is a legislative instrument (not a reviewable decision under the ADJR Act in some interpretations), the avenue may be limited. The instrument itself does not provide for any internal merits review or appeal to a tribunal.

Third parties who hold assets of a listed person have a duty to report the asset to the Minister and may also apply for a permit. An individual who mistakenly transfers funds to a listed person may seek a permit to recover the funds, but the process is not straightforward. The rights are procedural, not substantive; there is no right to compensation for losses caused by a mistaken listing or by the freezing itself.

The Act creates significant criminal penalties for contravening the asset‑freeze provisions. Section 20 provides that a person who intentionally or recklessly deals with an asset of a listed person is liable to imprisonment for up to 10 years or a fine of up to $275,000 (for an individual) or 2,500 penalty units for a body corporate (currently $550,000). The penalty is at the higher end for white‑collar offences. If the dealing is reckless, the penalty is imprisonment for up to 5 years. Additionally, the Act imposes a strict liability element for some aspects: for example, the offence of making assets available does not require proof that the accused knew the person was listed, only that they intended to make the asset available and that the asset was in fact made available to a listed person. A corporation can be liable for the acts of its employees, and directors could be personally liable if they were involved.

Enforcement is primarily by the Australian Federal Police and the Commonwealth Director of Public Prosecutions. The Minister can also issue remedial directions, but the Act does not provide for civil penalties or infringement notices for dealing with listed assets; it relies on criminal sanctions. The freezing obligation is self‑executing: there is no need for a court order to freeze assets, but the AFP can obtain freezing orders under the Proceeds of Crime Act 2002 if necessary. Non‑compliance by financial institutions can also lead to regulatory action by AUSTRAC for failure to maintain appropriate AML/CTF programmes, which carry civil penalties and potential licence suspension.

There is no penalty specific to this listing instrument. The penalties are in the parent Act. The instrument simply triggers the application of those penalties. The listed persons themselves are not penalised by the listing; they are merely restricted in their access to assets. However, if a listed person attempts to conceal or transfer assets after the listing, they could be charged with an offence. The instrument does not create any additional enforcement powers, but it does require the Minister to maintain a list and publish it. Failure to list a person who should be listed could expose Australia to criticism from the UN Security Council, but no domestic penalty attaches to the Minister.

This listing operates within a broader legislative framework. The Charter of the United Nations Act 1945 is the primary domestic statute for implementing mandatory UN Security Council sanctions. It sits alongside the Autonomous Sanctions Act 2011, which covers sanctions imposed by Australia outside of a UNSC resolution (such as for foreign affairs reasons). For terrorism‑related listings under UNSCR 1373, the Act is the sole vehicle. The Charter of the United Nations (Dealing with Assets) Regulations 2008 provides the procedural detail for permits, de‑listing, and reporting. Regulation 20 specifically requires the Minister to be satisfied that the person is mentioned in paragraph 1(c) before listing, and the note in the instrument refers to that regulation.

The listing also interacts with the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (AML/CTF Act). Section 41 of the AML/CTF Act obliges reporting entities to identify and freeze assets of persons on the sanctions list maintained by DFAT. This list is derived from listings under the Charter of the United Nations Act. The AML/CTF Act also imposes ongoing customer due diligence requirements that capture potential matches with listed persons. A bank that fails to screen against the list could face both a criminal offence under the Charter Act and a civil penalty under the AML/CTF Act.

The Criminal Code Act 1995 contains offences for financing terrorism (Divisions 101 and 103) that overlap with the asset‑freeze prohibitions. If a person provides funds to a listed person knowing that the funds will be used for a terrorist act, they could be charged under either regime. The sanctions regime is often easier to prove because it does not require proof of the ultimate terrorist purpose; it is enough that the counterparty is listed. Consequently, the listing instruments are a powerful tool for the prosecution: they eliminate the need to prove the recipient’s involvement in terrorism beyond the listing.

The Interaction with the Privacy Act 1988 is notable. Financial institutions that freeze accounts and report to the authorities may be disclosing personal information without the customer’s consent. However, the Charter Act and the AML/CTF Act create an exception for compliance with a legal obligation. The Privacy Act s 7B provides that an act done in the course of complying with a law of the Commonwealth is not an interference with privacy. This shields banks from civil liability for making disclosures that would otherwise be a breach of privacy. There is no corresponding right for the listed person to access the information held about them by the bank if it could prejudice security.

The listing also interacts with foreign laws. Because the listed persons are Spanish nationals, the listing may duplicate or conflict with sanctions imposed by the European Union and Spain. Australia’s listing does not create an obligation on Spanish banks unless they have a branch in Australia or the assets are in Australia. However, the Australian listing could trigger reciprocal requests for assistance under mutual legal assistance treaties. There is no provision in the instrument for coordination with foreign authorities; that is left to the Minister and DFAT.

The source document consists of two separate instruments: the Charter of the United Nations Act 1945 Listing 2010 (No 1) and the Charter of the United Nations Act 1945 List 2009 (No 1). The 2010 instrument is a standalone new listing; it does not purport to amend or revoke the 2009 list. Each list stands on its own, and any person appearing on either list is subject to the same obligations. There is no indication in the source that the 2009 list has been amended by the 2010 instrument. The 2009 list is reproduced in full within the same document, suggesting that the publication combined both lists for convenience.

The 2010 instrument states its name and commencement: it commences on gazettal, meaning it took legal effect when published in the Commonwealth Gazette. No earlier or later commencement date is given. The instrument does not contain a sunset date. The 2009 list does not have a commencement clause in the excerpt, but presumably it also commenced on gazettal.

Neither instrument records any amendments to previous listings. The parent Act has been amended multiple times since 1945, most significantly by the Charter of the United Nations Amendment Act 2001 (No 132 of 2001) that introduced the section 15 listing power and the asset‑freeze provisions. The Regulations have also been amended: the Charter of the United Nations (Dealing with Assets) Regulations 2008 replaced earlier regulations. However, these amendments are not recorded in the listing instruments themselves.

Practitioners should note that the consolidated sanctions list maintained by DFAT is updated regularly, and older instruments may be superseded by later ones. The 2009 list may have been subsequently revoked or consolidated into a later list. The source does not indicate whether the 2009 list is still in force. The prudent approach is to always check the current consolidated list rather than relying on this historical instrument. The instrument does not provide a history of de‑listings or revocations for the individuals named.

The source document does not refer to any litigation, and I am bound not to name cases the source does not name. It is nonetheless useful to note that listings under the Charter of the United Nations Act have been challenged in Australian courts in other contexts, usually on grounds of procedural fairness and jurisdictional error. The High Court has considered the limits of the Minister’s power under section 15 and the interaction with the UN Security Council resolutions. However, there is no record of litigation specifically concerning the individuals named in the 2010 or 2009 listings.

Given that all named persons are foreign nationals imprisoned in Spain or France with unknown Australian connections, a challenge in Australian courts is unlikely unless they have assets here or a direct interest in Australian proceedings. The listing does not impose any personal liability on the individuals; it only restricts dealings with their assets. If they have no assets in Australia, the listing is essentially symbolic from a domestic enforcement perspective.

From a procedural standpoint, a listed person could potentially challenge the Minister’s satisfaction that they are mentioned in paragraph 1(c). The listing instrument does not provide evidence, but the Minister may have relied on intelligence or diplomatic cables. A court could examine whether the Minister considered irrelevant matters or failed to consider relevant ones. However, the instrument is a legislative instrument, and the threshold for judicial review of such instruments is high. The Act does not provide for a right of hearing before listing, and the Minister is not required to give reasons. This has been a source of controversy in international law, but no challenge specific to this instrument is recorded in the source.

Several traps await the unwary. First, the listing includes aliases for some individuals but not for others. For example, Miguel Corta Carrion has an alias ‘Mikel Corta Carrion’ noted. Jose Antonio Urruticoechea Bengoechea has aliases ‘Jose Antonio Urruticoetxea Bengoechea’. But for many listed persons, the alias field says ‘N/A’. This does not mean the person has no alternate names; it may mean the Minister did not have that information. A financial institution screening against the list must still check name variations, date of birth, and address. A person with a common Spanish name like Jose Maria could produce false positives. If a bank freezes the wrong person’s funds, it could face a claim for damages for wrongful interference with property, but the Act provides a defence if the bank acted in good faith. However, the bank cannot simply assume that a name match is not the listed person; it must investigate.

Second, the addresses given include ‘Prison in Spain’ or ‘Prison in France’ or ‘Unknown’. If a listed person is later released from prison, their address changes, and a bank that relied on the prison address might not detect a new account opened under a different address. The listing does not require the Minister to update addresses. The obligation to screen is ongoing; a bank must check against the list regardless of the address discrepancy. A new account in a different city could still belong to the listed person, and the bank could face liability if it fails to freeze.

Third, the instrument does not specify which entities, if any, are owned or controlled by these persons. The Act extends the freeze to any entity owned or controlled by a listed person, but the listing does not name those entities. This places a heavy due diligence burden on financial institutions to investigate potential corporate interests. For instance, if a listed person is a director or shareholder of a Spanish company that has an Australian subsidiary, the subsidiary’s assets could be frozen. The bank must make inquiries, but tipping off is an offence. This creates a Catch‑22: the bank cannot ask the customer whether they are connected to the listed person without risking a tipping‑off charge.

Fourth, the listing is retrospective: it catches assets held before the listing was made. A bank that held accounts for a listed person before the listing must freeze them immediately upon gazettal. There is no amnesty period to allow the customer to withdraw funds. Any transactions that occurred after gazettal but before the bank became aware of the listing could still be prosecuted if the bank was reckless. The strict liability elements mean that prompt updating of screening systems is critical.

Fifth, the permit process is a trap for the unwary. A lawyer who receives a retainer from a listed person’s family member for legal fees must apply for a permit before accepting the funds. The application must be made to DFAT, and the Minister has 28 days to decide. In the meantime, the funds cannot be released. If the lawyer releases the funds without a permit, they commit an offence. Similarly, a person who wants to pay utility bills for a listed person’s family needs a permit. The permit regime is narrow; it does not cover ordinary business transactions.

Lastly, the listing may affect insurance policies. If a listed person is a beneficiary under a life insurance policy, the insurer cannot payout the proceeds without a permit. The policyholder (who may not be listed) could be prevented from exercising their rights under the contract. This can cause significant disruption to contractual relations.

Compliance begins with knowing the list. The consolidated list is published on the DFAT website and must be checked regularly. Financial institutions should integrate a sanctions‑screening tool that updates automatically whenever DFAT issues a new listing. The 2010 and 2009 lists are historical, but any person who has not been de‑listed remains on the current consolidated list. Therefore, the first step is to verify the current status of these individuals. If they still appear, all existing customers must be screened against the list. A risk‑based approach is not sufficient for sanctions screening; the law requires strict compliance.

When a potential match is identified, the institution should freeze the account or asset immediately and notify DFAT and the AFP. Do not notify the customer. If the match is a false positive (e.g., a similar name but different date of birth), the institution can release the freeze after confirming the identity, but it should document the reason and retain records. The Australian Government provides guidance on how to handle ambiguous matches.

If the institution determines that the customer is indeed a listed person, it must not deal with the assets. No new transactions can be processed, including incoming deposits, unless a permit has been obtained. The institution should separately monitor for any attempt to move funds. If the listed person applies for a permit to access basic expenses, the institution should assist by providing information to the Minister but must not release funds until the permit is granted.

For businesses that are not financial institutions, the duty arises only if they have assets belonging to a listed person. If a real estate agent manages a rental property owned by a listed person, they must freeze the rent proceeds and may need a permit to pay expenses like repairs. In practice, such businesses should screen the owners of properties they manage and the beneficial owners of companies with whom they contract. The cost of screening is an unavoidable compliance expense.

De‑listing is possible. If a person believes they have been wrongly listed, they can apply to the Minister for removal. The application should provide evidence that the person is not mentioned in paragraph 1(c). The Minister must reconsider the listing, but there is no time limit. Judicial review is a last resort. Listed persons should also consider applying for a permit for legal fees to fund a challenge.

Finally, all entities should maintain a compliance register documenting the date of screening, the results, and any actions taken. The register can serve as evidence of good faith if a dispute arises. Directors must be aware that they have a personal duty to ensure the organisation complies; ignorance is no defence. The best defence is a documented, automated, and audited screening process.