Australia's Implementation of United Nations Security Council Financial Sanctions

A number of UNSC resolutions oblige UN Member States to:

• freeze the funds, other financial assets and economic resources which are on their territories that are owned or controlled by persons or entities designated by the UNSC for this purpose (sanctions designated persons or entities); and
• ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any persons or entities within their territories, to or for the benefit of sanctions designated persons or entities.

These measures apply to the following UNSC sanctions regimes:

• Al-Qaida and the Taliban (wherever located)
• Côte d’Ivoire
• Democratic Peoples Republic of Korea
• Democratic Republic of the Congo
• Eritrea
• Iran
• Iraq
• Lebanon
• Liberia
• Libya
• Sudan
• Somalia

In addition, the UNSC has established a terrorist asset freezing regime, by obliging UN Member States to apply the above measures to: persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; to entities owned or controlled directly or indirectly by such persons; and to persons and entities acting on behalf of, or at the direction of such persons and entities. Unlike the UN sanctions regimes above, the UNSC does not designate persons and entities for the purpose of the terrorist asset freezing regime.

In Australia, financial measures under UN sanctions regimes and the terrorist asset freezing regime are implemented by making it a criminal offence, under Charter of the United Nations Act (the Act) and country/entity-specific regulations made under the Act, for an Australian or any person in Australia to:

• use or deal with funds, other financial assets and economic resources that are owned or controlled by sanctions designated persons or entities; or
• give funds, financial assets or economic resources to sanctions designated persons or entities.

The penalty for these offences is:

• for individuals, a maximum 10 years’ imprisonment and a fine the greater of $275,000 or three times the transaction value; and
• for bodies corporate, a fine the greater of $1.1 million or three times the transaction value (the offence is a strict liability offence for bodies corporate)

In relation to the UN terrorist asset freezing regime, the measures apply to persons and entities designated by the Minister for Foreign Affairs as meeting the definition set by the UNSC.

Information on persons and entities designated under UNSC sanctions regimes

Al-Qaida and the Taliban (wherever located)

Persons or entities designated by the UNSC as being subject to financial sanctions in relation to Al-Qaida and the Taliban are:

• Al-Qaida;
• Usama bin Laden;
• the Taliban;
• other individuals, groups, undertakings and entities associated with them

In addition, the obligation extends to any funds derived from property owned or controlled by persons acting on behalf of, or at the direction of, these designated persons or entities.

Côte d’Ivoire

Persons or entities designated by the UNSC as being subject to financial sanctions in relation to Côte d’Ivoire are persons (and any entities owned or controlled directly or indirectly by any persons acting on the behalf of or at the direction of such persons) determined to be, among other things:

• a threat to the peace and national reconciliation process in Côte d’Ivoire, in particular by blocking the implementation of the peace process as referred to in resolution 1721 (2006);
• attacking or obstructing the action of UNOCI, of the French forces which support it, of the High Representative for the Elections, of the IWG, of the Mediator or his representative in Côte d’Ivoire;
• responsible for obstacles to the freedom of movement of UNOCI and of the French forces which support it;
• responsible for serious violations of human rights and international humanitarian law committed in Côte d’Ivoire;
• inciting publicly hatred and violence;
• acting in violation of the measures imposed by paragraph 7 of resolution 1572 (2004) (prohibition on the direct or indirect supply, sale or transfer to Côte d’Ivoire of arms or any related materiel, in particular military aircraft and equipment, as well as the provision of any assistance, advice or training related to military activities).

Democratic People’s Republic of Korea

Persons or entities designated by the UNSC as being subject to financial sanctions in relation to the Democratic People’s Republic of Korea (DPRK) are persons and entities being engaged in or providing support for, including through other illicit means, DPRK’s nuclear-related, other weapons of mass destruction-related and ballistic missile related programs.

Democratic Republic of the Congo

Persons or entities designated by the UNSC as being subject to financial sanctions in relation to the Democratic Republic of the Congo (DRC) are persons (and entities owned or controlled, directly or indirectly, by any persons acting on behalf of or at the direction of such persons) acting in violation of the prohibition against the direct or indirect supply, sale or transfer of arms and any related materiel, and the provision of any assistance, advice or training related to military activities, to any recipient in the territory of the DRC.

Eritrea

Persons or entities designated by the UNSC as being subject to financial sanctions in relation to Eritrea are persons or entities that violate the arms embargo against Eritrea, or provide support from Eritrea to armed opposition groups which aim to destabilize the region, or obstruct the implementation of resolution 1862 (2009) concerning Djibouti, or harbour, finance, facilitate, support, organize, train, or incite individuals or groups to perpetrate acts of violence or terrorist acts against other States or their citizens in the region, or obstruct the investigations or work of the Monitoring Group.

Iran

Persons or entities designated by the UNSC as being subject to financial sanctions in relation to Iran are persons or entities engaged in, directly associated with or providing support for Iran’s proliferation sensitive nuclear activities or the development of nuclear weapon delivery systems, or who have assisted designated persons or entities in evading sanctions of, or in violating the provisions of, Resolutions 1737 (2006), 1747 (2007) or 1803 (2008).

In addition, the obligation extends to persons or entities who have not been designated by the UNSC, but who are acting on behalf of, or at the direction of, sanctions designated persons or entities; as well as to entities owned or controlled by sanctions designated persons or entities, including through illicit means.

Iraq

The obligation to freeze assets under UNSC resolutions concerning Iraq relates to funds or other financial assets or economic resources of the previous Government of Iraq or its state bodies, corporations, or agencies, located in Australia, as well as funds or other financial assets or economic resources that have been removed from Iraq, or acquired, by persons or entities designated by the UNSC in relation to Iraq.

Persons or entities designated by the UNSC in relation to Iraq are Saddam Hussein, other senior officials of the former Iraqi regime and their immediate family members, as well as entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction.

The purpose of this asset freeze is the return of the funds or other financial assets or economic resources referred to above to the Development Fund for Iraq. The financial sanctions regime in relation to Iraq is the only one not to impose an obligation to prevent assets being made available to designated persons or entities.

Lebanon (no designations to date)

Persons designated by the UNSC as being subject to financial sanctions in relation to Lebanon are persons designated by the International Independent Investigation Commission or the Government of Lebanon as suspected of involvement in the planning, sponsoring, organizing or perpetrating of this terrorist act, upon notification of such designation to and agreement of the Committee established pursuant to the sanctions regime in relation to Lebanon.

Liberia

Persons or entities designated by the UNSC as being subject to financial sanctions in relation to Liberia are former Liberian President Charles Taylor, his immediate family members, in particular Jewell Howard Taylor and Charles Taylor, Jr., senior officials of the former Taylor regime, or other close allies or associates, as well as entities owned or controlled, directly or indirectly, by a sanctions designated individual or by any person acting on behalf of, or at the direction of, a sanctions designated individual. The purpose of the asset freeze is to prevent from using misappropriated funds and property to interfere in the restoration of peace and stability in Liberia and the sub-region.

Libya

Persons or entities designated by the UNSC as being subject to financial sanctions in relation to Libya are persons or entities involved in, or complicit in ordering, controlling, or otherwise directing, the commission of serious human rights abuses against persons in the Libyan Arab Jamahiriya, including by being involved in, or complicit in planning, commanding, ordering or conducting, attacks in violation of international law, including aerial bombardments on civilian populations and facilities. The asset freeze extends to persons or entities acting for or on behalf of or at the direction of designated persons or entities.

Somalia

Persons or entities designated by the UNSC as being subject to financial sanctions in relation to Somalia are persons or entities engaging in or providing support for acts that threaten the peace, security or stability of Somalia, including acts that threaten the Djibouti Agreement of 18 August 2008 or the political process, or threaten the TFIs or AMISOM by force. Designated persons or entities are also those that have acted in violation of the general and complete arms embargo in relation to UNSC sanctions in relation to Somalia, and who obstruct the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia.

Sudan

Persons designated by the UNSC as being subject to financial sanctions in relation to Sudan are persons who impede the peace process, constitute a threat to stability in Darfur and the region, commit violations of international humanitarian or human rights law or other atrocities, violate the measures implemented by Member States pursuant to resolutions 1556 and 1591, or are responsible for offensive military overflights described in resolution 1591.

In addition, the obligation extends to funds held by entities owned or controlled, directly or indirectly, by designated persons or by persons acting on behalf of or at the direction of sanctions designated persons.

UN Security Council sanctions relating to terrorism

On 28 September 2001, in response to the 11 September terrorist attacks in the United States, the UNSC adopted resolution 1373 (2001) [PDF], imposing a series of obligations on UN Member States to suppress terrorism.

Sub-paragraphs 1(c) and (d) of resolution 1373 oblige Member States to:

• (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist 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 and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;
• (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist 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; Unlike other financial sanctions regimes, the UNSC does not have a centralised list of persons and entities to which resolution 1373 applies and has left Member States to determine for themselves who such persons and entities are.

Australia implements resolution 1373 through Part 4 of the Charter of the United Nations Act 1945 (“the Act”) and through regulation 20 of the Charter of the United Nations (Dealing with Assets) Regulations 2008 (“the 2008 Regulations”). The Minister for Foreign Affairs must list a person or entity on a case-by-case basis if he or she is satisfied on reasonable grounds that the person or entity is associated with terrorism as described in sub-paragraph 1(c) of resolution 1373. These names are listed in the Commonwealth Gazette and it becomes a criminal offence to deal with their assets or to make assets available to them. These names are also included on DFAT's Consolidated List [Excel 1.1 MB].

Information for Asset Holders

What is the Consolidated List?

Consistent with regulation 40 of the 2008 Regulations, DFAT maintains a Consolidated List (Excel - 1.1 MB) of all persons and entities to which the Act currently applies.

Can I be notified of changes to the Consolidated List?

Any person who is engaged in the business of holding, dealing in, or facilitating dealing in assets, can subscribe for notice of updates to the Consolidated List.

Email address:

Once joined, you will receive an email confirmation of your inclusion on the mailing list.

If you are already subscribed to the mailing list you can unsubscribe.

Your email address will only be used for the purpose of receiving updates to the Consolidated List. We will not use your email address for any other purpose or share it without your consent. For more information see our privacy statement.

What is the LinkMatchLite software?

The LinkMatchLite software is designed to assist asset holders in finding possible matches between their clients and names on the Consolidated List. Before using this software, users should note: the important licence information in the manual; that this is only one method and will miss some variations; that it requires input data in a specific format; that the internal lists are only valid until superceded; and that users must agree to the conditions of use. If you want a copy of this software, email us at asset.freezing@dfat.gov.au and we will direct you to the download site.

What do I do if I find a match?

Asset holders are under an obligation to freeze the assets or economic resources of persons involved in terrorism as listed in the Consolidated List. As it may not always be clear whether there is, in fact, a direct match, asset holders may, pursuant to Regulation 41 of the 2008 Regulations, request the assistance of the Australian Federal Police (AFP) to determine whether or not the asset is in fact owned or controlled by a proscribed person or entity.

To facilitate this process, a referral process has been agreed between DFAT, the AFP and asset holders represented by the Australian Bankers' Association and the major banks. The relevant Referral Form to the AFP can be downloaded, printed and filled out with:

• as much information about the asset (including information about the owner or controller) as is known to the asset holder, and
• asset holder contact details

The referral form should be sent to the AFP at the following address:

AFP Operations Coordination Centre
e-mail: AOCC-Liaison-Ops-Support@afp.gov.au
Fax: (02) 6126 7900
Phone: (02) 6126 7555

Compensation

The Charter of the United Nations Act 1945 indemnifies asset holders against claims by asset owners where they take action in good faith and without negligence in purported compliance with the Act (section 24 (RTF)). Owners of assets are instead entitled to seek compensation from the Commonwealth where they suffer loss as a result of their assets being wrongly frozen (section 25 (RTF)). For example, if a bank freezes the funds in a person’s account in the mistaken but honest belief that the person is a listed person or entity, that person may be entitled to compensation from the Commonwealth for any loss he or she suffers as a result.

When is compensation available?

Compensation is available to the owner of an asset where the holder of the asset refuses, in good faith and without negligence, to deal with the asset in accordance with the owner's instructions, on the basis that the asset is a freezable asset when it is not in fact a freezable asset.

Specifically, section 25 (RTF) provides that if:

1. the owner or controller of an asset instructs a person holding the asset to use or deal with it; and
2. the holder refuses to comply with the instruction; and
3. the refusal was in good faith, and without negligence, in purported compliance with this Part; and
4. the asset was not a freezable asset; and
5. 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.

Claims

Owners of assets who believe they have suffered a loss in such circumstances may lodge a claim with the Department of Foreign Affairs and Trade. All claims should be in the form of a declaration made pursuant to the Statutory Declarations Act 1959 (Cth.) and include any evidence of the following:

1. the name, contact details and, where relevant, Australian Business Number of the asset owner, controller and holder;
2. the basis under which the asset holder held the asset on behalf of the asset owner or controller;
3. that the owner or controller was the owner or controller of the asset in question at all relevant times, or as the case may be;
4. that the asset was held by the asset holder at all relevant times, or as the case may be;
5. the relevant instruction(s) to the asset holder to use or deal with the asset;
6. that the asset holder refused to comply with those instructions;
7. the refusal was in good faith, and without negligence, in purported compliance with the Charter of the United Nations Act 1945;
8. that the asset was not a freezable asset;
9. that a loss was suffered by the asset owner as a result of the refusal of the asset holder to comply with the relevant instructions; and
10. the amount of the loss suffered (including details of loss and method of calculation).

Claims should be accompanied by consent to contact the relevant asset holder or controller for confirmation of the circumstances of the claim.

Claim Lodgement

Claims should be addressed to:

Director
Sanctions and Transnational Crime Section
International Legal Branch
Department of Foreign Affairs and Trade
R.G Casey Building
John McEwen Crescent
Barton ACT 0221

Information for listed persons and entities

A listed person or entity may apply to the Minister for Foreign Affairs to have the listing revoked. The application must be in writing and set out the circumstances relied upon to justify the application.

Applications may be submitted in writing to

The Minister for Foreign Affairs
Attention Director, Sanctions and Transnational Crime Section
Department of Foreign Affairs and Trade
John McEwen Crescent
Barton ACT 0221
AUSTRALIA

or by email to: asset.freezing@dfat.gov.au

Application to use or deal with frozen assets, etc

The owner or holder of a frozen asset may apply in writing to the Minister for Foreign Affairs for permission to use or deal with the asset in a specified way.

The owner or holder of any asset may apply in writing to the Minister for Foreign Affairs for permission to make the asset available to a listed person or entity specified in the application.

The application must specify the kind of dealing for which permission is sought.

The categories of permissible dealings are:

• a basic expense dealing (such as for foodstuffs, rent or mortgage, medicines or medical treatment, taxes, insurance premiums, public utility charges, reasonable professional fees, reimbursement of expenses associated with the provision of legal services, etc.);
• a contractual dealing (such as interest or other earnings due on frozen accounts; or payments from frozen accounts that are required under contracts, agreements or obligations made before the date on which those accounts became frozen); or
• an extraordinary expense dealing (any other kind of dealing not covered by the above).

Applications to use or deal with frozen assets, or to make assets available to listed persons or entities, must be made using the Online Sanctions Administration System (OSAS).