These Regulations are the Charter of the United Nations (Sanctions—Somalia) Regulations 2008.
4 Definitions
In these Regulations:
Act means the Charter of the United Nations Act 1945.
AMISOM means the African Union Mission in Somalia.
Australian aircraft has the same meaning as in the Criminal Code.
Australian ship has the same meaning as in the Criminal Code.
Committee means the Committee established under paragraph 11 of Resolution 751.
controlled asset means an asset owned or controlled, directly or indirectly, by:
(a) a designated person or entity; or
(b) a person or entity acting on behalf of, or at the direction of, a designated person or entity.
designated person or entity means a person or entity that:
(a) the Committee designates for paragraph 3 of Resolution 1844; or
(b) the Security Council decides is subject to the asset freeze measures relating to Somalia.
Note: The list of designated persons and entities maintained by the Committee could in 2021 be viewed on the United Nations’ website (http://www.un.org).
EUTM means the European Union Training Mission.
export sanctioned goods has the meaning given by regulation 5.
import sanctioned goods has the meaning given by regulation 5A.
paramilitary equipment means any of the following:
(a) batons, clubs, riot sticks and similar devices of a kind used for law enforcement purposes;
(b) body armour, including:
(i) bullet‑resistant apparel; and
(ii) bullet‑resistant pads; and
(iii) protective helmets;
(c) handcuffs, leg irons and other devices used for restraining prisoners;
(d) riot protection shields;
(e) whips.
prohibited service to a designated person or entity has the meaning given by regulation 6.
prohibited supply to a designated person or entity has the meaning given by regulation 6A.
protective clothing includes flak jackets and military helmets.
resolution means a resolution adopted by the Security Council.
Resolution 751 means Resolution 751 (1992) of the Security Council, adopted on 24 April 1992.
Resolution 1844 means Resolution 1844 (2008) of the Security Council, adopted on 20 November 2008.
Resolution 1846 means Resolution 1846 (2008) of the Security Council, adopted on 2 December 2008.
Resolution 2551 means Resolution 2551 (2020) of the Security Council, adopted on 12 November 2020.
sanctioned service has the meaning given by regulation 7.
sanctioned supply has the meaning given by regulation 7A.
UNSOM means the United Nations Assistance Mission in Somalia.
weapons or military equipment includes the following:
(a) weapons;
(b) ammunition;
(c) military vehicles and equipment;
(d) paramilitary equipment;
(e) spare parts for the things mentioned in paragraphs (a) to (d).
working day means a day that is not a Saturday, Sunday or public holiday.
5 Definition of export sanctioned goods
Export sanctioned goods means weapons or military equipment.
5A Definition of import sanctioned goods
Import sanctioned goods means charcoal.
6 Definition of prohibited service to a designated person or entity
A person provides a prohibited service to a designated person or entity if:
(a) the person directly or indirectly provides the designated person or entity with:
(i) technical assistance or training; or
(ii) financial assistance, including investment, brokering or other financial services; or
(iii) other assistance; and
(b) the assistance or training mentioned in paragraph (a) relates to:
(i) military activities; or
(ii) the supply, sale, transfer, manufacture, maintenance or use of export sanctioned goods.
6A Definition of prohibited supply to a designated person or entity
Prohibited supply to a designated person or entity means the direct or indirect supply, sale or transfer to a designated person or entity of export sanctioned goods.
7 Definition of sanctioned service
Sanctioned service means:
(a) the provision to Somalia of financing for the acquisition or delivery of export sanctioned goods; or
(b) the direct or indirect provision to Somalia of the following, in relation to military activities:
(i) technical advice;
(ii) financial or other assistance;
(iii) training.
7A Definition of sanctioned supply
A person makes a sanctioned supply if:
(a) the person supplies, sells or transfers goods to another person; and
(b) the goods are export sanctioned goods; and
(c) as a direct or indirect result of the supply, sale or transfer, the goods are transferred to Somalia.
Part 2—UN sanction enforcement laws
Division 2.1—Sanctioned supply and sanctioned services to Somalia
8 Prohibitions relating to a sanctioned supply
(1) A person contravenes this subregulation if:
(a) the person makes a sanctioned supply; and
(b) the sanctioned supply is not an authorised supply under subregulation (6).
(2) For an offence under section 27 of the Act that relates to a contravention of subregulation (1) by an individual, strict liability applies to the circumstance that the making of the sanctioned supply is not authorised by a permit under regulation 9.
(3) A person contravenes this subregulation if:
(a) the person (whether or not in Australia, and whether or not an Australian citizen) uses the services of an Australian ship or an Australian aircraft to transport export sanctioned goods in the course of, or for the purpose of, making a sanctioned supply; and
(b) the sanctioned supply is not an authorised supply under subregulation (6).
(4) A body corporate contravenes this subregulation if:
(a) the body corporate has effective control over the actions of another body corporate or entity, wherever incorporated or situated; and
(b) the other body corporate or entity makes a sanctioned supply; and
(c) the sanctioned supply is not an authorised supply under subregulation (6).
(5) Section 15.1 of the Criminal Code (Extended geographical jurisdiction—category A) applies to an offence under section 27 of the Act that relates to a contravention of subregulation (1), (3) or (4).
Note: Subregulation (5) has the effect that the offence has extraterritorial operation.
(6) An authorised supply is a sanctioned supply that is authorised by:
(a) a permit under regulation 9; or
(b) for a supply, sale or transfer in or from a foreign country—a permit:
(i) granted by the foreign country; and
(ii) properly granted by the foreign country; and
(iii) granted in accordance with the foreign country’s obligations under resolutions relating to Somalia, as existing from time to time.
Note: Resolutions relating to Somalia could in 2021 be viewed on the United Nations’ website (http://www.un.org).
(7) A defendant to a charge under section 27 of the Act that relates to subregulation (1), (3) or (4) bears an evidential burden in relation to the matter in subparagraph (6)(b)(i).
Note: See section 13.3 of the Criminal Code.
(8) For an offence under section 27 of the Act that relates to subregulation (1), (3) or (4), a permit is taken not to have been properly granted for subparagraph (6)(b)(ii) if the prosecution shows that the permit was granted on the basis of:
(a) false or misleading information provided by any person; or
(b) corrupt conduct by any person.
Note: This regulation is specified as a UN sanction enforcement law in the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008.
9 Permit to make a sanctioned supply
(1) A person may apply to the Minister for a permit to make a sanctioned supply.
(2) The Minister may grant the permit only if the sanctioned supply is one of the following:
(a) a supply (other than a supply covered by paragraph (b), (c) or (d)) intended solely for the development of the Somali National Security Forces, or Somalia security sector institutions other than those of the Federal Government of Somalia, to provide security for the Somali people;
(b) a supply of goods set out in Annex A to Resolution 2551, that:
(i) is intended solely for the development of the Somali National Security Forces, or Somalia security sector institutions other than those of the Federal Government of Somalia, to provide security for the Somali people; and
(ii) has been approved in advance by the Committee;
(c) a supply, by a Member State or an international, regional or sub‑regional organisation, of goods set out in Annex B to Resolution 2551:
(i) that is intended solely for the development of the Somali National Security Forces, to provide security for the Somali people; and
(ii) of which the Committee has been notified, at least 5 working days in advance, by the Federal Government of Somalia or the supplying Member State or organisation;
(d) a supply, by a Member State or an international, regional or sub‑regional organisation, of goods set out in Annex B to Resolution 2551:
(i) that is intended solely for the purposes of helping develop Somali security sector institutions other than those of the Federal Government of Somalia, to provide security for the Somali people; and
(ii) of which the Committee was notified by the supplying Member State or organisation and did not, within 5 working days after receiving the notification, make a negative decision; and
(iii) of which the Federal Government of Somalia was informed by the supplying Member State or organisation, in parallel with the notification to the Committee and within 5 working days in advance of the supply;
(e) a supply intended solely for the support of, or use by, any of the following:
(i) United Nations personnel, including UNSOM;
(ii) AMISOM;
(iii) AMISOM’s strategic partners, operating solely under the latest African Union strategic concept of operations and in cooperation and coordination with AMISOM;
(iv) the EUTM in Somalia;
(f) a supply destined for the sole use of Member States or international, regional or subregional organisations undertaking measures to suppress acts of piracy and armed robbery at sea off the coast of Somalia, if:
(i) the Federal Government of Somalia requests the measures, and has given the Secretary‑General notice of the request; and
(ii) the measures are consistent with applicable international humanitarian and human rights law;
(g) a supply of protective clothing temporarily exported to Somalia by any of the following, for their personal use only:
(i) a member of the personnel of the United Nations;
(ii) a representative of the media;
(iii) a humanitarian or development worker;
(iv) a person associated with a person mentioned in subparagraphs (i) to (iii);
(h) a supply of non‑lethal military equipment by a Member State or an international, regional or subregional organisation:
(i) intended solely for humanitarian or protective use; and
(ii) for which notice has been given to the Committee by the Member State or organisation at least 5 days in advance;
(i) a supply of goods set out in Part I of Annex C to Resolution 2551, for which the Minister is satisfied that:
(i) the goods will not be used in the manufacture in Somalia of an improvised explosive device; or
(ii) there is no significant risk that the goods may be used in the manufacture in Somalia of an improvised explosive device.
(2A) If the Minister grants a permit for a supply mentioned in paragraph (2)(i), the Minister must notify the Committee of the supply within 15 working days after the supply takes place.
(3) A notice or request for advance approval to the Committee mentioned in subregulation (2) or (2A) must include all relevant information about the supply, in accordance with the following:
(a) resolutions relating to Somalia, as existing from time to time;
(b) the Guidelines of the Committee for the Conduct of its Work, as in force from time to time.
Note: Resolutions relating to Somalia, and the Guidelines, could in 2021 be viewed on the United Nations’ website (http://www.un.org).
(4) The permit is subject to any conditions specified in the permit.
Note: Section 13A of the Act applies to a permit granted under this regulation.
10 Prohibitions relating to a sanctioned service
(1) A person contravenes this subregulation if:
(a) the person provides a sanctioned service; and
(b) the service is not an authorised service under subregulation (6).
(2) For an offence under section 27 of the Act that relates to a contravention of subregulation (1) by an individual, strict liability applies to the circumstance that the provision of a sanctioned service is not authorised by a permit under regulation 11.
(3) A person contravenes this subregulation if:
(a) the person (whether or not in Australia, and whether or not an Australian citizen) uses the services of an Australian ship or an Australian aircraft in the course of, or for the purpose of, providing a sanctioned service; and
(b) the sanctioned service is not an authorised service under subregulation (6).
(4) A body corporate contravenes this subregulation if:
(a) the body corporate has effective control over the actions of another body corporate or entity, wherever incorporated or situated; and
(b) the other body corporate or entity provides a sanctioned service; and
(c) the sanctioned service is not an authorised service under subregulation (6).
(5) Section 15.1 of the Criminal Code (Extended geographical jurisdiction—category A) applies to an offence under section 27 of the Act that relates to a contravention of subregulation (1), (3) or (4).
Note: Subregulation (5) has the effect that the offence has extraterritorial operation.
(6) An authorised service is a sanctioned service that is authorised by:
(a) a permit under regulation 11; or
(b) for a service provided in or from a foreign country—a permit:
(i) granted by the foreign country; and
(ii) properly granted by the foreign country; and
(iii) granted in accordance with the foreign country’s obligations under resolutions relating to Somalia, as existing from time to time.
Note: Resolutions relating to Somalia could in 2021 be viewed on the United Nations’ website (http://www.un.org).
(7) A defendant to a charge under section 27 of the Act that relates to subregulation (1), (3) or (4) bears an evidential burden in relation to the matter in subparagraph (6)(b)(i).
Note: See section 13.3 of the Criminal Code.
(8) For an offence under section 27 of the Act that relates to subregulation (1), (3) or (4), a permit is taken not to have been properly granted for subparagraph (6)(b)(ii) if the prosecution shows that the permit was granted on the basis of:
(a) false or misleading information provided by any person; or
(b) corrupt conduct by any person.
Note: This regulation is specified as a UN sanction enforcement law in the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008.
11 Permit to provide a sanctioned service
(1) A person may apply to the Minister for a permit to provide a sanctioned service.
(2) The Minister may grant the permit only if the sanctioned service is one of the following:
(a) a service consisting of advice, assistance or training intended solely for the development of the Somali National Security Forces, to provide security for the Somali people;
(b) a service consisting of advice, assistance or training intended solely for the purposes of helping develop Somali security sector institutions other than those of the Federal Government of Somalia, to provide security for the Somali people:
(i) of which the Committee was notified by the supplying Member State or organisation and did not, within 5 working days after receiving the notification, make a negative decision; and
(ii) of which the Federal Government of Somalia was informed by the supplying Member State or organisation, in parallel with the notification to the Committee and within 5 working days in advance of the provision of the service;
(c) a service consisting of advice, assistance or training intended solely for the support of, or use by, any of the following:
(i) United Nations personnel, including UNSOM;
(ii) AMISOM;
(iii) AMISOM’s strategic partners, operating solely under the latest African Union Strategic Concept of Operations and in cooperation and coordination with AMISOM;
(iv) the EUTM in Somalia;
(g) a service consisting of technical assistance provided at the request of Somalia or a nearby coastal State to enhance the capacity of Somalia or the nearby coastal State to ensure coastal or maritime security, including combating piracy or armed robbery at sea off the Somali and nearby coastlines.
Note: For paragraph (g), see paragraphs 5 and 12 of Resolution 1846.
(3) A notice to the Committee mentioned in subregulation (2) must include all relevant information about the service, in accordance with the following:
(a) resolutions relating to Somalia, as existing from time to time;
(b) the Guidelines of the Committee for the Conduct of its Work, as in force from time to time.
Note: Resolutions relating to Somalia, and the Guidelines, could in 2021 be viewed on the United Nations’ website (http://www.un.org).
(4) The permit is subject to any conditions specified in the permit.
Note: Section 13A of the Act applies to a permit granted under this regulation.
Division 2.2—Sanctions relating to designated person or entity
12 Prohibitions relating to a prohibited supply or prohibited service to a designated person or entity
(1) A person contravenes this subregulation if the person:
(a) makes a prohibited supply to a designated person or entity; or
(b) provides a prohibited service to a designated person or entity.
(2) A body corporate contravenes this subregulation if:
(a) the body corporate has effective control over the actions of another body corporate or entity, wherever incorporated or situated; and
(b) the other body corporate or entity:
(i) makes a prohibited supply to a designated person or entity; or
(ii) provides a prohibited service to a designated person or entity.
(3) Section 15.1 of the Criminal Code (Extended geographical jurisdiction—category A) applies to an offence under section 27 of the Act that relates to a contravention of subregulation (1) or (2).
Note 1: Subregulation (3) has the effect that the offence has extraterritorial operation.
Note 2: This regulation is specified as a UN sanction enforcement law in the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008.
13 Prohibitions relating to dealings with designated persons or entities
(1) A person contravenes this subregulation if:
(a) the person directly or indirectly makes an asset available to, or for the benefit of, a designated person or entity; and
(b) the making available of the asset is not authorised under subregulation (2).
(2) For paragraph (1)(b), the making available of the asset is authorised if it:
(a) is authorised by a permit under regulation 15; or
(b) consists of the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia by any of the following:
(i) the United Nations, or a specialised agency or program of the United Nations;
(ii) a humanitarian organisation having observer status with the United Nations General Assembly that provides humanitarian assistance;
(iii) an implementing partner of an organisation mentioned in subparagraph (ii), including a bilaterally or multilaterally funded non‑governmental organisation participating in the United Nations Humanitarian Response Plan for Somalia.
(3) For an offence under section 27 of the Act that relates to a contravention of subregulation (1) by an individual, strict liability applies to the circumstance that the making available of the asset is not authorised by a permit under regulation 15.
(4) Section 15.1 of the Criminal Code (Extended geographical jurisdiction—category A) applies to an offence under section 27 of the Act that relates to a contravention of subregulation (1).
Note: Subregulation (4) has the effect that the offence has extraterritorial operation.
(5) For the purpose of determining the matter in paragraph (2)(b), regard may be had to advice, an opinion or a recommendation given or made by the Committee.
Note: This regulation is specified as a UN sanction enforcement law in the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008.
14 Prohibitions relating to controlled assets
(1) A person contravenes this subregulation if:
(a) the person holds a controlled asset; and
(b) the person:
(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 the dealing with the asset; and
(c) the use of or dealing with the asset is not authorised under subregulation (2).
(2) For paragraph (1)(c), the use of or dealing with the asset is authorised if it:
(a) is authorised by a permit under regulation 15; or
(b) consists of the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia by any of the following:
(i) the United Nations, or a specialised agency or program of the United Nations;
(ii) a humanitarian organisation having observer status with the United Nations General Assembly that provides humanitarian assistance;
(iii) an implementing partner of an organisation mentioned in subparagraph (ii), including a bilaterally or multilaterally funded non‑governmental organisation participating in the United Nations Humanitarian Response Plan for Somalia.
(3) For an offence under section 27 of the Act that relates to a contravention of subregulation (1) by an individual, strict liability applies to the circumstance that the use of or dealing with the asset is not authorised by a permit under regulation 15.
(4) Section 15.1 of the Criminal Code (Extended geographical jurisdiction—category A) applies to an offence under section 27 of the Act that relates to a contravention of subregulation (1).
Note: Subregulation (4) has the effect that the offence has extraterritorial operation.
(5) For the purpose of determining the matter in paragraph (2)(b), regard may be had to advice, an opinion or a recommendation given or made by the Committee.
Note: This regulation is specified as a UN sanction enforcement law in the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008.
15 Permit for assets or controlled assets
(1) A person may apply to the Minister for a permit authorising:
(a) the making available of an asset that would otherwise contravene subregulation 13(1); or
(b) a use of, or dealing with, a controlled asset that would otherwise contravene subregulation 14(1).
(2) The application must be for one of the following:
(a) a basic expense dealing;
(b) a legally required dealing;
(c) a contractual dealing;
(d) an extraordinary expense dealing.
Note: For the definitions of basic expense dealing, legally required dealing, contractual dealing and extraordinary expense dealing, see regulation 5 of the Charter of the United Nations (Dealing with Assets) Regulations 2008.
(3) The application must state which kind of dealing the application is for.
(4) If the application is for a basic expense dealing, the Minister:
(a) must give the Committee notice of the application; and
(b) may grant the permit only if the Committee does not make a negative decision in relation to the application within 3 working days after the notice is given.
(5) If the application is for a legally required dealing, the Minister may grant the permit only after giving the Committee notice of the application.
(6) If the application is for a contractual dealing, the Minister may grant the permit.
(7) If the application is for an extraordinary expense dealing, the Minister:
(a) must give the Committee notice of the application; and
(b) may grant the permit only with the Committee’s approval.
(8) The permit is subject to any conditions specified in the permit.
Note 1: Section 13A of the Act applies to a permit granted by the Minister under this regulation.
Note 2: Part 2 of the Charter of the United Nations (Dealing with Assets) Regulations 2008 applies to these Regulations.
Division 2.3—Sanctioned imports
15A Prohibitions relating to import sanctioned goods
(1) A person contravenes this regulation if the person procures import sanctioned goods from Somalia or from a person or entity in Somalia.
(2) A body corporate contravenes this regulation if:
(a) the body corporate has effective control over the actions of another body corporate or entity, wherever incorporated or situated; and
(b) the other body corporate or entity procures import sanctioned goods from Somalia or a person or entity in Somalia.
Note: This regulation is a UN sanction enforcement law as specified by the Minister under the Charter of the United Nations (UN Sanction Enforcement Law) Declaration 2008.
Part 3—Miscellaneous
16 Delegations by Minister
(1) The Minister may delegate the Minister’s powers and functions under these Regulations (other than this power of delegation) to:
(a) the Secretary of the Department; or
(b) an SES employee, or acting SES employee, in the Department.
(2) The delegation must be in writing.
(3) The delegate must comply with any directions of the Minister in exercising powers or functions under the delegation.
Division Division 2.1 - Charter of the United Nations (Sanctions — Somalia) Regulations 2008 - Sanctioned supply and sanctioned services to Somalia | Zoe